ICC comments on the European Commission's preliminary draft proposal for a Council Regulation on the law applicable to non-contractual obligations.

The International Chamber of Commerce (ICC) is the world business organization, the only representative body that speaks with authority on behalf of enterprises from all sectors in every part of the world.

ICC appreciates the opportunity to comment on the European Commission's preliminary draft proposal for a Council Regulation on the law applicable to non-contractual obligations (ROME II), published by the Directorate-General for Justice and Home Affairs on May 3, 2002.

Business enterprises are plagued by the risks of unexpectedly being subjected to laws and judgements in foreign countries. In addition to stifling international business development, particularly that of small and medium-sized enterprises, such risks may have a 'chilling effect' on the freedom of expression of broadcasters and the press.

Commission statements have indicated the need to address the potential conflict between the draft Regulation and existing Community legislation, such as the Electronic Commerce Directive. Indeed, ICC's experts believe that the Commission is attempting to take into account the recent advent of the Internet and e-business in general by carving-out electronic commerce via Article 23. Lawmakers and courts in many jurisdictions worldwide are currently struggling with the issues regarding applicable law that arise in the context of the Internet. In particular, the question that is frequently posed is whether the mere fact that a web page may be viewed in a given jurisdiction is sufficient in itself to consider that its author or editor is "present" or "doing business" in that jurisdiction for the purpose of determining applicable law.

Given the importance of the draft Regulation to the development of electronic commerce and e-Business and the need for legal certainty and foreseeability, ICC seeks clarification as to the exact relationship between the co-ordinated field provisions of the Electronic Comm erce Directive and those of this draft Regulation. In addition, ICC seeks clarification regarding the specific carve-outs envisioned by Article 23 and whether future Community actions will be covered by Article 23. After we obtain such clarification, we will be able to better assess the effect of the draft Regulation on international business as a whole, and provide more substantive input for the Commission's consideration.

Conclusion

ICC looks forward to providing further input as the consultation process on this regulation continues, and following receipt of clarifications as outlined in this comment.