Rationale of the Exclusion of Choice of Law by the Parties in Articles 6(4) and 8(3) of Rome II Regulation

1. Introduction

The question I was asked to answer is the following: why is party autonomy – as recognised by Article 14 of the Rome II Regulation when it comes to choosing the law applicable to non-contractual obligations – ruled out under Article 6 and Article 8 of said Regulation?¹

In order to answer this in a sensible way, a preliminary question must first be addressed: how come Article 14 grants autonomy to the parties regarding the choice of the law governing their tort relationship? As a matter of fact, such a solution is rather unusual in comparative private international law since the notion of party autonomy is most often related with contracts, not torts. In order to answer this question correctly, one needs to understand what it means for the parties to be granted autonomy as to the law applicable to the liability of one of them vis-à-vis the other (and, consequently, as to the law applicable to the right of the victim to claim damages against the tortfeasor and get compensated for the loss).

My view is that each time a lawmaker grants such autonomy to the parties, it simply means that the choice-of-law rule enacted for torts by the legislature is only intended to apply in cases where the parties did not agree upon a particular solution regarding the choice-of-law issue arising out of the tort. To put it differently: the lawmaker (and especially the EU lawmaker with Article 14 of the Rome II Regulation) does not stick to the connecting factor he has enacted for torts (eg locus damni, for ordinary delicts covered by Article 4(1)) to the point that he makes it mandatory to the parties.²

Insofar as the parties are consequently granted autonomy by the legislature enacting a non-mandatory choice-of-law rule, the issue arises of the interest for the parties to resort to a choice-of-law clause as to non-contractual obligation; well, the answer is most likely that an agreed choice-of-law solution provides for predictability and certainty regarding the country the law of which will be applicable.³ Nevertheless, this benefit is immediately counterbalanced by the risk for a potential victim to agree upon the applicability of a lesser protective law (than the one applicable under the default choice-of-law rule), at a time when liability of the other party is rather an abstract possibility – since it is merely potential. Hence the restriction found in Article 14(1)(a): as a matter of principle and subject to the commercial exception,⁴ only an ‘agreement entered into after the event giving rise to the damage occurred’ is enforceable.

Once we know what party autonomy means in the field of choice-of-law regarding non-contractual obligations, we can understand more easily why Articles 6 and 8 of the Rome II Regulation frankly rule out this autonomy, both provisions being non-waivable by the parties (Article 6(4); Article 8(3)).

2. Article 6

3. Article 8

Article 8 deals with infringements of intellectual property rights (IP rights). Under Article 8 of the Rome II Regulation, in cases where, in an international setting, a wrongful act was committed that allegedly infringes IP rights, and a loss ensues for the owner of these rights, the claim for compensation is deemed to be relevantly connected with the country ‘for which protection is claimed’. Recital 26 of the Rome II Regulation Preamble underscores that this connection stems from the ‘universally acknowledged principle’ known as the lex loci protectionis, as enacted by the Berne Convention (1886) for the Protection of Literary and Artistic Works – which indeed is in force in just under 180 countries – and by the Paris Convention (1883) for the Protection of Industrial Property – which is in force in nearly 180 countries too.¹² If the commentators usually concur on the fact that these conventions provide for a choice-of-law rule as to the intellectual property title, their views are divergent on the issue of whether or not these choice-of-law rules extend their scope to include the liability for infringement of IP rights.¹³ Nevertheless, the Rome II Regulation did enshrine this extension in its Article 8(1). A relevant reason for doing so is practical and has been pointed out by Professor Moura Vincente: diverging connecting factors for intellectual property title and non-contractual obligation in case of an IP right infringement result in the increasing complexity of the choice-of-law process due to dépeçage and incidental questions ensuing, with their necessarily unsatisfactory responses.¹⁴

As to whether or not the connecting factor used by the choice-of-law rule laid down by Article 8(1) is mandatory to the parties so that a contractual choice of law ought to be devoid of any effect, the answer brought about by Article 8(3) is that: ‘The law applicable under this Article may not be derogated from by an agreement pursuant to Article 14.’ It seems that such an answer derives from the same idea: that the choice-of-law rule regarding torts related with an infringement of IP rights ought to be the same as the one applicable to the intellectual property title issues. Since the international conventions in force in the field of IP rights do not provide for party autonomy as to the law governing the intellectual property title, it became consequential for the EU legislature that the regulation had to deny autonomy to the parties as to the choice of the law applicable to non-contractual obligations arising out of an infringement of IP rights. This nevertheless remains questionable since ‘Les intérêts publics ne sont pas directement en jeu quand il s’agit de la réparation des dommages découlant de l’atteinte’.¹⁵ It would have then been possible and even sensible to leave it up to the parties to choose the law applicable to the tort issues arising out of an IP right infringement.