Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS codifications, thus underscoring the fact that law reform is far more difficult at the multinational than the national level. A. Before Rome II II. HISTORY In recent European history, the first effort to codify choice of law for torts at a multinational level was the Benelux Uniform Law on Private International Law of 14 1969, which was based on work that began as early as 1951. Although it never entered into force, the Uniform Law was surprisingly modern for its day. Its basic rule for tort conflicts was to apply the law of the place of tortious conduct, but subject to a wisely drafted escape clause. The escape provided that, “if the consequences of a wrongful act belong to the legal sphere of a country other than the one where the act took place, the obligations which result therefrom shall be determined by the law 15 of that other country.” This escape was phrased broadly enough to cover not only cross-border torts in which the consequences of conduct in one country are felt in another country, the country of injury, but also cases such as the one in the famous 16 New York case Babcock v. Jackson, namely intra-state torts in which both parties are domiciled in another country (common-domicile cases). We shall return to this point later. The next major effort took place in 1967, in the context of the then European Economic Community. By 1972, this effort produced the E.E.C. Draft Convention 17 on Contractual and Noncontractual Obligations. Its main provision on tort conflicts also adopted the place of conduct rule, but was accompanied by a more elaborate, two-prong escape: [I]f, on the one hand, no significant link exists between the situation resulting from the event which caused the damage and the State in which the event occurred and if, on the other hand, such situation has a predominant connection (connexion prépondérante) with another 14. See Kurt H. Nadelmann, The Benelux Uniform Law on Private International Law, 18 AM.J.COMP.L. 406 (1970). An English translation of the Uniform Law is reproduced id. at 420- 425. 15. BENELUX UNIFORM LAW, Art. 14 (emphasis added). 16. 191 N.E.2d 279 (N.Y. 1963). Babcock applied New York law to a suit by a New York guestpassenger against her New York host-driver and his insurer for injury sustained in a traffic accident in Ontario, during a short trip there. Ontario’s guest-statute prohibited the suit, while New York law allowed it. 17. For an English translation of the Draft Convention, see 21AM. J. COMP. L. 587 (1973). For discussion, see Kurt H. Nadelmann, Impressionism and Unification of Law: The EEC Draft Convention on the Law Applicable to Contractual and Non-Contractual Obligations, 24 AM. J. COMP. L. 1 (1976). 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 4 OF 46
SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS State, the law of that State shall apply. 18 The escape continued with an explicit common-domicile presumption for Babcock 19 20 type cases, and with the sensible notion —which Rome II does not repeat — that, in cases of multiple victims, “the applicable law shall be determined separately for 21 each of them.” Finally, the draft convention included a special provision, also 22 contained in two Hague conventions of the same period, which called for “taking into account” certain rules of “safety and public order” in force in the conduct state. 23 This provision survived in slightly different verbiage in Rome II as discussed 24 below. With the expansion of the Community to nine members states in 1973, following the accession of the United Kingdom, Ireland, and Denmark, the effort slowed down. It slowed to the point that the decision was made to abandon the tort provisions of the draft convention and instead to concentrate on contract conflicts. 25 In 1980, the Convention on the Law Applicable to Contractual Obligations, now known as the “Rome Convention,” was opened for signature, and it entered into force on April 1, 1991. B. Rome II The idea of addressing tort conflicts received new impetus with the Treaty of Amsterdam of October 2, 1997, when the European Commission began soliciting feedback on measures to implement the provisions of the Treaty regarding judicial cooperation in civil matters with cross-border impact. By 1998, the idea of a convention on tort conflicts was adopted in principle and, later that year, the first draft proposal was put forward by the Groupe européen de droit international privé 18. EEC DRAFT CONVENTION ON CONTRACTUAL AND NONCONTRACTUAL OBLIGATIONS, art. 10(2). 19. See id. at art. 10(3) (“Such a connection must normally be based on a connecting factor common to the victim and the author of the damage.”). 20. See infra at text accompanying note 130. 21. Id. at art. 10(4). The placement of this statement suggested that it was intended to be used not only in applying (or not applying) the common-domicile presumption, but also in applying the general, “closer connection” escape. 22. See art. 7 of the HAGUE CONVENTION OF 4 MAY 1971 ON THE LAW APPLICABLE TO TRAFFIC ACCIDENTS & art. 9 of the HAGUE CONVENTION OF 2 OCTOBER 1973 ON THE LAW APPLICABLE TO PRODUCTS LIABILITY. 23. See EEC DRAFT CONVENTION art. 12. (“Irrespective of which law is applicable under Article 10, in determining liability account shall be taken of rules of safety and public order in force at the place and time of the event which caused the damage.”). 24. See ROME II, art. 17, discussed infra VIII. 25. The consolidated text of the Convention as amended by the various Conventions of Accession, and the declarations and protocols annexed to it, is published in 1998 O.J. (C 27, 26,1) 34. 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 5 OF 46
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