Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

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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 139 provision, the court may apply the same law to a related delictual obligation. If, 140 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 141 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
SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS During Parliament’s first reading of Rome II, the rapporteur proposed, and Parliament approved, the insertion of the following exception to the general lex loci rule of what later became Article 4: In the case of personal injuries arising out of traffic accidents, . . . the court seised . . . should, for the purposes of determining the type of claim for damages and calculating the quantum of the claim, apply the rules of the individual victim’s place of habitual residence unless it would be inequitable to the victim to do so. 143 The Council and Commission rejected this amendment, and the resulting compromise was the insertion of the following statement in recital 33 of the final text of the Preamble: According to the current national rules on compensation awarded to victims of road traffic accidents, when quantifying damages for personal injury in cases in which the accident takes place in a State other than that of the habitual residence of the victim, the court seised should take into account all the relevant actual circumstances of the specific victim, including in particular the actual losses and costs of after-care and medical attention. 144 Obviously, this recital narrows down considerably the scope and import of Parliament’s amendment. Besides the fact that a recital does not have the same status and cogency as a rule in the main body of the Regulation, the recital does not authorize the application of the law of the victim’s habitual residence. It merely authorizes “taking into account” that law in “quantifying” damages, rather than in also “determining the type of claim for damages,” as Parliament intended. Thus, the recital appears to be no more than an invitation (à la Article 17) for the court to take account 145 of facts, such as the cost of medical care in the victim’s residence, in fixing the final amount of recoverable compensation. Nevertheless, unless one assumes that the Parliament got nothing in return for this “compromise,” the recital must mean 143. EUR. PARL. FINAL A6-0211/2005 (June 27, 2005). The accompanying justification stated that in traffic accident cases, “applying the law of the state of the victim's place of habitual residence is more equitable (for the victim, e.g., where he or she needs lifelong care) and more practicable for insurers and the courts,” and that “not only the level of compensation is important, i.e., the question of how much; rather, what FORM of compensation to be received by an injured party is also important (in particular whether there is an entitlement to damages for pain and suffering, a nursing and attendance allowance or certain pensions). Accordingly, the type of compensation should be governed by the law applicable at the injured party's place of habitual residence.” Id. 20/46. 144. ROME II, recital 33. In addition, the Commission issued a Statement, reproduced as an appendix to the final text of Rome II, promising to study the matter and report to Parliament before the end of 2008. 145. But see supra text accompanying notes 51-52. 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 33 OF 46
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