THE ROME II REGULATION

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THE ROME II REGULATION 1 The Rome II regulation is an example of a European Union Regulation that concerns itself with the conflicts of law that are applicable to obligations that are not contractual. As from January 11th 2009, the Rome II regulation was able to create a set of rules that are harmonized within the European Union in regard to a law that would govern the commercial and civil matters of the members of the EU. This is in respect to non-contractual delict, tort or unjust enrichment. This regulation was formed under EC 864/2007[1]. The Rome Convention of 1980 was able to establish analogous rules that could guide the manner which contractual obligations are carried out. The Rome I regulation was able to replace the Rome Convention, in regard to the laws that are able to guide the manner in which contractual obligations are carried out. This law was applicable to all the members of the European Union, apart from Denmark[2]. The Rome II regulation was initially presented to the commission of the EU in the year 2003. On 11th of July 2007, an amended text was presented to the commission, and officially published on 31st of July 2007[3]. As from 11th of January 2009, the Rome II regulation began to be implemented. However, it applies to all obligations that arose from the 20th of August 2007. However, the document itself is silent in regard to this issue. For purposes of accommodating the various concerns that are raised by the EU parliament, the Rome II regulation came up with applicable laws on privacy and defamation that were acceptable by the members of the European Union. However, this was a difficult process, because most states could not agree on the most acceptable choice of a set of rules that could be used and applied in instances of privacy and defamation. This paper examines this concept of the Rome II regulation, and it seeks to analyze the reasons why the regulation has failed to provide a difference between conduct regulation, and the regulation of loss. The Scope of the Rome II Regulation: Article I of this regulation gives a definition of its scope. In accordance to article I, the Rome II Regulation is applicable to all non contractual issues that pertain to commercial and civil matters. This is specifically in a situation that involves the conflict of laws[4]. These conflicts of laws may arise in a situation where many nationals of different countries are involved in a conflict; hence there is a dilemma on the type of laws that should be used for purposes of solving the mentioned conflict. For example, take a hypothetical situation where a French cyclist is hurt by a British driver, in Germany. Three nations are involved in this situation that is the French, the British, and the Germans. The Rome II regulation provides guidance in the laws that will be applicable in solving the above mentioned hypothetical problem or situation. A number of issues are not covered by the Rome II Regulation, and therefore, there are certain laws and provisions which guide the manner in which disputes arising from them are solved. The issues that it does not cover includes the administrative issues, custom matters, issues dealing with revenues, or the liability of the state in regard to the various actions that it commits. Other areas that the regulation does not cover include issues dealing with marriage, relationships, succession and wills, etc[5]. This is an indication that the Rome II Regulation only involves itself with issues that are not contractual, and binding. The European Union has separate laws and regulations that are responsible for guiding the manner in which conflicts arising from contractual obligations are solved. An example of a contractual law in the European Union, is the 2004/ 18/EC public contract directive issued by the European Union. The aim of this type of law is to help in opening up of the European Union market, by ensuring a free movement of supplies, and products to the member states of the EU. This is an indication that matters touching on contract are not under the mandate of the Rome II Regulation. The central provision of Rome II regulation is found in article 4. Article 4 provides for the residual and the general rules which guide the application of the Rome II regulations. For instance, article 4 (1) of the regulations denotes that the law that shall apply when a damage occurs, is the law of the nation in which the damage under consideration has happened. For instance, in our hypothetical example above, three nations were involved in a dispute. That is France, Germany, and United Kingdom. The cyclist was hurt in Germany, and therefore, the laws that applied in this scenario, were the laws of Germany. This is despite the parties involved in the conflict were not the citizens of Germany. A good example of the applicability of this principle is seen in the ruling by the ruling of the German Court, in 2009. This was a case brought by a registered association in Germany, against an airline company that had its registration license in Latvia. Under this case, the German Court ruled that as in accordance to the provisions of 4 (1) of the Rome II regulation, any action of the airline company that causes a damage within a particular EU territory, then the laws of the country where the damage occurred shall be applicable, and not the laws of Latvia[6]. Through this ruling, the German Federal Court was able to apply the provisions contained in the Rome II regulation. However, the place of damage rule, as advocated by the Rome II regulation has two major exceptions. The first exception touches on the concept of habitual residence, whereby if the two parties to the conflict had the same habitual residence, then the laws of that state shall apply. The second exception to this rule is that if the tort that occurred is very close to another country, then the laws of the country under consideration would apply. Conduct Regulation and Loss Regulation: Rome II regulation, under article 17 introduces the concepts of conduct, and the rules of safety. This article denotes that when a judicial system is assessing the conduct of an individual, who is liable for an offence, the judicial court should consider the various laws on conduct and safety in regard to the situation under consideration. These laws under consideration should be the ones which were in place at the time the event occurred, and the place of the conflict or the tort. Symeon Symoneides explains that the Rome II regulation is inefficient in explaining this concept of the conduct of an individual[7]. This is because it leaves it to the interpretation of the interpretation of the various courts and states under consideration.[8] This is a weakness of the Rome II regulation, and this is because it fails in the harmonization of the various laws of the European Union, which was one of the major objectives of establishing this regulation. This aspect is problematic, and it may lead to a miscarriage of Justice. Take for instance, a conflict that emanates between a German Driver who is able to injure a German tourist in the region of Ireland. This type of conflict can be heard by a German court, because of the exception of the Place Rule Damage, as contained in Section 4 of the Rome II Regulation. That is, if two people share a habitual residence, then the laws of the resident country shall apply. In determining the liability of the German driver who has injured a German tourist, then the court has the responsibility of analyzing the conducts of the German driver, and a fact to consider is that in Ireland, an individual has to drive on the left side of the road, as opposed to Germany, where an individual has to ride on the right side of the right side of the road. By closely looking at this situation, the German court is at crossroad at whether it is using the international law or domestic laws in solving the dispute under consideration, hence this aspect of safety and conduct is controversial in nature. However, the Rome II regulation requires that the domestic laws, in regard to safety regulation and conduct should be applied in any matter that is brought before the court. This requirement by the Rome II standard to use the local laws in the determination of the concepts of safety and conduct is not sufficient. This is because some provisions of foreign law, such as laws formed and developed by competent institutions such as tribunals in regard to the determination of a conduct of an individual should be taken into consideration. Therefore, in the development of conduct regulation, Symeonides explains that the ROME II regulation has failed[9]. Furthermore, article 17 of the Regulation only mentions the examination of the conduct of an individual who is liable for an offence. However, this law does not provide an analysis on how to examine and evaluate the conduct of a suspect, and that of his or her victim. Examples include, whether the person under consideration was driving his car under the influence of alcohol, or if he or she was provoked, and that is the reason why they acted in a manner that they acted[10]. It is based on the weaknesses of article 17 of the Rome II regulation to precisely give a definition of the term conduct, and how to evaluate it, that the regulation fails to efficiently make a distinction between loss regulation and conduct regulation. Take an example on cases that emanates from losses, because of road damages and accidents. Compensation of losses that emanates from road accidents are not always paid by the person who committed the offence, but by the insurance agencies[11]. Based on this fact, a rule which has the responsibility of determining the law that is applicable to road accidents is of utmost importance to the insurance organizations and agencies that would be responsible for paying the losses suffered by the parties in the road accident. Article 17, of the Rome II Regulation is such kind of a law. This is because it introduces the concept of conduct, in examining whether an individual is liable for an offence or not. However, insurance companies are at a dilemma on how to examine and evaluate this concept of conduct. This is left to the laws of home countries, but a problem may arise in circumstances of habitual residence citizens, who came from a country whose transportation laws are different from the transportation laws of the country where the trial happens[12]. Article 18 is also another controversial law or principle that is stated under the Rome II Regulation, which fails to provide a clear distinction between the regulation of an individual’s conduct, and the regulation of their losses. This regulation denotes that an individual who has suffered losses may claim compensation directly from the insurance agents of the person who has caused the damage or the loss. This is as long as the low that regulates non-contractual obligations and the law that regulates insurance relations has a provision for this type of conduct. This regulation is advantageous in the sense that both laws that guide a particular aspect are placed under the same equal status. However, this law is controversial in the sense that it does not identify the manner in which the courts should use for purposes of determining the laws that should be used in protecting the victim[13]. For example, should the court use a law that is more advantageous to the victim, or should the court allow the victim, with the advice of his or her lawyers to determine the best law that would protect their interests. Based on this dilemma, scholar explains that the Rome II regulation has failed to provide a clear distinction between the regulation of losses and the regulation of conducts. Conduct is seen in regard to the action that the court should use in determining the best approach of solving the case. Furthermore, the regulation of losses is also seen on the dilemma in which the courts have, on the best law that they can use for purposes of protecting the interests of the victim. Furthermore, under the Rome II Regulation, it is difficult to identify and explain how to assess damages or losses. For instance, article 2 (1) of the regulation manages to identify and explain what this concept of damage is[14]. It denotes that damages or losses are consequences that are arising from unjust enrichment, tort, or even delict. Controversy lies on article 4 (1) which explains that the Rome II Regulation is only applicable to indirect consequences. This law ignores direct consequences which have the capability of causing an indirect damage. Therefore, article 4 (1) of the Regulations makes it difficult to distinguish between the direct and the indirect conducts, that can lead to a damage[15]. Because of the complexity of this situation, the Rome II regulation requires the legislations of the country that is handling the case to determine the direct and the indirect conduct, and therefore whether the action can result to a damage, and claims of compensation, in accordance to the rules of the state under consideration. Conclusion: In conclusion, the Rome II regulation fails to provide a distinction between conduct regulation and loss regulation. For instance, article 17 of this law just identifies that the courts have to analyze the conduct of an individual, while determining if he or she is liable for an offense or not. This is ambiguous, because the regulation does not provide the mechanism that should be used for purposes of examining and evaluating the conduct of an individual, that lead to the loss or damage under consideration. Furthermore, article 4 (1) of the regulation denotes that only direct consequences can lead to the breach of the Regulation, hence kit would attract penalties. However, this law fails to identify what are these direct conducts, and it is left to the national courts to interpret them, based on the provisions of their laws. However, this is controversial in the sense that when a national court seeks to interpret the law based on the conduct of an individual in a foreign land, and the conduct under consideration directly conflicts with the laws and provision of the court involved in the trial of the defendants. This specifically applies to the parties who are habitual residents of one country, and they are being tried by their courts, in a crime committed in a foreign land. Article 18 of this law is also controversial in nature, and it does not provide a clear distinction between the regulations of the conduct, and that of the law. This is because it provides for the application of two laws, in regard to the compensation of a loss that emanates from road accidents. These laws are the non-contractual obligation laws, and the insurance laws that touch on compensation. The Rome II regulation does not identify how the courts should apply these laws, for purposes of compensating a victim, and regulating the conduct of an offender. Bibliography: A Dickson, The Rome II Regulation : the law applicable to non-contractual obligations. Updating supplement (1st, Oxford University Press, Oxford 2010) J Ahern and W Binchy, The Rome II regulation on the law applicable to non-contractual obligations : a new international litigation regime (1st, Leiden, Boston 2009) P. Rogerson and J. Collier, Collier’s conflict of laws (4th, Cambridge University Press, Cambridge 2013) S Symeonides, Codifying choice of law around the world : an international comparative analysis (1st, Oxford, New York 2014)

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[1] A Dickson, The Rome II Regulation : the law applicable to non-contractual obligations. Updating supplement (1st, Oxford University Press, Oxford 2010) p. 44 [2] J Ahern and W Binchy, The Rome II regulation on the law applicable to non-contractual obligations : a new international litigation regime (1st, Leiden, Boston 2009) p. 26 [3] A Dickson, The Rome II Regulation : the law applicable to non-contractual obligations. Updating supplement (1st, Oxford University Press, Oxford 2010) p. 11 [4] A Dickson, The Rome II Regulation : the law applicable to non-contractual obligations. Updating supplement (1st, Oxford University Press, Oxford 2010) p. 53 [5] J Ahern and W Binchy, The Rome II regulation on the law applicable to non-contractual obligations : a new international litigation regime (1st, Leiden, Boston 2009) p. 26 [6] J Ahern and W Binchy, The Rome II regulation on the law applicable to non-contractual obligations : a new international litigation regime (1st, Leiden, Boston 2009) p. 19 [7] S Symeonides, Codifying choice of law around the world : an international comparative analysis (1st, Oxford, New York 2014) p. 29 [8] S Symeonides, Codifying choice of law around the world : an international comparative analysis (1st, Oxford, New York 2014) p. 30 [9] S Symeonides, Codifying choice of law around the world : an international comparative analysis (1st, Oxford, New York 2014) p. 33 [10] P. Rogerson and J. Collier, Collier’s conflict of laws (4th, Cambridge University Press, Cambridge 2013) p. 27 [11] P. Rogerson and J. Collier, Collier’s conflict of laws (4th, Cambridge University Press, Cambridge 2013) p. 33 [12] P. Rogerson and J. Collier, Collier’s conflict of laws (4th, Cambridge University Press, Cambridge 2013) p. 37 [13] P. Rogerson and J. Collier, Collier’s conflict of laws (4th, Cambridge University Press, Cambridge 2013) p. 28 [14] P. Rogerson and J. Collier, Collier’s conflict of laws (4th, Cambridge University Press, Cambridge 2013) p. 42 [15] P. Rogerson and J. Collier, Collier’s conflict of laws (4th, Cambridge University Press, Cambridge 2013) p. 43

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