3.01  Add Although implementing legislation was not required to give legal force to the Rome II Regulation under UK law, the UK and Scottish Parliaments have passed measures designed to clarify the Regulation’s relationship with pre-existing statutory rules of applicable law, and to confirm that, Art 25(2) notwithstanding, the Regulation will apply to conflicts solely between the constituent legal systems of the UK or between one or more of those systems and Gibraltar (‘intra-UK conflicts’).

As their title suggests, the Law Applicable to Non-Contractual Obligations (England and Wales and Northern Ireland) Regulations 2008 (SI 2008/2986) (reproduced in Appendix 8) apply only to England and Wales and Northern Ireland. Regulations 2 and 3 amend the Private International Law (Miscellaneous Provisions) Act 1995 to confirm the primacy of the Regulation. Regulations 4 and 5 amend, respectively, the legislation for England (14.51A below) and Northern Ireland relating to limitation periods (in the form of the Foreign Limitation Periods Act 1984 and the Foreign Limitation Periods (Northern Ireland) Order 1985 (SI 1985/754)). Regulation 6 extends the Regulation’s rules to intra-UK conflicts (3.293 below).

Similar provision is made for Scotland by the Law Applicable to Non- Contractual Obligations (Scotland) Regulations 2008 (SSI 2008/404).

Both sets of Regulations came into force on 11 January 2009.

(n 1) Add Also G Itzcovich, ‘The Interpretation of Community Law by the European Court of Justice’ (2009) 10 German Law Journal 537 and the materials cited at footnote 1 of that article.

(n 4) Add For recent examples of the interpretative approach taken by the ECJ, in the context of the Brussels I Regulation, see Case C-533/07, Falco Privatstiftung v Gisela Weller-Lindhors [2009] ECR I-0000 and Case C-347/08, Vorarlberger Gebietskrankenkasse v WGV-Schwäbische Allgemeine Versicherungs AG [2009] ECR I-0000.

3.02  (n 5) Add For a description of the procedures for preliminary references from national courts under Art 267 of the TFEU (post-Lisbon Treaty), (p. 12) see OJ C297/1 [5.12.2009]. From 1 December 2009, the former restriction on the right to refer questions relating to Title IV instruments, including the Rome II Regulation, to courts from whose decision there is no judicial remedy (EC Treaty, Art 68) has been removed. There is, so far as the author is aware, no reference pending in relation to the Rome II Regulation.

3.04  (n 8) Add For a recent example of this approach, in the context of the Brussels I Regulation, see Case C-347/08, Vorarlberger Gebietskrankenkasse v WGV-Schwäbische Allgemeine Versicherungs AG [2009] ECR I-0000 (Judgment of 17 September 2009), paras 26–7.

3.12  (n 31) Add In paras 49 and 50 of her opinion in Case C-180/06, Ilsinger v Dreschers, delivered on 11 September 2008, Adv Gen Trstenjak had considered, the Draft Common Frame of Reference (Main work, 1.04) and other comparative law sources in considering the concept of a ‘contract’ in Art 15(1) of the Brussels I Regulation (cf 3.120–3.121 below). In its judgment, delivered on 14 May 2009, the Court chose not to refer to the Adv Gen’s opinion or to materials of this kind.

3.13  (n 32) The decisions in Cases C-195/06 and C-98/07 are reported at [2007] ECR I-8817 and [2007] ECR I-1281 respectively.

3.18  (n 26) Add For a critical review of the Regulation in light of its stated objectives, see Th M De Boer, ‘The Purpose of Uniform Choice-of-Law Rules: The Rome II Regulation’ (2009) 56 Neth Int L Rev 295. Professor De Boer concludes (ibid‎, 327) that ‘it is hard to escape the conclusion that Rome II promises much more than it could possibly deliver’.

3.26  The reference on line 2 to ‘Art 14’ should be to ‘Recital (14)’.

(n 59) Add R J Weintraub, in Ahern & Binchy, 54–5; (also (2008) 10 JIBFL 537) advocates a similar, content oriented approach to Art 4(3) of the Regulation, discussed at 4.86 below.

3.28  Add As one commentator concludes:^73A

Recital 14 states that Article 4(3) ‘enables the court seised to treat individual cases in an appropriate manner’. But this is not to suggest that the appropriateness of the outcome is a choice-of-law consideration. Rather, it appears to mean that the operation of Article 4(3) (however circumscribed) will by definition lead to the appropriate result.

Another, more critically, comments:^73B

(p. 13) As explained in recital 14, the objective of ‘doing justice in individual cases’ is just a promise to create ‘a flexible framework of conflict-of-law rules’, capable of accommodating various types of non-contractual obligations and open to exceptions for atypical situations. In this sense, ‘justice’ is done if, for each individual case, a ‘proper law’ can be found. The ‘proper law’, as determined by most of Rome II’s choice-of-law provisions, is the law of the country with which the case has, or is deemed to have, the strongest connection. Whether or not the application of that law leads to substantive justice, is irrelevant.

In this light, there is not much difference between a desire to do justice in individual cases and the ambition of striking a reasonable balance between the interests of the parties. Since the choice of the applicable law under most of Rome II’s provisions depends on geographical contacts, and not on the contents of the laws of the states involved, the concern for a reasonable balance must be focused on the interests the parties have in the way the choice is made rather than their interests in the substantive outcome of the litigation. … What the parties have a right to expect, however, is nothing but a choice that can be rationalized in terms of foreseeability, or geographical proximity, or even substantive policies. Within that wide margin, any solution the drafters of Rome II could have chosen would pass the test of legitimate expectations of a reasonable balance of interests.

3.32  (n 89) The decision in Telecom v Deutsche Telecom is reported at [2008] ECR I-1923.

(n 96) The decision in Quelle is reported at [2008] ECR I-2685.

3.33  (n 102) Add The ECJ’s decision on this point in Case C-435/06, C was affirmed in Case C-523/07, A [2009] ECR I-0000 (Judgment of 2 April 2009), paras 21–9. In that case, in considering the concept of ‘habitual residence’ in the Brussels II bis instrument, the ECJ declined to follow its own case law defining that concept in other contexts. This aspect of the decision is considered at 3.52A–3.52C below.

(n 103) Add For examples of this type of reasoning from the ECJ’s case law on the Brussels Convention, see Case C-271/00, Gemeente Steenbergen v Baten [2002] ECR I-10489, paras 42–7; Case C-73/04, Klein v Rhodos Management Ltd [2005] ECR I-8667, paras 21–2; Case C-381/08, Car Trim GmbH v KeySafety Systems Srl [2009] ECR I-0000 (Judgment of 25 February 2010), paras 34–5, 39.

(p. 14) 3.34  (n 107) Add Also E Lein, ‘The New Rome I/ Rome II/ Brussels I Synergy’ (2008) 10 YPIL 177.

3.35  (n 108) Replace existing text with The ECJ delivered its first (and, so far, only) decision on the interpretation of the Rome Convention on 6 October 2009 (Case C-133/08, Intercontainer Interfrigo SC v Balkenende Oosthuizen BV [2009] ECR I-0000, discussed at 4.95C–4.95E below). For discussion of possible future synergies in the interpretation of the three instruments, see E Lein, 3.34 above, 193–7.

3.41  (n 127) Add In Dornoch Limited v Westminster International BV [2009] EWHC 889 (Admty); [2009] 2 Lloyd’s Rep 191, Tomlinson J stated (at [85]) that he saw ‘great force’ in the observation of Heydon J in Neilson, at [271] that ‘it would be absurd that the regime—the lex loci delicti‎—which the Chinese Government enacted for incidents causing injuries of the type which the plaintiff suffered should be set at naught by reason of Australian law, as it would be if the supposed [no renvoi] principle existed’. In the same paragraph, the Judge noted the different approach taken under the Rome II Regulation, as well as under the pre-existing English rules of applicable law for torts.

For a note of regret at the exclusion of renvoi, see L de Lima Pinheiro, ‘Choice of Law on Non-Contractual Obligations Between Communitarization and Globalization. A First Assessment of EC Regulation Rome II’ (2008) 44 RDIPP 5, 35.

3.48  Add In other cases, Professor Hohloch has suggested that it was not necessary to define a term which, in his view, has a self-explanatory meaning, referring to the factual centre of gravity (factische Lebensmittelpunkte‎) of a person’s life.^144A

3.49  (n 147) Replace existing text with The ECJ’s judgment, delivered on 2 April 2009, in Case C-523/07, A [2009] ECR I-0000 is discussed at 3.52A below.

3.50  (n 151) Add Note, however, that this approach was not followed by the ECJ in Case C-523/07, A (3.49 above), para 36, quoted at 3.52A below.

(p. 15) (n 152) Add cf Case C-523/07, A, Opinion of Adv Gen Kokott (29 January 2009), paras 32–6.

3.51  Line 11 — Insert before ‘his intention’ (possibly)

(n 158) Add The ECJ in Case C-523/07, A, appears to have favoured an objective approach, requiring that the intention be manifested by other tangible factors (3.52A below).

Insert new paragraphs 3.52A–3.52C

3.52A  The view that the concept of ‘habitual residence’ in the Rome II Regulation must be given an autonomous interpretation, having regard to the nature and purpose of the Regulation’s rules of applicable law in which that concept appears, is strongly supported by the ECJ’s decision upon a recent reference, also concerning the Brussels II bis Regulation. In Case C-523/07, A,^158A the Court was asked to address the meaning of ‘habitual residence’ in Art 8(1) of Brussels II bis, a provision that regulates jurisdiction in matters of parental responsibility. Following the opinion of Advocate General Kokott, it concluded that:^158B

Since Article 8(1) of the Regulation does not make any express reference to the law of the Member States for the purpose of determining the meaning and scope of the concept of ‘habitual residence’, that determination must be made in the light of the context of the provisions and the objective of the Regulation, in particular that which is apparent from Recital 12 in the preamble, according to which the grounds of jurisdiction which it establishes are shaped in the light of the best interests of the child, in particular on the criterion of proximity.

The case-law of the Court relating to the concept of habitual residence in other areas of European Union law^158C cannot be directly transposed in the context of the assessment of the habitual residence of children for the purposes of Article 8(1) of the Regulation.

The ‘habitual residence’ of a child, within the meaning of Article 8(1) of the Regulation, must be established on the basis of all the circumstances specific to each individual case.

In addition to the physical presence of the child in a Member State other factors must be chosen which are capable of showing that that presence is not in any way (p. 16) temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment.

In particular, the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration.

As the Advocate General pointed out in point 44 of her Opinion, the parents’ intention to settle permanently with the child in another Member State, manifested by certain tangible steps such as the purchase or lease of a residence in the host Member State, may constitute an indicator of the transfer of the habitual residence. Another indicator may be constituted by lodging an application for social housing with the relevant services of that State.

By contrast, the fact that the children are staying in a Member State where, for a short period, they carry on a peripatetic life, is liable to constitute an indicator that they do not habitually reside in that State.

3.52B  In this connection, it appears significant that the Court, in considering the relevance of a subjective intention in the penultimate paragraph of the above extract appeared to require an outward manifestation of that intention. In her opinion, Adv Gen Kokott also downplayed the significance of intention in determining ‘habitual residence’, at least for children:^158D

Apart from the fact that this background of the law of officials has nothing in common with the family law context in the present case, the definition is also unsuitable for transposition to the present case, since it places too much emphasis on the intention of the person concerned. That may be possible in the case of adults. Thus it is no coincidence that the Borrás report refers to those cases in connection with jurisdiction for divorce. At least in the case of younger children, however, it is not the child’s own will that is decisive but that of the parents, who as part of the right of custody also have the right to determine the child’s place of residence. But precisely in the context of disputes over custody, the ideas of the persons entitled to custody as to where the child is to reside may well diverge. The intention of the father and/or mother to reside with the child in a particular place can therefore be only an indication of the child’s habitual residence, not a sole deciding condition.

3.52C  The concept of ‘habitual residence’ to be developed for the purposes of the Rome II Regulation must, of course, be capable of applying equally to (p. 17) adults and minors. This supports the view that an intention to reside should, at most, be one factor to be taken into account. Further, the objective of the Regulation in promoting legal certainty is consistent with the requirement that, in order to be taken into account, there must be some tangible, outward manifestation of that intention.^158E

3.57  Add at end of paragraph If more than one place of business has a connection to the tort or delict then, in line with the approach suggested in the Main work, 3.56, the habitual residence should be fixed at the place of business with which the tort/delict is most closely connected.^174A

3.62  (n 180) Add A Scott, in Ahern & Binchy, 57–9 and, with respect to the particular difficulties of classifying ‘competition’ claims under Art 6, J Fitchen, ‘Choice of Law in International Claims Based on Restrictions of Competition: Art 6(3) of the Rome II Regulation’ (2009) 5 J Priv Int L 337, 346–52.

(p. 18) 3.72  (n 220) Add Dr Rushworth and Dr Scott acknowledge, however, that ‘whilst data used in the characterization process are derived from the law by reference to which the claimant pleads his claim, this does not mean that the law’s characterization is adopted’ ([2009] LMCLQ 274, 297; also A Scott, in Ahern & Binchy, 57–9).

3.75  (n 230) Add For a narrower view, excluding situations in which the only foreign connection arises by reason of a choice of law, see L de Lima Pinheiro (2008) 44 RDIPP 5, 13–14.

Add In Jacobs v Motor Insurers Bureau,^231A Owen J rejected an argument that a claim for compensation from the UK’s compensation body established under the Motor Insurance Directives for personal injury suffered by the claimant, a UK national, in a road traffic accident in Spain caused by the German driver of an uninsured vehicle was not a situation ‘involving a conflict of laws’ by reason of the fact that the parties were English and the claim was founded on UK legislation implementing the Motor Insurance Directives which, it was submitted, provided an exhaustive statement of the conditions for obtaining compensation and required the claim to be dealt with ‘as if the accident had occurred in Great Britain’.^231B

Even if the Judge had considered that the UK legislation fell to be applied as an ‘overriding mandatory provision’ of UK law (Art 16) or as a measure implementing a provision of Community law laying down a conflict-of-law (p. 19) rule relating to non-contractual obligations (Art 27),^231E it is submitted that the Judge’s conclusion that the situation was one involving a conflict of laws (ie a question whether English, Spanish or even German law should be applied) was clearly correct.^231F

3.78  (n 237) Add Also CMA CGN SA v Hyundai Mipo Dockyard Co Ltd [2008] EWHC 2791 (Comm) [2009] 1 Lloyd’s Rep 213, [45] (Burton J).

3.83  (n 262) Add after reference to Mostaza Claro cf Case C-40/08, Asturcom Telecomunicaciones SL v Maria Cristina Rodriguez Nogueira [2009] ECR I-0000 (Judgment of 6 October 2009).

3.84  Add at end In National Navigation Co v Endesa Generacion [2009] EWCA Civ 1397, Moore-Bick LJ (at [118]) accepted (obiter‎) that the Brussels I Regulation did not bind arbitral tribunals. Waller LJ (who gave the only other reasoned judgment) did not express a view on this specific point (see his analysis of the reasoning of Burton J in CMA CGM SA v Hyundai Mipe Dockyard Co Ltd [2008] EWHC 2791 at [54]–[56]).

3.88  (n 273) Add Cheshire, North & Fawcett, 778, 794, 820–1; A Scott, in Ahern & Binchy, 72–82.

3.94  (n 284) For the opposite view, see Cheshire, North & Fawcett, 794. In Bank of Tokyo-Mitsubishi Ltd v Baskan Gida Sanayi Ve Pazarlama AS [2004] EWHC 945 (Ch); [2004] 2 Lloyd’s Rep 395, Lawrence Collins J (at [218]) applied Art 5(3) of the Brussels I Regulation (matters relating to tort etc) to a claim based on the tort of conversion.

It is submitted (Main work, 3.99) that the fact that the defendant, by way of defence, disputes the claimant’s ownership of the property in question should not prevent the claim from falling within the Rome II Regulation, unless (arguably) that is the dominant issue in the proceedings.

(n 296) Add cf A Scott, in Ahern & Binchy, 76–80.

(n 298) Add For later proceedings in the same case, see Case C-115/08, Land Oberösterreich v ČEZ [2009] ECR I-0000 (Judgment of 27 October 2009), discussed at 7.29 below.

3.99  Insert new paragraph 3.99A

This section qualifies the common law rule of ‘non-justiciability’ for issues concerning foreign land recognized in British South Africa Company v Companhia de Moçambique.^301A In Re Polly Peck International Plc (No. 5),^301B a case concerning trespass to land in Northern Cyprus, the Court of Appeal held that the question whether the proceedings are ‘principally concerned with a question of title’ so as to fall within the exception to s 30(1) was to be answered by looking at the issues raised by the pleadings and asking whether ‘the real issue in the proceedings is the question of title to, or the right to possession of foreign land, and all other questions are merely incidental thereto’.^301C

(p. 21) 3.100  (n 303) Add Also 3.200 below.

3.103  (n 311) The decision in Case C-353/06, Grunkin and Paul is now reported at [2008] ECR I-7639.

3.106  (n 314) Add Cheshire, North & Fawcett, 677–9, 777–8; M Pertegás, ‘The notion of contractual obligation in Brussels I and Rome’, in J Meeusen, M Pertegás and G Straetmans (eds), Enforcement of International Contracts in the European Union (Antwerp, 2004), 175; E Lein, 3.34 above, 189–90; A Scott, in Ahern & Binchy, 61–72.

(n 315) The ECJ’s landmark decision in Intercontainer Interfrigo SC v Balkenende Oosthuizen BV, delivered on 6 October 2009, is discussed at 4.89B below.

3.108  (n 324) Add Although the UK originally decided not to opt-in to the negotiations leading to the adoption of the Rome I Regulation, its request to participate in the Regulation has been accepted by the Commission (Decision of 22 December 2008 on the request by the United Kingdom to accept Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I) (OJ L10, 22 [15.1.2009])).

(n 330) Add cf Cheshire, North & Fawcett, 822.

3.109  Insert footnote 330A at end of paragraph Also Cheshire, North & Fawcett, 822.

3.115  Add Very similar reasoning may be applied in the case of the voluntary conferral of rights of third parties to enforce a contract (eg in the UK, under the Contracts (Rights of Third Parties) Act 1999). cf A Dutta, ‘Das Statut der Haftung aus Vertrag mit Schutzwirkung für Dritte‎’ (2009) 29 IPRax 293.

3.117  Add Also Case 9/87, SPRL Arcado v SA Haviland [1988] ECR 1539. The Sex Discrimination Act 1975, Race Relations Act 1976, and Disability Discrimination Act 1995 are to be repealed and replaced, from a date to be appointed, pursuant to s 211 and Schedule 27 of the Equality Act 2010.

3.120  (n 359) Replace existing text with Ibid‎, paras 51–6 (emphasis added). Contrast the approach taken in Engler and in the later decision in Case C-180/06, Ilsinger v Dreschers as to the concept of ‘contract’ in the consumer contract provisions of the Brussels Convention (Engler) and Brussels I Regulation (Ilsinger), discussed at 3.120A–3.120D below.

Insert new paragraphs 3.120A–3.120D

3.120A  In the earlier part of its judgment in Engler^361A the ECJ had concluded that there was not a ‘contract’ falling within any of the categories set out (p. 22) in Art 13 of the Brussels Convention (consumer contracts). In particular, the Court appeared to consider it decisive that there was no order for goods^361B and that the claimant did not herself assume any reciprocal obligation.^361C

The Court did not, however, consider that conclusion to be determinative of the question whether the obligation in question fell within Art 5(1), as to which it took a broader view.^361D

3.120B  More recently, the ECJ had occasion to revisit this aspect of the decision in Engler in considering the concept of a ‘contract’ in the consumer contract provisions (Arts 15 and following) of the Brussels I Regulation. In Ilsinger v Dreschers,^361E the facts of which follow closely those in Engler, the Court concluded that the concept of a ‘contract’ in Art 15(1) of the Brussels I Regulation did not require that the parties assume reciprocal obligations.^361F Thus:^361G

[I]t is, of course, conceivable, in the context of Article 15(1)(c) of Regulation No 44/2001, that one of the parties merely indicates its acceptance, without assuming itself any legal obligation to the other party to the contract. …

3.120C  However, the mere existence of reciprocal acts between the parties was not considered by the Court to be sufficient to constitute a ‘contract’ for the purpose, as the Court explained:^361H

However, it is necessary, for a contract to exist within the meaning of that provision, that the latter party should assume such a legal obligation by submitting a firm offer which is sufficiently clear and precise with regard to its (p. 23) object and scope as to give rise to a link of a contractual nature as referred to by that provision.

That latter requirement may be regarded as being satisfied only where, in the context of a prize notification, such as that at issue in the main proceedings, there has been a legal commitment contracted by the mail-order company. In other words, the latter must have expressed clearly its intention to be bound by such a commitment, if it is accepted by the other party, by declaring itself to be unconditionally willing to pay the prize at issue to consumers who so request. It is for the national court to determine whether that requirement is fulfilled in the dispute before it.

3.121  Line 2—Add after ‘Engler’ and Ilsinger

Line 12—Add after ‘Regime’, although it is not necessary that both parties should assume reciprocal obligations (3.120B above). Ilsinger (Brussels I Regulation, Art 15(1)) also takes a narrower approach than Engler (Brussels Convention, Art 5(1)) in that the Court’s reasoning suggests that the obligor’s voluntary act must consist, at least, of an unconditional declaration of his willingness to perform (3.120C above). It remains to be seen whether this element will be required as a pre-condition to the application of the Rome I Regime on the basis that the obligation is ‘contractual’.

Line 12— Add after ‘“contract” “(however it is defined)”’

3.122  (n 366) Add Similarly, Bart Volders expresses the view that ‘the exchange of particular pre-contractual documents between the parties may accordingly cause the characterization of claims arising out of dealings prior to the conclusion of contract to shift to a contractual matter’ (B Volders, ‘Culpa in Contrahendo‎ in the Conflict of Laws: A first appraisal of Article 12 (p. 24) of the Rome II Regulation’ (2008) 26 Nederlands internationaal privaatrecht‎ 464, 466).

3.127  Add In Dicey, Morris & Collins 3rd supplement (paras S35–177), the following sentence:

That said, it would appear possible for a single factual scenario to generate two or more obligations with different characterisations and for there to arise from acts in the performance of a contractual obligation a concurrent liability in contract, within the Rome I Regulation, and in tort, within the Rome II Regulation.

3.130  (n 382) The reference for Hedley Byrne & Co Ltd v Heller & Partners is to [1964] AC 465, 528.

3.131  (n 387) Add Also A Scott, in Ahern & Binchy, 59–60, 63–72. cf Cheshire North & Fawcett, 779–80. In his paper, Dr Scott argues that the ‘consensual source’ of the obligation in cases such as Hedley Byrne v Heller (Main work, 3.130, n 382) is sufficient for the defendant’s obligation to be characterized as contractual under Community private international law (Ahern & Binchy, 66–9). As appears from the arguments in the Main work, 3.131–3.132, the author takes a different view as to the nature of the defendant’s liability in cases of this type.

Insert footnote 392A at end of paragraph Dicey, Morris & Collins, 3rd supplement, paras S35–177 (3.127 above).

3.132  (n 393) Add For other possible difficulties, see A Scott, in Ahern & Binchy, 69–71.

3.141  (n 412) Add In Benatti v WPP Holdings Italy SRL [2007] EWCA Civ 263; [2007] 1 WLR 2316, Toulson LJ (at [58–60]) dealt with a claim for breach of fiduciary duty brought by a company against a former consultant as one falling within Art 5(3) of the Brussels I Regulation (matters relating to tort, delict, or quasi-delict).

3.146  The quotation is from Commission Proposal, 9.

3.149  (n 443) Add Also 3.149A below.

(n 445) Add Also Council document 11984/08 [18.7.2008]. The Council published proposals in March 2010 (COM(2010) 104 and 105), with a view to enhanced co-operation on the law applicable to divorce by Austria, Bulgaria, France, Greece, Hungary, Italy, Luxembourg, Romania, Slovenia, and Spain.

3.149A  Insert new paragraph 3.149A Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations was adopted on 18 December 2008, and will apply from 18 June 2011 or (if later) the date (p. 25) of application by the EU of the 2007 Hague Protocol on the law applicable to maintenance obligations.^443A On 30 November 2009, the Council adopted a Decision on the conclusion by the EU of the 2007 Hague Protocol.^443B On 8 April 2010, the EU was the first party to ratify the Protocol.

The Commission has also approved the request of the United Kingdom to opt-in to the Regulation.^443C

3.151  Line 3—Insert footnote 445A after ‘comparable to marriage’ cf Cheshire, North & Fawcett, 781, n 135, relying on the exclusion by Art 24 of renvoi. Both Art 1(2)(a) and Art 1(2)(b) refer, however, to ‘the law applicable to such relationships’.

3.154  (p 202 — lines 2–3) Delete ‘Neither consultation has yet resulted in a formal proposal’ and add at end of paragraph In October 2009, the Commission presented its proposal for a Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession.^454A The United Kingdom, having consulted on the Green Paper,^454B has decided not to opt-in to this proposal.^454C

3.172  (n 172) Add T Arons, ‘“All Roads Lead to Rome”: Beware of the Consequences!: the Law Applicable to Prospectus Liability Claims Under the Rome II Regulation’ (2008) 26 Nederlands internationaal privaatrecht‎ 481.

3.177  (n 511) Add cf Draft Common Frame of Reference (2009 outline edition, 1.04 above), Book X, Art 1:201 (‘A trust is a legal relationship in which a trustee is obliged to administer or dispose of one of more assets (the trust fund) in accordance with the terms governing the relationship (trust terms) to benefit a beneficiary or advance public benefit purposes’).

3.192  (n 555) Add Also A Scott, in Ahern & Binchy, 77.

3.195  (n 569) Add cf A Scott, in Ahern & Binchy, 80–2.

(p. 26) 3.200  Add at end of point 5 Dr Andrew Scott has argued that a trust imposed in these circumstances should be considered as a ‘remedy’ responding to a cause of action based on a non-contractual obligation.^584A Dr Scott also considers, however, that a claim solely to vindicate trust property from a third party is not a matter of obligation at all and falls, therefore, outside the scope of the Regulation, unless the trust originally arose as a response to the trustee’s own wrongdoing or unjust enrichment.^584B Although this is one possible interpretation of the Regulation, the ECJ’s reasoning in Webb v Webb^584C appears (despite Dr Scott’s view to the contrary) to favour the view that all claims seeking a remedy against ‘strangers’ to the trust fall within the scope of the Regulation.^584D

3.208  (n 605) Add In addition to the 1960 Paris and 1963 Vienna Conventions, see the Convention relating to civil liability in the field of maritime carriage of nuclear liability (Brussels, 17 December 1971). For broader discussion of civil claims arising from nuclear damage, see P Sands and P Galizzi, ‘The 1968 Brussels Convention and Liability for Nuclear Damage’ (1999) 64 Nuclear Law Bulletin, 7; P O’Higgins and P McGrath, ‘Third Party Liability in the Field of Nuclear Law: An Irish Perspective’ (2002) 70 Nuclear Law Bulletin 7.

3.216  (n 618) Add For later proceedings in the same case, see Case C-115/08, Land Oberösterreich v ČEZ [2009] ECR I-0000 (Judgment of 27 October 2009), discussed at 7.29 below.

3.220  (n 635) Insert at beginning At a meeting of the Council’s Rome II Committee in January 2006, it appears that no less than 13 different options were on the table (Commission note of meeting of Council’s Rome II Committee held on 24–25 January 2006 (Commission document JLS C1 (2006) D2317), 6).

3.221  Line 1—Insert footnote 636A after ‘conciliation process’ For the personal view of the Parliament’s rapporteur, Diana Wallis MEP, see Ahern & Binchy, 4–5.

Add at end A comparative study report, prepared by the Commission’s selected contractor, Mainstrat, in combination with the University of the Basque Country was submitted in February 2009 (JLS/2007/C4/028 Final Report),^637A but the Commission’s follow-up to the study has not yet been published.

(p. 27) The European Parliament’s JURI Committee, for its own part, has commissioned an own-initiative report on the subject, appointing Diana Wallis MEP as rapporteur,^637B and held a public hearing on 28 January 2010.

3.243  Line 5—Insert footnote 722A after colon cf Cheshire, North & Fawcett, 790–2.

(point 4) Add As one commentator notes: ‘It is important here to look past the “dogmatic” rim of national developments so as to reach, for the purposes of a “functional qualification”, the harmony sought from Art 2 in regards indemnification and damage prevention.’^732A

3.246  (n 745) Insert after reference to Regulation (EC) No 1371/2007 See also, in the UK, Rail Passengers’ Rights and Obligations (Exemptions) Regulations (SI 2009/2970).

Add at end Compare the proposal for a Regulation on the rights of passengers in bus and coach transport (COM(2008) 817 final [4.12.2008]), on which political agreement was reached in the Council in December 2009 (Council document 17669/09 [22.12.2009]). Recital (7) to the Council’s Common Position (Council document 5218/10 [4.3.2010]) requires the Rome I and Rome II Regulations to be taken into account ‘[i]n choosing the national law applicable to compensation for death or personal injury as well as for loss or damage to luggage due to accidents’ (Chapter II), but the rights in the event of cancellation or delay are more limited than those in the Regulations for air and rail passengers. In Case C-204/08, Rehder v Air Baltic Corporation [2009] ECR I-0000, a claim under Regulation (EC) No 261/2004 by a passenger who had booked his own flight was treated as falling within Art 5(1) (matters relating to a contract) of the Brussels I Regulation.

3.264  (n 799) Add Also Case C-420/07, Apostolides v Orams [2009] ECR I-0000 (Judgment of 28 April 2009), paras 42–5.

3.265  (n 804) Add Also Apostolides v Orams (3.264 above), para 45.

3.266  (n 805) Add It is, however, clear that an international organization established by treaty constitutes a ‘public authority’ for these purposes (Case 29/76, LTU Luftransportunternehmen GmbH v Eurocontrol [1976] ECR 1541, para 4).

(p. 28) 3.267  (n 810) Replace footnote text Préservatrice foncière TIARD v Netherlands, n 800 above, paras 39–44 (validity of exercise of powers raised by way of defence to guarantee claim). See further 3.269A–3.269C below.

3.269  Add For similar reasons, other claims to recover payments by way of compensation from a public authority acting as the administrator of a compensation scheme would appear to fall outside the scope of the Regulation, as the liability of the public authority (based on the provisions of the scheme) would appear to fall outside the sphere of the rules applicable to the relations between private individuals.^816A

It is submitted that this conclusion should follow even if a civil claim can be brought against the public authority to establish its liability as ‘guarantor’ or ‘ultimate debtor’ (as in the case of claims for damage caused by an unidentified or uninsured vehicle under Art 10 of the Directive (EC) No 2009/103.^816B

In Jacobs v Motor Insurers Bureau, however, Owen J expressed the view that a claim of this kind involves a non-contractual obligation in a civil or commercial matter.^816C As the point was not fully argued, it would appear open to review in a future decision. A claim by a public authority having been subrogated to the victim’s civil law rights against the person responsible may, however, fall within the scope of the Regulation.^816D

Insert new paragraphs 3.269A–3.269C

3.269A  In the most recent supplement to their work, the editors of Dicey, Morris & Collins suggest that it is uncertain whether a claim in unjust enrichment such as that in Kleinwort Benson v Glasgow,^816E brought to recover payments (p. 29) made under a contract held to be outside the contracting powers of a public authority, falls within the scope of the Rome II Regulation as a ‘civil’ matter. It is then argued that:^816F

Impractical as the result may seem, it may be that such a cause of action would, if raising choice of law issues, be held to be excluded from the ambit of the Rome II Regulation. Although the ‘contract’ in Kleinwort Benson had already been declared ultra vires‎, and the litigation did not raise public law specific issues, the obligation to make restitution arose from an absence of State authority to conclude the agreement. The applicability of the Regulation is determined by the nature of the obligation itself rather than by the particular issue in dispute between the parties to the litigation.

The proposition in the last sentence appears correct. It is submitted, however, that it does not support the conclusion that an unjust enrichment claim such as that in Kleinwort Benson would fall outside the Regulation on this ground. The obligation to restore payments under the contract should be seen as an aspect of the parties’ private law relationship and as being in its nature a claim founded not on the absence of State authority to conclude the contract but instead on the lack of a basis, the supposed contractual obligations, for the payments made between the parties.^816G

Alternatively, the claim may be characterized as being concerned with the consequences under private law of the absence of a public power to contract. Whichever view is taken, it may be noted that the foundation of the claim is the same whether it is the public authority or the counterparty that is the claimant, and indeed whether it is the local authority’s capacity to contract that is in issue. In other words, it rests on the rules governing private law relationships. It would be otherwise, for example, if the claimant sought to recover tax unlawfully demanded or an overpayment of social security benefit.^816H

The position would also very arguably be different, for example, if the claimant sought to invoke a statutory scheme specific to public authorities (p. 30) whose content places them in a different legal situation, or if the basis for seeking to recover payments was of a kind available only to (or against) a public authority.^816I

3.269B  In Kleinwort Benson, a case which led to an aborted reference to the Court of Justice on the interpretation of the provisions of the Brussels Convention that had been used as a model for the applicable United Kingdom legislation (Sch 4 of the Civil Jurisdiction and Judgments Act 1982), it was common ground between the parties that the claim fell within the description of ‘civil and commercial matters’^817J and that view was not challenged by any of the courts who heard the jurisdiction application.

3.269C  That said, it is submitted that a claim by or against a public authority to recover payments under an ultra vires‎ contract does fall outside the scope of the Rome II Regulation for a different reason, namely that it concerns ‘the consequences of nullity of contract’ and, accordingly, constitutes a matter of contractual obligation within the natural province of the Rome I Regime.^817K It should not, it is submitted, be excluded from the Rome I Regime (or the Rome II Regulation, if it applies) on the ground that it concerns the ‘legal capacity’ of a body corporate and thus falls within the ‘company law’ exception in Art 1(2)(f) of the Rome I Regulation (Art 1(2)(d) of the Rome II Regulation).^817L The obligation, whether contractual or noncontractual, is not one ‘governed by the law of companies and other bodies’.

3.283  (n 854) Add The ECJ’s decision in the Viking Line case is reported at [2007] ECR I-10779.

3.291  (n 877) Add Also T Hartley, ‘Choice of Law for Non-Contractual Liability: Selected Problems under the Rome II Regulation’ (2008) 57 ICLQ 899, 901.

3.293  Replace existing text with A statutory instrument giving effect to the Regulation in the UK has now been approved (3.01 above). As expected, these extend the Regulation’s rules of applicable law to conflicts arising solely between the constituent territorial units of the UK (including, for these purposes, Gibraltar) (see the Law Applicable to Non-Contractual (p. 31) Obligations (England and Wales and Northern Ireland) Regulations 2008 (SI 2008/2986) (Appendix 7 below), (Art 6)).

3.306  Line 6—Add footnote after ‘territorial waters’ For an application of this principle under the pre-existing UK rules of applicable law, see Hornsby v James Fisher Rumic Ltd [2008] EWHC 1944(QB).

(n 915) Add This proposition may, however, require qualification so as to exclude situations that are not related to the purposes for which a State exercises sovereignty over its continental shelf (Case C-37/00, Weber v Universal Ogden Services Ltd [2002] ECR I-2013, Opinion of Adv Gen Jacobs, para 30; J Basedow, ‘Rome II at Sea—General Aspects of Maritime Torts’ (2010) 74 RabelsZ 118, 129–30, 133–4.

(n 916) Add For discussion of the position with respect to torts occurring in a State’s exclusive economic zone (UNCLOS, Part V), see J Basedow (n 915 above), 133–4. The decision in Case C-308/06 is reported at [2008] ECR I-4057.

3.307  (n 917) Add See, for example, R (Yollari) v Secretatry of State for Transport [2009] EWHC 1918 (Admin).

(n 920) Add Also R (Yollari) v Secretary of State for Transport (above).

3.309  (n 923) Add Following the reference in Apostolides, the ECJ ruled on 28 April 2009 ([2009] ECR I-0000) that the suspension of the Community acquis‎ in the non-controlled area did not preclude a Member State court from recognizing and enforcing under the Brussels I Regulation a judgment given by a court of the Republic of Cyprus involving elements with a bearing on that area, and the judgment creditor’s appeal against the refusal of a declaration of enforceability was allowed by the Court of Appeal ([2010] EWCA Civ 9). By the same force of reasoning, the Rome II Regulation would apply in proceedings before a Member State court despite the existence of a connection to the non-controlled area, however substantial.

3.313  (n 930) Add An argument of this kind was accepted by the District Court of Rotterdam, considering pre-Regulation Dutch applicable law rules, in The Netherlands Postal Service v Nedlloyd (1977) 74 ILR 212, 214.

(n 928) Add In paras S35–198 of the 3rd supplement to Dicey, Morris & Collins, the view is expressed that:

There is no suggestion in the Regulation’s travaux préparatoires‎ that it was intended to exclude maritime torts from the scope of the Regulation and, in the absence of a specific exclusion, the better view is that they fall within scope, governed by Art.4.

(p. 32) Paras S35–199 suggests that it is ‘likely’ that the Regulation applies to aerial torts, including over the High Seas.

(n 931) Add The editors of Cheshire, North & Fawcett, refer to the Report in concluding (pp 859–60, 863) that the Regulation’s rules of applicable law cannot be applied to torts and other non-contractual obligations arising from acts or omissions on the High Seas. Also J Basedow, 3.306 above, 135–7 arguing that the Regulation does not apply to torts external to a vessel occurring on the High Seas (cf the discussion at 4.56A below, where this argument is rejected).

3.318  Add The Commission’s note of this meeting suggests that there emerged from this meeting a consensus that the Regulation should refer to one date only, although some Member States (Italy, UK, Spain, Czech Republic) were of the view that this should be the date of entry into force.^946A

3.319  (n 948) Add This view is also not without support among English commentators (eg P Stanley, Solicitors Journal (2008), vol 152, no 46, 15). Also X Kramer, ‘The Rome II Regulation on the Law Applicable to Non-Contractual Obligation: the European Private International Law Tradition Continued’ (2008) 26 Nederlands internationaal privaatrecht‎ 414, 417.

For detailed analysis by two German commentators, reaching opposing conclusions on this issue, see J Glöckner: ‘Keine klare Sache: der zeitliche Anwendungsbereich der Rom II-Verordnung‎’ (2009) 29 Praxis des Internationalen Privat—und Verfahrensrechts‎ (IPRax) 121 (application from 11 January 2009 to events since 20 August 2007); A Bücken, ‘Intertemporaler Anwendungsbereich der Rom II-VO‎’ (2009) 29 IPRax 125 (application and entry into force on 11 January 2009). For comment on the first German decision on the Rome II Regulation, which appears to take the latter view, see 3.319A below.

3.319A  Insert new paragraph 3.319A

The view that the Regulation applies from 11 January 2009 to events which give rise to damage which occur after 20 August 2009 is acknowledged (obiter‎ and without argument on the point) by Blair J in Maher v Groupama Grand Est.^948A Consistently with this view, in Jacobs v Motor (p. 33) Insurers Bureau,^948B the Rome II Regulation was applied to determine the law applicable to a claim arising from a road traffic accident in December 2007, but no point appears to have been taken as to the temporal effect of the Regulation. The same view is expressed by the UK Ministry of Justice in its guidance note on the Rome II Regulation.^948C By contrast, the first decision of the German Bundesgerichtshof‎ concerning the Rome II Regulation proceeds on the footing that the Regulation only applies to events giving rise to damage which occur after 11 January 2009. That case (discussed at 4.29 and 6.41 below) concerned a claim by a consumer association to restrain a Latvian airline from using allegedly unfair terms in its contracts with German consumers. The Court, having stated that the Regulation applies to events giving rise to damage which have occurred after its entry into force on 11 January 2009, held that the pre-existing German rules of applicable law (and not those in the Regulation) applied to contracts concluded before that date.^948D In support of this conclusion, however, the Court only cited Arts 1, 31, and 32 of the Regulation and it is unclear whether the point was argued.

3.321  Lines 4–5—Delete ‘, favoured by the editors of Dicey, Morris & Collins,’

(n 949) A view also favoured in Dicey, Morris & Collins, 3rd supplement, paras S35–168 commenting that ‘[t]he lack of clarity in the temporal application of the Regulation remains, however, highly unsatisfactory’. In Jacobs v Motor Insurers Bureau [2010] EWHC 231 (QB), in which the claim form had been issued in 2008, the Rome II Regulation was applied to determine the law applicable to a claim arising from a road traffic accident in December 2007, but no point appears to have been taken as to the temporal effect of the Regulation.

(n 950) Replace footnote text T Hartley, 3.291 above, 899, fn 2. This was also the view taken in paras S35–168 of the 1st and 2nd supplements to the current edition of Dicey, Morris & Collins. For the different view expressed in the 3rd supplement, see n 949 above.

3.323  (n 954) Add Less happily, this formulation left it uncertain as to whether the Rome I Regulation applied to contracts concluded on 17 December 2009 and led to a correction of the Regulation, substituting the words ‘as from’ for ‘after’ (OJ L309/87 [24.11.2009]).

(p. 34) Insert new paragraphs 3.324A and 324B

3.324A  Whatever conclusions are reached as to the dates of entry into force/application of the Rome II Regulation, questions will likely arise in the future as to the treatment of claims where the facts relied on by the claimant occurred both before and after the relevant date. It has been submitted elsewhere (Main work, 4.33) that the concept of ‘event giving rise to damage’, used in Art 31 to delimit the Regulation’s temporal scope, should be taken to refer to the present (or future) act, omission or other event of or attributable to the tortfeasor on which the claimant’s claim is founded. This will not necessarily correspond with the fact that is actionable under the law of the forum or the law that would apply under the Regulation. The ‘event’ in question may be (1) a single, isolated event (eg a traffic accident), (2) a sequence of events, each element of which has consequences that are identifiable and divisible, although related (eg multiple infringements of an intellectual property right), or (3) a single continuing event or a sequence of events giving rise to a single, indivisible set of consequences (eg a failure over a period of time to take safety measures to prevent personal injury; misrepresentations made in negotiations leading to a contract).

3.324B  The temporal effect of the Rome II Regulation in relation to the first two situations should not cause undue difficulty. The ‘events giving rise to damage’ can be seen as independent, with the consequence that the Rome II Regulation will apply to those occurring on^956A or after the relevant entry into force date, but not those before. The third situation causes more difficulty, in the absence of transitional provisions in the Regulation, if the relevant event or events occur both before and after the relevant date. A possible solution, although highly unattractive, would be to apply the Regulation only to the actionability of the facts occurring after the relevant date, identifying the law applicable to the actionability of the remaining facts by reference to the forum’s pre-existing rules of applicable law and applying the two systems on a ‘distributive’ basis.^956B A more straightforward alternative would be to take the claim as pleaded and to exclude the Regulation, in a situation such as this, if the claimant relies wholly or partly on ‘events’ occurring before the relevant date. This would appear to (p. 35) strike a fair balance between the claimant, who has control over the basis of his claim, and the defendant, who would not be subject to the Regulation’s rules of applicable law with respect to any conduct occurring before the relevant date.^956C(p. 36)