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Rome I and Rome II - proposed rules for private international law withing the EU

As the European Union gets larger, so the importance increases of ensuring that there are clear rules of private international law for determining which national legal systems apply to the interpretation of both contractual and non-contractual obligations. David Glass of London based Pritchard Englefield law firm reviews proposed regulations.

    Rome I is the proposed EU Regulation to deal with contractual obligations and will update the existing Rome Convention on the Law Applicable to Contractual Obligations 1980 which came into force in 1991. Under the existing Rome Convention, the law of the country most closely connected with the performance of contractual obligation is generally the law which applies within the EU in the absence of a clear contrary choice by the parties. The proposed Rome I Regulation will elaborate on the existing legal principles, which have given rise to some difficulties of interpretation. However, the UK has opted out of the discussions on Rome I and it is possible therefore that the new Rome I Regulation will apply in other countries of the EU when enacted but not within the UK.

    The proposed Rome II Regulation deals with tortious or other non-contractual civil obligations and is intended to update and codify for the first time on an EU-wide basis the rules which apply to determine which law applies to particular non-contractual civil obligations.

    The current position is that virtually all EU Member States provide that the applicable law to a non-contractual civil obligation is the law of the place where the harmful act was committed.

    Rome II would change this approach so as to apply the law of the place where the damage occurs, or is likely to occur, regardless of the country or countries in which the act giving rise to the damage occurs. This approach is, however, subject to a number of exceptions designed to ensure that the applicable law concerned should have a real connection with the non-contractual civil obligation to which it relates.

    The UK has decided not to opt out of Rome II and is therefore part of the ongoing discussion towards finalising the Rome II Regulation.

    Rome I and Rome II deal with very technical areas relevant to the determination of the applicable law to contractual and non-contractual civil obligations but in an increasingly inter-dependent European Union the current on-going negotiations for the adoption of both these Regulations are of fundamental importance.

    It is currently unclear when the new rules would come into effect but lawyers within the EU need to be in a position to advise their clients as to what lies in store.