The general rule applicable to torts, party autonomy and «specialized» conflict-of-law provisions in the Rome II Regulation

The paper discusses the main provisions of the European Union’s Regulation on tort conflicts (“Rome II”), by analyzing (i) the range of PIL techniques employed by the Regulation and (ii) its inspiring objectives. The need for legal certainty and foreseeability as to the law applicable permeates the whole Regulation and more specifically it motivates (a) the list of the issues which are governed by the lex delicti, as well as (b) the choice – within the general rule – of the connecting criterion based upon the locus damni. On the other hand, the will to «treat individual cases in an appropriate manner» has led to the introduction of exceptions to the general rule in relation to predetermined situations, such as the so called isolated torts, as well as to the provision of a more general and flexible power of the judge to determine the manifestly closer connection (through the escape clause). The establishment – as well as the preservation – of a reasonable balance among the parties has inspired not only the provision of special conflict-of-law rules (recital n. 19), but also the choice of the locus damni as the main connecting criterion (the fairness of such solution for the purposes of reaching a reasonable balance among the parties is extensively analysed in the paper), as well as the provision of peculiar limitations to the choice of the law applicable, in cases where weaker parties are involved. The safeguard of particular material interests deserving a special degree of protection is finally shown, for instance, by art. 7 concerning liability for environmental damage. In the light of the above, the paper underlines that the «system» of conflict-of-law rules laid down by Rome II Regulation appears to be particularly noteworthy in so far as it aims – by means of a remarkable range of solutions and techniques – at promoting several interests and objectives which are not always reciprocally consistent. Nonetheless, the real capacity of the Regulation to achieve such ambitious objectives will only be effectively assessable in the light of its future and broader application by the national courts. Paola Ivaldi is the author of paragraphs 3, 4, 5, 6 and 8.