#10009 - Rome Ii My Approach - Conflict of Laws

ROME II: NON-CONTRACTUAL OBLIGATIONS (MY APPROACH)

DOES THE REGULATION APPLY?

1. Does England have jurisdiction?

1. Doesn’t matter whether England has jurisdiction under Brussels I or common law

2. Is it a non-contractual obligation? (Art 1(1))

1. Applies to torts which are likely to arise (Art 2(2))

3. Is it in a civil or commercial matter?

4. Is it excluded?

a) List of excluded items in Art 1.2 – main one being defamation

5. When

1. Homawoo – events (giving rise to damage) occurring before 12 January 2009 don’t apply

TORT OR NOT?

1. A non-contractual obligation can be either a tort or otherwise.

2. NOT A TORT EXAMPLES

1. wrongfully induced into a contract (ART 12)

2. fraud (probably go under UE so Art 10)

3. negligent misrepresentation/misstatement

4. UE (Art 10)

THE GENERAL RULE (ART 4)

1. Where the damage occurs follows Brussels I in relation to initial damage vs consequences felt elsewhere BUT

2. Briggs – he recognizes that picking the place where the damage occurs can be tricky and is open to interpretation

3. Fortress Value Recovery (HC) [2013] – Flaux J highlighted the fact that Art 4(1) itself and the case law on Art 5(3) of the Brussels Reg make it clear that the court is concerned with the law of the place where the direct damage occurred, not of the place where indirect adverse consequences of financial loss suffered

General Rule (Art 4)

1. Art 4(1) – the law of the country where the damage occurs (irrespective of where the event giving rise to the damage occurred) BUT

2. Art 4(2) – where C and D are both habitually resident in the same country, the law of that country will apply instead BUT

3. Art 4(3) – these rules can be disapplied where the tort is manifestly more closely connected with another country (eg. pre-existing relationship). NOTE, this is where the tort as a whole is more closer, as opposed to one specific issue

EVIDENCE AND PROCEDURE

1. Wall v Mutuelle (EWCA) [2014]

• the issue of which expert evidence the court should order should be determined by the lex fori (English law), but it was said (obiter) that the applicable law included judicial practices, conventions and guidelines, such as the tariffs for permanent aesthetic loss published by the Paris...