Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
154
did the foreign defendant invoke a similar defense. Although most of these cases
involved American manufacturers, several cases involved foreign manufacturers.
Thus, unless marketing patterns are much different in Europe, the marketing defense
will probably be unsuccessful in all but the rarest instances. In turn, this suggests that
Article 5 will lead to the application of the law of: (a) the parties’ common habitual
residence, in the few cases when such common residence exists; and (b) the victim’s
habitual residence in most of the remaining instances. Few cases would trickle down
to the law of the country of acquisition, and even fewer, if any, to the law of the
country of injury.
If these assumptions are correct, the next question is whether these results are
acceptable. In answering that question, it helps to remember that actual cases are often
far less complex than classroom hypotheticals. For example, although in the abstract
there may be good reasons to criticize the application of the law of the country of the
victim’s residence as such, it is helpful to know that, in the majority of cases that
country is likely to have at least one or more additional pertinent contacts. This was
so in seventy-two percent of the disputes in the aforementioned American study. 155
Nevertheless, although the presence of these additional contacts make the application
of the law of the victim’s domicile more defensible in practice, Article 5 itself must
also be defensible in those cases in which these other contacts are lacking. Moreover,
the fact that Article 5 does not differentiate between cases in which the law of the
victim’s domicile favors and those in which it disfavors the victim raises additional
questions. One such question is whether Article 5 favors residents of developed
156
countries and disfavors residents of lesser developed countries. In the above
hypothetical, the German plaintiff who was injured in India by a Japanese product
acquired in Egypt will get the benefit of German law. However, an Indian plaintiff
who is injured in Austria by a German product acquired in Germany will be confined
to the remedies provided by Indian law. Was this deliberate? If yes, it is one more
example of a territorialist choice-of-law rule which, though seemingly value-neutral,
disguises specific policy choices.
If the only objective of products liability law is to ensure the “right” amount
of compensation for victims, then the application of German law to the German
plaintiff and Indian law to the Indian plaintiff may be defensible. However, to the
154. See id. at 337.
155. See id. at 320-22. American courts applied the law of the victim’s domicile in sixty-five percent
of all cases, but in all but twelve percent of those cases that state had one or two additional
contacts and in more than half of them, that state had a pro-defendant law. See id. at 325.
156. For purposes of illustration, it is worth noting that American courts, which are often accused of
favoring plaintiffs, applied a plaintiff-favoring law in only fifty-two percent of the cases. See
id. at 332-33.
56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 36 OF 46