Polish PIL – International Polish PIL – International Law of Non-Contractual Law of Non-Contractual

ObligationsObligations

Dr. Mateusz PilichDr. Mateusz PilichChair of Int’l Private and Trade Law,Chair of Int’l Private and Trade Law,

University of WarsawUniversity of Warsaw

Outline of the lectureOutline of the lecture

Notion of the „non-contractual obligations” in Notion of the „non-contractual obligations” in the law of conflict, sources of Private Int’l Law the law of conflict, sources of Private Int’l Law of Non-Contractual Obligations (the scope of of Non-Contractual Obligations (the scope of application of the EU law: Rome II Regulation, application of the EU law: Rome II Regulation, the issues left outside)the issues left outside)

Law applicable to torts/delictsLaw applicable to torts/delicts Law applicable to culpa in contrahendo and to Law applicable to culpa in contrahendo and to

the unjust enrichmentthe unjust enrichment Law applicable to the ownership and rights Law applicable to the ownership and rights

in remin rem

Sources of law, Sources of law, intertemporal problemsintertemporal problems

The law applicable – sources of The law applicable – sources of lawlaw

As usually, the law applicable may follow from the conflicts rules which As usually, the law applicable may follow from the conflicts rules which areare

domestic (PIL 2011): Article 16(2) and (3), Article 34 and 35domestic (PIL 2011): Article 16(2) and (3), Article 34 and 35 international: conventions (esp. Hague Traffic Accidents Convention)international: conventions (esp. Hague Traffic Accidents Convention) European: Rome II RegulationEuropean: Rome II Regulation

Regulation Regulation not alwaysnot always takes precedence takes precedence Relationship between the domestic and the EU lawRelationship between the domestic and the EU law

Look carefuly at the Regulation’s scope of the applicationLook carefuly at the Regulation’s scope of the application

As to the relation between the international conventions and the Rome IIAs to the relation between the international conventions and the Rome II Article 28(1) Rome II – conventions (concluded with third states) to which one Article 28(1) Rome II – conventions (concluded with third states) to which one

or more Member States are parties at the time of adopting the Regulation or more Member States are parties at the time of adopting the Regulation come firstcome first

Article 28(2) Rome II – the Regulation takes precedence over the conventions Article 28(2) Rome II – the Regulation takes precedence over the conventions concluded concluded exclusivelyexclusively between two or more Member States between two or more Member States

Intertemporal problemsIntertemporal problems

Articles 31-32 Rome IIArticles 31-32 Rome II Art. 31 Art. 31 [Application in time] [Application in time] This Regulation This Regulation shall applyshall apply to events giving rise to damage to events giving rise to damage which occur which occur

after its after its entry into forceentry into force.. Art. 32 Art. 32 [Date of application] [Date of application] This Regulation This Regulation shall applyshall apply from 11 January 2009 from 11 January 2009, except for Article 29, , except for Article 29,

which shall apply from 11 July 2008…which shall apply from 11 July 2008…

Article 297(2) TFEUArticle 297(2) TFEU The regulations shall enter into force on the date specified in them or, in the absence thereof, on the The regulations shall enter into force on the date specified in them or, in the absence thereof, on the

20th day following that of their publication.20th day following that of their publication. The Regulation was promulgated in the Official Journal L 199, 31 July 2007 and entered into force on The Regulation was promulgated in the Official Journal L 199, 31 July 2007 and entered into force on 20 20

August 2007August 2007

ECJ in C-412/10 ECJ in C-412/10 HomawooHomawoo „„Are Articles 31 to 32 of Regulation Rome II, in conjunction with Article 297 TFEU, to be interpreted to Are Articles 31 to 32 of Regulation Rome II, in conjunction with Article 297 TFEU, to be interpreted to

require a national court to apply Rome II… in a case where the event giving rise to the damage require a national court to apply Rome II… in a case where the event giving rise to the damage occurred on occurred on 29th August 200729th August 2007?...”?...”

Answer of the Court (judg. of 17 Nov., 2011): Answer of the Court (judg. of 17 Nov., 2011): „Articles 31 and 32 of Regulation […] read in conjunction „Articles 31 and 32 of Regulation […] read in conjunction with Article 297 TFEU, must be interpreted as requiring a national court to apply the Regulation only to with Article 297 TFEU, must be interpreted as requiring a national court to apply the Regulation only to events giving rise to events giving rise to damage occuring after 11 January 2009damage occuring after 11 January 2009 and that the date on which the and that the date on which the proceedings seeking compensation for damage were brought or the date on which the applicable law proceedings seeking compensation for damage were brought or the date on which the applicable law was determined by the court seised have no bearing on determining the scope ratione temporis of the was determined by the court seised have no bearing on determining the scope ratione temporis of the Regulation.”Regulation.”

Non-contractual Non-contractual obligations: the notionobligations: the notion

The notionThe notion

‘‘Non-contractual obligations’ – typical problem of the characterization Non-contractual obligations’ – typical problem of the characterization under the Private International Lawunder the Private International Law

Understanding the notion (Rome II, Article 5 (2)(3) PIL 2011):Understanding the notion (Rome II, Article 5 (2)(3) PIL 2011): One should not simply refer to the substantive law, be it the one of the One should not simply refer to the substantive law, be it the one of the

forum (forum (lex forilex fori), be it the one invoked by the claimant, to state whether the ), be it the one invoked by the claimant, to state whether the obligation at issue is a ‘contractual’ or ‘non-contractual’ – obligation at issue is a ‘contractual’ or ‘non-contractual’ – an an autonomous autonomous meaningmeaning of the term is sought of the term is sought

an obligation which an obligation which did not arise out of the contractdid not arise out of the contract ( (the parties’ consent is the parties’ consent is lackinglacking) => in accordance with the scope of application of the Rome I Reg.) => in accordance with the scope of application of the Rome I Reg.

a possible coincidence between the contractual and non-contractual liability a possible coincidence between the contractual and non-contractual liability of the one party against the other – the characterization depends on of the one party against the other – the characterization depends on whether this liability results clearly from the contract itself or its alleged whether this liability results clearly from the contract itself or its alleged grounds are situated outside it (they follow not from the consent of the grounds are situated outside it (they follow not from the consent of the parties) – the very cause of action mattersparties) – the very cause of action matters

Article 2(1) Rome IIArticle 2(1) Rome II

„„For the purposes of this Regulation, damage shall cover For the purposes of this Regulation, damage shall cover any consequence arising out of any consequence arising out of tort/delict, unjust tort/delict, unjust enrichment, negotiorum gestio or culpa in contrahendo”enrichment, negotiorum gestio or culpa in contrahendo”..

Enumeration has nEnumeration has nothing to do with a legal definition of othing to do with a legal definition of non-contractual obligationsnon-contractual obligations

A technicalA technical function of function of defining defining the scope of the notion of the scope of the notion of the the ‘‘damagedamage’’ (to spread it on such cases where there’s no (to spread it on such cases where there’s no detriment to the party’s interest or no economic loss, as detriment to the party’s interest or no economic loss, as e.g. the e.g. the negotiorum gestionegotiorum gestio) ) and in this sense it corresponds and in this sense it corresponds to the Regulation’s scope of applicabilityto the Regulation’s scope of applicability

List of exclusionsList of exclusions– selected problems– selected problems

Some issues excluded from the Rome II Some issues excluded from the Rome II Regulation (see Exhibits)Regulation (see Exhibits)

Acta iure imperii Acta iure imperii (Article 1(1), second sentence (Article 1(1), second sentence Rome II) – exclusion justified by the public-law Rome II) – exclusion justified by the public-law character of the state’s responsibility and its character of the state’s responsibility and its international immunity (international immunity (par in parem non habet par in parem non habet imperiumimperium), cf. ECJ in 29/76 ), cf. ECJ in 29/76 EurocontrolEurocontrol, C-, C-292/05 292/05 LechouritouLechouritou

Other exclusions – see the Cases aboveOther exclusions – see the Cases above

Exclusions from the scope of Exclusions from the scope of the Rome II Regulation the Rome II Regulation

(examples)(examples) The couple of the mixed Spanish and Polish nationality lives in Poland since The couple of the mixed Spanish and Polish nationality lives in Poland since

2009. Both spouses had gathered a sizeable property before having concluded 2009. Both spouses had gathered a sizeable property before having concluded

the marriage. During the construction of their common house in 2010, the the marriage. During the construction of their common house in 2010, the

husband spent PLN 100,000 from his wife’s bank deposit, availing himself of her husband spent PLN 100,000 from his wife’s bank deposit, availing himself of her

previous authorization. The latter insists on giving money back arguing that the previous authorization. The latter insists on giving money back arguing that the

expenditure was unnecessary.expenditure was unnecessary. Two Poles of the male sex have lived in Scotland since 2004 and entered into a Two Poles of the male sex have lived in Scotland since 2004 and entered into a

registered civil union. One of them comes back to Warsaw, while the other is still registered civil union. One of them comes back to Warsaw, while the other is still

abroad. The partner living still in Scotland sues the other for maintenance.abroad. The partner living still in Scotland sues the other for maintenance. Polish citizen Jan K. publicly slapped a Russian businessman Yuri S. accross the Polish citizen Jan K. publicly slapped a Russian businessman Yuri S. accross the

face. As the result of this accident, the lower jaw and the left chick of Yuri S. face. As the result of this accident, the lower jaw and the left chick of Yuri S.

were injured, so that he had to spend several days at home and accepted were injured, so that he had to spend several days at home and accepted

analgesics. Yuri S. sued Jan K. for the apology and the payment of the moral analgesics. Yuri S. sued Jan K. for the apology and the payment of the moral

damages, as well as the material damages for the lost profits during the days damages, as well as the material damages for the lost profits during the days

spent on the sick leave.spent on the sick leave.

Short comments to the Short comments to the casescases

Case #1 – the matrimonial property issues, falls under the exclusion of Article Case #1 – the matrimonial property issues, falls under the exclusion of Article 1(2)(b) Rome II; the situation would probably be less clear if the money were 1(2)(b) Rome II; the situation would probably be less clear if the money were spent on the husband’s personal expenses, e.g. on paying debts for the lost in spent on the husband’s personal expenses, e.g. on paying debts for the lost in gamblinggambling

Case #2 – definitely more difficult, conf. Recital (10), 2Case #2 – definitely more difficult, conf. Recital (10), 2ndnd sentence. Had the court sentence. Had the court excluded the family-law characterization (pretty probable in Poland), then the excluded the family-law characterization (pretty probable in Poland), then the case would have fallen under the Rome II (!). But again, compare the Comission’s case would have fallen under the Rome II (!). But again, compare the Comission’s Proposal for the Regulation on the Property Aspects of the Registered Proposal for the Regulation on the Property Aspects of the Registered Partnerships [COM(2011) 127 final]: Recital (12) and Article 1(3)(c) of the Reg. Partnerships [COM(2011) 127 final]: Recital (12) and Article 1(3)(c) of the Reg. Proposal – the same about the Regulation 4/2009 on the Maintenance ObligationsProposal – the same about the Regulation 4/2009 on the Maintenance Obligations

Case #3 – Yuri S. suffered not only a physical disease (causing both pain and the Case #3 – Yuri S. suffered not only a physical disease (causing both pain and the material loss) but also a psychological detriment (feeling of humiliation). material loss) but also a psychological detriment (feeling of humiliation). Whereas the former are covered by the Regulation, the latter is not because the Whereas the former are covered by the Regulation, the latter is not because the damage follows not immediately from the beating but it consists rather in its damage follows not immediately from the beating but it consists rather in its indirect impact on the applicant’s sphere of emotions and feelings. The law indirect impact on the applicant’s sphere of emotions and feelings. The law applicable to moral damages due to the humiliation of the applicant may be applicable to moral damages due to the humiliation of the applicant may be characterized as the infringement of the personality rights excluded from the characterized as the infringement of the personality rights excluded from the Regulation by its Article 1(2)(g)Regulation by its Article 1(2)(g)

Protection of personalityProtection of personalityand the unfair competition and the unfair competition

casescases To win a better market position, one of the Polish To win a better market position, one of the Polish

companies has been distributing the misleading companies has been distributing the misleading news of its competitor from Germany. The latter news of its competitor from Germany. The latter intends to sue the Polish undertaking for the intends to sue the Polish undertaking for the cessation to diffuse the false statements cessation to diffuse the false statements concerning its economic activity.concerning its economic activity.

Group of the Polish antiglobalists runs a website Group of the Polish antiglobalists runs a website www.bojkotujemacdonalds.com, containing critical www.bojkotujemacdonalds.com, containing critical data about the activities of MacDonalds’ data about the activities of MacDonalds’ Corporation. MDC sues them for removing the Corporation. MDC sues them for removing the defamatory content from the WWW server.defamatory content from the WWW server.

Article 1(2)(g) Rome IIArticle 1(2)(g) Rome IIShort comments to the casesShort comments to the cases

Case #1 – the context of the case and the Case #1 – the context of the case and the purpose of the defendant’s activity (to win a purpose of the defendant’s activity (to win a better market position = to have higher profits) better market position = to have higher profits) unfair competitionunfair competition falling under Article 6(2) falling under Article 6(2) Rome IIRome II

Case #2 – the defendant is neither the MDC’s Case #2 – the defendant is neither the MDC’s competitor nor even a commercial actor. The competitor nor even a commercial actor. The ‘centre of gravity’ of the claim seems to be the ‘centre of gravity’ of the claim seems to be the defamation, the case would certainly fall under defamation, the case would certainly fall under the exclusion of Article 1 (2)(g) Rome IIthe exclusion of Article 1 (2)(g) Rome II

Law applicableLaw applicableto torts/delictsto torts/delicts

General rule (I)General rule (I)

Under the previous Polish law: the law of the country Under the previous Polish law: the law of the country where the fact which caused the obligationwhere the fact which caused the obligation had had occured (Article 31(1) 1965 PIL – now repealed)occured (Article 31(1) 1965 PIL – now repealed)

Rome II Regulation has changed the attitude:Rome II Regulation has changed the attitude: The law of the place The law of the place where the where the direct damagedirect damage occurs occurs ((lex lex

loci damniloci damni) instead of the law of the ) instead of the law of the place of the fact causing place of the fact causing the obligationthe obligation ( (lex loci facti – lex loci delicti commissi lex loci facti – lex loci delicti commissi by the by the torts/delicts) is applicabletorts/delicts) is applicable

It is not a radical turnover but rather a trial of specifying the It is not a radical turnover but rather a trial of specifying the connecting factor (one of the variants of the connecting factor (one of the variants of the lex loci delicti lex loci delicti commissicommissi))

General rule (II)General rule (II)

„„Direct damage” under the Rome II:Direct damage” under the Rome II: ‘‘Damage’ as defined in Article 2:Damage’ as defined in Article 2:

any consequenceany consequence arising out of the relationship covered by the Regulation arising out of the relationship covered by the Regulation no matter whether it has occured or is likely to occurno matter whether it has occured or is likely to occur

‘‘Direct’ the ECJ jurisprudence concerning jurisdiction (see Exhibits) Direct’ the ECJ jurisprudence concerning jurisdiction (see Exhibits) could be helpful:could be helpful:

C-364/93 C-364/93 MarinariMarinari – an Italian arrested in the UK, he sought the – an Italian arrested in the UK, he sought the compensation for the personal damage in Italy - in the opinion of the ECJ, compensation for the personal damage in Italy - in the opinion of the ECJ, the effects of the alleged violation are too distant to reach Italy, the damage the effects of the alleged violation are too distant to reach Italy, the damage does not reach every place where the adverse consequences of arresting does not reach every place where the adverse consequences of arresting could have appearedcould have appeared

Conf. English judgment by the Court of Appeal in Conf. English judgment by the Court of Appeal in Henderson v Jaouen Henderson v Jaouen [2002] [2002] EWCA Civ 75; [2002] 1 WLR 2971 – deterioration of the victim’s injury in his EWCA Civ 75; [2002] 1 WLR 2971 – deterioration of the victim’s injury in his country of domicile after he had suffered it in the car accident abroad is not country of domicile after he had suffered it in the car accident abroad is not a new ‘harmful event’ – for an illustration, see the next slidea new ‘harmful event’ – for an illustration, see the next slide

ExampleExample

Polish citizen Marek W. Polish citizen Marek W. is the sailor contracted by a Norwegian firmis the sailor contracted by a Norwegian firm. . During his duty on the board of the oil tanker sailing under Liberian During his duty on the board of the oil tanker sailing under Liberian flag, he gets severily injuredflag, he gets severily injured. . The accident takes place in Nigeria, The accident takes place in Nigeria, where Marek W. undergoes medical treatment, then he is transported where Marek W. undergoes medical treatment, then he is transported to a hospital in Poland. His condition has worsened and Marek W. has to a hospital in Poland. His condition has worsened and Marek W. has to be reoperated. He sues his former employer for damages. to be reoperated. He sues his former employer for damages. Which Which law shall govern the claim (law shall govern the claim (passing over passing over the the question question of jurisdiction)?of jurisdiction)?

Comment:Comment: Unless the parties have a common habitual residence – which is not the Unless the parties have a common habitual residence – which is not the

case (Article 4(2) Rome II), the law applicable shall be case (Article 4(2) Rome II), the law applicable shall be the law of the law of Nigeria Nigeria as the coastal Stateas the coastal State having jurisdiction over the sea ( having jurisdiction over the sea (Article 4(1)Article 4(1)))

NNo matter that there is a further consequence in Polando matter that there is a further consequence in Poland LLaw other than aw other than Nigerian (e.g. the one of Liberia) applicable Nigerian (e.g. the one of Liberia) applicable only if it were only if it were

‘manifestly more closely connected’ with the subject matter of the case‘manifestly more closely connected’ with the subject matter of the case Marek W. dies, the plaintiff is his widow. What about the place of the Marek W. dies, the plaintiff is his widow. What about the place of the

damage?damage? One may argue that in such a case Poland is indeed the One may argue that in such a case Poland is indeed the place of the place of the direct direct

damagedamage Cf. coming judgment of the ECJ in Cf. coming judgment of the ECJ in C-350/14 LazarC-350/14 Lazar

Rome II - Particular Rules of Rome II - Particular Rules of ConflictConflict

for Torts/Delictsfor Torts/Delicts Certain types of factual situations, where the Certain types of factual situations, where the

main rule is considered to lead to unjust resultsmain rule is considered to lead to unjust results These are:These are:

The product liability (Article 5)The product liability (Article 5) Unfair competition/restrictions to the free competition Unfair competition/restrictions to the free competition

(Article 6)(Article 6) Environmental damage (Article 7)Environmental damage (Article 7) Delicts/torts arising from the infringement of an Delicts/torts arising from the infringement of an

intellectual property (Article 8)intellectual property (Article 8) Industrial action (Article 8)Industrial action (Article 8)

Product liabilityProduct liability

Polish consumer bought a bicycle produced in China via a website Polish consumer bought a bicycle produced in China via a website of the German supplier; its content was German, all prices in EUR. of the German supplier; its content was German, all prices in EUR. The seller did not accept Polish credit cards and the buyer had to The seller did not accept Polish credit cards and the buyer had to pay in advance with a SEPA bank settlement. The bike turned out pay in advance with a SEPA bank settlement. The bike turned out to be defective, the handlebars fell out during driving, causing to be defective, the handlebars fell out during driving, causing injuries to the bike owner. He sued the German seler for damages, injuries to the bike owner. He sued the German seler for damages, requesting the court to apply Polish law.requesting the court to apply Polish law.

Comment:Comment: Structure of connecting factors of Article 5 Rome IIStructure of connecting factors of Article 5 Rome II Significance of the place of ‚marketing’ (cf. the German term of Significance of the place of ‚marketing’ (cf. the German term of

‚Inverkehrbringen’‚Inverkehrbringen’ = putting into circulation) = putting into circulation) Foreseeability defence (Article 5(1), 2Foreseeability defence (Article 5(1), 2ndnd indent Rome II) indent Rome II) Escape clause (Article 5(2) Rome II)Escape clause (Article 5(2) Rome II)

Environmental DamageEnvironmental Damage

Polish undertaking seated in the town of Raciborz (southern Poland) is the Polish undertaking seated in the town of Raciborz (southern Poland) is the owner of a pond restocked with fish. It draws water from Odra river flowing from owner of a pond restocked with fish. It draws water from Odra river flowing from the territory of the Czech Republic (where it begins its course). One day, the the territory of the Czech Republic (where it begins its course). One day, the Czech rafinery contaminates water with oil products, making fish in the pond Czech rafinery contaminates water with oil products, making fish in the pond die. Whose law shall govern the compensation claim against the rafinery’s die. Whose law shall govern the compensation claim against the rafinery’s owner?owner?

Comment:Comment: Under Article 7 Rome II, the law at the place of theUnder Article 7 Rome II, the law at the place of the damage damage applies (see the reference applies (see the reference

to Article 4(1) of the Regulation)to Article 4(1) of the Regulation) The notion of the ‘damage’ in Article 7: (a) the ‘environmental’ damage, see Recital The notion of the ‘damage’ in Article 7: (a) the ‘environmental’ damage, see Recital

(24); (b) the detrimental (24); (b) the detrimental consequence of the act or omission of the wrongdoerconsequence of the act or omission of the wrongdoer Article 7 speaks expressly of both the Article 7 speaks expressly of both the environmental damageenvironmental damage and the and the resulting damageresulting damage

(the latter actually being detriment in a stricter sense)(the latter actually being detriment in a stricter sense) The applicable law shall be Polish law, The applicable law shall be Polish law, unless the victim decides to base his claim on the unless the victim decides to base his claim on the

law of the Czech Republiclaw of the Czech Republic Parties may also choose the third country's law, e.g. the Austrian oneParties may also choose the third country's law, e.g. the Austrian one

Law applicable to torts/delictsLaw applicable to torts/delictsoutside the Rome II – traffic outside the Rome II – traffic

accidentsaccidents Article 28 and the relationship to the existing int’l conventions:Article 28 and the relationship to the existing int’l conventions:

with the participation of Member States only => Rome II takes precedencewith the participation of Member States only => Rome II takes precedence With the participation of the third States => the convention firstWith the participation of the third States => the convention first

The latter is the case i.a. of the Hague Convention on the Law Applicable The latter is the case i.a. of the Hague Convention on the Law Applicable

to Traffic Accidents (parties to the Convention from the outside of the to Traffic Accidents (parties to the Convention from the outside of the

Union are: countries of the former Yugoslavia, Belarus and Switzerland)Union are: countries of the former Yugoslavia, Belarus and Switzerland) Poland is a party since 2002Poland is a party since 2002 The main peculiarities of the Convention:The main peculiarities of the Convention:

The wide notion of the traffic accident (incl. any vehicle, even one only, in any The wide notion of the traffic accident (incl. any vehicle, even one only, in any

public place, not necessarily the road)public place, not necessarily the road) The complex system of connecting factors (the country of the accident – Article The complex system of connecting factors (the country of the accident – Article

3; the country of the registration/habitual stationing of the vehicle – Article 4)3; the country of the registration/habitual stationing of the vehicle – Article 4)

Traffic accidents – a caseTraffic accidents – a case

During his way back home, a Polish citizen employed in the During his way back home, a Polish citizen employed in the Netherlands and driving a car registered in that country picks up a Netherlands and driving a car registered in that country picks up a hitch-hiker of Spanish nationality. While driving through Germany, the hitch-hiker of Spanish nationality. While driving through Germany, the Polish driver causes a car accident in which the Spanish passenger is Polish driver causes a car accident in which the Spanish passenger is heavily injured. Which law shall apply to the victim’s compensation heavily injured. Which law shall apply to the victim’s compensation claims against the insurer of the Polish driver?claims against the insurer of the Polish driver?

Comment:Comment: The solution depends on whether the car driven by the Pole The solution depends on whether the car driven by the Pole is the is the

onlyonly vehicle vehicle taking part in the accident or nottaking part in the accident or not Affirmative answer Affirmative answer all depends on the victim’s habitually all depends on the victim’s habitually

residence: where in Germany, than the law applicable shall be residence: where in Germany, than the law applicable shall be German law, otherwise the law of the country where the car is German law, otherwise the law of the country where the car is registred (the Netherlands)registred (the Netherlands)

Many vehicles involved –the law at the place of the accident generally Many vehicles involved –the law at the place of the accident generally applies unless all the vehicles are registered in the same countryapplies unless all the vehicles are registered in the same country

Law ApplicableLaw Applicableto the Other Non to the Other Non

Contractual ObligationsContractual Obligations

Unjust EnrichmentUnjust Enrichment

The notion covers The notion covers a wide set a wide set of the restitutionary remedies of the restitutionary remedies based on various groundsbased on various grounds

Article 11 Rome IIArticle 11 Rome II – the hierarchical structure of the rule: – the hierarchical structure of the rule: If the unjust enrichment arises from If the unjust enrichment arises from the pre-existing the pre-existing

relationship between the partiesrelationship between the parties (e.g. contract)(e.g. contract), to which it is , to which it is closely connected, then the law applicable shall be the closely connected, then the law applicable shall be the law law governing that relationshipgoverning that relationship

OtherwiseOtherwise the law of the law of the common habitual residencethe common habitual residence of the of the parties at the time of the event giving rise to the enrichment shall parties at the time of the event giving rise to the enrichment shall applyapply

At the last place, the law of At the last place, the law of the country in which the unjust the country in which the unjust enrichment took placeenrichment took place shall apply shall apply

Anyway, the Anyway, the escape clauseescape clause is included is included

Culpa in contrahendoCulpa in contrahendo

The term used for the first time by the German scholar Rudolph von The term used for the first time by the German scholar Rudolph von Ihering –liability for Ihering –liability for the acts or omissions in the course of the acts or omissions in the course of entering into a contract which adversely affect its conclusion entering into a contract which adversely affect its conclusion or performanceor performance

Useful to remember that in some countries (Germany) the institution Useful to remember that in some countries (Germany) the institution of c.i.c. is believed to belong to the law of contractof c.i.c. is believed to belong to the law of contract

The scheme of Article 12 Rome II resembles the unjust enrichmentThe scheme of Article 12 Rome II resembles the unjust enrichment Primarily the Primarily the law governing the contractlaw governing the contract, regardless of its being , regardless of its being

concluded or not, shall applyconcluded or not, shall apply Where it is impossible to determine this law, the law of Where it is impossible to determine this law, the law of the country in the country in

which the damage occurswhich the damage occurs shall apply shall apply Yet, should the parties have Yet, should the parties have the common habitual residencethe common habitual residence at the time at the time

of the event giving rise to the damage, then that law shall applyof the event giving rise to the damage, then that law shall apply Anyway, the escape clause is included, i.e. the court may always assess that Anyway, the escape clause is included, i.e. the court may always assess that

there is a manifestly closer connection with another lawthere is a manifestly closer connection with another law

Party AutonomyParty Autonomy

Article 14 Rome IIArticle 14 Rome II

Parties generally are free to choose the law applicable to the non-Parties generally are free to choose the law applicable to the non-contractual obligation contractual obligation after the event giving rise to the damage after the event giving rise to the damage occurred occurred (Article 14(1)(a)) – (Article 14(1)(a)) – ex post ex post choicechoice

If they both are pursuing a commercial activity, it is also possible to choose If they both are pursuing a commercial activity, it is also possible to choose the law applicable before such an event (Article 14(1)(b)) – the law applicable before such an event (Article 14(1)(b)) – ex ante ex ante choice:choice:

Limited scope, usually connected with permanent co-operation and contracting Limited scope, usually connected with permanent co-operation and contracting (e.g. ongoing business contacts between parties)(e.g. ongoing business contacts between parties)

Interconnection between Articles 4(3) and 14Interconnection between Articles 4(3) and 14 Useful if there is no choice of law for the contract itselfUseful if there is no choice of law for the contract itself

The choice unlimited, express or implied, approaching the patterns already The choice unlimited, express or implied, approaching the patterns already known from the Rome I Regulationknown from the Rome I Regulation

Choice-of-law restrictions as to the 'purely domestic (EU)' contracts – see Choice-of-law restrictions as to the 'purely domestic (EU)' contracts – see Article 14(2) and (3) Rome IIArticle 14(2) and (3) Rome II

Exceptions:Exceptions: Article 6 (unfair competition cases)Article 6 (unfair competition cases) Article 8 (infringement of the intellectual property rights)Article 8 (infringement of the intellectual property rights)

No choice in the Traffic Accidents ConventionNo choice in the Traffic Accidents Convention

Thanks for your Thanks for your attention!attention!