This blog post, written by William Hooper of Monckton Chambers, surveys the UK’s intention to maintain the effects of the Rome I and Rome II Regulations for applicable law after the transition period.
Under EU law, Regulation (EC) No 593/2008 relating to contractual obligations (“Rome I”) and Regulation (EC) No 864/2007 relating to non-contractual obligations (“Rome II”) determine the appropriate system of law governing a dispute in a member state.
After the transition period, while the question as to how issues of jurisdiction will be determined remains somewhat uncertain and whether the UK accedes to the Lugano Convention, for example, remains rather up in the air (as discussed here), happily there is a little more certainty when it comes to questions of applicable law.
The UK’s intention is to maintain the effect of Rome I and Rome II. This is now the subject of the Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019/834 (“the Regulation”). While Rome I and Rome II are not without their difficulties, for the time being at least, this is a sensible approach. For the purposes of this post, I propose just three examples of this.
First, Rome I and Rome II do not cease to be of relevance, still less of utility, come the end of the transition period. They are an example of retained EU law where the provisions of the legislation can operate effectively in the absence of union. For example, in the absence of a choice of law clause, Art. 4(1) Rome I focuses the applicable law on that of the country where the principal performer resides (i.e. in a sale contract, the seller; in a services contract; the service provider; in a distribution contract, the distributor), and where the contract is not covered by an example enumerated in Art. 4(1), the applicable law is to be determined by “[…] the law of the country where the party required to effect the characteristic performance of the contract has his habitual residence”, under Art. 4(2).
Under Rome II, the general rule in Art 4 is that the applicable law in tort is that of the law of the country where the “[…] damage occurs irrespective of the country in which the event giving rise to the damage occurs and irrespective of the country or countries in which the indirect consequences of that event occur,” subject to there being a manifestly closer connection with another country or the applicable law being contrary to public policy under Art. 26.
Neither of these textual examples require EU membership in order to be sensibly applied by the English courts as part of its domestic private international law. They are matters which the English courts can readily address autonomously, albeit that is not to say that reference will not or should not be made to developing EU jurisprudence on the construction of the Regulations: the same will remain persuasive, given the nature of the retained law.
Secondly, since 2009, when Rome I and Rome II came into effect, the English courts have generated a substantial body of jurisprudence on their provisions, and it would be unfortunate if such progress were abandoned or mitigated. The Regulations are not watertight, and there are certain aspects where their ability to cope with the demands of future litigators will be tested, as too will their scope: whether Rome II – with its focus on the “country” where the event giving rise to the damage occurs – applies on the high seas has been a matter of academic discussion, as has or will be its applicability in aerial (or even, as such things become more common, space) torts: see Dicey, §§35-033, 35-034. But that does not mean that the UK would be better served with fresh provisions with which the courts would need to get to grips.
Thirdly, the Rome II Regulation was more coherent than its predecessor, the Private International Law (Miscellaneous Provisions) Act 1995, which still applies in more historic torts. There, the focus under s. 11(2)(c) was on the place where the most significant elements of the tort occurred, which was a spark for obvious debate. By contrast, Rome II focuses its attention on damage. The two are not mutually exclusive, of course, but the enquiry is at least narrower. Were one to revert to the 1995 Act, the step would be somewhat regressive.
Inevitably, the Regulation may change and something different may end up happening, but at present, for private international law practitioners, the future of the principles relating to applicable law looks relatively safe. Whether that is a cause for celebration among fervent analysts of the future of the UK’s private international law is another matter.
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