Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS 171 example, road safety rules in the case of an accident.” The very fact that Rome II contains a separate article dealing with these rules, is an oblique and grudging recognition of the distinction noted earlier between conduct-regulating rules and loss distributing tort rules. However, it is unclear whether this article is a true rule of choice-of-law rather than a mere evidentiary instruction about which facts are relevant in determining the 172 degree of the defendant’s culpability. Although the article’s wording clearly suggests the latter possibility, it is worth exploring whether the article is capable of being used as a choice-of-law rule, which can lead to applying, rather than merely “taking account” of the law of the conduct state in appropriate cases. If the answer is affirmative, then Article 17 can provide a flexible exception to all of Rome II’s articles that lead to a law other than that of the state of conduct, particularly: (a) the lex loci damni rule of Article 4(1) in conflicts arising from cross-border torts; and (b) the common-domicile rule of Article 4(2), in conflicts arising from intrastate torts. Unfortunately, there are several obstacles to transforming Article 17 into a true rule of choice-of-law. The first obstacle, which is not insurmountable, is that, despite 173 using the imperative “shall,” the article is entirely discretionary, as it should be. The second obstacle is that, under the article, the court need not apply the rules of safety and conduct, but may simply “take them into account.” Although the article itself does not preclude the application of these rules, the Explanatory Report suggests that this is precisely what was intended. It states that “[t]aking account of foreign law is not the same thing as applying it: the court will apply only the law that is applicable under the conflict rule, but it must take account of another law as a point of fact, for example when assessing the seriousness of the fault or the author’s good or bad faith for the 174 purposes of the measure of damages.” This statement, especially the italicized word “only,” seems to preclude the application of the safety and conduct rules of the 175 conduct state. The third obstacle is that these rules are to be taken into account “as a matter of fact” in “assessing the conduct” of the tortfeasor, a notion that echoes 171. ROME II, recital (34) (emphasis added). 172. For the concept of foreign law as “datum,” see Erik Jayme, Ausländische Rechtsregeln und Tatbestand inländischer Sachnormen—Betrachtungen zu Ehrenzweigs Datum-Theorie, in GEDÄCHTNISSCHRIFT FÜR EHRENZWEIG 35 (1976); Herma H. Kay, Conflict of Laws: Foreign Law as Datum, 53 CALIF. L. REV. 47 (1965). 173. This is clear from both the legislative history and the phrase “in so far as appropriate” in art. 17, although that phrase also has a quantitative component. 174. Explanatory Report, art. 13, p. 25 (emphasis added). 175. The Report acknowledges the origin of Article 17 in, among others, Article 9 of the Hague Products Liability Convention, which does “not preclude consideration being given” to the rules of conduct and safety of the state of the product’s marketing. Despite this equivocal wording, however, the Explanatory Report of the Hague Convention states that a court could well apply the conduct rules of that state. See Willis Reese, Explanatory Report to the Hague Products Liability Convention, ACTS AND DOCUMENTS OF THE TWELFTH SESSION, v. III, 251, 268 (1972). 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 40 OF 46
SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS 176 Ehrenzweig’s concept of foreign law as a datum. This phraseology is considerably narrower than the Commission’s proposal, which provided that these rules were to be 177 taken into account “in determining liability.” This restrictive formulation reduces Article 17 to a mere evidentiary instruction of how to assess the tortfeasor’s culpability. Unfortunately, this minimalist conception prevents Article 17 from becoming the useful corrective tool that Rome II sorely needs. Moreover, the Rome II drafters seem to envision an even narrower, one-sided role for Article 17. They describe it as tool for helping the tortfeasor, but not necessarily the victim. Rome II’s preamble states that Article 17 is necessary “[i]n 178 order to strike a reasonable balance between the parties,” while the Report seems to be preoccupied with the plight of “the perpetrator [who] must abide by the rules of 179 safety and conduct in force in the country in which he operates.” In rejecting Parliament’s attempt at first reading to make Article 17 inapplicable to cases of defamation and unfair competition, the Commission saw “no reason for depriving the perpetrators of these two categories of liability of the protection which this rule gives 180 them.” Elsewhere, the Report describes a situation falling within Article 7 in which the perpetrator complied with the lower environmental standards of the state of conduct but not with the higher standards of the state of injury. The Report concludes that, in such a situation, “[u]nder Article 17, the court must then be able to have regard to the fact that the perpetrator has complied with the rules in force in the country in which he is in business.” 181 The view of this author is that, in cases such as the one described above, the concern for the perpetrator is excessive, if not misplaced. The key question in such cases should be whether, under these facts, a reasonable person should have foreseen that his conduct in the one state would produce injury in the other state. For example, one who operates a chemical factory in close proximity to the border in state A should have foreseen that the wind will likely carry the factory’s emissions across the border into state B. Under these circumstances, the operator should not be allowed to seek refuge in the lower standards of state A. Using Article 17 as such a refuge would be contrary to the spirit of Article 7 and the “polluter pays” principle that article 176. See supra note 172. 177. Commission Proposal, art. 13 (2003). Also, the phrase “as a matter of fact and in so far as is appropriate” was not part of the Commission’s proposal. 178. ROME II, recital (34) (“In order to strike a reasonable balance between the parties, account must be taken of the rules of safety and conduct in operation in the country in which the harmful act was committed, even where the non-contractual obligations is governed by the law of another country.”). 179. Explanatory Report, art. 13, at 25. 180. COD/2003/0168 (Feb. 21, 2006) Commission modified legislative proposal (emphasis added). 181. Explanatory Report under art. 7. 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 41 OF 46
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