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Critical assessment of the contribution of Rome II to the subject of choice of law in tort

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  1. Introduction
  2. Are the general rules set by Rome II appropriate and effective for choice of law in tort?
    1. The general rule of article 4: a controversial choice of law rule
    2. An overall content triggering highly negative consequences for choice of law in tort
  3. A contribution to the subject of choice of law in tort limited by the narrow scope of Rome II and its provisions displacing the application of its general choice of law rule.
    1. The scope of Rome II allowing the application of national choice of law rules in large areas of law.
    2. The creation of provisions preventing the application of the law designated by Rome II
  4. Conclusion

The Rome II Regulation on the law applicable to non-contractual obligations(hereafter referred to as ?Rome II?) was adopted by the European Parliament and the Council on July 11th 2007. It was the result of a long process that started in 1967 with the preparation of the Rome Convention, followed by the European Commission's proposal to adopt a Regulation in the field of choice of law relating to non-contractual obligations in July 2003 and the presentation of a revised proposal in February 2006. Rome II entered into force on August 20th 2007 and is applicable to events giving rise to a damage occurring on or after January 11th 2009. Rome II followed the adoption of Rome I dealing with choice of law relating to contractual obligations and was designed to complement it. It is worth noting that Rome II was adopted under the EC Treaty. As a consequence, its provisions are ?binding [] and directly applicable in each Member State? . Also, there is no need of implementing legislation in Member States .

Rome II's objectives are to provide harmonization, clear rules related to the choice of law in tort as well as ?to improve the predictability of the outcome of litigation, certainty as to the law applicable and the free movement of judgments? . These features are necessary to ensure the proper functioning of the internal market. Rome II also aims at striking a fair balance between certainty and flexibility in order to ?do justice in individual cases? , as well as between the interests of the plaintiff and the defendant.

[...] The choice of the law of the place of the injury, the lex loci damni, seems to present various advantages in particularly ensuring reasonable balance between the interests of the person claimed to be liable and the person who has sustained damage?[23] . However, it could be argued that the use of this connecting factor is not practical in the situation where the damage took place in different countries. It would result in the application of different laws whereas the case is heard in the same court. [...]

[...] As a result, it appears that the contribution of Rome II to the subject of choice of law in tort is limited by the existence of many rules taking precedence over its choice of law rule, thus governing choice of law in tort instead of Rome II. As a conclusion, the contribution of Rome II to the subject of choice of law in tort can largely be criticised. On the one hand, Rome II's contribution can be subject to criticisms on the grounds of its capacity to select a rule for resolving tort-related conflicts in an appropriate and efficient manner. [...]

[...] Rome II was drafted with the idea to put aside many drawbacks attached to the application of different national laws for choice of law in torts. Despite all the efforts of the European legislators, we shall emphasize the negative consequences that can arise from the application of Rome II. As seen previously in the developments about the general rule contained in article we shall conclude that Rome II provides for a rigid rule for choice of law in tort. Indeed, the exception of common habitual residence of the parties is too narrowly written which makes it non applicable to cases to which it should apply. [...]

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