Pregledni rad
REGULATION ROME II - COMMUNITARIZATION OF THE EUROPEAN PRIVATE INTERNATIONAL LAW - PART TWO: GENERAL POINT OF CONTACT ON TORT CONFLICTS IN ROME II AND THE HARMONISATION OF THE CROATIAN PRIVATE INTERNATIONAL LAW
Vilim Bouček
Sažetak
The article gives an analysis of the Rugulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) and the harmonisation of the Croatian Private International Law.
Regulation Rome II of 2007 seeks to solve the problem of fi nding the applicable law for an international tort/delict by improving the predictability of solutions and certainty as to the law. Therefore Rome II adopted a fi rm point of contact approach: in European international tort/delict law the general rule is the law of the place where the direct damage occurs (Article 4(1). In order to gain forseability and certainty and not to lose (much of) fl exibility at the same time, Rome II contains confl ict rules which soften the basic rule. As a rule, it allows the parties to choose the applicable law after the dispute has arisen (Art. 14). The basic rule will not be applied either if there is a manifestly more closely connected situation with another country, which may be based in particular on a pre-existing relationship between the parties (Art. 4(3), and also if, at the time of the injury, the tortfeasor and the victim have their habitual residence in the same country (Art. 4(2). Neither the ubiquitarian solution, nor the principle which would give the victim the option of choosing the law most favourable to him (German and Italian approach), was adopted in the Rom II Regulation.
The General Provision of Art. 28(1) of the Croatian Private International Law Act has adopted the concept of “ubiquity” between the laws of the place (country) where the event giving rise to the damage has occurred and the place (country) where the damage is sustained. The Croatian courts should ex offi cio apply the law which is in favor of the victim (“favor laesi”). According to the Stabilization and Association Agreement of 29 October 2001 between the EC and its Member States and Croatia (SAA), Croatian legislation should be harmonised with the legislation of EC including acquis (Article 69). Till than, taking into the cosideration the legislative efforts made for the new Croatian Private International Law Act which is still in the form of Thesis (First Draft of 2001), author concludes that this enables Croatian courts in the case of cross-border or international noncontractual obligations to take not only the traditional solutions, i.e. favor laesi, but also to apply new points of contact: party autonomy, (manifestly) closer connection and common habitual residence of the parties as well.
Ključne riječi
Regulation Rome II; party autonomy. manifestly closer connection; common habitual residence; place of injury
Hrčak ID:
30405
URI
Datum izdavanja:
10.11.2008.
Posjeta: 3.690 *