The Rome II Regulation Analysis

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The European Union is an organisation with certain rules and regulations that should take into account the laws and regulations of the member countries. The Regulation (EC) No 864/2007 of the European Parliament and of the Council¹ is called the Rome II regulation and is aimed at unifying the regulations concerning the issues where a foreign party appears. This regulation is based on conflict rules and includes the laws and rules of the parties involved into the conflict, laws of countries where the conflict appears, and laws of other parties that are more relevant to the conflict than the contracting parties.² It is natural that some sources claim that the Rome II Regulation was adopted “to increase legal certainty, reduce forum shopping and facilitate mutual recognition of judgments”.³ The international partnership is anticipated to benefit from the Rome II as it stipulates the conflict rules that are aimed at solving disputable issues in global arena. In this respect, the case Maher v. Groupama Grand Est⁴ evidences the assumption on the necessity of adopting certain regulation that would unify the laws on the cross border torts and international commerce conflicts.

The alternative claim stipulates the inappropriateness of the regulation as the one that supports the bureaucratic organisation of the European Union and its legislation collected from legislative systems of member parties. The international relations are questioned in terms of advantages that should have been selected from the European laws. In this regard, the regulation can be improved by means of alterations and amendments. The law is flexible, though some countries should adopt it in order to enable participation of other member countries in international commercial projects without risk of being involved into unsolvable conflicts and cross border torts.⁵

The flexibility of the Rome II Regulation cannot be questioned as it is stated in the body of the document: “…this set of rules, thus, creates a flexible framework of conflict-of-law rules. Equally, it enables the court to treat individual cases in an appropriate manner.” ⁶ The legal certainty of the law is one of the essential elements of the regulation as the conflicting parties can doubt the authenticity or even certainty of the regulation and necessity of its implementation, though “the requirement of legal certainty and the need to do justice in individual cases are essential elements of an area of justice”.⁷

The cases connected to the cross border road traffic accidents should be considered separately that does not support the law being certain.⁸ However, the European countries do not have judicial legislation that can enable the consideration of all similar cases be performed in the same way. The “content-oriented law selection” confirms the idea that the law is rather flexible as it requires considering not only the countries whose law is taken as the basic but also consider the content of each law.⁹ In this respect, the laws of the contracting parties, the laws of the country where the dispute appears, or some countries the laws of which are appropriate in the case should be used.

The case of Athanasios Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst and Co. and others¹⁰ demonstrates the ability and appropriateness of Brussels being a regulating country. Thus, the information considered above shows that Rome II is the law that does not provide a deep degree of certainty and all of the cases should be considered separately and individually. The information provided above shows that many changes should be provided to make the law ideal and certain. At the same time, the question of whether law certainty is a positive or negative feature remains open and the debates about the issue continue. The flexibility of the regulation makes it applicable and appropriate

References

Athanasios Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst and Co. and others, (Case 189/87), [1988], ECR 5565.

European Commission, 2009. Consultation paper on the Compensation of victims of Cross-Border Road Traffic Accidents in the European Union. Financial Institutions, Web.

Greene, C., & Proctor, C., 2009. Rome II – Cross Border Contracts and International Litigation. Bird & bird, Web.

Maher & Anor v Groupama Grand Est [2009] EWCA Civ 1191.

Regulation (EC) No 864/2007 of the European Parliament and of the Council of July 2007 on the law applicable to obligations (Rome II). Official Journal of the European Union, 2007, pp. 40-49.

Symeonides, S.C., 2004. Tort Conflicts and Rome II: A View from Across. In: H. Mansel, ed. 2004. Festschrift für Erik Jayme. Sellier: München, pp. 935-954.

Symeonides, S.C., 2008. Rome II and Tort Conflicts: A Missed Opportunity. American Journal of Comparative Law, 56, pp. 1-46.

The law applicable to non-contractual obligations – The Rome II Regulation. Europe: Summaries of EU legislation, Web.

Footnotes

Regulation (EC) No 864/2007 of the European Parliament and of the Council of July 2007 on the law applicable to obligations (Rome II). Official Journal of the European Union, 2007, p. 41.
The law applicable to non-contractual obligations – The Rome II Regulation. Europe: Summaries of EU legislation, Web.
Greene, C., & Proctor, C., 2009. Rome II – Cross Border Contracts and International Litigation. Bird & bird, Web.
Maher & Anor v Groupama Grand Est [2009] EWCA Civ 1191.
Symeonides, S.C., 2008. Rome II and Tort Conflicts: A Missed Opportunity. American Journal of Comparative Law, 56, p. 9.
Regulation (EC) No 864/2007, 2007, p. 41.
Ibid.
European Commission, 2009. Consultation paper on the Compensation of victims of Cross-Border Road Traffic Accidents in the European Union. Financial Institutions, Web.
Symeonides, S.C., 2004. Tort Conflicts and Rome II: A View from Across. In: H. Mansel, ed. 2004. Festschrift für Erik Jayme. Sellier: München, p. 937.
Athanasios Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst and Co. and others, (Case 189/87), [1988], ECR 5565.

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The Rome II Regulation Analysis

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