Acta Iuris Stetinensis (2020-01-01)

Scope of application of the generał rule in the Rome II Regulation

  • Magdalena Wasylkowska-Michór

DOI
https://doi.org/10.18276/ais.2020.30-07
Journal volume & issue
Vol. 30

Abstract

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The purpose of the paper is to determine the scope of application of Article 4(1), which con- stitutes the general rule of the Rome II Regulation concerning the law applicable to non- contractual obligations. Article 4(1) says that: unless otherwise provided for in this Regula¬tion, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs. However, this rule is subject to numerous exceptions, which the author divided into three groups: 1) exceptions resulting from the structure of Article 4 (Article 4(2) - common habitual residence in the same country, and Article 4(3) - escape clause), 2) exceptions resulting from the whole Regulation (Articles 5 to 9 - separate regulations for different types of tort, Articles 10 to 12 - separate regulations for non-contractual obligations, Article 14 - freedom of choice, Article 16 - overriding man- datory provisions, Article 17 - rules of safety and conduct), 3) restrictions resulting from other acts of EU and international law (the Hague Convention of 4 May 1971 on the Law Applicable to Traffic Accidents). The analysis resulted is the thesis that Article 4(1) of the Regulation applies to a few types of cases (mainly traffic accidents), which, however, happen quite frequently. The author of the paper refers to the provisions of law (analysis of existing legal regulations), as well as to literature based on these provisions, and therefore uses the dogmatic and legal methods of scientific research.

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