Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS B. Structure Rome II begins with forty statements or “recitals” explaining the drafters’ thinking and goals, and continues with thirty-two articles divided into seven chapters. The most important of these chapters, and the focus of this essay, is chapter II, which contains the general rule for all torts (Art. 4), followed by special rules on product liability (Art. 5), unfair competition (Art. 6), environmental damage (Art. 7), infringement of intellectual rights (Art. 8), and industrial action (Art. 9). Chapter III deals with unjust enrichment, negotiorum gestio, and culpa in contrahendo, chapter IV deals with party autonomy (Art. 14), and the remaining chapters contain common, general and transitional rules. The general rule of Article 4 is the lex loci delicti, which is defined as the law of the place of the injury (lex loci damni). The rule is followed by an exception in favor of the parties’ common habitual residence, and by a general escape clause based on the “closer connection” principle. Articles 5 to 9 are phrased as either particular applications or clarifications of the general rule for certain torts, or as exceptions to the general rule. Before discussing these articles, it is helpful to identify some of the general methodological features of Rome II, beginning with the balance it strikes between certainty and flexibility. C. Certainty vs. Flexibility Every PIL system encounters the perennial tension between the need for certainty and predictability on the one hand, and the need for flexibility and equity on the other. Each system responds differently, striking a different equilibrium between 39 the two needs. For example, the GEDIP proposal, which consisted of a series of cascading presumptions rather than rules, was a deliberate and brave choice of flexibility over certainty. Although the GEDIP scheme was nearly perfect, the potential for uncertainty must have alarmed the Commission, because it moved sharply in the opposite direction of adopting a system of tightly written black-letter rules with relatively few escapes and little room for judicial discretion. The rapporteur 40 and Parliament tried to re-inject flexibility into the draft, but, as the final text reflects, the Commission and especially the Council remained unyielding. The only provision that remains from the Parliament’s efforts is a recital in the Preamble referring to the “need to do justice in the individual case,” juxtaposing it with the 38. (...continued) 32 BROOKLYN J. INT’L L. 269 (2006). 39. For a comparative discussion of the various choices, see SYMEON C. SYMEONIDES, PRIVATE INTERNATIONAL LAW AT THE END OF THE 20TH CENTURY: PROGRESS OR REGRESS?, 21-35 (1999) [hereinafter Symeonides, “PROGRESS OR REGRESS”]. 40. See, e.g., the rapporteur’s Report to the European Parliament, in Final A6-0211/2005, (June 27, 2005). 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 8 OF 46
SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS 41 “requirement of legal certainty.” However, as explained later in discussing the 42 escape clauses of Rome II, the final balance is excessively skewed against flexibility. The reasons for the Council’s and Commission’s political preference for certainty over flexibility are obvious. The primary motive behind the movement to draft Rome II, as well as the choice of the particular instrument for its implementation—a regulation as opposed to a directive—was the need to ensure uniformity of 43 choice-of-law decisions within the European Union. These two bodies must have concluded that uniformity would be in jeopardy if Rome II were to have too many flexible rules or escape clauses. This was a plausible, though not necessarily the best, conclusion. The argument that a codification intended for application by the courts of different countries cannot afford to be flexible, is highly overrated. For example, whatever its other faults, the Rome Convention did not fail for being too flexible. Moreover, while no one would question the desirability of uniformity and certainty, one can question the extent to which these values should displace all other values of the choice-of-law process, such as the need for sensible, rational, and fair decisions in individual cases. If the American experience has something to offer, it is a reminder that a system that is too rigid—as the traditional American system was— ultimately fails to deliver the promised predictability because, in a democratic society 44 no system can “mechanize judgment” and, to the extent it attempts to do so, judges 45 will ignore it. To be sure, it would be unfair to characterize Rome II as a mechanical system. Its drafters were conscious of the need for flexibility and they attempted to provide for some degree of it. The question is whether the drafters provided enough flexibility, a question on which reasonable minds can differ. Only time will show whether the final text of Rome II has found the golden mean between the competing values of certainty and flexibility. For what it is worth, and for reasons that will become obvious from the following discussion, this author’s opinion is that a scheme that is closer to the GEDIP proposal or the rapporteur’s ultimately defeated proposals would have been preferable. D. Jurisdiction-Selection or Content-Oriented Law-Selection 41. See ROME II Preamble, recital (14). 42. See infra V.2-3. 43. See ROME II, recital (6) (“The proper functioning of the internal market creates a need, in order to improve the predictability of the outcome of litigation, certainty as to the law applicable and the free movement of judgments, for the conflict-of-law rules in the Member States to designate the same national law irrespective of the country of the court in which an action is brought.”). 44. David F. Cavers, Restatement of the Law of Conflict of Laws, 44 YALE L. J. 1478, 1482 (1935). 45. In Professor Weintraub’s words, “[i]ronically Rome II is more likely to succeed in providing reasonable foreseeability if its rules provide sufficient flexibility.” Weintraub, supra note 7, at id. 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 9 OF 46
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