La regola generale di conflitto nel Regolamento Roma II fra tradizione e «nuove» esigenze di flessibilità

The general conflict of law rule on non-contractual obligations conveniently «reinterprets» the tradition, by balancing the need for foreseeability of the applicable law and legal certainty, on the one hand, and the demand for flexibility and proper consideration of the specific features of each case, on the other hand. In order to adequately appreciate the relevance of the rule in question within the context of Rome II Regulation, the paper stresses that Art. 4 has a merely residual character. Firstly, such article will apply only to cases not covered by the special conflict of law provisions contained in the same Regulation, which concern specific and very frequent hypothesis of liability. Indeed, product liability, unfair competition and acts restricting free competition, environmental damage, infringement of intellectual property rights and industrial action fall outside its scope of application. Secondly, the general conflict of law rule applies only when the parties have not exercised their freedom of choosing the law applicable to non-contractual obligations. According to Art. 14 of the Regulation, the choice of the applicable law will prevail over the criteria established by Art. 4. At this purpose, the paper underlines that Rome II Regulation ensures that the agreement of the parties concerning the applicable law is formed without prejudice to the «weaker» parties involved. Such a protective aim is pursued in a double perspective. Where the parties are exercising a commercial activity, the agreement can be reached also before the event giving rise to the damage occurs, provided that it is «freely negotiated»; otherwise, the agreement can be entered into only after the event giving rise to the damage occurred. However, it has to be mentioned that – since, after the event giving rise to the damage, the parties involved will have conflicting interests – it can be foreseen that the rule at issue will not be able to frequently exclude the application of the criteria codified by Art. 4.