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Paper Information

Journal:   REVUE DE RECHERCHE JURIDIQUE   FALL 2010-WINTER 2011 , Volume - , Number 52; Page(s) 9 To 73.
 
Paper: 

THE LAW APPLICABLE TO NON-CONTRACTUAL OBLIGATIONS

 
 
Author(s):  NIKBAKHT HAMID REZA, ALIKHANI HAMID REZA
 
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Abstract: 

When the free movement of the people and the goods or industrial products are to be effected and the states are determined to support and to implement such situation and to positively affect cross-border impact, they have to create and maintain an area of freedom, security and justice. One of the preliminary and basic issue is adoption of judicial measures relating to civil matters, a subject of which is non-contractual obligations, the concept which varies from one state to another, but certainly deals with risks inherent in a modern high-technology society.
In this connection and in cases where a foreign element exist in non-contractual obligationsit is necessary in order to improve the predictability of the outcome of litigation, certainty, and free movement of judgments, the law applicable and/or the choice of law rules are enacted as the same national law as other choice of laws rules of the country.
In Conflict of Laws, the European Parliament and the Council of Europe Adopted the "Rome II" Regulation (Reg. (EC) No.864/2007), which is the European Union Regulation on the law applicable to non-contractual obligations. It became applicable in the Member States excepting Denmark from 11 January 2009 (Art.32). From this date, the Rome II Regulation creates a harmonised set of rules within the European Union to govern choice of law in civil and commercial matters (subject to certain exclusions) concerning non-contractual obligations. The requirement of legal certainty and the need to do justice in individual cases are essential elements of an area of justice. This Regulation provides for the connecting factors which are the most appropriate to achieve these objectives.
The general rule for tort/delict is stated in this Regulation as the lex loci damni/ delicti commissi in Article 4 (1). There are two exceptions (or one exception (Art.4 (2)) and one' escape clause' (Art.4 (2)) to this general rule. The specific categories of tort/delict, are stated in Arts.5 (product liability), 6 (competition), 7 (environmental damage), 8 (IP infringements), 9 (industrial action). Provision has been made for special rules where damage is caused by an act other than a tort/delict, such as unjust enrichment (Art.10), negotiorum gestio (Art.11), and culpa in contrahendo (Art.12).
Additionally, to respect the principle of party autonomy and to enhance legal certainty, in certain circumstances and subject to certain conditions, the parties are given the freedom of choice of the law applicable to a non-contractual obligation (Art.13).
In order to safeguard the public interest of the forum the courts of the Member States are given the possibility, in exceptional circumstances, to apply exceptions based on overriding mandatory provisions (Art.16) and public policy (Art.26).
This was considered and analyzed in this paper in order that its different aspects and features are clarified. This can help the law students to increase their legal knowledge and uderstanding of the subject, and it can also guide the lawyers and law-makers and ease their work to crystalise their own necessitis in the sense of what is the law applicable to non-contractual disputes (cases) in the courts of European Countries (almost 27 countries), and what are the critical points which should be regarded if a law is to be enacted.

 
Keyword(s): EC REGULATION, NON-CONTRACTUAL OBLIGATIONS, APPLICABLE LAW, TORT, RESTITUTIONARY OBLIGATION
 
References: 
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