Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

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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
SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS avoid the application of French law because the connection with England (which Article 4(1) a priori condemns to a state of insignificance) will probably not qualify as “manifestly” closer than the connection with France. The same would be true with other issues affecting the victim’s recovery. Suppose, for example, that the avalanche caused the death of one of the English tourists, and one of the issues in the case is who is entitled to compensation for his wrongful death. Suppose that French law provides that compensation is due to the victim’s surviving spouse and children together, whereas English law provides that compensation is due to the surviving spouse to the exclusion of the children. Under Article 4(1), the applicable law shall be the law of the country in which “the damage occurs” (France) “irrespective of the country or countries in which the indirect consequences of that event occur” (England). Article 15 reiterates that in such a case, French law will apply to virtually all issues likely to arise in tort litigation, including “[which] persons [are] entitled to compensation” and “whether a right to claim damages or a remedy may be transferred, including by 131 inheritance.” Yet England is the country most intimately involved and has the best claim to apply its law to this issue. Rules designating the beneficiaries of a wrongful death action reflect a society’s assumptions regarding how a person’s death impacts his survivors and which of his survivors are likely to have the highest need for compensation. These assumptions and value judgments belong to the society in which the victim lived, not to the society in whose territory the injury occurred. In Rome II’s terminology, England is “manifestly more closely connected” with regard to the issue of wrongful death beneficiaries, even if its connections with regard to other issues may not be the closest. Yet, the phrasing of the escape clause does not permit this focus on the specific issue, and therefore does not allow a court to cure the rule’s deficiency. Similar problems are encountered in employing the “manifestly closer connection” escape to cases falling within the scope of the common-domicile rule, especially those in which, as noted earlier, that rule is either too broad or too narrow. In the case of the French traffic accident involving two Austrians, one could argue that, with regard to issues of conduct and safety, France has a “manifestly closer connection” than Austria, and thus French law should govern. The problem with this otherwise sound argument is that it runs against the restrictive and holistic wording of the escape, which does not allow an issue-by-issue analysis and instead speaks of the whole “tort/delict,” as opposed to certain aspects of it, as being more closely connected with another country. This wording makes it difficult to argue that the entire tort is more closely connected with France, while also being governed by the law of Austria. The same problem exists in the case of the Kenyan hunting accident involving the French and Belgian hunters. Because the escape is worded in geographical terms, and the hunters are not domiciled in the same country, geography would work in favor of, not against, the lex loci. One provision that can help in the French, but not the Kenyan, accident case is Article 17, which allows a court to “take 131. ROME II, art. 15 (f) & (e). 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 29 OF 46
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