#10008 - Rome Ii - Conflict of Laws

ROME II: NON-CONTRACTUAL OBLIGATIONS

GENERAL

1. Subject to interpretation by European Court by way of a Art 267 Ref TFEU

2. Recital 7: that it will be consistent with Brussels I

3. Doesn’t include defamation

4. Applies irrespective of whether England has jurisdiction via Brussels I or the common law.

5. Art 3 - Moreover, the law specified applies irrespective of whether it is the law of a MS

ENGLISH STATUTORY REFORM (as background only)

1. Part III Private International Law (Miscellaneous Provisions) Act 1995 – this largely replaced the CL with a new statutory scheme

2. Defamation was excluded from this by virtue of section 13

3. This applies to torts committed before 11 Jan 2009. Won’t apply for exam.

4. Harding v Wealands (HL) – this case showed that under this Act, the nature of any remedy awarded and the assessment of damages were determined by the lex fori (unlike Rome 2)

TORTS OR OTHERWISE

1. Chapter 2 = non-contractual obligations that are torts

2. Chapter 3 = non-contractual obligations which aren’t torts

CHOICE OF LAW ACCORDING TO ROME II REGULATION

General

1. Applies to unjust enrichment

2. Art 3 provides that any law specified by the Regulation is to be applied whether or not it is the law of a MS!!!

3. It does apply to anticipated wrongs

Scope (Art 1, 2 and 25)

1. DOES COVER

1. Non-contractual obligations in civil and commercial matters, including:

1. torts

2. unjust enrichment

3. pre-contractual fault

2. DOESN’T COVER

1. Homawoo – events (giving rise to damage) occurring before 12 January 2009

2. acts/omissions of state authority Art 1(1)

3. revenue, customs etc Art 1(1)

4. evidence or procedure Art 1(3)

Meaning of Law

1. When it’s decided that say the law of Ruritania applies, then that means apply Ruritania domestic law (so ignore Renvoi Art 24)

Habitual Residence

1. Defined by Art 23

Power to Choose The Law (Art 14)

1. Parties can make an agreement as to the governing law (subject to specific exceptions like Art 6(4) and Art 8(3))

2. Agreement before event giving rise to the damage

1. this type of agreement is only enforceable where parties are pursuing a commercial activity and the agreement was freely negotiated

3. Agreement after event – these are fine, although must be expressed with reasonable certainty

Product Liability (Art 5)

Unfair Competition (Art 6)

Environmental Damage (Art 7)

Fault in Negotiating a Contract (Art 12)

Scope of Applicable Law (Art 15)

1. ESSENTIALLY: pretty much all issues to be determined by the law identified as the Regulation as the applicable law (ie. the lex causae)

2. This Art states a non-exhaustive list of issues which will be governed by the lex causae

3. It governs both the assessment and calculation of damages (unlike Rome I)

Overriding Mandatory Laws (Art 16)

1. Overrides Applicable Law

2. The definition of overriding mandatory laws used in Rome I is not the same here.

3. The Regulation does not restrict any overriding mandatory provisions of the law of the forum

English Public Policy (Art...