Tort (conflict)
Encyclopedia
In conflict of laws
, the choice of law
rules for tort
are intended to select the lex causae
by which to determine the nature and scope of the judicial remedy to claim damages
for loss or damage suffered.
(i.e. the law of the court) and the lex loci delicti commissi
(i.e. the law of the place where the tort was committed). The public policy
of territorial sovereignty
was always the principal consideration. Hence, the forum courts claimed their right to apply their laws to determine whether any lawsuit
initiated in their jurisdiction allowed a remedy. Equally, it is the commission of a tort that vests a right of action in a claimant and therefore, it should always be for the law of the place where that right was created to determine the extent of any remedy flowing from it. In the end, a compromise emerged where the lex loci delicti was the first point of reference but courts retained a discretion to substitute the lex fori
if the foreign law was deemed unfair and other practical considerations pointed to the application of forum law.
In the U.S., see the New York decision in Babcock v. Jackson
, 191 N.E.2d 279 (N.Y. 1963) for a discussion of the issues. This led to a debate in which state interests, rather than strict territorial connections, were suggested as the basis of a new test. In 1971, the American Law Institute
produced the Second Conflicts Restatements and section 6 provides that the applicable law should be the one with the "most significant relationship" to the tort. In other common law
states, a parallel movement occurred and resulted in the adoption of a proper law
test. In substance, both forms are similar in their approach.
and for negligent misstatement, deceit and failure to adequately maintain the vehicle prior to sale. There is no genuine connection either in fact or law with the law of State Y. It was pure chance that the injury occurred there. In fact, the law of State X is the lex loci contractus
and the most appropriate law since everything relevant to the potential tortious liability occurred in that state which has the greatest interest in maintaining consumer confidence in the motor trade. Thus, no matter where A sues B, the forum court should apply the law of State X to resolve the various causes of action. For these purposes, the forum conveniens
would be the State in which B has residence and/or holds assets. One of the key considerations in any conflict dispute is the enforceability of the resulting judgment. Courts are more willing to accept cases with a foreign law element when one of the parties is domiciled
or has residence within their territorial jurisdiction, or has assets against which judgment can be levied.
However, if the tort was intentional, there are two competing theories as to which law is the most appropriate. For example, A writes a defamatory letter in State X and posts it to B in State Y, clearly damaging the reputation of C in State Y. The initiatory or subjective theory provides that the proper law is the law of the state in which all the initial components of the tort occurred. In the example given, A may never have left State X and the argument would be made that State X would have the better claim to determine the extent of liability for those who, whether temporarily or not, owe it allegiance
. Hence, if A sent a reference to B about C in the ordinary course of business, or submitted for publication by B a review of an artistic work by C, the policy claims of State X would be strong. The terminatory or objective theory provides that the law of the state in which the last component occurred (i.e. where the loss or damage was sustained) should be the proper law. Here, the argument is that unless and until the damage is sustained, the tort is not complete. Unlike criminal law, there is no liability for attempted tort. Hence, since the tort does not exist to give rise to liability until the letter is read by B in State Y, only State Y has an interest in the application of its laws. There is no international agreement on which theory is to be preferred and each state therefore applies its local choice of law rules. But the enforceability of any judgment would be a relevant consideration. Suppose that the law of State X might offer a partial or complete defence to A. Hence, C naturally prefers to invoke the jurisdiction of State Y's courts. If there is no system for reciprocal and automatic registration and enforcement of judgments between the two states, State Y (and any other State in which jurisdiction might be sought) would be reluctant to accept the case since no court likes to waste its time in hearing a case if it is not going to be enforceable.
In summary, therefore, selecting the proper law in tort cases is subject to a balancing of public policy and practical considerations and, although each set of choice of law rules will give an indication of likely outcome, the individual decisions on the merits are not strictly subject to precedent and outcomes may vary depending on circumstances.
on the Law Applicable to Non-Contractual Obligations (22 July 2003), there would be a general presumption that the lex loci delicti will apply subject to either:
Until formal guidance is given on the circumstances in which either exception will operate, there will either be considerable forum shopping
to select the states with the most favourable interpretation, or courts will resolve the uncertainty by applying the lex fori.
In product liability
cases, Article 4 selects the law of the injured party's habitual residence if the product was marketed there with the consent of the defendant
. The rationale is that if a defendant knows of, and is benefiting from, sales in the plaintiff
's state, the choice of that state's law is reasonable.
Article 6 specifies the lex fori for actions arising out of breach of privacy
or defamation, a rule that may increase the risk of forum shopping. Whether the plaintiff has any right of reply in a defamation case will be determined under the law of the state where the broadcaster or publisher is established.
In cases where contract and tort issues overlap, Article 9 proposes that the same law govern both sets of issues.
or the identity of an "occupier" of land).
The first step is for the court to decide where the tort occurred, which may be complicated if relevant events took place in more than one state. s11(2) distinguishes between:
The first two tests seem to provide a workable balance between the interests of the claimant and the defendant by selecting the law of the place in which the claimant suffered the harm, but problems remain. In Henderson v Jaouen (2002) 2 AER 705 there was continuing damage as the condition arising from original injury deteriorated. Similarly, in Roerig v Valiant Trawlers Ltd. (2002) 1 Ll Rep 681, where the accident occurred on board an English ship, the main consequences in terms of loss were felt by the deceased's family in Holland (their habitual residence), not England. The third rule which will apply in economic torts
, breach of privacy etc., requires a test comparable to the proper law. In Multinational Gas and Petrochemical Co. v Multinational Gas and Petrochemical Services Ltd. (1983) Ch 258 negligent management decisions were based on financial reports prepared in England. Because the decisions were taken and the losses were sustained outside England, English law was not the most significant. In Metall und Rohstoff AG v Donaldson Lufkin & Janrette Inc. (1990) 1 QB 391 action in New York
induced a breach of contract in England where the loss was sustained, so English law was the more significant.
involving two English friends who had travelled abroad for a short holiday and where the majority of the losses and expenses were suffered in England. In Morin v Bonhams and Brooks Ltd. (2003) 2 AER (Comm) 36 a bad buy was made in Monaco
as a result of allegedly fraudulent information "fed" to the buyer in London
. The case involved representations made about the qualities of a classic car auctioned by the defendants in Monaco and bought by the claimant who had received the brochure which made the alleged misrepresentations in England. He had, to a certain extent, relied on them in England, by arranging to travel to Monaco for the auction, and he had suffered loss in England where the car was found not to meet the description in the brochure. The car had, however, been subject to auction in Monaco where the bid sum was payable. The court held that the claimant's decision to bid and to commit himself to the
purchase that was "by far the most significant" act, and that was done in Monaco. The judge offered the obiter dicta that had the claimant made a telephone bid from England, a different judgment would probably have been made.
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...
, the choice of law
Choice of law
Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states , or provinces...
rules for tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
are intended to select the lex causae
Lex causae
In the conflict of laws, lex causae is the law or laws chosen by the forum court from among the relevant legal systems to arrive at its judgement of an international or interjurisdictional case....
by which to determine the nature and scope of the judicial remedy to claim damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
for loss or damage suffered.
History
The first attempts to establish a coherent choice of law rule for tort cases involving a foreign law element varied between favouring the lex foriLex fori
Lex fori is a legal term used in the conflict of laws used to refer to the laws of the jurisdiction in which a legal action is brought...
(i.e. the law of the court) and the lex loci delicti commissi
Lex loci delicti commissi
The lex loci delicti commissi is the Latin term for "law of the place where the delict [tort] was committed" in the conflict of laws. Conflict of laws is the branch of law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are...
(i.e. the law of the place where the tort was committed). The public policy
Public policy (law)
In private international law, the public policy doctrine or ordre public concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change...
of territorial sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
was always the principal consideration. Hence, the forum courts claimed their right to apply their laws to determine whether any lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
initiated in their jurisdiction allowed a remedy. Equally, it is the commission of a tort that vests a right of action in a claimant and therefore, it should always be for the law of the place where that right was created to determine the extent of any remedy flowing from it. In the end, a compromise emerged where the lex loci delicti was the first point of reference but courts retained a discretion to substitute the lex fori
Lex fori
Lex fori is a legal term used in the conflict of laws used to refer to the laws of the jurisdiction in which a legal action is brought...
if the foreign law was deemed unfair and other practical considerations pointed to the application of forum law.
In the U.S., see the New York decision in Babcock v. Jackson
Babcock v. Jackson
Babcock v. Jackson, 191 N.E.2d 279 is a landmark U.S. case on conflict of laws.A husband and wife from New York went on a car trip with a friend Babcock to Ontario. While in Ontario they had a motor vehicle accident...
, 191 N.E.2d 279 (N.Y. 1963) for a discussion of the issues. This led to a debate in which state interests, rather than strict territorial connections, were suggested as the basis of a new test. In 1971, the American Law Institute
American Law Institute
The American Law Institute was established in 1923 to promote the clarification and simplification of American common law and its adaptation to changing social needs. The ALI drafts, approves, and publishes Restatements of the Law, Principles of the Law, model codes, and other proposals for law...
produced the Second Conflicts Restatements and section 6 provides that the applicable law should be the one with the "most significant relationship" to the tort. In other common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
states, a parallel movement occurred and resulted in the adoption of a proper law
Proper law
The Doctrine of the Proper Law is applied in the choice of law stage of a lawsuit involving the conflict of laws.-Explanation:In a conflicts lawsuit, one or more state laws will be relevant to the decision-making process. If the laws are the same, this will cause no problems, but if there are...
test. In substance, both forms are similar in their approach.
Explanation
The presumptive choice of law rule for tort is that the proper law applies. This is the law that has the greatest relevance to the issues involved. In public policy terms, this is likely to be the law of the place where the key elements of the "wrong" were performed or occurred (the lex loci delicti). So if A is a pedestrian injured by B's negligent driving, the law of the state in which the injury occurs would logically be applied because, in public policy terms, the citizens of that state have a clear interest in regulating the standard of driving on their roads. That either or both the parties might have domiciles outside that state would be irrelevant. But, if A buys a car from B in State X and drives it into State Y where A is injured by a defect in the car, the choice of law is not as evident: there is potential liability both for breach of contractContract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
and for negligent misstatement, deceit and failure to adequately maintain the vehicle prior to sale. There is no genuine connection either in fact or law with the law of State Y. It was pure chance that the injury occurred there. In fact, the law of State X is the lex loci contractus
Lex loci contractus
In the conflict of laws, the lex loci contractus is the Latin term for "law of the place where the contract is made".-Explanation:When a case comes before a court and all the main features of the case are local, the court will apply the lex fori, the prevailing municipal law, to decide the case...
and the most appropriate law since everything relevant to the potential tortious liability occurred in that state which has the greatest interest in maintaining consumer confidence in the motor trade. Thus, no matter where A sues B, the forum court should apply the law of State X to resolve the various causes of action. For these purposes, the forum conveniens
Forum non conveniens
Forum non conveniens is a common law legal doctrine whereby courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties...
would be the State in which B has residence and/or holds assets. One of the key considerations in any conflict dispute is the enforceability of the resulting judgment. Courts are more willing to accept cases with a foreign law element when one of the parties is domiciled
Domicile (law)
In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave...
or has residence within their territorial jurisdiction, or has assets against which judgment can be levied.
However, if the tort was intentional, there are two competing theories as to which law is the most appropriate. For example, A writes a defamatory letter in State X and posts it to B in State Y, clearly damaging the reputation of C in State Y. The initiatory or subjective theory provides that the proper law is the law of the state in which all the initial components of the tort occurred. In the example given, A may never have left State X and the argument would be made that State X would have the better claim to determine the extent of liability for those who, whether temporarily or not, owe it allegiance
Allegiance
An allegiance is a duty of fidelity said to be owed by a subject or a citizen to his/her state or sovereign.-Etymology:From Middle English ligeaunce . The al- prefix was probably added through confusion with another legal term, allegeance, an "allegation"...
. Hence, if A sent a reference to B about C in the ordinary course of business, or submitted for publication by B a review of an artistic work by C, the policy claims of State X would be strong. The terminatory or objective theory provides that the law of the state in which the last component occurred (i.e. where the loss or damage was sustained) should be the proper law. Here, the argument is that unless and until the damage is sustained, the tort is not complete. Unlike criminal law, there is no liability for attempted tort. Hence, since the tort does not exist to give rise to liability until the letter is read by B in State Y, only State Y has an interest in the application of its laws. There is no international agreement on which theory is to be preferred and each state therefore applies its local choice of law rules. But the enforceability of any judgment would be a relevant consideration. Suppose that the law of State X might offer a partial or complete defence to A. Hence, C naturally prefers to invoke the jurisdiction of State Y's courts. If there is no system for reciprocal and automatic registration and enforcement of judgments between the two states, State Y (and any other State in which jurisdiction might be sought) would be reluctant to accept the case since no court likes to waste its time in hearing a case if it is not going to be enforceable.
In summary, therefore, selecting the proper law in tort cases is subject to a balancing of public policy and practical considerations and, although each set of choice of law rules will give an indication of likely outcome, the individual decisions on the merits are not strictly subject to precedent and outcomes may vary depending on circumstances.
European harmonisation provisions
Under Article 3 of the proposed Rome II RegulationRome II Regulation
The Rome II Regulation No is an European Union Regulation regarding the conflict of laws on the law applicable to non-contractual obligations...
on the Law Applicable to Non-Contractual Obligations (22 July 2003), there would be a general presumption that the lex loci delicti will apply subject to either:
- an exception in Paragraph 2 for the application of the law to any common habitual residenceHabitual residenceIn conflict of laws, habitual residence is the standard used to determine the law which should be applied to determine a given legal dispute. It can be contrasted with the law on domicile, traditionally used in common law jurisdictions to do the same thing....
between the parties. The concept of habitual residence is the civil lawCivil law (legal system)Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
equivalent of the common law test of lex domiciliiLex domiciliiThe lex domicilii is the Latin term for "law of the domicile" in the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are applied....
. This exception will be satisfactory so long as the laws are substantially the same on the claimed relief. - an exception in Paragraph 3 for cases in which "the non-contractual obligation is manifestly more closely connected with another country. . ." the so-called proximity criterion.
Until formal guidance is given on the circumstances in which either exception will operate, there will either be considerable forum shopping
Forum shopping
Forum shopping is the informal name given to the practice adopted by some litigants to get their legal case heard in the court thought most likely to provide a favorable judgment...
to select the states with the most favourable interpretation, or courts will resolve the uncertainty by applying the lex fori.
In product liability
Product liability
Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause...
cases, Article 4 selects the law of the injured party's habitual residence if the product was marketed there with the consent of the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
. The rationale is that if a defendant knows of, and is benefiting from, sales in the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
's state, the choice of that state's law is reasonable.
Article 6 specifies the lex fori for actions arising out of breach of privacy
Privacy
Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
or defamation, a rule that may increase the risk of forum shopping. Whether the plaintiff has any right of reply in a defamation case will be determined under the law of the state where the broadcaster or publisher is established.
In cases where contract and tort issues overlap, Article 9 proposes that the same law govern both sets of issues.
General rule
With the exception of defamation which continues to apply the proper law test, s10 Private International Law (Miscellaneous Provisions) Act 1995 abolishes the double-actionability test, and s11 applies the lex loci delicti rule subject to an exception under s12 derived from Boys v Chaplin (1971) AC 356 and Red Sea Insurance Co, Ltd. v Bouygues SA (1995) 1 AC 190. Thus, it is no longer necessary for the case to be based on a tort actionable in England. The English courts must apply wider international tests and respect any remedies available under the "Applicable Law" or lex causae including any rules on who may claim (e.g. whether a personal representative may claim for a fatal accident) and who the relevant defendant may be (i.e. the English court would have to apply the applicable law's rules on vicarious liabilityVicarious liability
Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability...
or the identity of an "occupier" of land).
The first step is for the court to decide where the tort occurred, which may be complicated if relevant events took place in more than one state. s11(2) distinguishes between:
- actions for personal injuries: it is the law of the place where the individual sustained the injury;
- damage to property: it is the law of the place where the property was damaged;
- in any other case, it is the law of the place in which the most significant element or elements occurred.
The first two tests seem to provide a workable balance between the interests of the claimant and the defendant by selecting the law of the place in which the claimant suffered the harm, but problems remain. In Henderson v Jaouen (2002) 2 AER 705 there was continuing damage as the condition arising from original injury deteriorated. Similarly, in Roerig v Valiant Trawlers Ltd. (2002) 1 Ll Rep 681, where the accident occurred on board an English ship, the main consequences in terms of loss were felt by the deceased's family in Holland (their habitual residence), not England. The third rule which will apply in economic torts
Economic torts
Economic torts are torts that provide the common law rules on liability for the infliction of pure economic loss, such as interference with economic or business relationships.Economic torts protect people from interference with their trade or business...
, breach of privacy etc., requires a test comparable to the proper law. In Multinational Gas and Petrochemical Co. v Multinational Gas and Petrochemical Services Ltd. (1983) Ch 258 negligent management decisions were based on financial reports prepared in England. Because the decisions were taken and the losses were sustained outside England, English law was not the most significant. In Metall und Rohstoff AG v Donaldson Lufkin & Janrette Inc. (1990) 1 QB 391 action in New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
induced a breach of contract in England where the loss was sustained, so English law was the more significant.
Section 12
In exceptional circumstances, the lex loci delicti rule is displaced in favour of another law, if the "factors relating to the parties" or "any of the events which constitute the tort" show that this other law will be substantially more appropriate. Suppose that an English employer sends an employee on a business-related journey to Arcadia. During the course of this journey, the employee is injured while driving a car provided by the employer for this purpose. All the relevant connecting factors favor the application of English law except that the injury itself was sustained elsewhere. In Edmunds v Simmonds (2001) 1 WLR 1003 it was held more appropriate to displace the lex loci delicti and to apply English law to the consequences of a road traffic accident in SpainSpain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
involving two English friends who had travelled abroad for a short holiday and where the majority of the losses and expenses were suffered in England. In Morin v Bonhams and Brooks Ltd. (2003) 2 AER (Comm) 36 a bad buy was made in Monaco
Monaco
Monaco , officially the Principality of Monaco , is a sovereign city state on the French Riviera. It is bordered on three sides by its neighbour, France, and its centre is about from Italy. Its area is with a population of 35,986 as of 2011 and is the most densely populated country in the...
as a result of allegedly fraudulent information "fed" to the buyer in London
London
London is the capital city of :England and the :United Kingdom, the largest metropolitan area in the United Kingdom, and the largest urban zone in the European Union by most measures. Located on the River Thames, London has been a major settlement for two millennia, its history going back to its...
. The case involved representations made about the qualities of a classic car auctioned by the defendants in Monaco and bought by the claimant who had received the brochure which made the alleged misrepresentations in England. He had, to a certain extent, relied on them in England, by arranging to travel to Monaco for the auction, and he had suffered loss in England where the car was found not to meet the description in the brochure. The car had, however, been subject to auction in Monaco where the bid sum was payable. The court held that the claimant's decision to bid and to commit himself to the
purchase that was "by far the most significant" act, and that was done in Monaco. The judge offered the obiter dicta that had the claimant made a telephone bid from England, a different judgment would probably have been made.