Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
To be sure, in some cases, the two objectives will lead to the same law. For
example, if the pre-existing relationship is a family relationship centered in state X,
then the law of that state will govern that relationship and, under the above quoted
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provision, the court may apply the same law to a related delictual obligation. If,
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however, the relationship is contractual, then there is no guarantee that the state in
which the relationship is centered will also be the state whose law will govern the
contract. For example, the contract may contain a choice-of-law clause stipulating for
the law of state Z, even if that state has a relatively tenuous but otherwise sufficient
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connection with the relationship. In such a case, the question is which, if any, of the
two states, X or Z, will be the candidate for the closer connection exception? Z cannot
be because, in this scenario, it does not have a close enough factual connection. On
the other hand, X has the factual connection, but the application of its law will defeat
the apparent purpose of this exception, which is to apply the same law to both the tort
and contract aspects of the case. 142
Finally, the main advantages of applying the same law to both the tort and
contract aspects of a dispute are practicality and simplicity. Obviously, these
advantages are not present when the particular dispute involves only tort issues. In
such a case, the rationale for this exception must be sought elsewhere, such as in the
ostensible expectations of the parties.
4. Compensation for Traffic Accident Victims
139. The same result can be obtained more directly through the common-residence rule of Paragraph
2. This illustrates that the above quoted sentence of Paragraph 3 is superfluous in most cases
in which the parties to the relationship are residents of the same state.
140. If the relationship is merely social rather than legal, as in Babcock v. Jackson in which the
parties where neighbors who drove together from New York to Ontario, it makes little sense to
say that the tort will be governed by the same law that governs the relationship because the
social relationship may not, as such, be governed by any law. However, it does make sense to
say that the tort will be governed by the law of the state in which the relationship was centered.
141. Under the Rome Convention, the choice of state Z law will be upheld unless “all the other
elements relevant to the situation at the time of the choice are connected with [another]
country.” Even then, the choice will be disregarded only to the extent it “prejudices the
application of rules of the law of that [other] country which cannot be derogated from by
contract.” ROME CONVENTION, art. 3(3) (emphasis added).
142. Another variation of this problem is when the contract contains a choice-of-law clause that is
partially ineffective under the Rome Convention. For example, under art. 6, a choice-of-law
clause in an employment contract will be disregarded to the extent it would deprive the
employee of the protection afforded by the mandatory rules of the state in which the employee
“habitually carries out his work.” However, the rest of the contract will be governed by the
chosen law. Thus, if a German company hires in Germany a German employee for work in
Belgium and the clause stipulates for German law, the clause will be ineffective to the extent
it violates Belgian mandatory rules but effective with regard to the rest of the contract. One of
the questions in such a case is which of the two countries (and for what issues) would qualify
as the “contract state” for purposes of applying the exception of art. 4(3) of Rome II.
56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 32 OF 46