Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
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the law of that country applies to the exclusion of the lex loci. This exception is
repeated in Article 5 on product liability, Article 6 on unfair competition cases in
which the competition affects “exclusively” the interests of a specific competitor, 105
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and Article 9 on industrial action. In contrast, this exception does not apply to other
unfair competition cases, cases falling within Article 7 on environmental torts, or
Article 8 on infringement of intellectual property rights. One can infer that the reason
for this exclusion is an implicit recognition that cases involving the latter categories
of cases implicate broader societal interests that go beyond the interests of the
litigants.
In adopting the common-domicile exception, Rome II joins the majority of
recent PIL codifications and international conventions in accepting the premise that
when both the tortfeasor and the victim are affiliated with the same state or state
(through nationality, domicile, or habitual residence) that state has the best claim to
determine their respective rights and obligations, even if the tort occurred entirely in
another state. This notion is implemented either through a common-domicile rule (as
in the codifications of Louisiana, Puerto Rico, Switzerland, Quebec, Belgium, and the
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Hague Convention on Products Liability), or through an exception from the lex loci
rule. The exception is phrased either in common-domicile or common-habitual
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residence language (as in the Dutch, German, and Hungarian codifications), or in
common-nationality language (as in the Italian, Polish, and Portuguese
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codifications).
Article 4(2) also mirrors parallel developments in the United States. As
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documented elsewhere, 32 of the 42 cases decided since the 1960s in which an
104. Art. 13 provides that the habitual residence of companies and other corporate or unincorporated
bodies is the place of their central administration and, for injuries caused or sustained in the
course of operation of a branch, the place where the branch is located. Art. 13 also provides that
the habitual residence of a natural person acting in the course of his or her business activity is
his or her principal place of business.
105. ROME II, art. 6(2).
106. This escape is also repeated in the art. 10-12, dealing with unjust enrichment, negotiorum
gestio, and culpa in contrahendo, which are not discussed here. However, the escape becomes
operable only if the primarily applicable law “cannot be determined.”
107. See LA. CIV. CODE ANN. art. 3544(1); PUERTO RICO DRAFT CODE art. 47(a); SWISS PIL ACT,
art. 133; QUEBEC CIV. CODE, art. 3126; BELGIAN PIL CODE, art. 99 (1); HAGUE PRODUCTS
LIABILITY CONVENTION, art. 5.
108. See DUTCH PIL ACT, art. 3(3); EGBGB art. 40(2); HUNGARIAN PIL DECREE § 32(3).
109. See ITALIAN PIL ACT, art. 62; POLISH PIL ACT, art. 31(2); PORTUGUESE CIV. CODE, art. 45. For
an exception that displaces the lex loci when the parties have either a common nationality or a
common habitual residence, see CHINA’S MODEL DRAFT LAW OF PIL, art. 114 (6th Draft 2002).
110. For citations and discussion, see SYMEONIDES, THE CHOICE-OF-LAW REVOLUTION 145-59;
EUGENE SCOLES, PETER HAY, PATRICK BORCHERS & SYMEON C. SYMEONIDES, CONFLICT OF
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