Rome II and the Substance-Procedure Dichotomy: Crossing the Rubicon

Abstract

Rome II and the substance–procedure dichotomy: crossing the Rubicon Elsabe Schoeman * The distinction between substance (governed by the lex causae ) and procedure (governed by the lex fori ) lies at the heart of international tort litigation. In the interests of certainty, predictability and uniformity of result, and to discourage forum shopping, the Rome II Regulation assigns a broad sphere of application to the applicable law/ lex causae by extending its scope to certain crucial issues, such as assessment of damage, limitation rules and interlocutory injunctions. Rome II does not, however, expressly characterise any of these issues as substantive. This article analyses the implications of the Rome II approach to the substance–procedure dichotomy and the challenges it presents for the traditional substance ( lex causae )—procedure ( lex fori ) distinction from an Anglo-Common Law perspective. 1. Introduction Tort choice of law has distinguished itself as one of the most treacherous areas in transnational litigation. Wide diversity among the jurisdictions of the world in relation to domestic rules regulating crucial issues, such as time periods within which actions must be commenced and different schemes for awarding and/or calculating damages, has resulted in huge uncertainty and unpredictability of outcome in international tort litigation. And, to add insult to injury, this area of private international law has probably had to deal with more than its fair share of methodological and theoretical conundrums. Not only did a torts case “launch” the American conflicts revolution 1 in the previous century, more recently the Australian High Court gambled on renvoi in a personal injury case 2 and the results in numerous transnational tort cases increasingly turn on the classification of a specific rule, such as a cap or a ceiling on damages, as being either substantive or procedural. 3 * Senior Lecturer in Law, University of Auckland. I would like to thank Paul Myburgh and Peter Watts for helpful comments on this article in draft. 1. The seminal case of Babcock v. Jackson (1963) 12 NY 2d 473; 191 NE 2d 279; [1963] 2 Lloyd’s Rep 286 . See SC Symeonides, “The American Revolution and the European Evolution in Choice of Law: Reciprocal Lessons” (2008) 82 Tul LR 1741, 1749. 2. Neilson v. Overseas Projects Corp of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331. See E Schoeman, “Renvoi: Throwing (and Catching) the Boomerang: Neilson v. Overseas Projects Corporation of Victoria Ltd ” (2006) 25 UQLJ 203. 3. Cf the characterisation of a New South Wales statute, limiting the amount of damages, by the English courts as either substantive (and therefore part of the lex causae ) or procedural (and therefore not applicable) in Harding v. Wealands [2004] EWHC 1957 (QB); rvsd [2004] EWCA Civ 1735; [2005] 1 WLR 1539; rvsd [2006] UKHL 32; [2007] 2 AC 1. LLOYD’S MARITIME AND COMMERCIAL LAW QUARTERLY 82