Hostname: page-component-cd9895bd7-jkksz Total loading time: 0 Render date: 2024-12-28T01:28:16.489Z Has data issue: false hasContentIssue false
  • English
  • Français

Torts in Private International Law: A New Statutory Framework

Published online by Cambridge University Press:  17 January 2008

C. G. J. Morse
Get access Rights & Permissions [Opens in a new window]

Extract

Part III of The Private International Law (Miscellaneous Provisions) Act 1995 entered into force on 1 May 19961. As from that date2, the choice of law rules for tort developed in the common law will be abolished, in respect of most causes of action in tort3, and will be replaced by statutory rules of a radically different character4. The new choice of law rules essentially provide that, as a general rule, the law applicable to a tort is the law of the country5 in which the events constituting the tort in question occur6. This general rule may be subject to displacement where, in the light of a comparison between the significance of the factors connecting the tort with the country whose law is applicable under the general rule, and the significance of the factors connecting the tort with another country, it appears substantially more appropriate for the applicable law to be the law of that other country7. The express abolition of the common law rules is (with one significant exception)8 effected by section 10 of the Act. That section provides: the rules of the common law, in so far as they—

(a) require actionability under both the law of the forum and the law of another country for the purpose of determining whether a tort or delict is actionable; or

(b) allow (as an exception from the rules falling within paragraph (a) above) for the law of a single country to be applied for the purpose of determining the issues, or any of the issues, arising in the case in question,

are hereby abolished so far as they apply to any claim in tort or delict which is not excluded from the operation of this Part by section 13 below.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 45 , Issue 4 , October 1996 , pp. 888 - 902
Copyright
Copyright © British Institute of International and Comparative Law 1996

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. Private International Law (Miscellaneous Provisions) Act 1995 (Commencement Order) 1996, S.I. 1996 No.995.

2. Nothing in Part III applies to acts or omissions giving rise to a claim which occur before the commencement date: Private International Law (Miscellaneous Provisions) Act 1995, s. 14(1). This would seem to mean that acts or omissions occurring before the commencement date which cause harm after the commencement date will be governed by the common law choice of law rules rather than by those contained in Part III of the 1995 Act.

3. But not defamation: see ss.9(3), 10,13, text at infra, nn.24–39.

4. For (fairly scathing) comment, see Briggs (1995) L.M.C.L.Q. 519; Carter (1996) 112 L.Q. R. 190, 192–194. A useful and important resource is the report of the proceedings of, and oral and written evidence submitted to, the Special Public Bill Committee which considered the bill which (with amendments) eventually became the 1995 Act. See H.L. Paper 36 (1995). Published comment on the bill was not enthusiastic: see Carter (1995) C.L.J. 38, 41–42; Rogerson (1995) 441.C.L.Q. 650, 658. A considerable degree of criticism from some quarters will also be found in H.L. Paper 36 (1995). Part III applies to choice of law in tort and delict (which includes quasi-delict. s.9(8)), but Scottish readers will, it is hoped, excuse the general reference in what follows to “tort”.

5. The expression “country” is used in several sections of the Act (ss.9(5), (6), (7), 10–14) but is nowhere defined. The meaning of the expression must thus be sought in the general rules of English private international law, for which see Dicey, and Morris, , The Conflict of Laws (12th edn, 1993), pp.26–28. Applying these rules “country” will include unitary States with a common legal system (e.g. France), individual States in Federal States, each of which has its own rules of tort law (e.g. Illinois in the US) and individual jurisdictions in non-unified States (England and Wales, Scotland and Northern Ireland in the UK). See also s.9(7) of the 1995 Act, text at infra, n.22.Google Scholar

6. 1995 Act, s.11(1). See text at infra, nn.69–74.

7. Idem. s.12(1).

8. See s.13, text at infra, nn.24–39.

9. (1870)L.R. 6 Q.B. 1.

10. [1971] A.C. 356.

11. [1995] 1 A.C. 190 (PC).

12. See text at infra, nn.24–39.

13. Law Commission Working Paper No.87. Private International Law: Choice of Law in Ton and Delict (1984). The writer should declare an interest, having been a member of this Joint Working Party. On the Working Paper, see Fawcett (1985) 48 M.L.R. 439.

14. Law Com. No.193, Private International Law: Choice of Law in Ton and Delict (1990), criticised by Carter (1991) 107 L.Q.R. 405.

15. Ss.9(3), 10,13. See text at infra nn.24–39.

16. The scope of this exclusion in the context of maritime and aerial torts is not free from difficulty. For some preliminary views see Dicey, and Morris, , op. cit. supra n.5. Third Cumulative Supplement (1996), at pp.187–191.Google Scholar

17. 1995 Act, s.9(7).

18. Text at supra n.10.

19. Szalatnay-Stacho v. Fink [1947] K.B. 1: Metallund Rohstoff A.G. v. Donaldson, Lufkin & Jenrette Inc. [1990] Q.B. 391. See also Arab Monetary Fund v. Hashim [1996] 1 Lloyd's Rep. 589, 597 (per Saville, LJ).Google Scholar

20. See Paper, H.L. 36 (1995), p.62. See also Official Report of the Committee on the Bill, 1 Mar. 1995, col.27.Google Scholar

21. [1995] 1 A.C. 190 (PC).

22. The Law Commissions recommended a rule that where a tort was committed in any part of the UK the applicable law should, exclusively, be the law of the relevant part: Law Com. No.193 (1990), para.3.16. What is now s.9(6) was introduced at committee stage in the House of Lords: see Official Report, loc. cit. supra n.20.

23. 1995 Act, s.9(7); and supra n.5.

24. Idem, ss.9(3), 10, 13.

25. Idem, s.13(2).

26. Supra.

27. See HL Hansard, 6 Dec. 1994, cols.830–831; Official Report, supra n.20, at cols. 19–20. Indeed, something of a press campaign was mounted against Part III of the bill for this rea son: see Frances, Gibb, “Anger over ‘Dangerous’ Plan to Apply Foreign Laws”Google Scholar and Antony, Whitaker, “Stand up for Free Speech”, The Times, 19 01 1995.Google Scholar See also the leading article in the London Evening Standard of 19 Jan. 1995, quoted by Carter, (1996)Google Scholar 112 L.Q.R. 190, ', opining, in words not untinged with hysteria, “that the most obvious and dangerous implication of the Bill is that it will open the floodgates to highly dubious, speculative libel actions against British newspapers from abroad … Parliament must stamp hard on this pointless, wasteful and deeply dangerous Bill”. Antony Whitaker (supra). Legal Manager of Times Newspapers Ltd and Ms Santa Rasaiah of the Parliamentary and Legal Committee of the Guild of Editors gave oral evidence to the Special Public Bill Committee: see Paper, H.L. 36 (1995), pp.82–86Google Scholar. Rarely, if ever before, can a change in the rules of English private international law have given rise to such a furore!

28. As is well known, this rule was derived from The Halley (1868) L.R. 2 P.C. 193, where it permitted a defendant to hide behind a sub-standard rule of English domestic law whereby the owners of a ship were not liable for the negligence of a compulsory pilot. That domestic rule was reversed by the Pilotage Act 1913. Some opponents of the bill argued for retention of the rule in The Halley in cases where, more generally, beyond the confines of defamation, the defendant had committed a lawful act in England which caused harm in a country in which that act was actionable as a tort (see, e.g. HL Hansard, 6 Dec. 1994, col.838) despite the fact that were a judgment against the defendant to be rendered in the country where the harm occurred, that judgment might be required to be recognised in England (particularly if the judgment was rendered in a country party to the Brussels or Lugano Conventions on jurisdiction and the enforcement of judgments in civil and commercial matters of, respect ively, 1968 and 1988).

29. See Official Report, supra n.20, at cols. 19–23. In their report the Law Commissions recommended that in a defamation case, where a statement is published abroad and is simultaneously or previously published in any part of the UK, the applicable law should be the law of the forum: Law Com. No. 193 (1990), para.3.33.

30. Despite the views of the Evening Standard (supra, n.27), the prospect of the English courts being peppered with actions based on foreign libel laws which unreasonably restrict freedom of speech seems an unlikely one. Certainly no evidence was adduced from jurisdictions which do not apply the double actionability rule (i.e. most countries other than the UK, Australia and, until recently, Canada) that such a phenomenon had been encountered. Cf. Whitaker, op. cit. supra n.27: “Our law of libel may not be perfect, but its [sic] the best available. It allows us to speak the truth, no matter who may be embarrassed: to denounce government organisations with impunity; to criticise politicians, even mistakenly as long as we genuinely believe what we say; and to comment honestly on their performances, no matter what our prejudices. These freedoms are central to any democracy, and the need to preserve them is paramount. This branch of the law has a long and distinguished record and sets the standard by which other legal systems should be judged. For Lord Mackay to haul down the Union Jack here on the grounds that the law is too ‘nationalistic’ is simply not acceptable”. Contrast Tolofson v.Jensen (1994) 120 D.L.R. (4th) 289, where the Supreme Court of Canada cast off the first branch of the double actionability rule in favour of a choice of law rule based on the lex loci delicti. La Forest J commenting in the process (at p.307) that “Great Britain was the metropolitan state for many colonies and dependencies spread throughout the globe over which it had sovereign legislative power and superintending judicial authority through the Privy Council. Because of its dominant position in the world, it must have seemed natural to extend the same approach to foreign countries, especially when this dominance probably led to the temptation, not always resisted, to suppose that British laws were superior to those of other lands”.

31. Official Report, supra n.20. at cols.19–22.

32. See also Briggs (1995) L.M.C.L.Q. 519, 520, n.12.

33. Ibid.

34. Many States in the US can live comfortably with laws which prohibit invasion of privacy and which also supply constitutional protection to freedom of expression. In parenthesis, it may be added that English defamation law may not always pass constitutional muster in the US: see the case of Back Chan v. India Abroad (1992), described in the oral evidence to the Special Public Bill Committee given by Beatson: HL Paper 36 (1995), p.59.

35. Official Report, supra n.20, at col.20 (per the Lord Chancellor).

36. Reference could be made, in support of this, to Art.10 of the European Convention on Human Rights: see the convincing oral evidence to the Special Public Bill Committee of Beaumont, HL Paper 36 (1995). pp.75–76.

37. This view could be taken if, for example, the foreign law was a tool for suppressing comment which merely ruffled the dignity of foreign politicians.

38. The formula to be found in Dicey and Morris, op. tit. supra n.5. at Rule 203(2) has been judicially approved: see Church of Scientology of California v. Commissioner of Police (1976) 120 S.J. 690Google Scholar; Coupland v. Arabian Gulf Oil Co. [1983] 1 W.L.R. 1136. affd. idem, p.1151: Armagas Lid v. Mundogas S.A. [1986] A.C. 717, 740–741, 752–753 (CA), affd., with out reference to the point, idem, p.773: Red Sea Insurance Co. Ltd v. Bouygues S.A. [1995] 1 A.C. 190. But nonetheless, doubts persist that this is correct: see. e.g. the written evidence submitted to the Special Public Bill Committee by Fentiman, Paper, H.L. 36 (1995), p.17, at pp.21–23.Google Scholar

39. See ibid: Dicey and Morris, idem, pp.1499–1500.

40. 1995 Act. s.9(1).

41. See Dicey, and Morris, , op. cit. supra n.5, at pp.1529–1530.Google Scholar

42. See Bird in Rose, (Ed.), Restitution and the Conflict of Laws (1995), p.64, at pp.71–76. In a particular case the plaintiff may have concurrent causes of action in tort or contract (see Matthews v. Kuwait Bechtel Corporation [1959] 2 Q.B. 57) or in tort or restitution (see Arab Monetary Fundv. Hashim [1996] 1 Lloyd's Rep 589). There is nothing in Part III of the 1995 Act which precludes the continuance of this possibility.Google Scholar

43. This process of characterisation was not normally required in the common law because of the first branch of the rule of double actionability.

44. This is reinforced by s.9(4), which provides that “the applicable law shall be used for determining the issues arising in a claim, including in particular the question whether an actionable tort or delict has occurred” (emphasis added).

45. Cf. Re Bonacina ‘1912’ 2 Ch. 394; Phrantzes v. Argenti ‘1960’ 2 Q.B. 19.

46. Subject, of course, to public policy considerations: see s.14(3)(a)(i).

47. Dicey, and Morris, , op. cit. supra n.5. at pp.1527–1528. If the defence is based on a contract, the contract must be valid by its applicable law: Restitution and the Conflict of Laws pp.1529–1530.Google Scholar

48. Cf. Church of Scientology of California, supra n.38. As to contribution and indemnity between joint tortfeasors, see Arab Monetary Fund v. Hashim (No.9), The Times, 11 Oct. 1994.

49. Cf. Koop v. Bebb (1951) 84 C.L.R. 629.Google Scholar

50. This conclusion, it must be admitted, is somewhat speculative: see Morse, Torts in Private International Law (1978), pp.144–147, 161–167. See also Law Com. No.193 (1990), paras.3.41–3.43.Google Scholar

51. Cf. Johnson v. Coventry Churchill International Ltd [1992] 3 All E.R. 14.Google Scholar

52. Dicey, and Morris, , op. cit. supra n.5, at pp.1522–1523.Google Scholar

53. Also unaffected as a result of this subsection are matters of evidence, pleading or practice. This would appear, inter alia, to preserve the rule that foreign law is a question of fact to be pleaded and proved: see generally, chap.9.

54. See Morse, , op. cit. supra n.50, at pp.196–205.Google Scholar

55. Cf. Boys v. Chaplin [1971] A.C. 356.

56. D'Almeida Araujo Lda. v. Sir Frederick Becker & Co. Ltd [1953] 2 Q.B. 329.

57. Ibid.

58. Cf. S.A. Consortium Textiles v. Sun and Sand Agencies Ltd [1978] Q.B. 279Google Scholar; Water-house v. Australian Broadcasting Corp. (1989) A.C.T.R. 1, 19.Google Scholar

59. 1995 Act, s.14(3)(a)(i).

60. Idem, s.14(3)(a)(ii).

61. Cf. Protection of Trading Interests Act 1980, s.5(3).

62. Cf. McElroy v. McAllister, 1949 S.C. 110.

63. Cf. to the contrary, Stevens v. Head (1993) 176 C.L.R. 433.Google Scholar

64. Dicey, and Morris, , op. cit. supra n.5, at p. 179.Google Scholar

65. Cf. Boys v. Chaplin [1971] A.C. 356, 394.Google Scholar

66. Kohnke v. Karger [1951] 2 K.B. 670; D'Almeida Araujo Lda., supra n.56; Coupland, supra n.38.

67. The Law Commissions (Law Com. No.193 (1990), para.3.38) thought that this problem would arise infrequently and that to resolve the question in advance might prove more unsatisfactory than leaving the court to resolve the question on the particular facts of the dispute before it.

68. 1995 Act. s.9(5). Renvoi is thus excluded, as it was at common law: Church of Scientology of California, supra n.38; McElroy v. McAllister, 1949 S.C. 110. 126.

69. Personal injury includes disease or any impairment of physical or mental condition: s.11(3).

70. S.11(2)(a).

71. S.11(2)(b).

72. It is of course possible to envisage difficult cases, e.g. where a drug is consumed by an individual in several countries, the injury being caused by cumulative consumption, or where property is damaged in the course of transit through several countries, it not being possible to establish in which particular country the property was when the damage actually was caused.

73. Though not, of course, defamation, etc., which will continue to be governed by common law rules: ss.9(3), 10,13, text at supra nn.24–39.

74. The residual rule is reminiscent of, though in no way identical to, the “substance” test adopted by the common law for the purposes of locating a tort: see Dicey, and Morris, , op. cit. supra n.5, at pp.1507–1512. Cases applying this test might provide a guide to the application of s.11(2)(c), though such cases should not be regarded as more than illustrative.Google Scholar

75. This is less true of s. 11(2)(c) than of s. 11 (2)(a) and (b).

76. This is borne out by American experience with the lex loci delicti commissi rule: see Morse, , op. cit. supra n.50, at pp.219–222. It is not without interest, however, that the Supreme Court of Canada has introduced a lex loci delicti commissi rule and, by a majority, has rejected any exception to it in inter-provincial, as opposed to international, cases: see Tolofson v.Jensen (1994) 120 D.L.R. (4th) 299, overruling McLean v. Pettigrew [1945] 2 D.L.R. 65.Google Scholar

77. As in Boys v. Chaplin [1971] A.C. 356.

78. The bill as originally introduced into Parliament did not permit this. And the Law Commissions specifically rejected it: Law Com. No.193 (1990), para.3.52.

79. See Boys v. Chaplin [1971] A.C. 356.380 (Lord Hodson), 391 (Lord Wilberforce); Red Sea Insurance Co. Ltd, supra n.38. See also s.10(b) of the 1995 Act.

80. The Law Commissions recommended that this should be possible: see Law Com. No.193 (1990), para.3.53. The point had not been dealt with at common law. Such a result has, however, been contemplated in American cases: see Tooker v. Lopez 24 N.Y. 2d 569, 249 N.E. 2d 394 (1969).

81. The point has never arisen at common law. The possibility of displacement in such circumstances is supported by Dicey, and Morris, , op. cit. supra n.5, at pp.1498–1499.Google Scholar Cf. Cheshire, and North, , Private International Law (12th edn, 1992). p.548.Google Scholar

82. Cf. Boys v. Chaplin [1971] A.C. 356.

83. Cf. McElroy v. McAllister 1949 S.C. 110.

84. Cf. Johnson v. Coventry Churchill, supra n.51.

85. Cf. Boys v. Chaplin [1971] A.C. 356.

86. Cf. Szalatnay-Stacho v. Fink [1947] K.B.l; Mackinnon v. Iberia Shipping Co. 1955 S.C. 20.

87. See e.g. Johnson v. Coventry Churchill, supra n.51.

88. See HL Hansard, 6 Dec. 1994, col.833 (per the Lord Chancellor).

89. Cf. Boys v. Chaplin [1971] A.C. 356, 391–392; Red Sea Insurance Co. Ltd. supra n.38.

90. Cf. oral evidence to the Special Public Bill Committee by North, H.L. Paper 36 (1995), p.41.Google Scholar

91. It is surely relevant, in determining whether it is substantially more appropriate to apply a law other than that indicated by the general rule, that the latter law was not intended to deal with the circumstances of the particular case: see e.g. Johnson v. Coventry Churchill, supra n.51.

92. Cf. Boys v. Chaplin [1971] A.C. 356, 392.Google Scholar

93. This will not always be the case: see Johnson v. Coventry Churchill, supra n.51. Some times the connections with another country will be so strong that displacement will be justified irrespective of the issue in the case: cf. Red Sea Insurance Co. Lid, supra n.38.

94. S.14(3)(a)(i).

95. S.14(3)(a)(ii).

96. Cf. Phrantz.es v. Argenti [1960] 2 Q.B. 19.

97. See Dicey, and Morris, , op. cit. supra n.5, at pp.100–101.Google Scholar

98. Idem, pp.101–103.

99. Idem, pp.103–108.

100. Official Report, supra n.20. at cols.32–33.

101. Law Com. No.193 (1990), para.3.55. Cf. Contracts (Applicable Law) Act 1990, s.2(2), giving effect to the UK's reservation to an analogous provision in Art.7(1) of the Rome Convention on the Law Applicable to Contractual Obligations.

102. See the comments of the Parliamentary draftsman in H.L. Paper 36 (1995), p.64.Google Scholar

103. See e.g. Unfair Contract Terms Act 1977, s.27(2).

104. Textwriters will take no comfort in having to cover both Part III of the 1995 Act and the common law!