Choice of non-contractual law in the absence of Rome II

The Rome II Regulation provides that courts in EU States will give effect to the choice by a party of the law to govern non-contractual obligations (Rome I is of similar effect in relation to contractual obligations).

Neither Rome I nor Rome II will apply when the UK leaves the EU. This should not pose a problem for parties in relation to a choice of law to govern contractual obligations, because the English common law rules are likely to produce results consistent with Rome I.

What about non-contractual obligations, however? Insofar as non-contractual obligations arise in relation to disputes arising out of contracts, the absence of Rome II will probably also make little difference. Most clauses stipulating that English law shall govern the terms of a contract are usually widely enough expressed so as to encompass tortious issues related to the contract in question, typically pre contractual misrepresentations.

In scenarios where there are concurrent contractual and non-contractual obligations, therefore, the inapplicability of Rome II following the UK's exit will probably make little practical difference.

In addition, the remaining EU States will continue to apply both Rome I and II, by which a choice of English law will be respected, in relation to both contractual and non-contractual obligations, irrespective of whether the UK is a Member State or not.