The Law Applicable to Non-Contractual Obligations (England and Wales and Northern Ireland) Regulations 2008

EXPLANATORY NOTE

(This note is not part of the Regulations)

These regulations concern Regulation (EC) No. 864/2007 of the European Parliament and of the Council on the law applicable to non-contractual obligations (“Rome II”). This instrument establishes uniform choice of law rules in the field of non-contractual obligations, that is principally in the context of proceedings in tort, but also proceedings for unjust enrichment and some other non-contractual obligations. These rules enable courts throughout the EU to select the national laws appropriate for the determination of these proceedings where the case has a cross-border dimension, for example a case where the parties live in different countries and the tort takes place in a third country. The aim of these uniform rules of Community law is that, in relation to a case falling within the Regulation’s scope of application, the same national law will generally be applied by courts in all the Member States.

The purpose of these regulations is two-fold. The first is to modify the relevant current inconsistent national law in England and Wales and Northern Ireland. Regulations 2 and 3 restrict the application of the general statutory choice of law rules in this area. These are contained in Part III of the Private International Law (Miscellaneous Provisions) Act 1995. Regulation 4 restricts the application of certain provisions in the Foreign Limitation Periods Act 1984 and regulation 5 restricts the application of analogous provisions in the Foreign Limitation Periods (Northern Ireland) Order 1985.

The second purpose involves extending the application of the Regulation to certain cases that would otherwise not be regulated by it. These are cases where in principle the choice of applicable law is confined to the law of one of the United Kingdom’s three jurisdictions, that is England and Wales, Scotland and Northern Ireland, and to the law of Gibraltar. These cases therefore lack the international dimension which is otherwise characteristic of cases falling under the Regulation. Under Article 25(2) of the Regulation Member States are not obliged to apply the Regulation to such cases. To maximise consistency between the rules that apply to determine the law applicable to non-contractual obligations, regulation 6 of these regulations extends, in relation to England and Wales and Northern Ireland, the scope of the Regulation to conflicts solely between the laws of England and Wales, Scotland, Northern Ireland and Gibraltar.