Choice of Law: Torts

The traditional common law applies to cases involving defamation and any tort committed before 1 May 1996.  

Private International Law (Miscellaneous Provisions) Act 1995 applies to events giving rise to damage which occur before 11 July 2007 (when the Rome II Regulation is adopted) and any tortious issues which fall outside the scope of Rome II Regulation (for example invasions of privacy).

Rome II Regulation came into force in all European Community Member States (except Denmark) from 11 January 2009, but applied to events which take place on or after 20 August 2007: Bacon v Nacional Suiza (2010). Rome II Regulation governs all non-contractual obligations, including restitution and equitable obligations.  

• Recital 6 of the Regulation explains that the Regulation was enacted to improve the predictability of the outcome of litigation, certainty as to the law applicable and the free movement of judgments, for the conflict of law rules in the MS to designate the same national law irrespective of the country of the court in which an action is brought.
• Recital 14 of the Regulation explains that the Regulation provides for a general rule but also for specific rules and, in certain provisions, for an ‘escape clause’. This set of rules creates a flexible framework of conflict of law. Equally, it enables the court seized to treat individual cases in an appropriate manner.

You can download Private International Law (Miscellaneous Provisions) Act 1995 here: http://seafarersrights.org/wp/wp-content/uploads/2014/11/GBR_LEGISLATION_PRIVATE-INTERNATIONAL-LAW-MISC-PROVISIONS-ACT-1995.pdf

You can download Rome II Regulation here: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:199:0040:0049:EN:PDF

---------------------- THE WALLY EFFECT http://thewallyeffect.blogspot.com/ ----------------------

Common law: Double-actionability rule

At common law, tortious liability is subject to both lex fori and lex loci dolicti (‘double actionability rule’).

The starting point is that choice of law in tort is the law of the country in which the tort occurs (lex loci delicti). In most cases, lex loci delicti will produce a just, fair and the best practical result: per Fuld J in Babcock v Jackson (1963)

However in a situation where both parties are come from the same country but the tort was committed in another country, justice may be better served by applying the law of the country where the parties come from. As Recital 15 explains that, the principle of lex loci delicti engenders uncertainty to the law applicable. Although it was 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.

In Re Halley (1950), the plaintiff sued the defendant in England for damages. The defendant was vicariously liable under the lex loci delicti (Belgian law), but under English law at that time the defendant was not. It was held that the defendant was not liable because liability was not imposed by English law. A defendant is not liable in English proceedings unless his conduct was actionable by English law.

According to Willes J in Phillips v Eyre (1870), for the English law to be applicable law for a wrong alleged that is committed abroad, the alleged wrong must be actionable if committed in England, and the act must not have been justifiable by the lex loci delicti.

In Machado v Fontes (1897), the Court of Appeal interpreted the rule to mean that the second branch is satisfied where the defendant’s act gives rise to civil or criminal liability. As a result the plaintiff could recovered damages in England for a libel published abroad even thought, according to the law of the publication, libel was a criminal offence which did not give rise to civil liability.

The House of Lords in Boys v Chaplin (1979) overruled Machado v Fontes (1897), and reinterpreted the rule in Phillips v Eyre (1870):

• The general rule is that a plaintiff could recover damages for a tort committed abroad only if the defendant’s conduct was actionable under English law and the lex loci delicti.
• The House of Lords adds an exception to the general rule (the double actionability rule), which is ‘a particular issue between the parties may be governed by the law of the country which, with respect of that issue, has the most significant relationship with the occurrence and the parties’.

In Boys v Chaplin (1971) both parties were English, and one suffered injury as a result of the other’s negligence. The court displaced lex loci dolicti and held that English law is the applicable law.

In subsequent cases the courts have accepted that the position at common law is a rule of double actionability subject to a limited exception: Johnson v Coventry Churchill International Ltd (1992)

In relation to the exception, Privy Council in Red Sea Insurance Co Ltd v Bouygues SA (1995) held that the parties can rely purely on the lex loci delicti to establish liability in tort when the lex fori does not recognise such liability. This principle was approved in Pearce v Ove Arup Partnership Ltd (1999)

Private International (miscellaneous Provisions) Act 1995

The Private International (miscellaneous Provisions) Act 1995 was enacted with the intention to displace the double actionability with a general rule that lex loci delicti alone should govern, but to retain with an exception to the general rule along the lines of the ‘proper exception’.

Article 9(1) provides that Part III of the Private International (miscellaneous Provisions) Act 1995 applies for determining the applicable law of an issues relating to tort or delict.

Article 10(1) expressly abolishes the common law double actionability rule.

Article 11(1) provides that the general rule is that the applicable law is the lex loci delicti.

Where the elements of these events occur in different countries, Article 11(2) provides a series of rules to identify the applicable law.

There is a displacement of general rule under Article 12(1), which provides that the general rule can be displaced where it is substantially more appropriate for the applicable law doe determining the issues arising in the case to be the law of some other country than the one stipulated by the general rule.

Private International (miscellaneous Provisions) Act 1995 does not apply to defamation claim: Article 13(1)

---------------------- THE WALLY EFFECT http://thewallyeffect.blogspot.com/ ----------------------

Rome II Regulation – General Provisions

Article 1(1) provides that Rome II Regulation applies to non-contractual obligation in civil and commercial matters.

Article 1(3) provides that the Regulation does not apply to evidence and procedure.

Rome II Regulation is intended to be of universal application (Article 3). It does not require the non-contractual obligation to have any connection with an EU Member States.

Recital 13 explains that the uniform rules applied irrespective of the law they designate may avert the risk of distortions of competition between Community litigants.

The doctrine of renvoi has no role to play in the choice of law rules (Article 24).

Rome II Regulation – Lex loci damni

Article 4(1) provides that the general rule is that the applicable law is the law of the country where the damage occurs (lex loci damni). The country in which the event giving rises to the damage occurred and the indirect consequences of that event occur is immaterial.

• Recital 17 explains that 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.
• Recital 16 explains that the uniform rules 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 had sustained damage. The lex loci damni rule strikes a fair balance between the interests of the person claimed to be liable and the person who had sustained damage, and also reflects the modern approach to civil liability and the development of systems of strict liability.
• Recital 34 explains that the court may, in so far as appropriate, take into account the rules of safety and conduct in operation in the country in which the harmful act was committed, even where the non-contractual obligation is governed by the law of another country. The term ‘rules of safety and conduct’ should be interpreted as referring to all regulations having any relation to safety and conduct, including, for example, road safety rules in the case of an accident.
• In relation to the quantification of damages for personal injury in cases which the accident takes place in a State other than that of the habitual residence of the victim, Recital 33 provides that the court seized 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.

The general rule under Article 4(1) is subject to many other provisions.

Rome II Regulation – Defendant and claimant habitually resident in the same country

Article 4(2) provides that where the person claimed to be liable and the person sustaining damage both has their habitual residence in the same country at the time when the damage occurs, the law of the country will apply.

• Recital 18 explains that Article 4(2) is meant to be an exception to Article 4(1), creating a special connection where the parties have their habitual residence in the same country.

Article 23(1) defines habitual residence of companies and other bodies, corporate or unincorporated, the place of its central administration. Furthermore, in the event that the tort or delict occurs in the course of operation of a branch, agency or any other establishment, its habitual residence is the location of the said branch, agency or any other establishment.

Article 23(2) provides that the habitual residence of a natural person acting in the course of his or her business activity is his or her principal place of business.

• In Edmunds v Simmonds (2001), which was a case decided under the regime of Private International (miscellaneous Provisions) Act 1995, where the claimant and the defendant involved in a road traffic accident in Spain. Both of them were resident in England. The claimant’s major damages on his head arose wholly in England. The court held that English law is the applicable law despite the fact that the tort occurs in Spain.
• It is unclear whether a person could rely on Article 23(2) where the incident was not happened in the course of business (i.e. on vacation).

Although the habitual residence may change instantly, but it is habitual residence at the time when the damage occurs which is relevant.

Rome II Regulation – Escape route

Article 4(3) provides that a law of a country may apply if it is clear from all the circumstances of the case that the tort or delict is manifestly more closely connected with the particular country than the lex loci damni.

• Recital 18 explains that Article 4(3) is meant to be an escape clause from Article 4(1) and Article 4(2), where it is clear from all the circumstances of the case that the tort or delict is manifestly more closely connected with another country.

Rome II Regulation – Specific rules for torts

Rome II Regulation drafts specific rules for product liability (Article 5), unfair competition and acts restricting free competition (Article 6), environment damage (Article 7), infringement of intellectual property rights (Article 8) and industrial action (Article 9).

• Recital 19 explains that the specific rules should be laid down for special torts or delicts where the general rule does not allow a reasonable balance to be struck between the interests at stake.

Rome II Regulation – Agreement between the parties

By virtue of Article 14(1), the parties have freedom to choose the applicable law by an agreement entered into after or before the event giving rise to the damage occurred. The conditions are that the choice shall be expressed or demonstrated with reasonable certainty by the circumstances of the case and shall not prejudice the rights of third parties.

Rome II Regulation – The scope of applicable law

Article 15 lists the scope of the applicable law under the Regulation.

Article 15(c) shall be given special attention. The common law makes a distinction as to the applicable law for substantive matters and procedural matters, by which substantive issues are governed by the applicable law and procedural matters are governed by lex fori.

• The House of Lords in Harding v Wealands (2004) held that the questions of quantitative or assessment of damages is procedural therefore are governed by the lex fori.
• Article 15(c) now provides that the existence, the nature and the assessment of damage or the remedy claimed fall within the scope of applicable law.

Rome II Regulation – Limitations on the applicable law

Article 16 upheld the effectiveness of the overriding mandatory provision of the lex fori.

Article 26 provides that the applicable law under the Regulation may be refused if the application is manifestly incompatible with the public policy of the forum. The word ‘manifestly’ is used, which may imply that his provision is meant to be applied in exceptional circumstance only. This is supported by Recital 32.

Recital 32 provides that where the application of the applicable law would have the effect of causing non-compensatory exemplary or punitive damages of an excessive nature to be awarded may, depending on the circumstances of the case and the legal order of the Member States of the court seized, be regarded as being contrary to public policy of the forum. 

---------------------- THE WALLY EFFECT http://thewallyeffect.blogspot.com/ ----------------------

Please read the disclaimer (at the top of the page) before proceeding.

Please do not take this note as the sole and only sources to study. It is only a guidance which may assist you in drawing out the full picture of the particular area of law. It is never meant to be a comprehensive text.

Feel free to comment if you find any mistakes, or if you have anything to share. 

COPYRIGHTS © 2017 WALLACE LEE CHING YANG. ALL RIGHTS RESERVED.