COL and Torts

• Tort is the French equivalent of the English word ‘wrong’ and of the Roman law term
‘delict’. The word tort is derived from the Latin word ‘tortum’ which means twisted or
crooked or wrong and is in contrast to the word rectum which means straight. It is
expected out of everyone to behave in a straightforward manner and when one deviates
from this straight path into crooked ways he is said to have committed a tort. Hence
tort is a conduct which is twisted or crooked and not straight. Though many prominent
writers have tried to define Tort, it is difficult to do so for varied reasons. The key
reason among this being, that the law of Torts is based on decided cases. Judges while
deciding a case, feel their primary duty is to adjudge the case on hand rather than to lay
down wider rules and hence they seldom lay down any definition of a legal term.
• In its choice of the applicable law, the court that exercises jurisdiction
determines which law to apply to a case that involves foreign parties,
foreign transactions, or a number of foreign elements. In a simple world,
the court would always apply its own law, the law of the forum (known in
Latin as the lex fori). Indeed, some modern methodologies, particularly in
the United States, favour the lex fori approach.
• Classic theories of conflicts law were territorially oriented. The German jurist
and legal scholar Friedrich Karl von Savigny (1779–1861) sought to identify
the law where, “according to its nature,” the legal problem or relationship had
its “seat.” Anglo-American law also sought the territorially applicable law
because, in the view of the American legal scholar Joseph Beale (1861–
1943), whose thoughts shaped much of American conflict-of-laws theory in
the first half of the 20th century, that is where the rights and obligations of the
parties “vested.” This vested-rights doctrine maintained that, once a right was
created in one locale, its existence should be recognized everywhere.
• Classic theories of conflicts law used a number of connecting factors to
determine the territorially applicable law. In matters of family law, Anglo-
American law used the parties’ domicile (narrowly defined). In civil-law
countries, by contrast, a person’s nationality was until recently the most
important connecting factor. Because of the influence of the 
Hague Conference on Private International Law, however, the reference is
now more commonly to the law of a person’s “habitual residence” (as it is
in the law of jurisdiction).
• For torts, American law traditionally looked to the law of the place of injury,
whereas European law referred either to it or to the law of the place where the
wrongful conduct had occurred. Some European systems referred to the law of
either of these places; this was, and continues to be, the plaintiff-favouring
choice-of-law rule in Germany. For contracts, most legal systems looked to the
place of performance for breach but stipulated that the place of formation was
a more important connecting factor for questions of validity. These examples
illustrate that rather well-defined connecting factors can identify the applicable
law in a predictable manner, subject to exceptions in certain difficult cases.
• he traditional conflict rule of lex loci delicti applies in many tort
actions[i].  However, many jurisdictions are now following the most
significant relationship rule.  Some other jurisdictions follow a
governmental interests approach or comparative impairment analysis.
• Traditionally courts have followed the traditional rule of lex loci delictus
in determining which state’s substantive law is applicable to actions
sounding in tort.  Lex loci delictus holds that the substantive law of the
place where the tort occurs applies.
• Under the principle of lex loci delicti, a court determines the substantive rights of an injured
party according to the law of the state where the injury occurs.  It is a recognized principle of the
law of the conflict of laws that the law of the state where an alleged tort is completed controls
the liability.  Where a tort is committed in one state and sued on in another, the lex loci delicti
principle controls.
• Lex loci delicti is applied with respect to the substantive phases of torts or the actions thereof,
and determines the question of whether or not an act or omission gives rise to a right of action or
civil liability for tort.  For instance, where an act of omission or commission occurs at one place
and resulting death, personal injury, or damage takes place at another, the situs of the actionable
wrong is the place at which the death, personal injury or property damage takes place.
• Although the substantive rights of the parties are determined by the law of the
place of the injury under the traditional rule of lex loci delicti, for procedural
matters, the law of the forum, or lex fori, applies.  Also, law of the forum will
be applied whenever the law of the place of the wrong is contrary to an
extraordinarily strong public policy of the forum state.
• Similarly, cases of tort arising upon the high seas between parties of different
nationalities, in the admiralty courts of the United States, will be governed by
the law of the forum.  Additionally, in a diversity case, the court is obligated to
apply the law of the forum state, including the forum’s choice of law rules.
• The English rule on tort liability in the conflict of laws was stated as follows in
the leading case of Phillips v. Eyre : ‘#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. . . . Secondly, the act must not have
been justifiable by the law of the place where it was done
• This rule was approved by the Court of Appeal in The Mary Moxham,a again
by the Court of Appeal in Machado v. Fontes,” and by the House of Lords in
Caw v. Fracis Times Q Co
• The House of Lords decision in Boys v. Chaplin which is mainly concerned with the second part of
the rule has not been critical of the first part of the rule. In fact, Wilberforce, L.J. specifically said:
"I am of opinion, therefore, that, as regards the first part of this rule, actionability as a tort under
and in accordance with English law is required." A question arises at this stage as to whether there
is ay difference in meaning between actionable and not justifiable. The formulation of this
proposition was made in Phillips case, the meaning; or rather tile interpretation of the word
"justifiable" has been giving trouble for now almost a century. It appears that the real mischief was
done by the decision in Machado v. Fontes 24 the plaintiff Machado sued defendant Fontes in an
English court for a pamphlet published in Brazil containing libelous material against him
(plaintiff). Under the then law of Brazil publication was not actionable in civil proceedings, though
it was probably subject to criminal proceedings. It was obviously actionable as tort by English law.
• The main defence of the defendant was that the publication was not actionable by the law of Brazil.
Rejecting this plea the court said that the two conditions laid down in Phillips case are fulfilled
inasmuch as the first condition was fulfilled because the libel was of such a character that it would
have been actionable if committed in England, and the second condition was fulfilled because it was
not justified by the law of Brazil, since it was not an innocent act there but subject to criminal
proceedings. Ever since this decision has been pronounced, it has been subject of criticism. The main
criticism that arose is not actionable by the lexi loci delicti commissi it should not be held actionable
just because it is actionable under lex fori. 26 In another very interesting M' Elrory v. M' Allister the
court of session refuse to follow Machado case on the reasoning that it will lead to gross injustice.
Court of Session has disregarded English Law entirely and has applied Scots law as the proper law of
tort. There are few English Cases in which the scope of Boys case, as discussed above has been
examined.
• his Lordship had to dispose ,of Machado v. Fontes. He held that the
principle embodied in that decision was both illogical and one which
invited "forum shopping", and the doubtful advantage it provided in
allowing two nationals of the forum~ to sue one another for criminal acts
not civilly actionable under the lex loci were not sufficient counter-
balance to support the authority of that decision.
• in Red Sea Insurance Co. v Bouyagues, an act done in a foreign country was a tort
and actionable as such in England only if it was actionable as tort both actionable as
such according to the law foreign country was a tort and actionable as such in
England only if it was actionable as tort both according to English law & actionable
according to the law of foreign country where it was done. However, the privy
council said the rule of double actionability was inflexible and it was possible to
depart from it on clear and satisfying ground and in order to avoid injustice by
holding that a particular issue between the parties to litigation should be govern by
the law of the country which with respect to that issue had the most significant
relationship with the occurrence and with parties.
• The governmental interests analysis consists of three steps: 1) the court examines the
substantive law of each jurisdiction to determine whether the laws differ as applied to
the relevant transaction; 2) if the laws do differ, the court determines whether a true
conflict exists in that each of the relevant jurisdictions has an interest in having its law
applied.  If only one jurisdiction has a legitimate interest in the application of its rule of
decision, there is a false conflict and the law of the interested jurisdiction is applied.  On
the other hand, if more than one jurisdiction has a legitimate interest, the courts move to
the third stage of the analysis; 3) the third stage focuses on the comparative impairment
of the interested jurisdictions.  At this stage, the courts seek to identify and apply the
law of the state whose interest would be the more impaired if its law were not applied.
• A new course to the PIL come into sight in the year of 1971 the House of
Lords charted a new course for PIL of tort and consequent decisions redefine
and polish it up. In the year 1990's the law commission, and then parliament,
persuaded them that they could do better; and consequently the emergence of
Private International Law (Miscellaneous Provisions) Act 1995 was
enacted to cover some of the field. Part III of the act deals with Choice
of Law in Tort and Delict purpose that act was the applicable law to be used
for determining the issues arising in a claim shall exclude any choice
of law rules forming part of the law of the country or countries concerned.
• Under section 12 of the act, defines choice of applicable law: displacement of
general rule: If it appears, in all the circumstances, from a comparison of (a)
the significance of the factors which connect a tort or delict with the country
whose law would be the applicable law under the general rule; and (b)the
significance of any factors connecting the tort or delict with another country,
that it is substantially more appropriate for the applicable law for determining
the issues arising in the case, or any of those issues, to be the law of the other
country, the general rule is displaced and the applicable law for determining
those issues or that issue (as the case may be) is the law of that other country
• The factors that may be taken into account as connecting a tort or delict
with a country for the purposes of this section include, in particular,
factors relating to the parties, to any of the events which constitute the tort
or delict in question or to any of the circumstances or consequences of
those events. Section 14 makes clear that the Act does not authorize the
enforcement of foreign panel or revenue or other public laws, nor of any
foreign law which would prevent a matter of procedure being governed by
English law which is otherwise mandatory
•  Regulation (EC): The Rome II Regulation (EC) which comes in to force from January, 2009,
Regulation (EC) 864/2007, which will be referred as Rome II,37 becomes applicable across the
Europe Union. For all the tort claims under 1995 Act, imposed new choice law rule which will
also govern the law applicable should also govern the question of the capacity to incur liability
in tort/delict. This Regulation provides for the connecting factors which are the most
appropriate to achieve these objectives. Therefore, this Regulation provides for a general rule
but also for specific rules and, in certain provisions, for an ‘escape clause’ which allows a
departure from these rules where it is clear from all the circumstances of the case that the
tort/delict is manifestly more closely connected with another country. This set of rules thus
creates a flexible framework of conflict-of-law rules. Equally, it enables the court seized to
treat individual cases in an appropriate manner
 Article 14 Rome II
• (14) The requirement of legal certainty and the need to do justice in individual
cases are essential elements of an area of justice. This Regulation provides for the
connecting factors which are the most appropriate to achieve these objectives.
Therefore, this Regulation provides for a general rule but also for specific rules
and, in certain provisions, for an ‘escape clause’ which allows a departure from
these rules where it is clear from all the circumstances of the case that the
tort/delict is manifestly more closely connected with another country. This set of
rules thus creates a flexible framework of conflict-of-law rules. Equally, it enables
the court seised to treat individual cases in an appropriate manner.
• (15) The principle of the lex loci delicti commissi is the basic solution for non-
contractual obligations in virtually all the Member States, but the practical application of
the principle where the component factors of the case are spread over several countries
varies. This situation engenders uncertainty as to the law applicable.
• (16) Uniform rules should enhance the foreseeability of court decisions and ensure a
reasonable balance between the interests of the person claimed to be liable and the
person who has sustained damage. A connection with the country where the direct
damage occurred (lex loci damni) strikes a fair balance between the interests of the
person claimed to be liable and the person sustaining the damage, and also reflects the
modern approach to civil liability and the development of systems of strict liability.
• (17)The law applicable should be determined on the basis of where the
damage occurs, regardless of the country or countries in which the indirect
consequences could occur. Accordingly, in cases of personal injury or
damage to property, the country in which the damage occurs should be the
country where the injury was sustained or the property was damaged
respectively.
• (19) Specific rules should be laid down for special torts/delicts where the general rule does not
allow a reasonable balance to be struck between the interests at stake
• (20) The conflict-of-law rule in matters of product liability should meet the objectives of fairly
spreading the risks inherent in a modern high-technology society, protecting consumers’ health,
stimulating innovation, securing undistorted competition and facilitating trade. Creation of a
cascade system of connecting factors, together with a foreseeability clause, is a balanced solution
in regard to these objectives. The first element to be taken into account is the law of the country in
which the person sustaining the damage had his or her habitual residence when the damage
occurred, if the product was marketed in that country. The other elements of the cascade are
triggered if the product was not marketed in that country, without prejudice to Article 4(2) and to
the possibility of a manifestly closer connection to another country.
• (26) Regarding infringements of intellectual property rights, the universally acknowledged
principle of the lex loci protectionis should be preserved. For the purposes of this
Regulation, the term ‘intellectual property rights’ should be interpreted as meaning, for
instance, copyright, related rights, the sui generis right for the protection of databases and
industrial property rights.
• (33) According to the current national rules on compensation awarded to victims of road
traffic accidents, when quantifying damages for personal injury in cases in which the
accident takes place in a State other than that of the habitual residence of the victim, the
court seised should take into account all the relevant actual circumstances of the specific
victim, including in particular the actual losses and costs of after-care and medical attention.