Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
account” of the “safety and conduct” rules of the state of conduct. However, as
discussed later, this provision offers only limited relief.
A more nuanced escape clause would soften the common-domicile rule and
produce more rational results, not only in the above cases, but also in other
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exceptional cases, or in cases in which that rule adversely affects the rights of third
parties. The latter problem is illustrated by two hypotheticals. The first involves a
single-car accident in Portugal caused in part by faulty road conditions and resulting
in injury to the car’s Spanish passenger. The passenger sues the local Portuguese
authority responsible for maintaining the road, and the authority then impleads the
car’s Spanish driver for contribution and indemnification for his fault in the accident.
The driver and passenger are married to each other and Spanish, but not Portuguese,
law prohibits interspousal suits. In such a case, one could argue that the local
authority’s claim for contribution falls outside the scope of the common-domicile
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rule, but if the argument fails, the only way to avoid Spanish law would be by
stretching the wording of the “closer connection” escape. In the second hypothetical
the local authority is not involved, the car was rented in Portugal, and the laws are
reversed so that Portuguese, but not Spanish, law prohibits interspousal lawsuits. The
injured passenger sues the driver and the car’s insurer invoking Spanish law, while the
insurer denies coverage invoking Portuguese law. Again, if the insurer’s obligation for
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coverage falls within the scope of the common-domicile rule, then the only way to
avoid Spanish law would be through the difficult road of employing the “closer
connection” escape.
In conclusion, while both the adoption of the common-domicile rule and the
inclusion of an escape clause in Article 4 are significant steps in the right direction,
both the rule and the escape would have benefitted from more nuanced drafting. In the
132. A case like Schultz v. Boy Scouts of America, 480 N.E.2d 679 (N.Y. 1985), is arguably such an
exceptional case. Schultz involved a suit by New Jersey parents against a New Jersey charitable
corporation for injury resulting from a sexual molestation of the plaintiffs’ child by one of
defendant’s employees in New York. Invoking the common-domicile rule, the New York Court
of Appeals applied New Jersey charitable immunity law, denying recovery.
133. The argument would be based in part on art. 20 of Rome II, which provides that, if a creditor
has a claim against several debtors who are “liable for the same claim,” the question of that
debtor’s right to demand compensation from the other debtors “shall be governed by the law
applicable to that debtor’s non-contractual obligation towards the creditor.”
134. The pertinent Rome II articles for answering this question are art. 18 & 19. Art. 18 is not
particularly helpful, except perhaps indirectly, because it only applies to the victim’s right to
“directly” sue the tortfeasor’s insurer (i.e., without joining the tortfeasor) and not to the merits
of the suit. The article allows the victim to chose between the law governing the insurance
contract and the law governing the tort. Art. 19 provides that, when a creditor has a noncontractual
claim against a debtor, and a third person has a duty to satisfy the creditor, “the law
which governs the third person’s duty to satisfy the creditor shall determine whether . . . the
third person is entitled to exercise against the debtor the rights which the creditor had against
the debtor under the law governing their relationship.”
56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 30 OF 46