Party Autonomy in International Property Law - Peace Palace Library

5. Party Autonomy in International Property Law: A German Perspective
emissions emanating from real property. The rule provides: ‘As to claims
arising from the adverse effects of emissions from real property, the provisions
of Regulation (EC) No. 864 / 2007 [Rome II] except for chapter III
shall apply by way of analogy’. The doctrinal background behind this rule
is that, under German substantive law, injunctive and similar protective
claims under neighbour law are divided into tort-related damages claims
and property-related claims for revindication. 28 In the conflict of laws,
however, splitting up a neighbour’s remedies between the lex situs and
the lex loci delicti would lead to practical complications and possibly even
to conflicting judgments, denying under tort law what is allowed under
property law, and vice versa. In contrast, a harmonised connection of tort
law claims and rights in rem is justified by the fact that, at the level of
substantive law, tort-related and property-related rules are elements of
a finely balanced, closely interwoven regulatory structure for delimiting
the respective scope of freedom and action of the polluter and the injured
party, which must not be divided by a two-pronged approach. This
was already recognised by the German legislature in 1999. The original
version of Article 44 EGBGB, however, merely referred to the objective
conflicts rule for complex torts (Article 40(1) EGBGB) and excluded
party autonomy (Article 42 EGBGB). After the autonomous conflicts
rules for torts were superseded by the Rome II Regulation, in particular
Article 7 Rome II, which relates to environmental damage, 29 the provision
was adapted to the Regulation. In this respect, it must be noted that
the reference to Rome II introduced in 2008 is not restricted to Article 7
of the Rome II Regulation, but includes Article 14 Rome II as well, thus
allowing for party autonomy even insofar as the pertinent claims are characterised
as belonging to property law. The practical importance of this
shift is slightly diminished by the fact that under an autonomous characterisation
of nuisance claims in international law, such claims are arguably
within Rome II’s scope of application anyway. The Court of Justice of the
EU has decided with regard to the Brussels I Regulation that such claims
must be characterised as delictual within the meaning of Article 5(3)
28
For closer analysis, see von Hein / ​Wolf, Transboundary Environmental Damage
in the Conflict of Laws, in: Wolfrum / ​Langenfeld / ​Minnerop (eds.), Environmental
Liability in International Law: Towards a Coherent Conception
(2005) 381 (424 et seq.).
29
For closer analysis of this provision, see Bogdan, The Treatment of Environmental
Damage in Regulation Rome II, in: Ahern / ​Binchy (eds.), The Rome
II Regulation on the Law Applicable to Non-Contractual Obligations (2009)
219.
Jan von Hein
111
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