Many recent cross border decisions have turned on questions of jurisdiction. The current tests and grounds for establishing it are a good deal more subjective than those under the Brussels I regime which was in force in the period before the United Kingdom left the European Union. On substantive applicable law, however, English law has retained (or “assimilated”) the rules of the Rome Regulations (Rome I for contracts and Rome II for torts) which despite appearing more predictable are still tested from time to time.

In a complex set of malicious prosecution proceedings featuring Dubai and BVI-based parties, the scope of the appliable law test at Article 4 of Rome II was raised. That provision creates a hierarchy of tests: the conventional approach at 4(1) of applying the law of the place where the damage occurs, the mandatory exception in 4(2) of using the law of the place in which both parties are habitually resident, and the catch-all provision at 4(3) of applying the law of a country with a manifestly closer connection to the tort.

The recent decision in Commercial Bank of Dubai PSC & Ors v Al Sari & Ors [2025] EWHC 400 (Comm) reinforces previous English authorities to the effect that (i) the provisions of Article 4 may lead to different laws applying to separate claims between various parties arising out of the same facts and (ii) Article 4(3) is not only a high hurdle but, if satisfied, may operate to designate the law that would have applied under 4(1) had the 4(2) common habitual residence test not been met. The following passages from the judgment point clearly to those conclusions.

I accept for the purposes of this application that Article 4(2) is capable of operating as between some of the parties… and not others (Marshall v Motor Insurance Bureau [2015] EWHC 3421 (QB), [17]-[18] and Owen v Galgey [2020] EWHC 3546 (QB), [40] … if the application of Article 4(2) leads to claims between different parties arising from the same event being governed by different systems of law, this factor can be prayed in aid to displace the operation of Article 4(2) by resort to Article 4(3) (Marshall, [18]-[19]; Owen [40]).

As Dicey, Morris & Collins note at [35-028], there is a (strong) temptation to avoid the theoretical difficulty of the "multiple applicable laws" approach "by seeking to locate the 'direct' damage in a single country or by making use of the 'escape clause' in Article 4(3) of the Regulation"… [which] sets a "high hurdle" for the party seeking to establish an applicable law under this provision (Dicey, Morris & Collins, [35-032]).

Article 4(3) requires that it be "'clear' that there is a 'manifestly' or obviously closer connection with the country other than that which is indicated by arts 4(1) and (2)… the place of damage for Article 4(1) purposes can be a factor which supports the identification of another law with a manifestly closer connection under Article 4(3), and Article 4(3) may have the effect of bringing the applicable law back to that which Article 4(1) suggested, but which Article 4(2) displaced: Marshall, [19].

Article 4 of the regulation was also relevant to the alleged mismanagement of security around the Stade de France at the 2022 UEFA Champions League Final. As Tuner J recorded in his judgment last month (March 2025) in Abram & Others v UEFA & Anor [2025] EWHC 483 (KB) “the event descended into chaos” as a result of which several hundred Liverpool fans brought claims alleging that they “sustained injuries as a result of being crushed in the melee, sprayed with tear gas and pepper spray by the French police, and assaulted by members of the French public … in breach of contractual and/or tortious duties”.

Issues of jurisdiction and of foreign state immunity were raised but will not be addressed here. Those points aside, the question of the law appliable to the claims (assuming breach and jurisdiction were made out) was clarified only in written submissions more than two months after the hearing in July 2024.

Having initially put all their claims in French law, the more nuanced approach adopted in the claimant’s subsequent written submission was (i) that any claims in tort should be subject to French law (in accordance with Article 4(1)) and (ii) contractual claims should be subject either to French law if tickets were bought from UEFA’s website or to English law if they were bought from Liverpool FC.

The final recent development relating to the Regulation is the publication of the European Commission’s report on 31 January 2025. Its broad and unsurprising conclusion is that the rules-based approach of Rome II “generally works well and is fit for purpose”.

However, the three following topics were identified as justifying further research by the Commission which might, in due course, lead to reform:

  • reassessing the exclusion of privacy matters, including defamation
  • analysis of the Regulation in cases of simultaneous damage in several jurisdictions, which could lead to the application of different national laws to the same non-contractual obligation (notably in cases of collective redress, online torts / online intellectual property issues), and
  • torts that cause pure economic loss, such as relating to financial markets and liability for prospectuses.

These new areas of focus point to the Rome II Regulation potentially being adapted to the now-established online consumer economy of the second quarter of the twenty first century, building on its roots in the early 2000s of resolving applicable law in rather more physical torts. The relevance of this for English law is that while the current Regulation is ‘assimilated law’ and therefore applies here, it will be a very open question whether a future government might choose to ‘assimilate’ any future refinement of its rules.