The new private international law of unfair competition and the 'Rome II' Regulation

Legal content: This article describes the new European regime for identifying the ‘applicable law’ in unfair competition cases with an international element, according to the Rome II Regulation. It also discusses the relationship of the Rome II Regulation with the Unfair Commercial Practices Directive.

Key points: The Rome II Regulation introduces a new regime for determining the applicable law in all cases of non-contractual liability with an international element. If the act of unfair competition affects markets or consumers in general, then the applicable law is that of the state or states where competitive relations are affected. If a single competitor alone is affected (as with theft of trade secrets), then a more complicated three-stage scheme applies, possibly leading to a single system of law governing a multi-jurisdictional claim.

Practical significance: The Rome II Regulation creates new opportunities for litigating unfair competition actions on an international, and even Global scale. In the longer term, its main significance may lie in forcing common lawyers to think of ‘unfair competition’ as a distinct and homogeneous category of law, separate from IP, and more extensive than the various nominate torts which go to make it up in English law.