INTERNATIONAL TORTS

Question 1

What are the sources of choice of law? Related to non contractual obligations

Answer 1

National law
Public international law: International and regional
EU law

Question 2

What are the requirements for the application of Rome II?

Answer 2

Temporal requirements: damage that occur on or after 11.01.2009
Substantive requirement: Non-contractual obligations in civil and commercial matters involving a conflict of laws, as long as application of Rome II is not excluded

Question 3

What cases are excluded from the application of Rome II?

Answer 3

Cases outside the regulation’s temporal scope of application
Cases outside of the regulation’s substantive scope
Cases that fall into the scope of a Hague Convention: Application of the respective Hague convention
Cases with a connection to Denmark (Majority says that Rome II should apply)

It shall not apply, in particular, to revenue, customs or administrative matters

And art. 1.2.

Question 4

Which choice of law rules (connecting factors) should I look for to determine the applicable law? Rome II

Answer 4

Substantive choice of law rules
Objective choice of law rules
Special choice of law rules

Question 5

Why is the principle of party autonomy less accepted in the PIL of torts than in the PIL of contracts?

Answer 5

1st reason  the parties very often don’t know each other before the tort occurs. Therefore, they have no chance to agree on the applicable law ex ante.
2nd reason  after a tort has happened, parties usually have conflicting, opposing, interest. Therefore, it’s unlikely that they agree on the applicable law ex post.

Question 6

What kind of torts cannot be regulated by a law chosen by the parties? Rome II

Answer 6

• Torts relating to unfair competition.
• Torts relation to the infringement of intellectual property rights

Question 7

Requirements for a valid choice of law. Rome II

Answer 7

1st requirement: Valid external agreement about the applicable law = Declaration of choice (express or implicit). And just before the action and for commertial activities.
 2nd requirement: valid internal agreement about the applicable law = meeting of minds

Question 8

How do we determine whether the parties have actually reached agreement on the applicable law? II

Answer 8

Application of Art. 3.5 and 10 Rome I by analogy