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The conflict-of-law rules regarding the law applicable to non-contractual obligations are now unified in the European Union

20.04.2009

The European Parliament and the Council of the European Union have adopted the Regulation No 864/2007 (Rome II) that determines the law applicable to non-contractual obligations.

 Before the Rome II Regulation entered into force, the court hearing the case determined the law applicable to non-contractual obligations on the basis of its domestic conflict-of-law rules. From now on, the conflict-of-law rules are unified. In practice, the unification must ensure that the same substantive law is applied to a non-contractual obligation regardless of which court of a Member State is hearing the case. This will improve legal certainty and the predictability of the outcome of litigation for parties to cross-border commercial relations.

The Rome II Regulation determines among other things the law applicable to non-contractual claims arising out of dealings prior to the conclusion of the contract. The aforementioned claims are based on the violation of the duty of disclosure and the breakdown of contractual negotiations. The liability related to the pre-contractual duties is regulated quite differently in different jurisdictions. Thus, in the interest of legal certainty, it would be sensible for the parties, who are engaged in cross-border negotiations, to determine in accordance with the Regulation, which law should be governing the non-contractual obligations.

The Rome II Regulation became applicable to all Member States (except Denmark) from 11 January 2009.

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