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German Article on Rome II Regulation

Thomas Thiede and Markus Kellner (both Vienna) have written an article on Forum Shopping between Rome II and the Hague Convention on the Law applicable to Traffic Accidents in the legal journal Versicherungsrecht (VersR 2007, 1624 et seq.): “‘Forum shopping’ zwischen dem Haager Übereinkommen über das auf Verkehrsunfälle anzuwendende Recht und der Rom-II-Verordnung”.

The authors argue that Article 28 (1) Rome II, which provides as a general rule that the Regulation shall not prejudice the application of international conventions to which one or more Member States are parties and which lay down conflict-of-law rules relating to non-contractual obligations, leads to the precedence of the Hague Convention on the law applicable to traffic accidents since the exception clause of Article 28 (2) Rome II is – due to the fact that also Non-Member States are parties to the Hague Convention – not applicable.

It is submitted that the subsidiarity of the Rome II Regulation on the one side and the fact that the Hague Convention has not been ratified by some Member States on the other side entails the possibility of forum shopping. Thus, the authors argue, it would have been preferable to give priority to the Rome II Regulation over all Hague Conventions in order to ascertain – at least for intra-EU cases – the applicability of only one law.

Comments on this entry are closed.

  • Abbas December 11, 2007, 4:15 pm

    Dear sir
    I have read your Article. I could use it and to some extent underestand about conflict of laws in tort. It was important for knowing about tortlaw in international private law ( conflict of laws). i have a question about what theories of applicable law in infringment cases of Intellectual Property Law are there? would you please direct me how can I know about that the subject matter.
    Regards,
    Ahadzadeh

  • Athanasios March 12, 2008, 4:54 pm

    This is true. How can the Regulation not prejudice the application of international conventions to which the MSs are parties when in cases where the loss or damage suffered in one or more MSs the Regulation takes precedence over the Hague Convention? the exception in Article 28(2) of Rome II then is not applicable.

    p.s How can i get the complete article?

    Athanasios Sylianou

  • Thomas Thiede May 27, 2008, 12:08 pm

    Dear Mr Ahadzadeh, dear Mr Athanasios,

    thank you very much for your thoughtful comments on this article. And, indeed, the road to hell is paved with good intentions. As some of you may remember, the Parliament (i.e. Ms Wallis) asked for another statute for personal injuries and, thus, a depeçage concerning tort. If this was really taken into account (see e.g. the Review Clause in the current Regulation) the dilemma would even be enhanced: Signatory States of the HAgue Convention would not even take into account the different standards, non-signatory states would have to apply the law at the place of the victim!

    For a complete print of the article, please feel free to contact me directly (thiede [at] ectil [dot] org). The situation for intellectual property rights is not solved currently. I presented a rather small paper on it in the Swiss paper HaVE/ReAs, you may have a look at it. In addition, I would also welcome you to contact me directly.

    Best regards and thanks again for your Comments on the topic,
    Thomas Thiede