Can I and the defendant agree to apply a different country's law to our tort claim?

What the Law Says

The law governing non-contractual obligations — including torts — in cross-border EU disputes is set out in Regulation (EC) No 864/2007, known as 'Rome II'. It generally applies the law of the country where the harm occurred, but allows limited party autonomy.

Under Rome II, parties cannot freely choose the governing law for tort claims as they can in contracts. The general rule is that the law of the country where the damage occurred (lex loci delicti) applies — this is automatic and does not require agreement.

However, Article 14 permits parties to agree on a different governing law — but only after the event giving rise to the damage has occurred. This choice must be expressed or demonstrated with reasonable certainty, and it cannot prejudice the rights of third parties.

Even if parties agree on a foreign law, courts must still apply their own country’s 'overriding mandatory provisions' (Article 15) and refuse application of foreign law if it is manifestly incompatible with public policy (Article 26).

Statutory Text

The parties may agree to submit non-contractual obligations to the law of their choice… after the event giving rise to the damage has occurred.

— Regulation (EC) No 864/2007 (Rome II), Art. 14 — Choice of applicable law

Statutory Text

This Regulation shall not prejudice the application of the rules of the law of the forum in a situation where they are mandatory irrespective of the law otherwise applicable to the non-contractual obligation.

— Regulation (EC) No 864/2007 (Rome II), Art. 15 — Overriding mandatory provisions

Statutory Text

Effect may be given to the public policy (ordre public) of the forum… where manifestly incompatible with the forum’s fundamental principles.

— Regulation (EC) No 864/2007 (Rome II), Art. 26 — Public policy

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