When does Rome II apply?
Does the matter fall within the immaterial scope of Rome II?
Article 1 – Rome II Regulation (Material Scope)
1. Is the court looking at an issue related with a conflict of law?
2. Does the matter relate to a non-contractual obligation?
3. Is it a civil & commercial matter which is not excluded under Article 1?
Article 1(2) Exclusion
a) Non-contractual relationship from a family relationship
b) Non-contractual obligation arising out of matrimonial property or relating to a
relationship
c) Non-contractual relating to cheques, bills of exchange and promissory notes
d) Non-contractual obligation arising out of the law of companies and other body
corporates
e) Non-contractual obligation from a relationship relating to a trust
f) Non-contractual obligation arising from nuclear damage
g) Non-contractual obligation from privacy and rights for defamation
If “Yes” is the answer to all the question above then Rome II applies. If “No” then Rome II does not
apply.
Does the matter fall into the temporal scope?
Was the contract made on or after the 11th of January 2009? - Article 32
Have the parties agreed to an express choice of law or is the choice demonstrated with
reasonable certainty by the circumstances?
Yes → Article 14
a) If the parties made an agreement after dispute arose then choice of law is valid and will apply or
b) If the parties made a agreement before dispute arose relating to the commercial activity
There is No Choice permitted in:
➔ Article 6(4) – Unfair competition claims
➔ Restrictions on competition matter
➔ Article 8 – Infringement of Intellectual property rights
Does the bespoke rules apply?
1. Product liability (Art 5)
2. Unfair competition and acts restating free competition (Art 6)
3. Environmental damage (Art 7)
4. Infringement of intellectual property rights (Art 8)
5. Industrial action (Art 9)
Product liability Art 5
The law applicable for product liability will be:
a) Law of country where person sustaining damage had his habitual residence when damage
occurred
b) The law of country which product was acquired if the product was marked in that country
c) The law of the country which the damage occurred if the product was marked in that country
However, the law of the country where the person claimed is liable will be the resident. If it could be
foreseen. Unless somewhere manifestly closely connected.
, No → Article 4
Article 4(1) – The applicable to a non-contractual obligation arising out of a tort shall be the law of
the country where the damage has occurred. Regardless of the country in which the event gave rise
to the damage occurred.
Article 4(2) – However, if both parties have their habitual residence in the same country at the time
when the damage occurred, then the law of that country will apply.
Article 4(3) – The circumstances show that the case is manifestly more closely connected with a
country other than paragraphs 1 and 2. This can be a pre-existing relationship between parties.
Are there overriding mandatory provisions applicable to the law subject to articles 16 and 26?
Art 16 – Overriding mandatory provisions
Nothing in the rules restricts the courts from using the mandatory law applicable
Art 26 – Public Policy
If incompatible with public policy, the court can refuse to apply the law
Art 17 – Rules on safety and conduct in country where event took place
Does the matter fall within the immaterial scope of Rome II?
Article 1 – Rome II Regulation (Material Scope)
1. Is the court looking at an issue related with a conflict of law?
2. Does the matter relate to a non-contractual obligation?
3. Is it a civil & commercial matter which is not excluded under Article 1?
Article 1(2) Exclusion
a) Non-contractual relationship from a family relationship
b) Non-contractual obligation arising out of matrimonial property or relating to a
relationship
c) Non-contractual relating to cheques, bills of exchange and promissory notes
d) Non-contractual obligation arising out of the law of companies and other body
corporates
e) Non-contractual obligation from a relationship relating to a trust
f) Non-contractual obligation arising from nuclear damage
g) Non-contractual obligation from privacy and rights for defamation
If “Yes” is the answer to all the question above then Rome II applies. If “No” then Rome II does not
apply.
Does the matter fall into the temporal scope?
Was the contract made on or after the 11th of January 2009? - Article 32
Have the parties agreed to an express choice of law or is the choice demonstrated with
reasonable certainty by the circumstances?
Yes → Article 14
a) If the parties made an agreement after dispute arose then choice of law is valid and will apply or
b) If the parties made a agreement before dispute arose relating to the commercial activity
There is No Choice permitted in:
➔ Article 6(4) – Unfair competition claims
➔ Restrictions on competition matter
➔ Article 8 – Infringement of Intellectual property rights
Does the bespoke rules apply?
1. Product liability (Art 5)
2. Unfair competition and acts restating free competition (Art 6)
3. Environmental damage (Art 7)
4. Infringement of intellectual property rights (Art 8)
5. Industrial action (Art 9)
Product liability Art 5
The law applicable for product liability will be:
a) Law of country where person sustaining damage had his habitual residence when damage
occurred
b) The law of country which product was acquired if the product was marked in that country
c) The law of the country which the damage occurred if the product was marked in that country
However, the law of the country where the person claimed is liable will be the resident. If it could be
foreseen. Unless somewhere manifestly closely connected.
, No → Article 4
Article 4(1) – The applicable to a non-contractual obligation arising out of a tort shall be the law of
the country where the damage has occurred. Regardless of the country in which the event gave rise
to the damage occurred.
Article 4(2) – However, if both parties have their habitual residence in the same country at the time
when the damage occurred, then the law of that country will apply.
Article 4(3) – The circumstances show that the case is manifestly more closely connected with a
country other than paragraphs 1 and 2. This can be a pre-existing relationship between parties.
Are there overriding mandatory provisions applicable to the law subject to articles 16 and 26?
Art 16 – Overriding mandatory provisions
Nothing in the rules restricts the courts from using the mandatory law applicable
Art 26 – Public Policy
If incompatible with public policy, the court can refuse to apply the law
Art 17 – Rules on safety and conduct in country where event took place
