«FOUNDING EDITOR PETAR ŠARČEVIĆ † EDITORS ANDREA BONOMI PAUL VOLKEN Professor at the Professor at the University of Lausanne University of ...»
For the German development that goes back some time and which, as of 1920, was influenced by the Swiss PIL, see HOHLOCH G., Deliktsstatut (note 4) p. 57 et seq. The ‘RechtsanwendungsVO’ (Applicable Law Regulation) of 1941, a unilateral conflicts norm that tied to German citizenship, was soon overcome in the German practice and was no longer an obstacle for the gradual change leading to common habitual residence, see from the case-law of the Bundesgerichtshof (BGH), in: BGHZ 34, 22 et seq.; BGH: in: NJW 1976, 477 et seq., BGHZ 86, 57 et seq. And then the following different opinions (for this HOHLOCH G. (note 1), 11. Aufl. 2004, Art. 40 no. 1 et seq. The respective legal connecting factor is found in basically all of the PIL norms of European countries, norms which were completed during the ‘Codification Epoch’ of the second half of the 20th Century; see a copy of the text in its original language with a German translation in RIERING W. (Hrsg.), IPR-Gesetze in Europa, München (etc.) 1998.
The excessive discussion of the questions and ‘approaches’ in the European countries, especially the discussion with suggestions (and angry extortions!) through the thoughts and teachings of the US American Law of Conflicts, is today predominantly interesting only from a historical perspective; for a compilation of those materials, HOHLOCH G., Das Deliktsstatut (note 4), 85 et seq.; more concisely, HOHLOCH G. (note 4), in: JuS 1980, 81 et seq.
For the function of the ‘escape clause’ in the contemporary PIL legislation, see for example SIEHR K., Das internationale Privatrecht der Schweiz, Zürich 2002, p. 495, 497 et seq.
that all uniform EU regulations have; a style it must have for the purpose of a more effective harmonization of the 26 Member States (without Denmark).11 Then again, Art. 4 loses some of its significance through Art. 5 et seq., where individual types of delicts have been listed, each with its independent conflicts rules. This represents, at least from a formal perspective, a difference of Rome II with respect to many present national conflicts systems, in which special rules based on the special type of delict are rarely found.12 On 11 January 2009 Rome II will in most cases, through overlap and primacy, practically abolish national conflicts rules. National PIL will remain applicable only in exempted areas. It is then the job of the national legislative authorities to either highlight or harmonize the differences. This exigency exists less so in regards questions surrounding international application. Art. 3 of Rome II sets forth universal application, i.e. application as to third countries, and thus also, for example, Switzerland as a third country. Thus, on 11 January 2009 the Swiss legal practice will be confronted with 26 countries that will have this fundamentally uniform conflicts system. This would be directly relevant for the Swiss to the extent that they practice the so-called ‘remission’ (‘Rückverweisung’, ‘renvoi au premier degré’) or the ‘transmission’ (‘Weiterverweisung’, ‘renvoi au nième degré’) with respect to Art. 132 et seq. IPRG, which however, pursuant to Art. 14 IPRG, is not the case. Therefore, the new PIL for torts in the EU is for the Swiss practice significant, if jurisdiction for a tort case lies in a Member State – be it pursuant to general jurisdiction per Art. 2(1) of the Lugano Convention or pursuant to the special rule of Art. 5 Nr. 3 of this Convention.13 The court sitting in a particular Member State will apply the conflicts law of his lex fori, i.e. Rome II, also in relationship to Switzerland. This particular feature can play a very practical role in litigaSee the comparable construction of the Rome Convention on the law in relation to contractual relationships of 9.6.1980 – ‘Rome 1980’ (Art. 1 and 2) and the Brussels I Regulation, as also both of the matrimonial regulations.
For a textbook example of a ‘unified solution’, see Art. 40 – 42 EGBGB; With the enactment of the German PIL norms related to non-contractual obligations on 1 June 1999, German PIL, being fully cognizant of and as a renunciation of many different proposals during the legislative history, chose to turn away from a construction which would have incorporated individual rules for specific types of delicts (for example protection of personality, products liability, competition law...). Divergent from this is, for example, the Swiss PIL. In Art. 132 of the Swiss PIL Act is found a limited catalog of conflicts laws for particular types of delicts (for example products liability, liability stemming from traffic accidents).
‘Location of the damaging event’ in terms of Art. 5 Nr. 3 still applies –different than Art. 4 (1) of Rome II (see in addition section II.2.) ‘Ubiquitätsprinzip’ (‘Ubiquity Principle’), i.e. location of conduct and location(s) of direct damage are the same; see in addition the ECJ-Jurisprudence since ‘Mines Potasse’ ECJ 30.11.1976, in: ECR 1976, 1735 = NJW 1977, 495 and ECJ 19.9.1995 (‘Martinari’), in: ECR 1995, 2719 = IPRax 1997, 331 with a note by HOHLOCH G., at 312 et seq. To the limits of the location of direct damage compared with the location of a subsequent property loss, ECJ 10.6.2004 (‘Kronhofer’), in: NJW 2004, 2441 = IPRax 2005, 32 with note by HEIN J., at 17, OLG Stuttgart 6.7.1998, NJW-RR 1999, 138 = IPRspr. 1998 Nr. 147.
Yearbook of Private International Law, Volume 9 (2007)