Detailed comments by Dr E B Crawford and
Dr J M Carruthers, School of Law, University of Glasgow
1. ARTICLE 3—GENERAL
RULE IN
TORT AND
DELICT
1.1 Observed that this is a lex damni
rule, which however the Commission in the Preamble (para 8)
and the Explanatory Memorandum (p11) chooses to call a lex
loci delicti commissi rule. Problems can arise with double
or multi locality delicts: suggest further elaboration of this
key article by way of re-drafting, or provision of authoritative
commentary.
It is a banality to say that in framing choice
of law rules, in tort particularly, the aim is to find a rule
which strikes a good balance between appropriateness and certainty.
One way in which this can be sought to be done is to fashion an
elaborate rule which seeks to predict, and to be capable of treating
suitably, all possible scenarios in advance (cf s11, 1995
Act); another is to give a broad, "proper law" type
discretion to the forum: this discretion almost certainly will
require to include—because it is pars fori, patent
(cf section 9(2), 1995 Act), or usually, latent—the
more subtle power to characterise, a power which may be of particular
significance in double or multi locality delicts (eg the
characterisation in product liability cases of the tort in question
as "insufficient care in marketing" as opposed to "insufficient
care in manufacture": Castree v. Squibb [1980]
1 WLR 1248—here, for the purposes of jurisdiction).
The approach which Rome II embraces is a third
way, consisting of a specific rule (Article 3.1), which gives
an impression of clarity and comprehensiveness, together with
specific exception (Article 3.2); followed (in order, but not
in precedence) by a rule conferring a wide discretion on the forum
(Article 3.3), only one hint is given upon the exercise of that
discretion, and the hint is gentle ("may be based").
1.2 Article 3 may be a good enough rule—as
good as any other—especially looked at as a whole; but it
is suggested that criticism should be made of the terms of Article
3.1, which carry a spurious air of clarity and finality. An important
question which arises is to what extent the Explanatory Memorandum
may be prayed in aid to elucidate the meaning of "damage"
(eg what is damage? what is to happen if primary/direct damage
occurs, or is likely to occur, in more than one country? what
is the difference between primary damage and "indirect consequential
damage"?) The type of case which comes to mind is one in
which loss/damage occurs following actings prompted by wrong information
(eg Morin v Bonhams and Brooks Ltd [2003] 2 All
ER (Comm) 36: where a bad buy is made in Monaco as a result of
fraudulent information "fed" to the buyer in London,
where does the damage arise? In the place of purchase, or the
place where the misinformation is received—or, most plausibly,
in the claimant's wallet ie the place where his principal
bank account is held?
Then again, in what must be the more typical
scenario of Edmunds v Simmonds [2001] WLR 1003,
how would Article 3 be construed? On a simple view, the applicable
law is Spain (before we even look at Article 3.2 or 3.3, physical
damage having occurred there. But a persuasive argument could
be adduced that the damage and its direct consequences arise in
England, or in England and Spain; cf. Boys v Chaplin
[1971] AC 356, and more difficult cases such as Henderson
v Jaouen [2002] 2 All ER 705 (continuing damage, or
deterioration in condition arising from original injury). Then
again, in Roerig v Valiant Trawlers Ltd [2002] 1
Ll Rep 681, where the accident occurred on board an English ship,
the main consequences in terms of loss were felt by the deceased's
family in Holland (their habitual residence), not England. An
apologist for Article 3 would say that an acceptable result would
be achieved in a Roerig situation by application of Article
3.3; and in the Edmunds case by application of Article
3.2. But our point is that a more rigorous approach to drafting
the principal provision is essential (Article 3.1). The problem
is with language, and perhaps particularly with the English language:
"damage". in English and Scots law may cover (i) the
wrongful act or omission; or (ii) the consequential loss. Turning
to the terms of Article 3.1, we see that an effort has been made
to distinguish these meanings, but we feel that greater precision
of wording could be achieved.
2. TORT-SPECIFIC
PROVISIONS
2.1 The obvious consequence of a tort-specific
approach is that it lays open many opportunities for argument
about characterisation. For example, should an action for passing
off be regarded as one relating to unfair competition (Article
5), or as an infringement of IP rights (Article 8)? Is an action
pertaining to the emission of noxious fumes to be properly classified
as a matter relating to the violation of the environment (Article
7), when in the past it would have been perfectly sensibly dealt
with under the general head of nuisance (Article 3)? By whom is
the task of characterisation to be performed? We presume it is,
as usual, a matter for the forum. If that is so, we imagine the
task would be performed in an enlightened manner, putting to one
side domestic categories, and approaching the task "for the
purposes of private international law" (cf section
9(2), 1995 Act).
2.2 Article 4—Product Liability
Similarly, the scenario of damage caused by
defective products (Castree v Squibb [1980] 1 WLR
1248) has presented the forum in the past with a choice of characterisation;
and upon that choice would the choice of law depend. But
the rule embodied by Article 4 contains a number of complexities
over and above the initial problem of characterisation, viz:
it is subject to Article 3; hence, the particularities of
Article 4 will be trumped by the factor of common habitual residence
of victim and defendant; and the forum also has at its disposal
the discretion afforded by Article 3.3. If all of these difficulties
are negotiated one is left with a rule which points to the victim's
habitual residence (but at what time? habitual residence is a
variable connecting factor, so the tempus inspiciendum ought
to be specified: cf Article 3.2), unless the proviso applies.
Where the proviso does apply, how is the habitual residence of
the "person claimed to be liable" to be ascertained
when that "person", as is likely to be the case, is
a juristic, rather than a natural, entity?
2.3 Article 5—Unfair Competition
We find here a category unfamiliar, namely "acts
of unfair competition". We have no real objections to the
rule itself, but we envisage problems of characterisation.
2.4 Article 6—Violations of privacy
etc
With regard to the interesting and complex area
covered by Article 6, certain positive comments can be made. Insofar
as it is not clear whether a claim arising out of a violation
of privacy would fall within the definition of "defamation
claim" contained in the 1995 Act, section 13(2), it is possible
that Article 6 of the Proposal, by express inclusion of such a
delict, will confer greater protection on the British media than
does the existing "UK" legislation. There is a striking
difference between the provision contained in the current Proposal
and its predecessor (Preliminary Draft Proposal, Article 7), which
identified the habitual residence of the victim as the applicable
law. Currently, the balance between freedom of speech on the one
hand and a right of privacy on the other, is more heavily weighted
in favour of freedom of expression (if the views of the forum
lean on that side), since ready recourse can be made to the laws
of the forum, at the option of the forum. As to the right of reply,
the choice of law is the habitual residence of the broadcaster
or publisher.
While it does appear that in these matters there
is a case for elevating to the pre-eminent position the policy
of the forum (cf section 13, 1995 Act), it is axiomatic
that whenever the lex fori can be predicted to be the lex
causae, particular care will be taken by the claimant in forum
selection. Threshold disputes about jurisdiction are likely (albeit
within Brussels I Regulation structure of rules). The interface
between choice of law and jurisdiction must always be kept in
view.
There seems to be a tendency in the jurisdiction
cases (Shevill v Press Alliance SA Case C-68/93
[1995] AC 18; Berezovsky v Michaels [2000] 1 WLR
1004; Dow Jones v Gutnick [2002] HCA 56 in this
subject area to favour the segregated approach of suing for (restricted)
damages as and where the material was published, rather than suing
in the "home" of the publisher for a global award. Nevertheless,
suing for global damage in a privacy-favouring jurisdiction would
have obvious advantages to the claimant.
Leaving aside difficulties of characterisation,
Article 6 as currently drafted, appears to hold the expected balance,
and on analysis might be regarded as a watered-down version of
section 13 of the 1995 Act, in that there is potential for the
forum to have a strong and final say (invoked as a safety-measure,
rather than as a principal and equal part of the basic rule).
These are some of the points which we feel may
be made in respect of this part of the proposed Regulation.
3. SECTION 2—RULES
APPLICABLE TO
NON-CONTRACTUAL
OBLIGATIONS ARISING
OUT OF
AN ACT
OTHER THAN
A TORT
OR DELICT
3.1 As noted in the introductory remarks,
"domestic" conflict rules in this area are a matter
of conjecture. Against that background, it is suggested that the
structure of rules outlined in Article 9 should be viewed with
an entirely open mind. The rule in Article 9.1, that the applicable
law shall be the law governing a previously existing relationship
between the parties, if such exists, is in line with "domestic"
conflict thinking within the UK. Though the treatment of "relational"
cases could be expressed with more refinement and precision (eg
Joanna Bird, "Choice of Law", Restitution
and the Conflict of Laws' ed Francis Rose, Mansfield Press, 1995),
distinguishing between the semblance of contract cases and other
pre-existing relationship cases (eg trustee-beneficiary;
though the proportion of "non-contractual" cases presumably
would be small), there is perhaps a degree of consensus that,
whether logical or not, there is something to be said for applying
the putative law, and we would not dissent. (Contrast Article
3.3, where "pre-existing relationship" is only one adminicle
of evidence supporting displacement of the lex loci delicti,
or the common habitual residence of the parties; the higher profile
which the factor of pre-existing relationship bears in Section
2 cases stems from, and is justified by, the desire, or need,
to segregate at the outset certain types of case. It is in instances
of "non-relational" unjust enrichment that views begin
to diverge.
3.2 Article 9.2 is an echo of Article 3.2.
We would suggest that where an echo or common structure can be
inserted in a new set of rules, that course should be encouraged
(ie not only across Regulations—as eg between Rome
I and Rome II—but also between cognate parts of Conventions/Regulations
in different areas of the conflict of laws—eg consumer
and employment provisions in Rome I and BIR; and further, in the
micro sense, as here, between different parts of the same Regulation).
However, Article 9 is more complex in its drafting than is Article
3, the former making residual provision for cases of (i) non-relational
unjust enrichment (Article 9.3), and (ii) non-contractual obligations
arising out of actions performed without due authority (Article
9.4), both of the latter rules being made subject to Article 9.1
and 9.2. It would appear that the special rules contained in Article
9.2, 9.3 and 9.4 will operate only if the case does not fall
within 9.1; and always subject to 9.5. Article 9 is a key
provision, entirely of new, and the meaning, ranking, ambit and
interrelationship of its branches must be made abundantly clear
if the rule is to serve its purpose and make an improvement.
On examination, this provision (Article 9) should
not be described as a cascade of rules. The complexity for the
draftsmen arises from the fact that the Article seeks to identify
choice of law rules for different categories of what we might
call "restitution" cases; but, the drafting technique
must make clearer the hierarchy of provisos and exceptions, and
in addition must devise a rule of particularity in the area of
actings without authority.
The categories of "restitution" cases
sought to be dealt with are as follows:
9.1 Relational unjust enrichment
9.2 Joint habitual residence. On examination,
and attempted interpretation, it does not appear that there is
any meaningful link between 9.1 and 9.2. Nor is 9.2 an exception
to 9.1; rather 9.2 must surely be the general rule for non-relational
unjust enrichment, to which 9.3 is a sub-rule, which operates
where the parties, in non-relational cases, do not have
a joint habitual residence.
9.3 Non-relational unjust enrichment
sub-rule
9.4 Deals with an entirely separate category
and supplies an entirely new rule, that is to say, application
of the habitual residence of the beneficiary (ie principal)
in relation to an obligation arising out of actions performed
without due authority in connection with the "affairs"
of another person.
As a derogation from this rule, the Proposal
chooses the law of the situation of the beneficiary or the property
where the actions performed in connection with those "affairs"
relate to the "physical protection of a person or of specific
tangible property".
What facts comprise the scenario, which purports
to be the basic, generic case, viz. "affairs"?
Surely the more common scenario involving actings without authority
(and for which, therefore, the general rule should cater)
will concern the protection of person and/or property?
We glean from the Explanatory Memorandum (p22)
that the rationale of Article 9.4 is that in cases of one-off
assistance, the actor/agent should expect to have the law
of the situation apply (presupposing that the actor and the property/person
protected are in the same country, but presumably even if not)
ie the actor/agent should be protected to the extent of
not having the beneficiary's law apply (at least not in
the first instance—Article 9.5). But, in cases of interference
(so-called—p 22), the principal should have the advantage
(if advantage it be) of having the law of his habitual residence
apply (subject again to Article 9.5). This may or may not be a
reasonable rationale; but the query is whether the Article as
drafted meets the aim stated in the Memorandum ie does
the verbal distinction between "affairs" on the one
hand and "affairs [relating] to the physical protection of
a person or of specific tangible property" fulfil the purpose
intended? We submit that the drafting is not satisfactory. The
preamble to the Proposal is very brief on the subject of non-contractual,
non-tortious obligations (only one paragraph—para 15—is
devoted to restitution, whereas eight paragraphs—paras 7-14—are
devoted to tort), and casts no light on the intended purpose of
Article 9.4.
Might not a more appropriate distinction be
that between relational and non-relational negotiorum gestio
type cases, in that one-off ("non-relational") assistance
may well be referred most sensibly to the lex situs at
the time of acting (ie the lex situs of the person
or property to be protected), leaving relational cases (eg
actings by a parent/guardian on behalf of a child concerning
his property; or where an agent acts, on a continuing basis, by
virtue of a Power of Attorney, the authority of an agent to bind
a principal being excluded from Rome I) to be decided according
to the rules in Article 9.1, subject to displacement under Article
9.5.
3.3 Despite the remit for reform having
been restricted to cases of unjust enrichment and agency without
authority (and therefore covering no other obligation which could
be said to rest upon restitution), the difficulty in framing a
choice of law rule in restitution has always been the variety
of scenarios for which it must seek to provide a satisfactory
solution; for residual cases not covered by RII, the forum must
use its common law choice of law rule (cf Rome I, Article
10(1)(e)), if it has one, or can find one. In its search, it will
presumably be aided by the approach eventually taken in the Regulation.
As to Article 9.3, where the choice of law falls upon the country
in which the enrichment takes place, all that can be done is to
refer to the many commentators who have found fault with this
connecting factor, on the basis of its being difficult to ascertain
on the facts, potentially casual/fortuitous, or hard to locate
in one single legal system.
4. COMMON PROVISIONS:
SECTION 3
4.1 Article 10—Party Autonomy
At this point we quote or paraphrase our comments
shortly to be published in the Scots Law Times:
"Whether, in general across the conflicts
spectrum, and in principle, sufficient (in whose view?) protection
is afforded to weaker parties when party autonomy in choice of
law is permitted, is a large question. The theory behind the limitation
of parties to ex post facto choice seems to be that they
will thereby be protected from inadvertently waiving their rights,
or ceding to the will of the other party (perhaps, say, in a standard
form contract) in advance of the dispute.
Greater freedom of choice (albeit freedom restricted
by Articles 10.2, 12 and 22, concerning mandatory rules and public
policy) may be a welcome development in this area, but it must
be borne in mind that ex post facto choice is not necessarily
informed choice; irrespective of whether a case arises
out of, say, an employment situation, or is entirely at arm's
length and `unforeseen', permission to choose the applicable law
after the event is no guarantee that advantage will not
be taken of the weaker party.
Party autonomy has to be understood nowadays
against the background of mandatory rules. Although Member States
now are familiar with the concept and purpose of
mandatory rules, if not always with the definition thereof,
the `anti-avoidance' provisions contained in Articles 10.2 and
12 are notably complex and their operation inter se needs
to be clarified if the provisions are to be of practical use."
4.2 Mandatory rules and public policy
4.2.1 It is important to attempt to decipher,
and to work out the implications of, the intended interaction
of Articles 10(2), 12 and 22. Such provisions, in such terms,
now are almost formulaic in EU conflict of laws instruments. One
has to keep watch for minor differences or creeping extension
of EU central influence, and concomitant diminution of actual
party autonomy. It is perhaps rather more difficult to suggest
examples of the various types of mandatory rule in delict or restitution,
than in contract.
One might note a tendency to give with one hand,
and to take away with the other, in the form of insertion of vaguely
worded Articles, which, in an analysis of the Proposals, could
easily be overlooked. The burden of Article 13, for example, is
to enjoin the forum, regardless of applicable law, to take account
of "the rules of safety and conduct which were in force at
the place and time of the event giving rise to the damage."
For present purposes, it is sufficient to say that this provision
may prove helpful, eg in a damages action litigated in Scotland
arising out of a traffic accident abroad."
Similarly, whilst provisions such as Articles
10.2 and 12 are now relatively familiar to conflict lawyers (cf
Rome I, Articles 3.3, 7.1 and 7.2), less familiar is the provision
contained in Article 10.3: "The parties' choice of the applicable
law shall not debar the application of provisions of Community
law where the other elements of the situation were located in
one of the Member States of the European Community at the time
when the loss was sustained." It is unclear, in drafting
terms, what are the other elements, and how many of the
(essential?) elements require to be located in a Member State,
or indeed what is Community law. If doubt exists in relation to
the definition of the mandatory rules of a particular country,
more doubtful still must be the definition of the "mandatory
rules" of Community law. Article 10.3 seems to go beyond
the scope of harmonisation of rules of choice of law, hinting
perhaps at a supranational substantive law; the consequences of
this provision could be significant. Article 10.3 is an advance
on Rome 1, Article 3.3, presumably made necessary by the web of
"sectoral" provision now present in Community law, and
has been inserted in order to try to make clear the hierarchy
of application. Nevertheless, experience suggests that the terms
of the threshold, viz "where the other elements of
the situation were located in one of the Member States",
surely are likely to give rise to doubt as to interpretation in
the individual case.
4.2.2 The customarily found public policy
clause (to the effect that application of a foreign law may be
refused if it would be manifestly incompatible with the public
policy of the forum) is contained in Article 22 (cf. Rome I, Article
16). Rather more surprising is the reference to, and protection
of, "Community law" (Article 10.3) and `Community public
policy' (Articles 23 and 24).
The presence and tenor of Articles 23 and 24
evidence anxiety at the European centre to control, and add a
new "substantive" quality to the Europeanisation of
the Conflict of Laws. For noting, that which has attracted specific
Community disapprobation as perforce contrary to "Community
public policy" is the award of non-compensatory damages such
as exemplary or punitive damages. This is significant in view
of the principle of universal application enshrined in Article
2, and is a prime example of the phenomenon of creeping EU aggrandisement.
Why, in effect, should X be denied a sum of
damages to which he is entitled under the substantive law of,
say, Texas, the lex causae identified under Article 3.1,
on the ground that the award, either on its face, or by characterisation
(by whom? presumably the forum) falls within Article 24, as being
exemplary or punitive? Sometimes it will not be clear in a jury-award,
whether the jury "has abandoned restitutio in integrum
in favour of a penalty, as must be suspected in some case."
(White and Fletcher, "Delictual Damages" (2000),
p59). Such damages, we understand, can be awarded in England and
in France (cf SA Consortium v Sun & Sand [1978]
2 All ER 339, per Lord Denning MR at 355: "Likewise I see
nothing contrary to English public policy in enforcing a claim
for exemplary damages, which is still considered to be in accord
with public policy in the United States and many of the great
countries of the Commonwealth."), and when we turn to these
examples, the effect surely will be that the awards remain competent
in domestic cases. Can it be that such awards for résistance
abusive will remain competent (for the present at least—beware
the translation of "Community public policy" used as
a conflict tool, into a wider Community-wide policy applicable
in domestic cases), in a French domestic case arising in tort,
but will not be available if the role of French law is as lex
causae in a conflict case arising in another Member State?
And when we consider that it appears competent in England in certain
cases to award exemplary damages, the matter having recently been
considered by the Law Commission ("Aggravated, Exemplary
and Restitutionary Damages" (Law Com No 247) (HC Paper
346—1997-98), the same question will apply, with the added
complexity that it is not yet clear whether Rome II, in its entirety
or partially, will apply in cross-border, intra-UK delictual incidents.
The forum may begrudge its loss of discretion
in this matter, for it is perfectly clear that, despite the off-putting
title, such damages may seek merely to compensate a litigant for
outrageous or vexatious behaviour by the other party. In Scots
law, where "[t]here is no adequate warrant for punitive,
vindictive or exemplary damages" (Walker, D M, "Delict"
2nd ed (1981), p461), the court might still wish to make an award
of "aggravated damages" in the circumstances.
5. ARTICLE 11—SCOPE
OF THE
APPLICABLE LAW
5.1 Article II(e)—"assessment of
the damage"
Carelessly, and in error, instead of incorporating
the wording of Article 11(e), the Explanatory Memorandum (p 24)
adopts the wording of the equivalent provision in the Preliminary
Draft Proposal (ex-Article 9.5): the Memorandum refers not to
the current wording ("assessment of the damage"),
but rather to the old wording ("measure of damages").
In any event, neither phrase is adequately explained.
If by "assessment of the damage" is
meant quantification, then Article 11(e) represents a marked change
to the existing Scottish and English rule. Presently, the Scots
(and English) choice of law rule relating to delictual damages
is partly substantive and partly procedural. The applicable law
in delict determines what heads of damages are available; as a
general guide, any rule which indicates the type of loss for which
damages are payable is a rule of substance, referable to the applicable
law in delict. The monetary assessment/quantification of damages,
and the mode of calculation (eg by judge or jury), are governed
by the lex fori, since these are deemed to be aspects of
procedure. However, the distinction between substance and procedure
in damages is not always as clear-cut as we would like to believe.
Moreover, questions of interpretation may arise as to whether
the 1995 Act intentionally or unintentionally has made any difference
to our pre-existing rule as generally understood. See per
Garland, J in Edmunds v Simmonds [2001] 1 WLR 1003
at p1008 et seq, concluding (though it was scarcely necessary
to do so since in Edmunds the lex fori was also
the lex causae) that he was not persuaded that the 1995
Act had abrogated the substance/procedure distinction. Hence,
even if the English court were to hold that Spanish law should
not be displaced under section 12, Garland, J would have quantified
according to English law "unless persuaded that Spanish law
did not recognise any head of damage recoverable by the claimant".
Therefore, his Lordship appears not to have been convinced that
quantification is subsumed as an issue under sections 11 and 12,
and in the quantification exercise, the forum was operating qua
lex fori. This two-pronged approach, which exists both at
common law and in terms of section 14(3)(b) of the 1995 Act (eg
Edmunds v Simmonds, above; Roerig v Valiant
Trawlers Ltd [2002] 1 Lloyd's Rep 681; and Hulse v
Chambers [2002] 1 All ER (Comm) 812. See also Morse, C G J,
"Torts in Private International Law" (1998) 45
ICLQ 888, 895-6) is not without defect; in quantifying novel claims,
for example, how can the forum quantify a head of loss which is
awarded under the lex causae, but which the lex fori
does not recognise? The problem does not generally arise at
common law because of the requirement of civil actionability according
to the lex fori eg Naftalin v London, Midland and Scottish
Railway Co 1933 SLT 31; Mitchell v McCulloch 1976 SLT
2.
5.2 Evidence and procedure
Whilst Article 1.2(g) of the Preliminary Draft
Proposal excluded from its scope evidence and procedure (Rome
1, Article 1.2(h)), the Proposal itself does not follow suit (ie
evidence and procedure are not excluded from Rome II).
The Explanatory Memorandum (p9) states, in what is an opaque passage,
that, "It is clear from Article 11 that, subject to the exceptions
mentioned [in Article 1, or more likely, Article 11?], these rules
[of evidence and procedure?] are matters for the lex fori."
The relationship between this statement and Article 11(e) ("assessment
of damage"—a matter traditionally characterised as
procedural, and subject, therefore, to the lex fori, but,
in terms of the Proposal, subject, apparently, to the applicable
law in delict) is ambiguous, and consequently, the proposed choice
of law rule relating to delictual damages is anything but clear.
Perhaps one should conclude that in this matter of the interface
between the applicable law and the forum, in doubtful areas where-substance
and procedure meet, but particularly in the delicate and difficult
questions of awards of damages, everything will depend upon the
interpretation by the forum of the aspects of damages which ought
properly to fall under any of the heads contained in Article 11.
6. CONCLUSION
6.1 It is highly questionable whether the
Commission has demonstrated that there is a need, and legal basis,
for harmonised choice of law rules in the area of non-contractual
obligations. Community powers under Article 65 of the EC Treaty
are not unlimited: in terms thereof, "Measures, in the field
of judicial co-operation in civil matters having cross-border
implications, to be taken in accordance with Article 67 and insofar
as necessary for the Proper-functioning of the internal market,
shall include . . . (b) promoting the compatibility of the
rules applicable in the Member States concerning the conflict
of laws and of jurisdiction." The general appropriateness
of the Proposal, its justification, timing, and the the intrinsic
merit of its detail can all be questioned; there is a strong sense
that the Commission is poised to exceed its remit.
6.2 To what extent may reference be made
to the Explanatory Memorandum for elucidation if/when the proposed
Regulation comes into effect? We presume it is not intended to
be an authoritative report, such as Giuliano and Lagarde on Rome
I, yet it is useful in illuminating the thinking which gave birth
to the proposed provisions (eg the different types of mandatory
provisions catered for by Article 10 and 12 respectively); then
again, sometimes it appears from reading the Memorandum, that
the provision in the draft Regulation, does not fully implement
what appears to have been intended (eg Article 9.4). This
last thought leads us to question the order in which these documents
were created; negotiation is a slippery business, with significant
changes sometimes being made quickly and we note that the relevant
terms of the Memorandum do not explain the reasons for changes
in wording between the preliminary draft Proposal, and the current
Proposal, some of which differ markedly (eg Article 6).
6.3 It is important to seek to clarify what
will be the intra-UK position. As will be recalled, the UK did
not exercise the option to have a different regime of choice of
law rules in contract operating within the UK instead of those
contained in Rome I. Similarly, despite earlier flirtation with
the idea, the 1995 Act contains no special intra-UK rule; as a
matter of drafting the intra-UK position is not entirely clear,
but it seems better to suppose that the rules of the 1995 Act
apply between legal systems of the UK in the same way as they
do between a "UK" court and a foreign potentially applicable
law. Within the UK, legislation must clarify the precise effect
which the Regulation will have on the 1995 Act, and, in particular,
whether the Regulation will apply to cross-border, intra-UK delicts
(eg Ennstone Building Products Ltd v Stanger Ltd [2002]
EWCA Civ 916). Since it was a conscious decision that the 1995
Act should contain no special intra-UK rules, it would be ironic
if the UK now should choose to disapply Rome II within its multi-legal
system territory. Domestic legislation will be required to modify,
or at least to clarify the scope of, the existing statutory provisions,
most likely leaving in place the 1995 Act (revised or recast)
to deal with "foreign" cases not governed by Rome II
(in the same way that Part II of the Family Law Act 1986 remains
in place to govern "non-Brussels II" cases, and the
well-developed common law conflict rules of contract exist to
determine cases which fall outside the scope of Rome I).
7 January 2004
|
