Most of us will be familiar with the basic concept of regulation 8642007 better known as rome ii, if not the nittygritty detail. This is the situation in austria, liechtenstein and the netherlands. A contract shall be governed by the law chosen by the parties. In european private international law, the ecj has been particularly thoughtful of promoting legal certainty in its interpretation of the main legal instruments. Nov 10, 2014 the english high court has recently rendered an insightful and thought provoking decision on the application of art. Uniform conflict rules with some room for forum shopping how so. Elgaronline requires a subscription or purchase to access the full text of books or journals. You are not authenticated to view the full text of this chapter or article. Rome ii cross border contracts and international litigation. The conflict of regulations between the brussels ibis. The relationship between the rome ii regulation and the. The same consideration is applicable, in principle, to the territories referred to in article 2993 of the ec treaty such as the. Article 2 application of law of noncontracting states any law specified by this convention shall be applied whether or not it is the law of a contracting state. Essentially, article 41 of the regulation lays down the general rule that the applicable law in tort is the law of the country in which the damage occurs.
By way of background, whilst the rome i regulation has reformed and replaced the 1980 convention. Recital 37 adds that the commission will make a proposal to the european. Eu law rome i law applicable to contractual obligations. The law governing a contractual obligation under this regulation shall apply to the extent that, in matters of contractual obligations, it contains rules which raise presumptions of law or determine the burden of proof.
In noncontractual claims, account is also taken of rules of safety and conduct in the country where the relevant event took place article 17, rome ii. Some of the most complicated problems within private international law are considered to be the concepts of. Crossborder civil and commercial legal casesbrexit guidance lnb news 01042019 34. Rome statute of the international criminal court article 41 excusing and disqualification of judges 20. The law applicable to noncontractual obligations has become a major reference work to practitioners as it provides the first userfriendly articleby. This chapter provides commentary on article 9 of the rome iii regulation, the european union divorce law pact. This pack includesthe rome ii regulation and a brand new updating supplement which brings the main work up to date and incorporates substantive developments since publication of the book in december 2008. The new rules are set out in the rome ii regulation rome ii which was published on 31 july 2007 and which applies to all eu member states with the exclusion of denmark. Articles 3 and 6 hague convention of 14 march 1978 on the law applicable to matrimonial property regimes article 52 swiss iprg. See articles 32 and 1715, and recital 90, of the directive. Rome ii regulation, clarifications as to its scope of. The rome ii regulation and the hague conventions on. However, article 15, d rome ii and article 31 35 brussels ibis both appear to govern. The lack of escape devices and the relative inapplicability of the second paragraph of article 12 of the rome ii regulation make this rule a rigid one whose application cannot be displaced whenever it reaches inappropriate results.
Rome ii regulation from 11 january 2009 there are new rules throughout the eu to determine which laws apply to litigation other than to claims based on contract. Written by rachel turner, senior associate at pcb litigation llp. Since the regulation is based on the general community competence provided for in article 61, it serves the objective of maintaining and developing an area of freedom, security, and justice. The rome ii regulation contains legal provisions related to private international law, or conflict of laws, as it is known in countries with commonlaw legal systems.
The governing law may not be applied if it is manifestly incompatible with the law of the forum article 21, rome i. The rome ii regulation on the law applicable to non. Jan 16, 2009 the new rules are set out in the rome ii regulation rome ii which was published on 31 july 2007 and which applies to all eu member states with the exclusion of denmark. The rome ii regulation ec no 8642007 is a european union regulation regarding the conflict of laws on the law applicable to noncontractual obligations. The english high court has recently rendered an insightful and thought provoking decision on the application of art. Article pdf available april 2010 with 912 reads how we measure reads. Danish judges will continue applying its national conflict of laws rules on torts. The regulation do not apply to evidence and procedure without prejudice to article 18.
For the rest, article 4 is essentially the same as article 10 in the commissions first proposal. Furthermore, it is currently debated whether to enlarge the material scope of application of this regulation to cover the violation of privacy and rights relating to. From 11 january 2009, the rome ii regulation creates a harmonised set of rules within the european union to govern choice of law in civil and commercial matters. Here entry into force seems to mean 19 august 2007. The rome ii regulation allows the choice of the applicable law in article 14, and rightly so 8, whereas the 1971 hague convention does not mention such a. Article 15 bis exercise of jurisdiction over the crime of aggression. The creation of rome ii regulation was arduous, its first years of application have not been simple either. Most significantly, although the key provisions regulating party autonomy in the rome i regulation, article 31 79 and the rome ii regulation, article 141 refer to the law chosen by the parties article 31 and the law of their choice article 141, there is little doubt that the. The european council meeting in tampere on 15 and 16 october 1999. Dec 11, 2008 the regulation provides many special rules as well as general and special exceptions that are occasionally ambiguous and make the outcome sometimes unpredictable. Title ii uniform rules article 3 freedom of choice 1. The regulation clarifies the difference between the date of entry into force of the text and the date of application in time, and expressly establishes that it only applies to contracts concluded after the latter, so as to avoid the problems posed by the rome ii regulation. Some of the most complicated problems within private international law are considered to be the concepts of characterization, renvoi and depecage. Culpa in contrahendo in european private international law.
The european convention on human rights convention for protection of human rights and fundamental freedoms preamble article 1 section i article 2 article 3 article 4 article 5 article 6 article 7 article 8 article 9 article 10 article 11 article 12 article article 14 article 15 article 16 article 17. Stay current rome i and rome ii a handbook to determine. The rome i regulation regulation ec no 5932008 of the european parliament and of the council of 17 june 2008 on the law applicable to contractual obligations is a regulation which governs the choice of law in the european union. The regulation has huge implications for international litigation relating to traffic accidents, product liability, environmental damage and infringement of intellectual property. L 1776 en official journal of the european union 4. The aim of the proposed regulation commonly referred to as rome ii 1 is to lay down uniform rules to determine which national law should apply to issues in cases with an international dimension where the claim is brought to enforce a noncontractual obligation. Clearing the rome ii hurdle morris orman hearle solicitors.
Regulation ec no 5932008 of the european parliament and of the council of 17 june 2008 on the law applicable to contractual obligations rome i chapter ii uniform rules arts. If the answer is yes, then the law selected in accordance with article 5 contracts of carriage, 6 consumer contracts, 7 insurance contracts, or 8 individual employment contracts of the rome i regulation as applicable will govern the contract. Article 15 of brussels i contains special rules which determine the. The law applicable to noncontractual obligations andrew.
A chong, choice of law for unjust enrichmentrestitution and the rome ii regulation 2008 57 iclq 863, 86472. The hierarchy of its key provisions is simpler than that of the other regulations. The present decision is taken under article 15 of the statute. Rome ii applicable law dispute resolution lexispsl. A short introduction to rome ii introduction there are now three regimes governing the applicable law in tort and some other non contractual claims. Article 15 of regulation ec no 442001 states that for article 15 1c to be applicable it is not sufficient for an undertaking to target its activities at the member state of. Article 3 freedom of choice regulation ec no 5932008. This means that the courts of member states will be able to apply the rules in rome ii to determine noncontractual obligations, even if the application of those rules results in the substantive law of a nonmember state being applied e. Article applicabilityofarticle8 forthepurposesofthischapter,article8shallapplytononcontractualobligationsarisingfromaninfringementofanintellectualpropertyright. Regulation ec no 8642007 of the european parliament and of the council of 11 july 2007 on the law applicable to noncontractual obligations rome ii.
Article 281 of the rome ii regulation stipulates that it is subsidiary to any international conventions to which one or more member states are parties when the regulation is adopted, and contains choiceoflaw rules for noncontractual obligations. But even then, decisional harmony may still escape us. Regulation ec no 8642007 of the european parliament and of the council of 11 july 2007 on the law applicable to noncontractual obligations rome ii regulation ec no 8642007 of the european parliament and of the council of 11 july 2007 on the law applicable to noncontractual obligations rome ii oj l 199, 31. The aim of the proposed regulation commonly referred to as rome ii1 is to lay down uniform rules to determine which national law should apply to issues in cases with an international dimension where the claim is brought to enforce a noncontractual obligation. Freedom to choose the applicable law in tort articles 14. Nevertheless, it is concluded that the rome ii regulation in spite of its flaws, is an acceptable instrument that furthers the harmonization of conflict of laws in europe. This comprehensive commentary provides an indepth, articlebyarticle analysis of the rome iii regulation, the uniform rules adopted by the eu to determine the law applicable to crossborder divorce and legal separation. The new rules are set out in the rome ii regulation rome ii which was published on 31 july. As part of the eus plans to lay down comprehensive choice of law rules for obligations in civil and commercial matters, rome i is complemented by rome ii, the regulation on the law applicable to noncontractual obligations, which has applied since 11th january 2009, providing for choice of law rules regarding noncontractual obligations, such. The regulation provides many special rules as well as general and special exceptions that are occasionally ambiguous and make the outcome sometimes unpredictable. It is based upon and replaces the convention on the law applicable to contractual obligations 1980. The european court of justice recently provided useful clarifications regarding its scope of application in time. Regulation, and regulation ec no 5932008 of 17 june 2008 applies to contractual obligations the rome i regulation and, together with the rome ii regulation, the rome regulations1. However, article 72 was not retained in the rome i regulation.
As previously observed by other chambers, this procedure has the object and purpose of. Under the treaty of rome, work on harmonisation within the community in the field of. Consequently, the rome ii regulation does not apply to denmark. Subject to the provisions of article 12, the liability for damage giving a right to compensation under article 1, for each aircraft and. Most significantly, although the key provisions regulating party autonomy in the rome i regulation, article 31 79 and the rome ii regulation, article 141 refer to the law chosen by the parties article 31 and the law of their choice article 141, there is little doubt that the parties may choose only the law of a. The case revolved around a road traffic accident that had. The universal scope of the rome ii regulation pursuant to article 3, may result in, for example, the applicability of chinese law and hardly any connection with the eu except for the court 415. The rome i regulation can be distinguished from the brussels. The general rule in this regulation should be the lex loci damni provided for in article 41. From 11 january 2009, the rome ii regulation creates a harmonised set of rules within the european union to govern choice of law in civil and commercial matters subject to certain exclusions concerning noncontractual obligations. The rome ii regulation on the law applicable to noncontractual obligations introduces a single choiceoflaw regime for tort and other noncontractual obligations. The establishment of regulation no 8642007 on the law applicable to noncontractual obligations rome ii.
Jurisdiction and governing law rules in the european union. The rome i regulation regulation ec no 5932008 of the european parliament and of the. Done at rome on 17 july 1998, in force on 1 july 2002, united nations, treaty series, vol. The law applicable to noncontractual obligations has become a major reference work to practitioners as it provides the first userfriendly article by. Pdf the rome ii regulation on the law applicable to non. Under rome ii, all eu member states will have to apply the same set of rules in determining the law that governs non. Finally, the judgment provides assistance as to the application of article 4 of regulation ec 8642007, rome ii, a regulation for which there is little case law. Any contracting state may require that the operator of an. The case revolved around a road traffic accident that had taken place in germany in late 2009. The commission, following the invitation by the european parliament and the council in the frame of article 30 of the rome ii regulation, will submit, not later than december 2008, a study on the situation in the field of the law applicable to noncontractual obligations arising out of violations of privacy and rights relating to personality. The rome ii regulation parliament publications uk parliament. The article 4 of the rome ii regulation spiru haret. Article 15 legal subrogation regulation ec no 5932008.
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