Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
American court of last resort abandoned the lex loci rule involved the commondomicile
pattern. Subsequently, an additional 18 common-domicile cases have
reached the highest courts of the states that had previously abandoned the lex loci rule,
thus raising to 50 the total number of common-domicile cases that have reached state
supreme courts in the post-lex loci era. Of these 50 cases, 44 cases (or 88%) have
applied the law of the common domicile, regardless of the particular choice-of-law
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methodology the court followed. The majority of these cases (35 out of 50) involved
the Babcock v. Jackson pattern in which the law of the common domicile favors
recovery more than the law of the state of conduct and injury. These cases present the
classic false conflict paradigm in which only the state of the common domicile has an
interest in applying its law. The remaining cases involved the converse-Babcock
pattern in which the law of the common-domicile prohibits or limits recovery more
than the law of the state of conduct and injury. These cases are not as clear false
conflicts as Babcock was because the accident state arguably has an interest in
applying its law to compensate those injured in its territory and to facilitate recovery
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of local medical costs. On balance, however, the application of the law of the
common domicile in both the Babcock pattern and its converse is entirely justified.
In this sense, a common-domicile rule that does not depend on the content of the law
of the common domicile (i.e., a jurisdiction-selecting rule) is generally preferable to
any other iteration.
It is important to stress, however, that all of the above American cases
involved conflicts between “loss-allocation” or “loss-distribution” rules, as opposed
to “conduct-regulation” rules. In contrast, the common-domicile rule of Rome II is
much broader in that it encompasses not only loss-distribution issues, but also
conduct-regulation ones. This is a serious defect. As a general proposition, a state has
an interest in enforcing its conduct-regulating rules even if neither the violator nor the
victim is domiciled in that state, and even if both parties are domiciled in the same
foreign state. For example, an Austrian motorist involved in a French accident may
not claim exemption from French traffic rules, and if injured by conduct that violates
these rules, France may not deny her the benefit of their protection. Even if both
parties are domiciled in Austria, France has the exclusive claim to apply its law to the
conduct-regulating aspects of the case. These aspects are not limited to rules of public
law or pure traffic rules such as speed limits and red lights; they also extend to rules
that impose civil liability to violations of traffic rules or attach presumptions and
inferences of fault that arise from certain violations, such as not maintaining sufficient
distance from the preceding car. Because the common-domicile rule of Rome II is
110. (...continued)
LAWS, 799-806 (4th ed. 2004).
111. The six cases that applied another law are distinguishable, overruled, or discredited. See
SYMEONIDES, THE CHOICE-OF-LAW REVOLUTION, 149 n.17, 152-54.
112. See id. at 154.
56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 23 OF 46