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.
[...] However, we may doubt that parties would agree to select a different law because that law would be bound to be detrimental to the interests of one of the parties[40]. On the other hand, concerning the agreement concluded before the damage, its restricted scope to people exercising a commercial activity can be criticized because we may argue that people who are not exercising a commercial activity also have a legitimate interest in agreeing on the law they would like to be applicable to a future tort[41]. [...]
[...] Apart from particular cases under which the agreement of the parties cannot displace the application of some provisions (“provisions of the law of country other than the country whose law has been chosen] which cannot be derogated by agreement”[63], and “provisions of Community law [ . ] which cannot be derogated by agreement”[64]), the choice of the parties will prejudice the application of Rome II. It is worth highlighting that the application of Rome II can also be prejudiced by forum law. On the one hand, overriding mandatory provisions, which are provisions forming part of the forum law, must apply in any circumstances, “irrespective of the law otherwise applicable to the non- contractual obligation”[65]. [...]
[...] Also, we may note its universal application[17], which means that Rome II covers intra-Union as well as extra-Union torts. This is an important achievement for the subject of choice of law in tort. Nevertheless, the European legislator seems to have been really ambitious and Rome II faces difficulties to reach its objectives. Indeed, the contribution of the Rome II Regulation to the subject of choice of law in tort can be highly criticised. Thus, we shall first question the appropriateness and effectiveness of the general rule for choice of law in tort set by Rome II. [...]
[...] However, it does not render the application of Rome II easier and creates confusion[35]. The use of these diverse rules coupled with the possibility to have any of the various exceptions applied to them may be ambiguous and may lead to unpredictable results. Besides, this confusion is strengthened by the vagueness and the lack of guidance on essential concepts used in Rome II. We shall highlight three key concepts which can lead to great interpretative issues: “manifestly more closely connected”[36], “mandatory provisions”[37] and “public policy”[38]. [...]
[...] Thirdly, article provides for an escape to the application of paragraphs 1 and 2. If the case is “manifestly more closely connected with a country other than [the place of injury or the place of common habitual residence of the parties], the law of that other country shall apply”[30]. The escape clause aims at bringing some flexibility to enable the courts to adapt the rigid rule to individual cases. Thus, we shall argue that this rule also brings some unforeseeability; that is why the legislator intended it to be exceptionally used with the word “manifestly”. [...]
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