APPLICABLE LAW – ROME II
- A general rule with one general exception and one escape clause
- Specific rules for specific kinds of torts
Main principles - Party autonomy (less relevant than Rome I)
- Exclusion of renvoi (art. 24)
- Universal application (art. 3)
- Events giving rise to damage which occur after 11/01/2009 (the event) (art. 31)
- All EU MS (except Denmark) + Ireland + UK (assimilated law)
- Non-contractual obligations in civil and commercial matters (art. 1.1)
- Torts/delicts, unjust enrichment, negotiorum gestio, culpa in contrahendo (art. 2.1)
- Which have arisen + are likely to arise (art. 2.2 and 2.3)
- Exceptions (art. 1.2):
- General exceptions + nuclear damage + privacy and personality rights (e-Date)
Scope of
- ! Rome II does apply to the general duty of care of a corporation (BMA)
application
- Procedural matters are governed by lex fori = evidence and procedure are excluded (art. 1.3)
- Difficulties regarding statutes of limitations: lex fori or lex causae? (difficult relationship between
art. 1.3 and art. 15) (Pandya, Jabir et al v. Kik)
- Limitation periods foreseen in lex fori may be given priority under 2 conditions (Martins v. Dekra
Claims):
- 1) Unamar-test is fulfilled: identification of particularly important reasons in lex fori’s limitation laws
- 2) absence of harmonisation in EU secondary law
! No matrix per se, but:
- General rule: lex loci damni (art. 4)
Matrix - Specific torts (art. 5-9)
- Unjust enrichment, negotiorum gestio, culpa in contrahendo (art. 10-12)
- Freedom of choice (art. 14)
- Law of the country where the damage occurs (art. 4.1)
- Ignore lex locus delicti commissi and places where indirect damages occurred
- But: rules of safety and conduct (art. 17) of the locus delicti commissi may be used in the assessment
General rule: locus of the conduct of the person
damni (art. 4) - A singular event leads to one applicable law (Lazar v. Allianz)
- >< Mosaic
- Exception: parties habitually resident in the same country ⇒ national law applies (art. 4.2)
- Escape clause: the law of the country which is manifestly more closely connected (art. 4.3)
- A general rule with one general exception and one escape clause
- Specific rules for specific kinds of torts
Main principles - Party autonomy (less relevant than Rome I)
- Exclusion of renvoi (art. 24)
- Universal application (art. 3)
- Events giving rise to damage which occur after 11/01/2009 (the event) (art. 31)
- All EU MS (except Denmark) + Ireland + UK (assimilated law)
- Non-contractual obligations in civil and commercial matters (art. 1.1)
- Torts/delicts, unjust enrichment, negotiorum gestio, culpa in contrahendo (art. 2.1)
- Which have arisen + are likely to arise (art. 2.2 and 2.3)
- Exceptions (art. 1.2):
- General exceptions + nuclear damage + privacy and personality rights (e-Date)
Scope of
- ! Rome II does apply to the general duty of care of a corporation (BMA)
application
- Procedural matters are governed by lex fori = evidence and procedure are excluded (art. 1.3)
- Difficulties regarding statutes of limitations: lex fori or lex causae? (difficult relationship between
art. 1.3 and art. 15) (Pandya, Jabir et al v. Kik)
- Limitation periods foreseen in lex fori may be given priority under 2 conditions (Martins v. Dekra
Claims):
- 1) Unamar-test is fulfilled: identification of particularly important reasons in lex fori’s limitation laws
- 2) absence of harmonisation in EU secondary law
! No matrix per se, but:
- General rule: lex loci damni (art. 4)
Matrix - Specific torts (art. 5-9)
- Unjust enrichment, negotiorum gestio, culpa in contrahendo (art. 10-12)
- Freedom of choice (art. 14)
- Law of the country where the damage occurs (art. 4.1)
- Ignore lex locus delicti commissi and places where indirect damages occurred
- But: rules of safety and conduct (art. 17) of the locus delicti commissi may be used in the assessment
General rule: locus of the conduct of the person
damni (art. 4) - A singular event leads to one applicable law (Lazar v. Allianz)
- >< Mosaic
- Exception: parties habitually resident in the same country ⇒ national law applies (art. 4.2)
- Escape clause: the law of the country which is manifestly more closely connected (art. 4.3)
