Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS something. What it may mean is that—consistently with the admonition to “do justice in individual cases” in recital 14—a court should keep in mind (for example, in applying the closer connection escape) the need to adequately compensate victims of traffic accidents. Unfortunately, even if this argument is accepted, it cannot help the Belgian hunting accident victim or the injured tourist in the snow avalanche hypothetical because they were not victims of a traffic accident, although they were equally deserving of protection. 146. Art. 5 makes no distinction between situations in which the product was acquired by the victim and situations in which the product was acquired by a third party, such as a previous purchaser or a transportation carrier. For the significance of this distinction, see SYMEONIDES, THE CHOICE-OF-LAW REVOLUTION 268-70, 351-52. 147. Art. 5, and Rome II in general, offer little guidance for cases involving peripatetic injuries, such as cases involving pharmaceutical products used by their eventual victims over long periods of time while residing in different countries. For the American experience on this matter, see SYMEONIDES, THE CHOICE-OF-LAW REVOLUTION 268-69. 148. ROME II, art. 5(1). 149. Id. VI. PRODUCTS LIABILITY Article 5 provides a special rule for non-contractual obligations arising from an injury caused by a product. Paragraph 1 of the article designates, in successive order, three countries whose law may govern: (a) the country of the victim’s habitual 146 residence; (b) the country in which the product was acquired; and (c) the country in 147 which the injury occurred. The application of each country’s law depends on 148 whether the product was “marketed in that country.” For example, if a German plaintiff is injured in India by a product acquired in Egypt, the applicable law will be that of Germany, if the product was marketed there; or, if not, Egypt, if the product was marketed there; or, if not, India, if the product was marketed there. It appears that the burden of proving that the product was marketed in the particular country would rest with the plaintiff, although the defendant may also have an incentive, and should be allowed, to either disprove or prove that fact. Moreover, the last sentence of paragraph 1 expressly gives defendants a defense—they can avoid the application of the law of each of the above three countries by demonstrating that they “could not reasonably foresee the marketing of the product, or a product of the 149 same type” in that country. If taken literally, this could mean that, even if the plaintiff proves (and the defendant does not disprove) that the product was actually marketed in the particular country, the defendant can still get a second line of defense by showing that, despite the actual marketing, “he or she could not reasonably foresee the marketing.” This provision is unduly generous to the defendant. Fortunately, as noted below, contemporary marketing patterns suggest that in most cases this defense 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 34 OF 46
SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS 150 is unlikely to succeed. In any event, if the defense does succeed, the applicable law will not be that of the country next in line under paragraph 1 (e.g., Egypt after Germany, or India after Egypt), but rather the law of the defendant’s habitual 151 residence. Thus, if the product was manufactured by a Japanese defendant, Japanese law will govern the case, unless of course Japanese law is more favorable to the plaintiff than say Egyptian or Indian law, in which case the defendant will not invoke this defense to begin with. Paragraph 1 of Article 5 applies “[w]ithout prejudice to Article 4(2),” which contains the common-residence rule. This means that, if the parties have their habitual residence in the same country, its law applies to the exclusion of all others, even if the product was not marketed in that country. Thus, if in the above scenario the product was manufactured by a German defendant, German law would govern, even if the product was not marketed in Germany. Finally, all of paragraph 1 (including the cross-reference to the commonresidence rule) is subject to the “manifestly closer connection” escape contained in 152 paragraph 2 of Article 5. This escape authorizes a court to either: (a) deviate from the order established in paragraph 1 and apply the law of one of the countries listed there; or (b) apply the law of a country not listed in paragraph 1, such as the country 153 of the product’s manufacture, upon showing that the country has a manifestly closer connection than the country whose law would normally govern under paragraph 1. Although Article 5 appears complex in its wording, its actual operation in practice may be much simpler, depending on how easy it will be to satisfy the basic condition of a product’s marketing in a particular country. One could surmise that, in today’s global market, this condition will be more and more easily satisfied in the great majority of cases without much further inquiry or counter-proof. At least this is what the American experience suggests. A recent study of products liability cases decided in the United States between 1990 and 2005 shows that, in none of these cases 150. See infra at text accompanying note 154. 151. If the defendant is a juridical person, the place of its central administration is deemed to be its habitual residence. See ROME II, art. 23(1). Even so, the defendant’s “residence” (at least when the defendant is the manufacturer rather than the local importer or distributor ) would seem to be the least relevant contact in today’s world of corporate mobility. In most cases, the manufacturer is likely to be a corporate entity whose “residence” or cental administration may be located in a country that has little relationship with the case, the product, or its manufacture. 152. ROME II, art. 5(2). The escape also repeats the “pre-existing relationship” exception with all the problems described earlier. In addition, in all cases in which the victim was also the acquirer of the product, either side can claim a “pre-existing relationship” between the victim and the defendant manufacturer, distributor, or retail seller. 153. It is somewhat surprising that art. 5 does not consider the place of manufacture as a pertinent connecting factor. For the role of this factor in American product liability conflicts, see SYMEONIDES, THE CHOICE-OF-LAW REVOLUTION 270, 327, 351. 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 35 OF 46
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Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

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