Clear table of subject matter for Rome II closed book section. Brief overview, best accompanied by a summary and/or course for in-depth explanation
Scheme of the materials of Rome II you need to know for the closed part of the exam. Short summary, for more detailed information it's best to also ...
- A general rule with one general exception and one escape clause
- Specific rules for specific kinds of torts
Main principles - Party autonomy (less relevant than Rome I)
- Exclusion of renvoi (art. 24)
- Universal application (art. 3)
- Events giving rise to damage which occur after 11/01/2009 (the event) (art. 31)
- All EU MS (except Denmark) + Ireland + UK (assimilated law)
- Non-contractual obligations in civil and commercial matters (art. 1.1)
- Torts/delicts, unjust enrichment, negotiorum gestio, culpa in contrahendo (art. 2.1)
- Which have arisen + are likely to arise (art. 2.2 and 2.3)
- Exceptions (art. 1.2):
- General exceptions + nuclear damage + privacy and personality rights (e-Date)
Scope of
- ! Rome II does apply to the general duty of care of a corporation (BMA)
application
- Procedural matters are governed by lex fori = evidence and procedure are excluded (art. 1.3)
- Difficulties regarding statutes of limitations: lex fori or lex causae? (difficult relationship between
art. 1.3 and art. 15) (Pandya, Jabir et al v. Kik)
- Limitation periods foreseen in lex fori may be given priority under 2 conditions (Martins v. Dekra
Claims):
- 1) Unamar-test is fulfilled: identification of particularly important reasons in lex fori’s limitation laws
- 2) absence of harmonisation in EU secondary law
! No matrix per se, but:
- General rule: lex loci damni (art. 4)
Matrix - Specific torts (art. 5-9)
- Unjust enrichment, negotiorum gestio, culpa in contrahendo (art. 10-12)
- Freedom of choice (art. 14)
- Law of the country where the damage occurs (art. 4.1)
- Ignore lex locus delicti commissi and places where indirect damages occurred
- But: rules of safety and conduct (art. 17) of the locus delicti commissi may be used in the assessment
General rule: locus of the conduct of the person
damni (art. 4) - A singular event leads to one applicable law (Lazar v. Allianz)
- >< Mosaic
- Exception: parties habitually resident in the same country ⇒ national law applies (art. 4.2)
- Escape clause: the law of the country which is manifestly more closely connected (art. 4.3)
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