Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

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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

SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS 157 extent that product liability law is also designed to serve other objectives, such as deterring the manufacture and proliferation of unsafe products, there are good reasons to disagree with the application of Indian law in the Indian plaintiff’s case. One can only hope that a court would avoid such a result by invoking the closer connection escape of Article 5. In fairness to the Rome II drafters, it should be noted that product liability conflicts are inherently complex and thus far no one has the perfect formula for 158 resolving them. This includes the present author who has drafted two statutory rules 159 160 for such conflicts and has proposed two other rules for the same purpose. The fact that each of those rules differs from the others is this author’s admission that the search for the perfect formula must continue. Article 5 of Rome II is far from the perfect formula, but the real question is whether it is good enough. 157. ROME II, recital (2), states that “[t]he conflict-of-law rule in matters of product liability should meet the objectives of fairly spreading the risks inherent in a modern high-technology society, protecting consumers’ health, stimulating innovation, securing undistorted competition and facilitating trade.” 158. For a comparative discussion of enacted and proposed rules for product liability conflicts, see E. Scoles et al., CONFLICT OF LAWS, 934-41 (4th ed. 2004). 159. See LA. CIV. CODE ANN. Art. 3545, discussed in Symeonides, Exegesis, supra note 114, at 749- 59; PUERTO RICO DRAFT CODE, art. 48. 160. See Symeon C. Symeonides, The Need for a Third Conflicts Restatement (And a Proposal for Tort Conflicts), 75 INDIANA L. J. 437, 450-51, 472-74 (2000); Symeonides, THE CHOICE-OF- LAW REVOLUTION, 346-64. 161. Explanatory Report, art. 7, at 19. VII. ENVIRONMENTAL TORTS Article 7 of Rome II deals with environmental torts. Through a cross reference to the general rule of Article 4(1), Article 7 provides that the applicable law is the law of the place of injury, unless the victim of the tort opts for the law of the place of conduct. As noted earlier, Article 7 is not subject to either the common-domicile or the closer connection exceptions. Because this victim’s choice is meaningful only in cases of cross-border torts in which the country of conduct and the country of injury prescribe different standards of conduct for the tortfeasor or financial protection for the victim, the discussion below is limited to these cases. It is worth noting that, although at some point the Explanatory Report speaks of “a victim in a low-protection country . . . enjoy[ing] the higher level of protection 161 available in neighbouring countries,” the reason for which Article 7 gives the victim a choice is not to benefit the victim as such. Rather, the reason is to promote the interests of the respective countries and of the Union as a whole in deterring pollution. Applying whichever of the two laws subjects the polluter to a higher standard 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 37 OF 46

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