Introduction
The Regulation on the ‘law applicable to non-contractual obligations’ (Rome II), standardises the rules regarding non-contractual obligations and extends the harmonisation of private international law. It aims to ensure that the courts in each Member State apply the same choice of law rules, to increase legal certainty and facilitate mutual recognition of judgements across the EU. The Rome II Regulation was adopted on 11 July 2007.
Key issues
As a general rule the Regulation requires that the law applicable to a non-contractual obligation arising out of a tort/delict is the law of the country in which the damage occurs. However, there are two exceptions:
- When the defendant and the claimant are both habitually resident in the same country at the time when the damage occurs, it is the law of that country that applies.
- When the event is manifestly more closely connected with a different country (e.g. deriving from a pre-existing relation between the parties), it is the law of that country that applies.
The parties are free to choose the law applicable either by common agreement after the event giving rise to the damage or, between business people, by an agreement freely negotiated before the event giving rise to the damage.
There are some concerns about the risk of forum shopping, where the country that is likely to produce the preferred outcome is chosen and also the risk of the application of foreign law of third countries (those outside of the EU).
Implementation
Rome II applies in all EU Member States, except Denmark, from 11 January 2009.
The Commission is required to submit to the European Parliament a report on the application of the Regulation by 20 August 2011.
Further information
The text of the Rome II Regulation can be found here. 