Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
an appropriate manner. 128
This recital is what survives from the rapporteur’s and Parliament’s efforts to
inject more flexibility into the text of the general rule of Rome II. As noted earlier, the
Council and Commission rebuffed these efforts and recital 14 is the resulting
compromise. While much of this recital is self-congratulatory and merely describes
the scheme of Rome II, the italicized phrases can be viewed as providing instruction
to courts on when and how to use the escape: to “treat individual cases in an
appropriate manner” and to “do justice in individual cases.” Thus, a court should
resort to the escape when the law designated as applicable by the general rule leads
to a result that is incompatible with “the need to do justice in individual cases.”
To be sure, one can object—and many will—to such a loose reading of the
escape as giving a licence for loose, ad hoc, subjective judging. While this danger is
real, it is worth the price. The alternative is a quantitative employment of the escape,
which will resolve only the easiest of conflicts. For example, a quantitative
employment of the escape will not resolve the aforementioned Kenyan hunting
accident case involving a French and a Belgian hunter, whereas an employment of the
escape with a view toward doing “justice in the individual case” would.
The second major problem with the escape is its failure to allow an issue-byissue
deployment and evaluation. As it is, the escape contemplates situations in which
the entire “tort/delict” is “manifestly” more closely connected with another country.
Paragraph 3 of Article 4 not only avoids using the dirty word “issue” but also avoids
(perhaps unintentionally) the phrase used in paragraph 1, which speaks of the law
129
applicable to “a non-contractual obligation arising out of a tort/delict.” Thus, the
escape does not even permit the court to look separately to the possibly multiple
obligations that may arise from the same facts, such as when (but not only) the case
130
involves multiple tortfeasors or victims. Instead, the phrasing of the escape forces
the court to only look at the tort as a whole. If the court finds that the tort as a whole
has a closer connection with another country, then the court is authorized to displace
the otherwise applicable law in its entirety and replace it with the law of that other
country. Thus, the escape is an “all or nothing” proposition; and therein lies its most
serious flaw.
This flaw will make the escape unavailable in all but the obvious cases. For
example, in the above snow avalanche hypothetical, it would be difficult to convince
a court that “the tort/delict” (as opposed to the specific issues of negligence per se or
damages limitations) is “manifestly” more closely connected with Switzerland. Even
if the victims’ domicile, England, also allowed unlimited damages, the court could not
128. ROME II, recital 14 (emphasis added).
129. ROME II, art. 4(1) (emphasis added).
130. See the EEC Draft Convention, supra at 20.
56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 28 OF 46