Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
phrased in global terms, it would mandate the application of Austrian law to all
aspects of the case. This problem is made worse when, as in the Italian, Quebec, and
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Polish codifications, the rule is not subject to any escapes. Rome II’s rule is subject
to two escapes: the “closer connection” clause of Article 4(3), and the possibility that
the court may “take account” of the “safety and conduct” rules of the conduct state
under Article 17. Unfortunately, as explained below, these escapes are not easily
deployable.
From a different perspective, the common-domicile rule of Rome II is too
narrow in that it applies only when the parties are domiciled in the same state but not
when they are domiciled in different countries that have the same laws. The better
view is that the latter cases are functionally analogous to common-residence cases and
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should be treated accordingly. Suppose, for example, that while hunting in Kenya,
a French hunter injures a Belgian hunter with whom he has no pre-existing
relationship. Suppose that French and Belgian law provide the same amount of
compensation, which is much higher than that provided by Kenya. This is the classic
false conflict in which Kenya has no interest in applying its low recovery law. In such
a case, there is no reason to apply Kenyan law and every good reason to apply either
Belgian or French law. Yet, Article 4(1) of Rome II mandates the application of
Kenyan law, and, unfortunately, none of Rome II’s exceptions to the lex loci rule
would be operable in this case.
C. The General Escape
Paragraph 3 of Article 4 provides an escape from both the lex loci rule of
paragraph 1 and the common-residence rule of paragraph 2. Echoing similar escapes
113. See ITALIAN PIL ACT, art. 62(2); QUEBEC CIV. CODE, art. 3126(2); POLISH PIL ACT, art. 31(2).
114. The Louisiana codification provides that “[p]ersons domiciled in states whose law on the
particular issue is substantially identical shall be treated as if domiciled in the same state.” LA.
CIV. CODE ANN. Art. 3544(1). This legal fiction, which is particularly useful in cases with
multiple victims or defendants, enables a court to resolve these false conflicts by applying the
law of the domicile of either party, unless the general escape clause of the codification dictates
a different result. For pertinent discussion, see Symeon C. Symeonides, Louisiana’s New Law
of Choice of Law for Tort Conflicts: An Exegesis, 66 TUL. L. REV. 677, 759-63 (1992). The
American Law Institute has recommended a similar rule for mass tort cases. See AMERICAN
LAW INSTITUTE, COMPLEX LITIGATION: STATUTORY RECOMMENDATIONS AND ANALYSIS §
6.01(c)(2) & (3) (1994). In addition, in certain cases involving corporate tortfeasors, the
Louisiana common-domicile rule is subject to further expansion, or contraction, through art.
3548, which provides that a juridical person that is domiciled outside the forum state but
transacts business in that state and incurs a delictual obligation arising from such activity may
be treated as a domiciliary of that state, if such treatment is appropriate under the principles of
art. 3542.
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