International Private Law: Non-Contractual Obligations

International Private Law: Choice of Law - Non-Contractual Obligations

Choice of Law Rules: Contractual vs. Non-Contractual Obligations

  • Contractual Obligations: Governed by Rome I Regulation, Rome Convention, or common law principles.
  • Non-Contractual Obligations: Governed by common law, the Private International Law (Miscellaneous Provisions) Act 1995, or Rome II Regulation.

Choice of Law Rules for Tort: Common Law

  • Double Actionability:

    • Conduct abroad must constitute a tort under the law of the forum (lex fori).
    • Conduct must be civilly actionable under the law of the place where the tort occurred (lex loci delicti).

  • Issue-Based Exception:

    • Displaces the double actionability rule for a specific issue.
    • Applies the law of the country with the most significant relationship to the occurrence and the parties.

Choice of Law Rules for Tort: Private International Law (MP) Act 1995

  • Entry into Force: May 1, 1996.

  • Section 11 Rule: The law of the country where the events constituting the tort occur governs.

    • If events occur in different countries:
      • Personal injury: Law of the country where the injury was sustained.
      • Property damage: Law of the country where the property was damaged.

  • Section 12: Issue-Based Flexible Exception:

    • Applies if it is substantially more appropriate for another country's law to apply, based on a comparison of the significance of connecting factors.
    • Relevant factors: parties, events constituting the tort, circumstances, and consequences of those events.

  • Wide Concept of Procedure:

    • Harding v Wealands [2007] 1 AC 1: Assessment of damages is considered procedural.

Rome II Regulation: Choice of Law

Overview
  • Scope of Rome II.
  • Choice of law rules for tort and other non-contractual obligations.
  • Scope of applicable law and other relevant laws.
Scope of Rome II: Temporal Application
  • Applies to events giving rise to damage after January 11, 2009 (Articles 31 and 32).
  • Straightforward in accident cases (e.g., Homawoo v GMF C-412/10).
  • More complex when the event and damage are separated in time (e.g., Allen v Depuy [2015] 2 WLR 442).
  • Post-Brexit: Assimilated EU Law applies.
Scope of Rome II: Geographic Application
  • Universal Application: Article 3 - applies if proceedings are in a court in England or Scotland.
  • Not uniform throughout the EU (e.g., Denmark - Art 1(4)).
  • Article 28 addresses Hague Conventions.
  • Consider the Intra-UK position.
Scope of Rome II: Material Application
  • Article 1(1): Applies to civil and commercial matters involving a conflict of laws and non-contractual obligations.
  • Non-Contractual Obligations: Autonomous meaning.
    • Obligations covered, not status.
    • Rome I and Rome II are mutually exclusive but comprehensive for all obligations.
    • Includes strict liability.
    • Difficult characterization issues: Refer to CJEU caselaw on Article 7(1)(2) of Brussels Regulation and C-359/14 Ergo v If P& C.

Non-Contractual Obligations: Definition

  • C-359/14 Ergo v If P& C: Starting point is Brussels Regulation caselaw.
  • Contract: A legal obligation freely consented to by one party to another and upon which the claim is based. Everything else is non-contractual.
  • Distinguish between obligations