Choice of Law in Tort—Blending in with the Landscape of the Conflict of Laws?
| Date | 01 January 1998 |
| DOI | http://doi.org/10.1111/1468-2230.00126 |
| Published date | 01 January 1998 |
| Author | Jonathan Harris |
Choice of Law in Tort — Blending in with the
Landscape of the Conflict of Laws?
Jonathan Harris*
Much criticism has been directed at the reformed choice of law in tort rules
1
to be
found in the Private International Law (Miscellaneous Provisions) Act 1995, Part
III.
2
At common law, it had been necessary for the plaintiff to show that the alleged
misconduct would have rendered the defendant liable in tort according to English
domestic law and that it gave rise to some form of civil liability in the place where
it occurred.
3
Concerns have focused largely on the abandoning of the lex fori as an
automatic means of preventing a plaintiff from successfully suing in the English
courts for a tort which is unknown in this country or which, though recognised,
could not be established on the facts in the English law of tort, and the adoption of
the law of the place of the tort alone as the lex causae. Liberties which defendants
would be regarded by English domestic law as possessing will henceforth be
compromised in this country to the extent that they constitute tortious conduct by
the lex loci delicti.
Anxiety has also been expressed about the means of deciding whether an action
is within the parameters of the Act. Section 9(2) provides that: ‘The
characterisation for the purposes of private international law of issues arising in
a claim as issues relating to tort or delict is a matter for the courts of the forum.’
Since the rule in Boys vChaplin
4
had required the claim to constitute a tort
according to English law, the courts were never forced to confront the problem of a
private international law definition of tort and the Act offers no guidance on this
matter.
5
Moreover, since the Act only purports to replace such matters as were
previously governed by the rule in Boys,
6
it seems that some issues, although
The Modern Law Review Limited 1998 (MLR 61:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.33
* Faculty of Law, University of Birmingham.
I am very grateful to Adrian Briggs and to colleagues in the Faculty (Stephen Shute and Colin Manchester)
for their comments on an earlier draft.
1See eg A. Briggs, ‘Choice of Law in Tort and Delict’ [1995] LMCLQ 519; P. Carter, ‘The Private
International Law (Miscellaneous Provisions) Act 1995’ (1996) 112 LQR 190; A. Reed, ‘The Private
InternationalLaw(MiscellaneousProvisions)Act1995andtheNeedforEscapeDevices’(1996)15CJQ
395; C. Morse, ‘Torts in Private International Law: A New Statutory Framework’ (1996) 45 ICLQ 888.
2Hereafter ‘The Act’. It was brought into force on 1 May 1996 by SI 1996 No. 995 (c. 16) pursuant to
s 16(3) of the Act.
3Phillips vEyre (1870) LR 6 QB 1.
Metropolitan Police (1976) 120 Sol Jo 690, and Coupland vArabian Gulf Oil Co [1983] 1 WLR
1136.
5Some of this criticism is perhaps over-stated. The abandoning of the traditional understanding of
required thought as to how to deal with a claim eg for invasion of privacy which was entirely
connected with the place of the tort and not England. Even under the traditional view of Boys, asking
whether the claim sounds in tort according to English law might be thought to pre-suppose that the
claim is one which should be tested by tort choice of law rules at all. To say that a claim for invasion
of privacy is not tortious by English law is to assume that the claim is regarded as in tort for Conflict
of Laws purposes.
6s 14(2) states that ‘nothing in this Part affects any rule of law (including rules of private international
law) except those abolished by s 10 above;’ s 10 simply purports to restate the rule in Boys v
Chaplin.
characterised for the purposes of private international law as tortious, will
nonetheless continue to be governed by the common law.
7
Yet there is a far wider problem associated with the reform of choice of law rules
in tort
8
which has not attracted significant attention, particularly, it seems, from the
drafters of the Act itself. For self-evidently one can not alter so substantial an area
as choice of law in tort without raising implications for other areas of the Conflict
of Laws. For example, however we define the ambit of ‘issues relating to tort’, it is
apparent that the meaning to be attached to it will be determined by English law.
Compare this with the Rome Convention on choice of law in contract,
9
where the
scope of the Convention is governed by an autonomous European meaning of the
term ‘contractual obligations’ found in Article 1. It is far from clear that a potential
for overlap between the two phrases does not exist; yet the consequences thereof
could be far-reaching. Or consider the rules under the Brussels Convention on
Jurisdiction and Judgments,
10
Article 5(3) of which refers to ‘matters relating to
tort’. Again this is subject to a European meaning.
11
To what extent can one draw
inspiration from this in determining the scope of the Act? A comparable problem
arises with Order 11, rule 1(1)(f).
12
The phrase ‘founded on a tort’ contained
therein is clearly subject to an English definition of the term.
13
Does, or indeed
should, a uniform view of the ambit of tort be taken in the Conflict of Laws for
jurisdictional and choice of law purposes alike?
Similar difficulties arise when allocating a locus to the tort. It is unclear how the
means of determining the place of the tort for jurisdictional purposes accord with
the approach of the Act. One also needs to reflect whether the former jurisdictional
methods are still appropriate given that radically different ones will henceforth be
applied to choice of law issues that may then arise. If the means of identifying the
place of the tort differ for jurisdictional and choice of law purposes, some odd
results, considered below, can ensue. If there is no possibility of domestic reform
of the jurisdictional rules,
14
then one needs to consider the extent to which the Act
can mirror them, in the name of the coherence and certainty of the Conflict of
Laws. This piece seeks to examine the broader impact that the reformed choice of
law in tort rules may have on established jurisdictional and choice of law rules
alike and to see just how much disruption the new Act might have done to the
intellectual coherence of the subject as a whole. Despite the obvious link in
transnational disputes between jurisdictional and choice of law issues, this Act
seems to be another example of the unwillingness to think of the implications of
development of one upon the other. Moreover, recent scholarly work in the area of
jurisdiction in tort claims has, ironically, served to re-emphasise this tendency to
think about jurisdiction and choice of law as discrete fields.
15
The following
7On this see A. Briggs, n 1 above, 521. Examples include torts committed in England, or equitable
wrongs.
8Or indeed, it is suggested, reform of any choice of law rules.
9Enacted by the Contracts (Applicable Law) Act 1990, s 2(1).
10Enacted by the Civil Jurisdiction and Judgments Act 1982, s 2(1).
11Case 189/87 Kalfelis vSchroder, Munchmayer, Hengst and Co [1988] ECR 5565.
12Rules of the Supreme Court, set out in SI 1983, No 1181 (L 21).
13As the Court of Appeal confirmed in Metall und RohstoffA/G vDonaldson Lufkin and Jenrette Inc
14As is obviously the case with the Brussels Convention.
15See C. McLachlan and P. Nygh, Transnational Tort Litigation: Jurisdictional Principles (Oxford:
Clarendon Press, 1996). The book contains no reference to the Act and one fleeting reference to Boys
vChaplin. The inter-relationship is sometimes hinted at: P. Carter, chapter 7, 121, when dealingwith
defamation, does observe that ‘this is an area of private international law in which policy requires
The Modern Law Review[Vol. 61
34 The Modern Law Review Limited 1998
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