The purpose of uniform choice-of law rules: the Rome II Regulation

The year 2009 marks the entry into force of the first two EC regulations on choice of law: one on torts and other non-contractual obligations (‘Rome II’), and one on contracts (‘Rome I’). In both regulations, the need for uniform choice-of-law rules is explained, generally, in the preamble. In ‘Rome II’, various recitals specify the purposes some particular rules are meant to achieve. Apart from ambiguous statements on ‘the need to do justice in individual cases’ and the intention ‘to ensure a reasonable balance between the interests of the parties’, there are various references to the objectives of substantive law, said to be reflected in specific conflicts rules. As will be shown in this article, the ‘Rome II’ preamble promises much more than its rules can possibly deliver. Not only do most of the arguments in support of uniform conflicts rules turn out to be spurious, the policies underlying specific provisions have been translated into connecting factors that are mostly incapable of fulfilling the purposes they are meant to achieve. Since most provisions are focused on the principle of the closest connection they are obviously not inspired by the function of substantive law, nor do they allow a choice of the law best suited to the objective the rule is supposed to promote.