The Rome II Regulation on the Law Applicable to Non-Contractual Obligations: The European Private International Law Tradition Continued.

The establishment of Regulation No 864/2007 on the Law Applicable to Non-Contractual Obligations (Rome II) is a landmark for European Private International Law. The regulation of torts in the European Union has a history of forty years, starting with the preparation of the Rome Convention in 1967. As was the case with its thorny counterpart, the Regulation on the Law Applicable to Contractual Obligations (Rome I), negotiations have been difficult. It is also for the first time, that the efforts to develop European conflict-of-law rules and the negotiations have attracted such serious cross-Atlantic attention, especially from scholars in the United States (US). Not only have Americans and other non-Europeans bothered to publish on the (draft) Rome II Regulation, they have also interacted in the Brussels negotiations, at the invitation of the European Parliament's rapporteur for Rome II. This contribution provides an outline of the background (section 2), scope (section 3), and system of the Regulation (section 4) and an analysis of the two general conflict rules laid down in Article 4 (section 5) and 14 (section 6). The question is whether in methodology and content this Regulation stands in the European tradition, or whether it takes a new direction. Another question is whether it offers a predictable but at the same time a sufficiently flexible system of conflict rules. The Rome II Regulation proves that it is difficult to reach a satisfactory compromise between legal certainty and flexibility in order to do justice in an individual case, while fulfilling the law and economics criteria of simple and predictable rules. The Regulation provides many special rules as well as general and special exceptions that are occasionally ambiguous and make the outcome sometimes unpredictable. Nevertheless, it is concluded that the Rome II Regulation in spite of its flaws, is an acceptable instrument that furthers the harmonization of conflict of laws in Europe.