Andrew Dickinson's excellent and timely book addresses the Rome II Regulation, Regulation 864/2007 (hereafter “the Regulation”). The Regulation became applicable on the 11th of January 2009 in all EU jurisdictions, other than opted-out Denmark, and contains provisions which determine the choice of law in relation to a wide range of non-contractual claims. The Regulation is of general application within the courts of the EU and, in common with the approach taken under its “sister” provision, the Rome Convention of 1980 (which is to be replaced by mid December 2009 by the Rome I Regulation, Regulation 593/2008), such law selection is not dependent upon either the litigants or the non-contractual obligations being located within the territorial limits of the EU. Although the Regulation may be described as a sister to the earlier European choice of law rules for contractual obligations, with which it was, as a much earlier draft measure, originally conjoined, it is possibly useful, for English readers, to note that as well as choice of law rules for the expected non-contractual obligations represented by torts and delicts, the Regulation also makes provision for the non-contractual obligations arising from unjust enrichment, negotiorum gestio and culpa in contrahendo. Dickinson's book addresses all of these areas in commendable detail and thus provides a most useful guide to the application of the new Regulation.
That such a guide will be most welcome and necessary for both academics and practitioners is a direct consequence of significant differences of opinion – which have materialised over the course of the Co-Decision Procedure – between the approach to choice of law rules favoured by the European Parliament and that favoured by the European Council and Commission. Such firmly held differences of opinion led to re-drafting, re-re-drafting, and, when taken together with sundry matters of genuine legal complexity, have made for what may sometimes appear to be a somewhat Delphic Regulation. Dickinson's book does all that is currently possible to either “light the way” or at least indicate as plausible a direction as may, in default of practice, presently be discerned.
The book is logically and simply organised into four substantive parts, a conclusion and seven appendices. Part one consists of three chapters which are respectively concerned with the Background, Treaty Base and Scope of the Regulation. Part two consists of six chapters each of which concern one of the different tortious/delictual obligations for which the Regulation makes provision. Part three consists of three chapters which proceed in like manner to respectively cover unjust enrichment, negotiorum gestio and culpa in contrahendo. The chapter numbers in parts two and three of this book most helpfully correspond with the number of the operative articles within the Regulation. The reader may thus expeditiously navigate to the relevant coverage concerning the specific matter at issue and thence via the excellent cross-referencing to matters of more general application as contained in the fourth part of the book. This fourth part consists of four chapters which respectively concern: party autonomy; the scope of the applicable law; mandatory rules/public policy; and the relationship of the regulation with other EC and international legal instruments. The author offers a brief conclusion and then provides appendices which cover one hundred and fourteen pages. While some of the materials contained in the appendices may easily be found and accessed on-line, it is still most useful for the reader to have an integrated and portable hard copy of these materials with which the afore-mentioned commentary is cross-referenced. The seven separate appendices represent an essential minimum for s/he who would wish to understand the final Regulation text and consist of the final 2007 version of the Regulation, the Commission's 2003 proposal, the 2006 amended Commission proposal, the Council's 2006 Statement of Reasons concerning its Common Position, a chronology (which helpfully organises the many draft documents with reference to their date and place of publication), a bibliography, and a table which relates the Regulation's Recitals to its Articles. The coverage of the book is augmented beyond 31st July 2008 by means of its accompanying website, www.romeii.eu.
Throughout the book Dickinson's approach to the explanation of the meaning and likely application of the Regulation is clear, meticulous, fair and facilitative. It seems invidious, as there is much to praise and yet few words now remain for this review, to select one or two areas of the book for particular praise, yet the coverage of the Regulation's general tort provision (Article 4) and its unjust enrichment provisions (Article 10) do stand out, despite the excellence by which they are surrounded. That said, Dickinson is not afraid of pointing out and criticising the Regulation's defects. For example, in relation to Article 6 of the Regulation which contains provisions respectively concerning Torts of Unfair Competition (Articles 6(1) and 6(2)) and Torts arising from breaches of Competition Law (Articles 6(3)(a) and (b)), he rightly pulls no punches when describing the Article in which they are contained as, “ … in terms of its drafting and practicality, the least satisfactory of the Regulation's rules of applicable law”, and then goes on to speculate that its defects will probably “… trouble Member State courts for many years to come”. (see paragraph 6.01, page 392). Such trenchant criticism can only assist the eventual litigation, and hopefully the eventual reformation, of those matters which are now open to criticism when the opportunity to re-assess the operation and provisions of the Regulation is presented in 2011.
In the meantime, this book represents an essential, superbly useful, and relatively affordable English language reference work for either practitioners or academics who are concerned with matters arising from choices of law for non-contractual obligations before European courts. It sets a very high standard for the authors of what may be expected to be the companion volumes, concerning other immanent European Regulations, in the increasingly indispensable Oxford Private International Law Series and may be confidently recommended.
