Lloyd's Maritime and Commercial Law Quarterly
Rome II: Choice of law for non-contractual obligations
Adam Rushworth * and Andrew Scott †
This article outlines what is quite a complex choice of law scheme and discusses some of the more difficult issues that arise.
With the exception of Denmark,1 EU Member States must apply the Rome II Regulation2 to proceedings commenced after 11 January 2009;3 in those proceedings, its rules apply to events giving rise to damage4 occurring after 19 August 2007.5 The Regulation provides harmonized choice of law rules for non-contractual obligations. This article does not seek to provide an exhaustive commentary on the Regulation. Rather, it discusses some of the more difficult issues which arise. The first part discusses the choice of law scheme, whilst the second highlights three difficult problems that the Regulation’s implementation will encounter.
I: COMMENTARY6
The commentary is in five parts. First, two preliminary matters are dealt with: the interpretation and scope of the Regulation. Secondly, the choice of law rules for non-contractual obligations arising out of tort are explained. Thirdly, the choice of law rules for non-contractual obligations arising out of unjust enrichment, negotiorum gestio and culpa in contrahendo are discussed. Fourthly, the extent to which parties can choose a law to govern their non-contractual obligations is considered. Fifthly, some of the rules common to all obligations within the Regulation’s scope are described.7
* Senior College Lecturer in Private Law, Keble College, Oxford. We are immensely grateful to Professor Adrian Briggs for his comments on earlier drafts of this paper. All errors and omissions are our own.
† Fellow, All Souls College, Oxford.
1. Art 1(4).
2. Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) [2007] OJ L199/40.
3. Art 32.
4. Art 2(1) provides that, “damage shall cover any consequence arising out of tort/delict, unjust enrichment, negotiorum gestio or culpa in contrahendo”.
5. Art 31. For the interpretive difficulties created by use of “apply” in both Arts 31 and 32, see L Collins et al (eds), Dicey, Morris & Collins on the Conflict of Laws, 14th edn (London, 2006 with 1st Supp, 2007) (hereafter “Dicey”), vol 2, ch 35, §35.168.
6. For other commentaries, see C Brière, “Le règlement (CE) no 864/2007 du 11 juillet 2007 sur la loi applicable aux obligations non contractuelles (‘Rome II’)” (2008) 135 Journal du droit international 31 (hereafter “Brièere”); S Leible & M Lehmann “Die neue EG-Verordnung ¨ber das auf außervertragliche SchuldverhÄltnisse anzuwendende Recht (‘Rom II’)” (2007) 53 Recht der Internationalen Wirtschaft 721.
7. There is no discussion of the following provisions: Art 18 (direct action against the insurer of the person liable); Art 19 (subrogation); Art 20 (multiple liability); Art 21 (formal validity); Art 27 (relationship with other provisions of Community law).
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