Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
182 embodies. Likewise, returning to the snow avalanche hypothetical, the Swiss
operator who engaged in blasting operations near the Swiss-French border in the Alps
should have anticipated that his operations may cause avalanches, some of which
would occur across the border in France. If French law imposes higher standards of
conduct than Swiss law, why should the operator be allowed to seek refuge in Swiss
law?
In any event, if one is to use Article 17 to protect the tortfeasor in this scenario,
there is little justification for not using the same article in the converse scenario in
which Swiss law imposes higher standards of conduct for blasting operations than
French law. Whether one thinks in terms of state interest or simply in terms of
evenhandedness toward litigants, there is good reason to “take account” and indeed
to apply Swiss law in this case. The fact that the operator violated the standards of
Swiss law implicates Switzerland’s policies in policing conduct within its borders,
even though the consequences of that conduct in this case materialized in France.
Conversely, this case does not implicate the policies underlying the French lowerstandard
rule because that rule is designed to protect or encourage conduct within and
not beyond French borders. In other words, this is what is known in the American
conflicts lexicon as a classic “false conflict” in which only Switzerland has an interest
in applying its law, or at least to have it “taken into account.”
To be sure, the quoted term may be anathema to Rome II given its limited
recognition of the role of state interests, despite, for example, embracing the concept
of mandatory rules (Art. 16). Instead, Rome II places a premium on the need to
“ensure a reasonable balance between the interests of the person claimed to be liable
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and the person who has sustained damage,” and the Explanatory Report purports to
explain most of Rome II’s rules in terms of the parties’ expectations. As noted earlier,
the reason for the drafters’s decision to reject a general rule of allowing the victim to
choose between the laws of the places of conduct and injury in cross-border torts other
than environmental torts is because such a solution “would go beyond the victim’s
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legitimate expectations.” However, one can also turn that question around. Does the
application of the law of the state of conduct violate the legitimate expectations of the
tortfeasor who violated the conduct standards of that state, just because the injury
occurs across the border? The only Rome II provision that can provide a negative and,
in this author’s view, justified answer to this question is Article 17. If the drafters’
intent was to use this article only when it helps the tortfeasor but not when it helps the
victim, then it would have been preferable to suppress the article from the final text.
182. See supra note 163.
183. ROME II, recital (16), et passim.
184. Explanatory Report, art. 3, at 11-12.
56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 42 OF 46