Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

More documents

Recommendations

Info

SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS 192 reasons, pre-tort agreements should either be prohibited or, if permitted, they should be closely policed. Regrettably, Article 14 requires only minimal scrutiny. The only restrictions it imposes on pre-tort agreements (that it does not impose on post-tort agreements) is that it must be “freely negotiated” and that the parties must be “pursuing a commercial activity.” This is neither sufficient nor free of problems. Even if the term “commercial activity” was clearly defined or uniformly understood throughout the EU, it would still include within its scope, relationships that are one-sided, such as those arising from franchise, licensing, or insurance contracts. For example, a franchise contract is clearly commercial, yet the franchisee is usually in a very weak bargaining position (which is why so many states have enacted consumer-protection type statutes to protect 193 franchisees). By allowing pre-tort choice-of-law agreements in these contracts, Article 14 does not live up to the statement in recital 32 that “[p]rotection should be 194 given to weaker parties by imposing certain conditions on the choice.” As with some other freedom-laden ideas, Article 14 may well become the vehicle for taking advantage of weak parties, many of whom are parties to “commercial” relationships. The argument that the “mandatory rules” of paragraphs 2 and 3 of Article 14, or the ordre public exception of Article 26 will protect the weak parties is overly optimistic because of the high threshold these provisions require before they become operable. 192. See, e.g., EGBGB, art. 42 “After the event giving rise to a non-contractual obligation has occurred, the parties may choose the law that shall apply to the obligation.”) (emphasis added); BELGIAN PIL CODE, accord. But see DUTCH PIL ACT, art. 6 (“Where the parties have chosen the law applicable to any matter relating to tort, . . . that law shall apply between them . . .”). For the position of American cases law on this issue, see SYMEON C. SYMEONIDES, AMERICAN PRIVATE INTERNATIONAL LAW _???__ (forthcoming 2008). 193. See SYMEONIDES, AMERICAN PRIVATE INTERNATIONAL LAW, supra note 192 at _???_. 194. ROME II, recital (31). X. CONCLUDING THOUGHTS Considering its starting point—the Commission’s preliminary draft— Rome II could have been much worse. Considering the rapporteur’s valiant efforts and Parliament’s amendments, Rome II could also have been much better. The amendments injected more flexibility, introduced issue-by-issue analysis, and differentiated between issues of conduct regulation and loss distribution. Had any of these amendments survived, they would have considerably improved Rome II. Unfortunately, the Council and Commission rejected these and other amendments. In the end, Rome II is what it is. In this author’s view, it is a missed opportunity to do much better. This view is reinforced by the fact that the European continent, the birthplace of PIL, has never had a shortage of talent, sophistication, and experience in drafting PIL legislation. Recent national codifications are a solemn testimony of that 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 44 OF 46
SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS experience and wisdom, as is the GEDIP proposal which was drafted specifically for the pan-European level. Be that as it may, the final text of Rome II illustrates the difficulties of the process of lawmaking in a multinational democratic society. More often than not, the need to obtain a consensus, which is so important and healthy, necessitates compromises that disturb the coherence and consistency of the final scheme. This author can empathize with the drafters’ unenviable position, having found himself in a similar situation in drafting two PIL codifications and being currently involved in a third. 195 During the six-year process of drafting the Louisiana codification, he had to make 196 compromises which, at the time, he strongly resisted. In retrospect, however, besides recognizing that with regard to some of them the critics may have had the 197 better argument, he views the rest of the compromises as the political price that had to be paid in return for getting the bill passed. It was either that, or nothing at all. The bill became law and, for the last fifteen years, it has worked well. 198 Based on this experience, the author assumes that, as an outside observer, he sees no more than half of the picture and acknowledges the objective political difficulties the Rome II drafters faced in obtaining consensus. These difficulties at least partially explain the differences between Rome II and, for example, the GEDIP proposal. The reason the GEDIP proposal was so close to perfection had more to do with the homogeneity of that academic group than with the fact that it encompasses la creme de la creme of European conflicts thought. The proposal was a sophisticated document drafted for sophisticated judges capable of, and entrusted with the discretion necessary for making the fine balancing the proposal envisioned. In contrast, Rome II is a pragmatic document that aims for simplicity and uniformity and primarily seeks to preserve the status quo rather than to dramatically alter it. Whether this was the right choice in the long run is a matter of opinion, and this author’s opinion deserves no more deference than that of the erudite men and women who drafted Rome II or 195. See Symeon C. Symeonides, Private International Law Codification in a Mixed Jurisdiction: The Louisiana Experience, 57 RABELSZ 460 (1993); Symeonides, Exegesis, supra note 193; Symeon C. Symeonides, Revising Puerto Rico’s Conflicts Law: A Preview, 28 COLUM. J. TRANSNAT’L L., 601 (1990); Symeon C. Symeonides, Codifying Choice of Law for Contracts: The Puerto Rico Project, in LAW AND JUSTICE IN A MULTISTATE WORLD: ESSAYS IN HONOR OF ARTHUR T. VON MEHREN, 419-37 (John Nafziger & Symeon Symeonides eds., 2002); Symeon C. Symeonides, Oregon’s Choice-of-Law Codification for Contract Conflicts: An Exegesis, 44 WILLAMETTE L. REV. (forthcoming Dec. 2007); Symeon C. Symeonides, Codifying Choice of Law for Contracts: The Oregon Experience, 67 RABELSZ 726 (2003). 196. See Symeonides, Exegesis, supra note 193, at 712-14, 742-48, 758-59. 197. See Symeonides, THE CHOICE-OF-LAW REVOLUTION 263; Symeon C. Symeonides, In Search of New Choice-of-Law Solutions to Some Marital Property Problems of Migrant Spouses: A Response to the Critics, 13 (3) COMM. PROP. J. 11 (1986). 198. See Patrick J. Borchers, Louisiana’s Conflicts Codification: Some Empirical Observations Regarding Decisional Predictability, 60 LA. L. REV. 1061 (2000). 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 45 OF 46
Page 1 and 2: Rome II and Tort Conflicts: A Misse
Page 3 and 4: SYMEON C. SYMEONIDES ROME II AND TO
Page 43: SYMEON C. SYMEONIDES ROME II AND TO

Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

Create successful ePaper yourself

Delete template?

Save as template?