Choice of laws under TORT

Common Law approach

Problem

The question of what law governs liability in tort has troubled both
courts and writers

The application varies as some times It has been suggested that

tort liability is governed either by

• the lex fori (law of the court forum); or

• the lex loci delicti commissi, (the law of the place where the
wrong was committed) ; or some times
• Tort liability is governed by the the combination of lex fori and
the lex loci delicti commissi,

Whereas

• Continental European jurisdictions

• have applied the lex loci delicti commissi.
• USA Approach
• Proper law approach
• It is determined by looking at relevant Factors that
connected the tort to a particular country law
• Morris (see [1951] 64 Harvard LR 881)
• that it should be governed by ‘the proper law of the tort’
(i.e. ‘the law which, on policy grounds, seems to have the
 most significant connection with the chain of acts and
consequences in the particular situation’)
• Babcock v Jackson 191 NE 2d 279 [1963]
• Justice, fairness and ‘the best practical result’... may best
be achieved by giving controlling effect to the law of the
jurisdiction which, because of its relationship with the
occurrence or the parties, has the greatest concern with the
specific issue raised in the litigation.

Double actionability’ rule

GR

• Phillips v Eyre [1870] LR 6 QB 1.

• As a general rule, in order to found a suit in England for a
wrong alleged to have been committed abroad, two conditions
must be fulfilled.
• First, the wrong must be of such a character that it would have
been actionable if committed in England...LEX Fori
• Secondly, the act must not have been justifiable by the law of
the place where it was done. (pp.28–29) [the lex loci delicti
commissi] i.e recognised as a tort

Exception

• The lex loci delicti was displaced

• Boys vs Chapplin
• English law applied (both plaintiff and defendant were
British servicemen stationed in Malta and one suffered
injury as a result of the other’s negligence)
• The Lex fori was displaced
• Red Sea Case
• Pearce vs OveAuo Partnership Ltd [1999] 1 AII ER 769
 Shortcomings

• Absurd and harsh

• If the tort is a lex loci but not in lex fori or the other way
around the D can walk away free
• Malroy vs Mallister
• Held that D cannot be punished as the tort was recognised
in lex loci but not in lex Fori
• Narrow exception
• Boys vs Chapplin
• Subtopic 2
• It remains applicable to defamation and related claims

Floating Topic