Your input will affect cover photo selection, along with input from other users. Further, the "Principles" shall form a stimulus for both academics and practitioners and could serve as a guideline for national legal systems, thereby leading to gradual legal harmonisation. Finally, the present isolated tort law regulations, which are at times themselves contradictory, require a uniform concept from the European Union.
These studies have been published in the series "Principles of European Tort Law". The online version of the "Principles" in several languages can be found on the Group's website at [www. The topics range from fundamental questions, e.
Most projects are also discussed at international conferences at various European locations. Due to the international nature of the research undertaken by ECTIL, close bonds have been formed with both academics and practitioners whose contributions are vital to the study of the respective legal system. Not only do both institutions share offices and library, but they also draw from their mutual network of researchers built up over the years.
The Annual Conference on European Tort Law ACET is held in Vienna every year and provides both practitioners and academics with the opportunity to learn of the most significant recent developments in tort law within Europe in each calendar year preceding the conference. Experts from all over Europe present the highlights of their contributions to the European Tort Law Yearbook, which is published after each conference.
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This contribution has been translated from German into English by Marc Merrill, attorney-at-law. A copy of the German text with the first comments from the German legal literature can be found in Hohloch G.
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II, These will be conflicts rules that have both direct effect and which have a uniform statutory source. This is especially true for PIL related to tort law, less so for the conflicts rules related to unjust enrichment and negotiorum gestio. International tort law must predominantly resolve unplanned, damage causing events where the actors are randomly confronted with each other, and thus, requires a legally certain and good and practical system of connecting factors. This is possibly more important than those rules relating to contractual relationships where the possibility of choice of law by the contracting parties is always of first priority.
It is because of this that the Rome II Regulation, in its some 40 years of legislative history, has been the subject of a diverse and multifaceted discussion in not only German legal literature, but also the legal literature of other Member States. Wohl zuletzt W agner G. From the Austrian literature, see H eiss H. The first basic rule is the applicability of the law of the place of injury. Of course this is nothing new, as it is 'the' basis of international tort law that has a particular tradition in all EU Member States; a tradition which can be traced back to the establishment of the Statutentheorie 'theory of statutes'.
This means both the adoption of a unitary place of injury rule on the one hand, and the renunciation of national idiosyncrasies on the other. For a Sw iss perspective on the historical development, see von O verbf. From the French literature, G uerchoun F. For the Italian literature, see B ariatti S. Rome II reaches, only the new place of injury rule of Art.
The break from the up until now 'national' PIL will be enormous. Less dramatic, but just as significant, will be the coming into force of Art. Common habitual residence as a meaningful 'result-oriented' connection for damage rules,7 in the event that both tortfeasor and victim habitually reside in the same jurisdiction, and after the damaging event return to this jurisdiction, is today not new. It has, however, in the Member States of the EU at different times, for different motives and in many cases after some effort, replaced the 'common nationality' connection which was first recommended or practiced.
It was and sometimes still is a system which sought to determine the controlling law, in extreme cases, through the use of connecting factors such as the 'better law,' the law of the predominant interest, or the law of the 'most significant relationship' 'engste Verbindung'.
Those basic rules set forth in Art.
On the one hand, the reach of Rome II is provided in Art. The 'RechtsanwendungsVO' Applicable Law Regulation of , a unilateral conflicts norm that tied to German citizenship, was soon overcome in the German practice and was no longer an obstacle for the gradual change leading to common habitual residence, see from the case-law of the Bundesgerichtshof BGH , in: BGHZ 34, 22 et seq.
And then the following different opinions for this Hohloch G. The respective legal connecting factor is found in basically all of the PIL norms of European countries, norms which were completed during the 'Codification Epoch' of the second half of the 20th Century; see a copy of the text in its original language with a German translation in R iering W.
This represents, at least from a formal perspective, a difference of Rome II with respect to many present national conflicts systems, in which special rules based on the special type of delict are rarely found. National PIL will remain applicable only in exempted areas. It is then the job of the national legislative authorities to either highlight or harmonize the differences. This exigency exists less so in regards questions surrounding international application. Thus, on 11 January the Swiss legal practice will be confronted with 26 countries that will have this fundamentally uniform conflicts system.
I PRO, which however, pursuant to Art. Therefore, the new PIL for torts in the EU is for the Swiss practice significant, if jurisdiction for a tort case lies in a Member State - be it pursuant to general jurisdiction per Art. Rome II, also in relationship to Switzerland. Divergent from this is, for example, the Swiss PIL. In Art. To the limits of the location of direct damage compared with the location of a subsequent property loss, ECJ Structure of the Regulation The Rome II Regulation presents the model of how European PIL rules would look if they had to regulate a single area of private law, as the case may be international private law.
The rules regarding the scope of application here Art. More specifically, rules for non-contractual obligations, the first being the rules of international tort law PIL of torts, Art. Due to this 'statutory structure,' Rome II is certainly not an example of elegant and properly constructed codification; rather it has a piecemeal structure that seeks to place 'legal island' 'Rechtsinsel' next to another 'legal island' until - maybe - a European code of Private International Law will exist.
The European construction style is evidenced by the repetition of this same structure in Art. Reference to 'common legal environment' gemeinsames Umweltrecht or to the close connections repeatedly surface as preferred connections, a feature which could possibly lead to regulatory 'hypertrophy', but also at the same time to simpler application. The style of construction has just the opposite appearance and tradition of the classic national PIL statutory structure.
This classic structure is one which, because of its conciseness, lends itself to circumvention. The planned European Frame of Reference will probably have rather minor effect for the future creation of general European PIL codification. The requirements for a more compact PIL do not overlap in this respect with the requirements of the material law. The new style is likely to simplify application. When one is faced with the application of Art. This is almost just as true if one has to apply Art.
More often than not, the individual articles include the hierarchy system of connecting factors and indicate whether the basic rule of the first paragraph is applicable or whether a particular rule from the following paragraphs is the controlling. Resort, then, to an 'escape clause' for all delict and conflict cases in separate articles of the statute is not needed.
This is different, for example, than German PIL, where the escape clause applicable to unjust enrichment, negotiorum gestio and torts is included in Art. Narrowing o f 'Place o f Injury ' to 'Place o f Direct Damage ' In relation to a non-contractual obligation arising out of a tort, Art. The new uniform European conflicts law related to torts therefore designates the place of direct damage lex loci damni or 'Erfolgsort'.
This is the result of a long process whereby a number of other variations of the place of injury rule found in national PIL systems were rejected. The country in which the damage occurs is the country where the legally protected interest is injured 'Rechtsgutverletzung'. Place of injury in terms of Rome II means the 'location of direct damage' 'Erfolgsort' as it has been hereto used in language of international tort law. For the general concept see H o h lo c h G. The establishment of the place of injury rule as the place of direct damage, described as the 'country in which the damage occurs', is consistent and leads to certain outcomes which are worthy of note.
As regards its consistency, a European standardized and simplified general connecting factor for place of injury requires, as a European legal concept and as a universally applicable connecting factor, objectivity and neutrality. Place of injury as a connecting factor generally lends itself to objectivity. An aspect adding to the objectivity of the location of damage in the European arena may be that the law of the place where the damage occurs is best suited for the central tort sanction, i. The actions of the tortfeasor have insomuch limited weight in the evaluation.
For these countries for example France , the coming into force of Art. This rule has been in effect since 1 June in Germany. This 18 In this context see recital 16 of the Rome II preamble for a clear and accurate explanation of the reasons behind the selection of the 'place of direct damage' connection; see also the European Commission proposal from the 22nd of July on the regulation of the European Parliament and the Council on the law applicable to non-contractual obligations 'Rome II' COM final version, p.
Reach o f the Connecting Factor Art. The 'place of injury' connecting factor, or more accurately the 'place of direct damage', means a legal change for a number of Member States that is from other 'place of injury' variations to that of 'place of direct damage'. Admittedly, the practical implications that Art. To determine the significance of Art. Due to the precedence of Art. By cutting out those delicts related to products liability Art.
These delicts will predominantly be committed as 'Punkt- oder Platzdelikte' 'point or location delicts'. This means that these torts will be completely realised within a single jurisdiction and, therefore, will normally not involve a border crossing during their perpetration. The typical 'distance torts' 'Distanzdelikte' , i. The protection of the private sphere, marriage and personality 'right of privacy' , including defamation related to one's commercial reputation, are not covered by Rome II, due to the exceptions found in Art.
This is true both for environmental damages which do not arise out of the violation of individual legal interests and for those which consist in the damage caused to individual interests by means of natural elements water, air and soil. Regularly coming into question is the place of the accident 'Unfallort' , i. The example evidences that in the clearly limited material scope of application of Art. Everything regarding causality which occurred elsewhere, that is not in the location of the damaging occurrence, i.
This applies to preparatory acts as well as omissions. An example would be the failure to examine a technical aspect of an automobile in the home garage of the car's owner or driver, this failure leading to the occurrence of damage at the location of the accident. In the case of strict liability, the 'home' of the risk is irrelevant for the occurring of the damage. Accordingly, the law regarding liability of the place of damage will be applied. Nothing different applies to what occurs after the 'act'. It is certainly not a new approach not to adopt a different connecting factor with respect to 'indirect damage' in cases where the injury to the legal interest and the resulting primary damage occur in the same place.
However, Art. Development Taking precedence over the general connecting factor related to place of injury is Art. As the preferred connecting factor, Art. The Hague Convention on the Law Applicable to Traffic Accidents makes use of this connecting factor, at least indirectly. The legal reforms, which since have been introduced in the 'newer' Member States, also adhere to this principle.
Elsewhere, for example Germany, it was the courts, encouraged by the literature, which had been increasingly using a result-oriented connecting factor, notably the law of nationality 'Heimatrecht' or the law of 'common legal environment' 'gemeinsame Rechtsumwelt'. It was clear for many legal systems long before the passage of Rome II that habitual residence was an uncomplicated and practicable connection that belonged to the legal instrumentarium of international tort law.
Content 'Common habitual residence' means that the parties involved in the tortious situation have the factual center of gravity of their lives 'faktische Lebensmittelpunkte' in the same country. Rome II itself does not contain - and rightly so - a definition o f 'habitual residence', even when one searches in Art.
The question of whether the term 'residence' should be autonomously construed or whether its meaning should be inferred from the conflicts law of the forum state is ultimately pointless.
It is therefore sufficient that Art. They are helpful tools that are also available in the 'Brussels I' Regulation. Legal definitions only have, in PIL norms as in other areas of law, an assisting function.
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In the case of such self-explanatory terms as 'habitual residence', statutory definitions are not necessary. The Escape Clause Art. This was evidenced by the national conflicts laws when certain specific delicts, which are now separately dealt with in Art. Occasionally the facts in a given case are such that the general PIL rules related to connecting factors are 'manifestly' not appropriate. Practical cases which arose in the prior German practice are situations which bear a strong relationship to a contract or cases presenting other more significant connections. Foreseeable is a situation where the tort in question is closely linked to a complex contractual relationship and where the governing law should be that of the contract.
Mechanical solutions are however to be avoided. The proper approach requires first an analysis of paragraphs 1 and 2. If the result is so to say 'lopsided', then the obvious and imperative correction remedy can be made with the help of the escape clause. By no means, however, does Art.
Instead, international corporation law based on the ECJ jurisprudence. Scope and Qualification A. Material Scope and Qualification Commensurate with the construction principles of European legal drafting 'Normsetzung' in international private conflict of laws and international procedural law besides Rome II also Brussels I, the matrimonial regulations, as well as the upcoming Rome I , Rome II sets forth its material and territorial scope of application in Articles 1 through 3.
Those articles apply to the entire material scope of the Regulation, i. The attempt is not necessarily successful since under the conventional understanding of the German and other Member States' PIL, enrichment claims, just as much as negotiorum gestio claims, are not construed as cases seeking reparation of damage. Notwithstanding these terminology issues, claims for damages, claims based on restitutionary obligations, and reimbursment of expenses stemming from negotiorum gestio, all fall within the scope of the Regulation.
This is just as true relating to pre-emptive claims, which seek to guard against and hinder potential damage, or claims which seek to abate prospective causes of damage but which do not yet have the 'dimensions' of a damage claim.
If unjust enrichment and negotiorum gestio, which in Art. As far as the legal basis for such claims is concerned, Rome II only governs 'non-contractuaF claims. Because Rome II Regulation does not seek to bring about a revolution in international tort law, falling into the arena of 'non-contractual liabilities' should be classic torts as they are uniquely embodied in all European legal systems, whether codified or whether developed through the case law of a particular Member State..
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As for classification, Rome II seeks through the concept of 'non-contractual delicts' to generally cover all that which is encompassed within non-contractual liability and the prevention of liability. As a rule of Community law, the Regulation embodies a European standard whose definition shall draw on the procedural 37 The application of Art.
Covered also are forms of strict liability, i. Such claims do not necessarily require a traditional tort law foundation. An excellent example for this is Art. To summarize: Art. Proper guidance for this European qualification is the framework created through Art. On this basis today, simple fault, strict liability and preventative claims can all be classified under Art. In cases of doubt, notably in case where claims are based on third country law, some sort of 'comparative qualification' must be used. Thus, for interpretation purposes, other regulations which were established pursuant to Art.
Private law directives, for example the products liability directive, which has been the subject of commentary and case law, could also be helpful. For the inclusion of the negative actions actio negatoria K ropholler J. The controlling law, or lex fori, for the purpose of characterization under Art. Their laws must then be consulted - obviously within a comparative approach - if in a doubtful case the solution to the problem revolves around the applicability of Art.
Specific Groups o f Delicts Found in Art. As was previously set forth, the conflict of laws practice should proceed in such a manner so as to first examine the particular facts of the case in order to determine whether the delict falls under Art. If that question is answered in the affirmative, then a return to Art. Otherwise, the specific conflict of laws rules of Art. As for the specific and detailed application of Art. I The Rome II Regulation is meant to regulate the conflict of laws in regards to noncontractual liability.
Non-contractual liability belongs in the European system to 'civil and commercial matters,' which, based on European understanding, does not include governmental liability for damages stemming from acta iure imperi, liability questions arising from revenue, customs or administrative law matters. Such congruence is desirable and should be continued in order to reach a true European 42 See for a misunderstanding W a g ner G. The catalogue, starting with letter a and continuing until letter g , is based on Art. Defining the scope of application of Art. This includes maintenance claims even if according to substantial national law they are, under some circumstances, regarded as tort claims but still have a maintenance function45 , community property claims, and legacy or forced portion claims.
Paragraph 2, letters a and b are not, however, meant to exclude from the scope of Art 4 et seq. Such claims are still to be qualified as tort claims and consequently, in regard to conflict of laws, dealt with by means of Art. Their 'embedding' in a 'inner family context' may for example lead to the application of Art. Qualification as a tort is nevertheless appropriate.
Delicts in the areas of securities administration, trust administration or liability of organs or bodies of legal persons or other associations can be still qualified as torts to which Art. This result may be reached only after carefully examining that the facts of the case do not require application of a controlling securities, trust or corporate law.
D, as also N. Here it is about genuine tort law and the prevention of torts. Rome II's lack of applicability in this area is simply due to the drafters and legislators could not find a common solution. Until a subsequent solution for the Regulation, or new national regulation, is introduced, the current law of the Member States remains. Priority o f special conflicts rules Finally, the scope of application of Art.
Examples can be found in the 'Herkunftslandsprinzip' 'country of origin principle' of the E- commerce directive and in particular, with regard to Switzerland's relations to the single EU Member States, the Hague Convention on the Law Applicable to Traffic Accidents. The Hague Convention takes precedence to the extent that it is applicable.
Noteworthy changes are evidenced through the general exclusion of renvoi Art. Details in H ohloch G. Results are not yet available; see H ohloch G note 1 , Einl. On the wider German legal position on personal rights, see an overview by i. The regulation's own public policy clause will displace such 'plafond' provisions as Art. Territorial Applicability Art. It is, however, applicable in all other EU Member States, even when the place of injury lies in Denmark. In such cases a German court is to apply Art. Only Danish courts are not bound by Art.
This leads to the substantial practical importance of Rome II for Switzerland as a third country. Choice-of-Law Principles II. Freedom of Choice before or after the Event VI. Conclusion I. Choice-of-Law Principles Party autonomy is one of the leading principles of contemporary choice of law. Long gone are the days when conflicts scholars still argued that the applicable law could not be displaced by party agreement, as private individuals, by their own volition, cannot rise above the applicable law.
The text of this article was concluded in December Yearbook o f Private International Law, Volume 9 , pp. It has been argued that the parties' freedom of choice is justified by the need for legal certainty and predictability,6 by a 'subjective theory of the proper law,'7or 'for want of a better solution'. To me, therefore, freedom of choice in conflicts law can only be explained by linking it to freedom of disposition in substantive law.
Where party autonomy is given free reign in the forum's domestic law, its national conflicts law is likely to allow a choice of law by the parties. Conversely, freedom of choice is likely to be denied in areas in which the corresponding substantive law is meant to protect third parties or public interests and therefore is couched in mandatory language. That is why the law governing marriage, parentage, adoption, parental responsibility, or rights in rem can generally not be chosen by the parties. On the other hand, where a dispute does not concern anyone but the litigants - which usually implies that they are free to resort to alternative means of dispute resolution - there is no reason to curb their freedom to choose the applicable law.
That is why party autonomy is now generally accepted as a leading principle in contracts choice of law. As a tenet of the choice-of-law method adopted in most legal systems in the world today, party autonomy is an anomaly. At any rate, a method that is supposed 4 Cf. Contra: M orris J. A l, at p. My contribution to this collection of essays is best forgotten.
Yet, we have come to accept that the closest connection is not the only criterion by which the applicable law may be selected. Apart from conflicts rules based on the principle of the closest connection and the principle of party autonomy, there are at least two different kinds of rules that are not meant to determine the 'center of gravity' or the geographical 'seat' of the legal relationship. Instead, they give expression to a social policy underlying the forum's substantive law, which is either translated into a connecting factor that focuses on the party in need of protection, or into a number of alternative references, with a preference for the one by which a specific goal can be achieved.
They are based, therefore, on a choice-of-law principle that is known as the 'principle of functional allocation,' or the 'protection principle'.
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