DRAFT OHADAC MODEL LAW RELATING TO PRIVATE INTERNATIONAL LAW

Article 52

General rule

1. The law applicable to a non-contractual obligation arising out of a tort/delict shall be the law chosen by the perpetrator and the victim. The choice of the applicable law must be express or be evident from the circumstances of the case.

2. Failing that, the law of the country where the damage occurs shall apply, irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur; however, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.

3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in the preceding paragraphs, the law of that other country shall apply.

337. The question of the law applicable to non-contractual obligations has been a greatly discussed topic and a cause of confrontation between the Romano-Germanic and common law437 systems, which is why it is necessary to justify the option adopted in the present article: leaving aside the favourable theses for applying the lex fori to non-contractual civil liability in general438 439, and focusing on the problem of the law applicable to civil liability resulting from the offence, it has been considered, in this specific type of wrongful acts, that a significant connection exists between the penal and civil aspects, and, therefore, that the same law must be applied, the law of the forum, to both of them alike. This reasoning rests upon a conception of the wrongful civil act parallel to that of the wrongful penal act, where the element of apportionment of blame or moral reproach to the perpetrator would be decisive440. Consequently, a complete parallelism between the special application of penal and civil rules cannot be generally assumed, even if these are applied by the same jurisdiction441: the connection between the civil action and the penal action is exclusively procedural, but by no means does this imply a change in the nature of the civil action and, therefore, the application of a different law depending on whether the civil action is brought in isolation or together with a penal action would not be justified.

Different conventions applicable to certain wrongful acts exist: some of these belong to uniform substantive law and others contain bilateral conflict rules. The paradigm in this area is the Hague Conventions of 4 May 1971, on the Law Applicable to Traffic Accidents, and of 2 October 1973, on the Law Applicable to Products Liability. The countries in the OHADAC area have not adhered to these instruments, which justifies the relevance of the establishment of an ad hoc rule.

338. In line with the more advanced codifications, regarding non-contractual obligations, the parties are given the possibility of choosing the applicable law. The expansion of the freedom of choice of law in this area corresponds to the fact that, at the substantive level, non-contractual liability is typically based on the freedom of disposition of the parties. Also from the jurisdictional perspective, the parties are free to choose the competent court in this matter. In view of the significance of the freedom of choice at the substantive level and the significance of the freedom of choice of law as a mechanism for providing predictability and legal certainty to the private international relationships, it is undoubtedly justified to configure the freedom of choice as the main criterion for determining the applicable law.

In principle, the provision does not set limits concerning the law to be chosen, since it does not require that the choice must refer to the lex fori or to a legal system with which the non-contractual obligation is in some way connected. The parties are therefore free to choose the law of any country as applicable. With regard to the agreement of choice of the applicable law, the rule is limited to establishing that the choice must be express or result with reasonable certainty from the circumstances of the case.

339. Despite being configured as the main connecting factor, it is clear that, in the area of non-contractual obligations, freedom of choice of law has much less practical significance than in the area of contractual obligations, in which the existence, typically, of a previous agreement between the parties, which underlies their relationship, makes it easier for the interested parties to be able to reach an agreement concerning the law applicable to this agreement at the outset.

The admission of freedom of choice of law takes place in the scope of non-contractual obligations with certain additional limits, such as the exclusion of certain matters from freedom of choice of law, as is the case of the law applicable to liability resulting from acts of unfair competition, acts restricting competition and the breach of intellectual property rights. These are areas of the legal system in which the connecting factors used, the principle of the effects in the market and the lex loci protectionis rule are imperative, given the objectives that they pursue, the characteristics of the object being regulated and the public or collective interests involved.

340. In the absence of choice of the applicable law by the parties and each time it involves a situation not in accordance with any of the rules related to specific matters, the law applicable to a non-contractual obligation resulting from a harmful event is determined in accordance with the provisions in paragraphs 2 and 3, substantially inspired by article 4 of the Rome II Regulation, which contains the harmonised regulations in this area in the EU. In particular, paragraph 2 establishes what may be called the “general rule”. These are rules that respond to a previously well-defined guideline and structure, in the sense that they are based on the duality between the rule and its exception. It consists of three paragraphs: the first establishes as a basic criterion the application of the lex loci damni; the second introduces a differentiated treatment for the situations in which the parties have a common habitual residence; and the third contains an exception clause based on the criterion of the closer connections, which opens up the possibility of applying a law other than that designated in paragraphs 1 and 2.

In the absence of a common habitual residence, since paragraph 2 prevails when the person liable and the party sustaining loss or damage reside in the same country, the applicable laws is the law “of the country where the damage occurs, irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur”. This connecting factor aims to determine precisely the applicable law, on the one hand, in the cases in which there is a dissociation between the place of origin or the place or places where the conduct or the event which causes the damage occurs and the place where the damage occurs, and on the other hand, in the cases in which the direct damage is accompanied by other indirect or resulting damage.

341. Concerning the lex loci damni rule, the criterion of the common habitual residence prevails, since this is the applicable connecting factor when the person claimed to be liable and the person who has sustained damage have their habitual residence in the same country at the time when the damage occurs. In practice, this rule may facilitate above all the application of law of the forum in situations occurring abroad which involve various residents of the forum.

Both the law of the place where the damage occurred as well as that of the common habitual residence may be replaced by that of another country when the requirements for the operation of the correction clause of its paragraph 3 are met, in particular, when it is clear from all the circumstances that the tort/delict has manifestly closer connections with another different country. It is an exception clause, which introduces flexibility based on the principle of proximity, even though it is worded, in line with the content of the Rome II Regulation, in such a manner that gives rise to the exceptional nature of this possibility, by requiring that the connections are “manifestly” closer, which implies that the greater connection with another legal system has to be evident. The wording of the rule highlights the exceptional nature of this mechanism.


Fatal error: Uncaught Error: Undefined constant "Intl_commentary" in /var/www/vhosts/ohadac.com/httpdocs/includes/textes.php:88 Stack trace: #0 /var/www/vhosts/ohadac.com/httpdocs/index.php(21): include() #1 {main} thrown in /var/www/vhosts/ohadac.com/httpdocs/includes/textes.php on line 88