Party Autonomy in Non-Contractual Obligations: Rome II and Its Impacts on Choice of Law

The 2007 European Regulation on the Law Applicable to Non-Contractual Obligations, known as Rome II, makes the doctrine of party autonomy a choice of law rule for non-contractual obligations. Premised with the notion of promoting certainty and predictability - the two core values of choice of law, Rome II provides the parties with ample freedom in selecting the governing law applicable to a non-contractual obligation that occurs between them. The application of party autonomy to non-contractual obligations breaks up the traditional barrier between the consensual choice of law by the parties and the non consensual obligations. Such a dramatic change reflects the development of international trend in favor of the parties' interests over the government interests and represents the increasing effort in attaining a sustainable balance between certainty and flexibility in choice of law. Rome II offers a great opportunity to rethink American choice of law. The policy-based or interest oriented choice of law approaches and the anti-rule syndrome produced in the American conflict of law revolution seem to have diverted American choice of law from the mainstream private international law. There is now a growing need to reposition American choice of law so that it will integrate internationally common rules and practice. An expansion of party autonomy in choice of law to the extent that it applies meaningfully not only to contractual obligations but also to non-contractual obligations might be an ideal starting point.