Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
promotes this interest. Giving the victim a choice is simply the vehicle for ensuring
this result.
When the law of the state of conduct has a higher standard of conduct for the
tortfeasor or of financial protection for the victim than the state of injury, the victim
will opt for the law of the conduct state, thus producing the deterring effect the
drafters intended. As the Report notes, if the victim did not have this choice, the
operator would have “an incentive to establish his facilities at the border so as to
discharge toxic substances into a river and enjoy the benefit of the neighbouring
country’s laxer rules. This solution would be contrary to the underlying philosophy
of the European substantive law of the environment and the ‘polluter pays’
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principle.” Indeed, the application of the higher standards of the conduct state in this
scenario is fully justified, whether one thinks in terms of party reliance or expectations
or, more aptly, state interests. After all, the operator should not complain for being
subjected to the standards of the state in which he acted. Having violated those
standards, he should bear the consequences of the violation and not be allowed to
invoke the lower standards of another state. In terms of state interests, the application
of the higher standards of the conduct state promotes that state’s policy in policing
conduct within its borders, without subordinating the policies of the state of injury
because the latter state does not have an interest in applying its lower-standards to
protect conduct occurring, or tortfeasors acting, beyond its borders. In other words,
this is a case that is described in the American conflicts lexicon as a classic “false
conflict.” As noted earlier, Rome II would have been a better system if the drafters had
adopted the same logic when drafting the general rule of Article 4(1).
When the law of the state of injury prescribes a higher standard than the state
of conduct, the victim will not opt for the law of the conduct state, thus again
producing the deterrent effect the drafters intended. As the Report points out, this
application is
[C]onducive to a policy of prevention, obliging operators established in
countries with a low level of protection to abide by the higher levels of
protection in neighbouring countries, which removes the incentive for an
operator to opt for low-protection countries. The rule thus contributes to
raising the general level of environmental protection. 163
Significantly, because Article 7 is not subject to any exceptions, the polluter
cannot avoid the application of the law of the state of injury by arguing, for example,
that the occurrence of the injury in that state was not foreseeable. Apparently the
article assumes that, regardless of distance, foreseeability is always present, or
alternatively, that it should make no difference. One avenue for providing some
protection for the polluter in this case is Article 17, and the Report alludes to this
162. Id. 19-20.
163. Explanatory Report, art. 7, at19.
56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 38 OF 46