Herzog on the Rome II Regulation

Herzog on the Rome II Regulation

In July 2007, the European Community (EC) adopted a new Regulation, colloquially referred to as the "Rome II Regulation." Starting on 11 January 2009, this Regulation replaces the existing choice of law rules for torts and unjust enrichment in the Member States of the EC with new uniform choice of law rules, whether the events involved have occurred inside or outside the Community. It is, therefore, of considerable interest to practitioners not only within the Community but also in third countries. This commentary, written by Peter Herzog, Crandall Melvin Professor of Law, Emeritus at Syracuse University College of Law and an expert on the law of the European Union, discusses the major issues surrounding the new legislation and offers guidance concerning its application.
 
The author writes: The Rome II Regulation is intended to provide improved foreseeability in legal relations through reasonably clear choice of law rules. When it refers to the law of a particular country, the reference is thus always to its substantive law and not to its choice of law rules.
 
According to its official title, the Regulation refers to non-contractual obligations in general. Therefore, practitioners should take into account that it covers several matters that are not torts. Article 2 of the Regulation specifically mentions unjust enrichment, not formally authorised actions that benefit another (negotiorum gestio), and pre-contractual liability. The exact scope of non-contractual liability, both tort and quasi-contractual, will have to be defined by the case law of the European Court of Justice on the basis of Community law, and not national criteria.
 
The Regulation encompasses damage likely to occur, as well as actual damage (Article 2), damages, persons liable, vicarious liability, inheritability of damage claims, capacity to commit a tort (Article 15), multiple liability, subrogation, the availability of direct actions against insurers, legal presumptions, and burden of proof (Articles 18-22). The law of the forum will govern all other issues of procedure.