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If you've ever despaired at the pernicketiness of [[governing law]] clauses such as this: | |||
{{box|This agreement and any non-contractual obligations arising out of or in connection with it are governed by English law." | |||
But, brilliantly, it does not apply to non-contractual obligations arising under [[bills of exchange]], [[cheque]]s and [[promissory note]]s and other [[negotiable instrument]]s which arise out of their negotiable character. | Then you have the [[Rome II]] Regulation to blame. It was published on 31 July 2007 and applies to all {{tag|EU}} Member States (except {{tag|Denmark}}) . It aims to harmonise the conflict of laws rules applied by Member States when dealing with disputes involving non-contractual obligations and means that one rule for choice of law in such disputes applies across all Member States. | ||
===[[Non-contractual obligations]]=== | |||
In this context “[[non-contractual obligations]]” includes claims based on [[tort]] such as [[negligence]], breach of [[competition law]] and breach of [[statutory duty]]. But, brilliantly, it does not apply to non-contractual obligations arising under [[bills of exchange]], [[cheque]]s and [[promissory note]]s and other [[negotiable instrument]]s which arise out of their negotiable character. | |||
Rome II doesn't apply to company law defamation either. Though it's kind of hard to see how you could have a contractual obligation to defame someone. | Rome II doesn't apply to company law defamation either. Though it's kind of hard to see how you could have a contractual obligation to defame someone. | ||
but point to note here: the main thing is to ensure any [[concurrent liability|claims]] in [[contract]] and [[tort]] are governed by the same forum. Of most interest in cross border cases where parties are in different jurisdictions and that wouldn't follow as a matter of course. | |||
Of course, the sensible thing would be to expressly exclude tortious claims under the contract. But for those not prescient enough to do that, there's always this magic incantation. | |||
===Jurisdiction: you choose!=== | |||
Parties can agree to submit non-contractual obligations to the law of their choice. Previously English courts haven't been sure as to whether this is cricket. Rome II confirms that it is: | |||
*Where the agreement was made after the event giving rise to the damage; or | |||
*Where all parties are pursuing a commercial activity, if freely negotiated ''before'' the event giving rise to the damage occurred. | |||
===See also=== | |||
*[[Contractual negligence]] | |||
*[[Concurrent liability]] | |||
*[[Negligence, fraud or wilful default]] |