Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
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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
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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
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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