Statutory Ceilings on Damages under the Rome II Regulation: Shifting Boundaries in the Traditional Dichotomy between Substance and Procedure?

Cristina M. Mariottini Dr., University of Pittsburgh School of Law

Abstract

A common principle of conflict of laws holds that procedure is to be governed by the lex fori. Accordingly, issues characterized as substantive will be governed by the lex causae, and matters characterized as procedural will be governed by the law of the forum state. This result is commonly expressed as the “dichotomy between substance and procedure.” Under a traditional approach to the dichotomy between substance and procedure, the boundaries between the scope of the lex causae and that of the lex fori are traced by a rigid characterization; and regardless of any further evaluation, whichever provision is characterized as procedural by the lex fori will be governed by the law of the forum state, and it will prevail over the lex causae. This dichotomy, apparently simple, is however not as clear-cut as it seems. To the aim of avoiding the negative consequences borne on the relation between rights and remedies by the traditional dichotomy between substance and procedure, the adoption of a more flexible and functional approach has been suggested by courts and scholars, which bypasses any rigid characterizations of issues as substantive or procedural. This paper addresses the different positions taken on the dichotomy between substance and procedure by the English courts in Harding v. Wealands, where the English courts have provided a clear illustration of the different outcomes to which the traditional and the functional approaches respectively lead, particularly as for statutory ceilings on damages. This paper further addresses the question of how the same issues might be solved today in the European Union’s judicial area under the Rome II regulation (Regulation (EC) No. 864/2007).