DR - Conflict of laws - Rome 2

Question 1

Conflict of Laws
Rome 2 governs where tort disputes should be governed. Which torts does Rome 2 not apply to:

Answer 1

Rome II only applies to events giving rise to damage which occurred on or after 10 January 2009

Question 2

Conflict of Laws
Under Rome 2 for torts
How do you decide which countries laws will have jurisdiction for a tort dispute?

Answer 2

1 Have the parties validly chosen which law should apply?

• If yes: That country’s law will apply
• If no then…

2 Do the claimant and defendant habitually reside in the same country?

• If yes: That country’s laws apply
• If no: Apply the law of the country in which damage occurs

[Whether applying the habitual residence rule or the ‘country in which damage occurs’ rule, there is a final question…]

3 Tort “manifestly more closely connected” with another country?

Question 3

Conflict of Laws
Under Rome 2 for torts
If the parties choose which country’s laws will be effective, when will their choice be valid?

Answer 3

• If the agreement is entered into after the event, this choice will be effective.

If the agreement is entered into before the event this choice will only be effective if both parties are:
- pursuing a commercial activity and
- freely negotiated the choice of law

Question 4

Conflict of Laws
Under Rome 2 for torts
What happens if there is no choice and the claimant and defendant do not reside in the same country?

Answer 4

The applicable law is that of the country in which the damage occurs –

NOTE: not where the event giving rise to damage occurs, nor where indirect consequences might occur.