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The Rome II Regulation: The Law Applicable to Non-Contractual Obligations - Updating Supplement by Dickinson, Andrew (24th June 2010)

Part I Introductory Topics, 1 Background

From: The Rome II Regulation: The Law Applicable to Non-Contractual Obligations: Updating Supplement

Andrew Dickinson

Subject(s):
Rome Convention — Rome I Regulation and choice of law — Applicable law — Interpretation and trade practices — Applicable law to non-contractual obligations

Background

A. Introduction

1.01  (n 7) Add For the application of the Rome I Regulation in the United Kingdom (which had originally decided not to opt-in to the negotiations), see the Commission’s Decision of 22 December 2008 approving the request from the United Kingdom to accept the Regulation (OJ L10, 22 [15.1.2009]).

1.04  Add A revised, final outline version of the Draft Common Frame of Reference was released in February 200918A and the full edition of six volumes published later that year.18B

It is fair to say that the work of Professor von Bar and his colleagues, although widely admired, has not been universally well-received.18C A report commissioned by the UK Ministry of Justice was highly critical of the lack of clarity in the relationship between rules regulating ‘precontractual liability’ in Book II and ‘non-contractual liability for damage caused to another’ in Book VI.18D

(n 21) Add cf T M de Boer (2007) 9 YPIL 19, 28–9 (4.04 and 4.23 below).

(p. 4) B. The Pre-Regulation Position: A Comparative Overview

1.08  (p 9, line 2) Insert footnote within brackets after ‘partial’ For the position in Ireland, see L Heffernan, in Ahern & Binchy, 259–64.

1.12  (n 44) Add For a recent, very thorough examination and application of the pre-Regulation English rules of applicable law for restitutionary claims, see OJSC Oil Co Yugraneft v Abramovich [2008] EWHC 2613, [239]–[262] (Christopher Clarke J).

1.18  (n 73) Add France is also a party to the Hague Agency Convention (discussed at 11.23–11.25 and 12.10A below).

1.29  (n 108) Add The Netherlands is also a party to the Hague Agency Convention (discussed at 11.23–11.25 and 12.10A below).

C. The Road to Rome II

1.46  Line 5—Insert footnote 150A after ‘the discussion’ Commission document 12665/XIV/68-F, with accompanying note (in French).

(n 151) For the full minutes, see Commission document 6.686/XIV/69-F (in French).

1.48  (n 157) Add The Member States representatives’ responses to a questionnaire prepared by Professor Giuliano on the law applicable to contractual and non-contractual obligations are contained in Commission document 12.153/XIV/70-F (in French).

1.50  Insert new paragraph 1.50A

1.50A  The minutes of the meeting of the group of experts held in Berlin between 6 and 10 March 1978174A reveal that the decision, to exclude non-contractual obligations, followed a formal proposal by the United Kingdom government to limit the Convention to contractual obligations alone. In an accompanying memorandum, the United Kingdom stated:174B

Our proposal for limiting the scope of the Convention to contractual obligations is based on two main considerations. First, we believe that the harmonisation of choice of law rules in the field of non-contractual obligations, even if it can be (p. 5) satisfactorily achieved, will be far more difficult and therefore a lengthier exercise than in relation to contractual obligations. Secondly, we think that the need to harmonize choice of law rules is greater for contractual obligations than for non-contractual obligations, bearing in mind that, in general, certainty is more important in commercial matters. There are now good prospects of concluding work on the contractual aspects of the Convention in the not too distant future. We think it would be unfortunate if the benefits which can be expected from such a Convention were postponed, in an effort, which may well prove unsuccessful and which will certainly be protracted, to reach agreement on the whole range of non-contractual obligations.

In its memorandum, the UK pointed to difficulties arising from (a) the range and diversity of non-contractual obligations and the proposed solutions in the draft Convention, and (b) the need for significant further consultation with interested parties in the UK before reaching a concluded view. The meeting minutes record the following conclusion:

All the delegations, and the Commission representative, emphasised the need to harmonize the whole subject of obligations, in view of the complementary relationship which existed between this Convention and the Judgments Convention. Nevertheless, the majority of delegations considered that, in view of the time factor, it would be better to complete the part relating to contractual obligations first. This solution would have the advantage of enabling the accession convention to be signed at the same time. The German and Italian delegations were of the opposite opinion.

After examining other solutions, such as the possibility of allowing reservations, the Working Party decided:

  • —  to limit the present Convention to contracts alone;

  • —  to begin discussions on the preparation of a second convention on non-contractual obligations immediately after conclusion of the first.

On the basis of the statements made by the United Kingdom delegation, the Working Party was able to conclude that there was a possibility of finding acceptable solutions, in particular with regard to torts delicts in the strict sense of the term.

Despite this optimism it would be another 20 years before work on the Rome II instrument would begin in earnest (Main work, 1.53 and following) and almost 30 years before its adoption.

D. Conclusions—End of the Road?

1.97  Line 9—Delete ‘violations and privacy’ and insert … violations of privacy and rights relating to personality (Main work, 3.221; also 3.221 below).

(n 411) Add Also 14.32A and 14.53A below.(p. 6)

Footnotes:

18A  This version is also available at <http://www.law-net.eu/en_index.htm> (registration required).

18B  C von Bar and E Clive (eds), Principles, Definitions and Model Rules of European Private International Law: Draft Common Frame of Reference (DCFR) (UK edn, Oxford, 2010). Book V (benevolent intervention) appears in Volume 3 and Books VI (non-contractual liability for damage) and VII (unjustified enrichment) in Volume 4.

18C  For critical comment on the Draft Common Frame of Reference (and the wider Common Frame of Reference project of which it forms part), see the report of the House of Lords’ European Union Committee, European Contract Law: the Draft Common Frame of Reference (HL Paper 95, Session 2008–2009), available at <http://www.publications.parliament.uk/pa/ld200809/ldselect/ldeucom/95/95.pdf> and the report, ‘The “Draft Common Frame of Reference”: An Assessment’ by Professor Simon Whittaker commissioned by the UK Ministry of Justice, available at <http://www.justice.gov.uk/publications/docs/Draft_Common_Frame_of_Reference__an_assessment.pdf>. The dissent is not limited to the common law world, as appears from the reference in paras 34 and 35 of the House of Lords’ Report to an article by several eminent German professors (H Eidenmüller and others, ‘The Common Frame of Reference for European Private Law—Policy Choices and Codification Problems’ (2008) 28 OJLS 4).

174A  Commission document III/167/78E.

174B  Commission document III/148/78F.