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Rome II: Will It Prevent Forum Shopping And Take Account Of The Consequences Of Choice Of Law?

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Chapter Summary

Rome II incorporates a revolutionary and salutary rule bringing within its scope all aspects of quantification of damages. When a court rejects the law specified by Rome II because that law offends the forums public policy, the court should dismiss the case without affecting the merits. It would induce forum shopping and create uncertainty if a court used public policy as a reason for applying forum law. Courts are likely to have different views on what forum rules fall under the mandatory provisions exception of Article 16. A consequence-based interpretation of the more closely connected exception in Article 4(3) would give that provision an empirically testable meaning. The same-residence rule of Article 4(2) generally accord with a consequences- based approach. It does not adequately take account of the results of choice of law when the tort is intentional or the rights of third parties are affected.

Keywords: Account; choice of law; Community courts; Consequences; Forum Shopping; Rome



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