Policy Considerations in Tort Choice of Law
| Date | 01 November 1984 |
| DOI | http://doi.org/10.1111/j.1468-2230.1984.tb01670.x |
| Author | J. J. Fawcett |
| Published date | 01 November 1984 |
POLICY CONSIDERATIONS IN
TORT
CHOICE
OF
LAW
Boys
v.
Chaplin,'
like many Home of Lords decisions, answered
some questions, but if one simply alters the facts, many more
unanswered questions are raised. The sparse case law on tort
choice of law since has done little to clarify matters. The extensive
literature on the case has tended to concentrate
OR
the "black
letter law" considerations of
ratio
and
obiter
dim,
reasoning from
these to
see
how factual variants would be decided.' The purpose
of this article is not to retread these well worn paths but to
discover the policy considerations underlying the decision and to
use these to answer some of the questions raised by the case.
I.
UNDERLYING
POLICY
CONSIDERATTONS
A
tort choice of law case can be looked at on three different
level^.^
First, there is the multinational level. It is
a
dispute which
involves two or more nations. This will be
so
whenever there are
contacts with a country other than England,
e.g.
the tort happened
abroad or one of the parties came from abroad. The involvement
of another country is reflected in the application of its law where
there is a specific contact with that country. Multinational policy
considerations are concerned with the extent to which one should
take into account the involvement of other nations in the dispute
and whether a special priority should be given to the
fexfon'.
Secondly, there is the party level.
It
is
a
dispute between
individuals and the decision to apply State
A's
law in preference to
State B's will usually affect the ultimate result,
so
that the plaintiff
may obtain full recovery or be denied recovery
as
the case may be.
Party policy considerations are concerned with whether the plaintiff
should be compensated or the defendant
prstccted
from
liability.
The answer will be affected by prevailing aetitndes
iri
domestic
tort
law. Because this element is largely beneath
the
surface its
importance has been underestimated.
Thirdly, there is the jurisprudential level.
A
tort
choice of law
rule
is
like any other rule in that it can be critidsed
or
praised
because of its jurisprudential qualities,
e.g.
it gives
a
certain
and predictable result. Jurisprudential policy considerations are
concerned with deciding what
quaFities
are
most
desirable
for
a tort
choice of law rule and
will
be
affected
by
ct,e!m'~lq%
kxkfs
~n
jurisprudential desiderata throughout the law.
*
(19711 A.C. 356.
See
e.g.
McGregor, (1970) 33 M.L.R.
1;
Webb and
North,
(1WO) 19 I.C.L.Q.
241;
Nygh, ("7 26 I.C.E.Q.
YZ;
Karsten, (1970) 19 I.C.L.Q.
35;
Mom,
Torrs
in
Private
See generally Cheatham,
(1960)
99
1
Hag.Rec.,
Ch,ap.
7;
Jafky,
(1982)
2
Oxford
Journal
of
Legal
Studies
368.
Xntemationa
1
Law
(1978),
Chap.
10.
650
Nov.
19841
TORT
CHOICE
OF
LAW
65
1
A.
Multinational
Policy
Considerations
(1)
Taking greater account
of
the involvement
of
foreign countries
The traditional rule in
Muchado
v.
Fontes4
paid no regard to the
involvement of countries other than the forum or the
locus
delicti
and the regard it paid to the latter was limited since it allowed a
plaintiff to recover damages in England even though there was no
civil recovery by the
lex loci delicti.
Lords DonovanS and Pearson:
who supported this traditional rule, can be criticised for giving
insufficient attention to the multinational element. Their support
for
Muchado
v.
Fontes
was based on respect for precedent rather
than policy. Lord Pearson was against altering the rule unless a
good reason could be found for doing
so’;
an approach which is
loaded against change in the law.
The new double actionability rule favoured by the majority of
their Lordships8 pays more regard to the
lex loci delicti
by requiring
civil liability by that country’s law.
As
Lord Wilberforce said
“we
should in my opinion, allow a greater more intelligible force to the
lex
loci
delicti
than is included in the concept of unjustifiability as
normally under~tood.”~ On the facts of
Boys
v.
Chuplin
the only
two countries involved were England and Malta and this new
general rule required an examination of both these countries’ laws.
The double limbed rule has been much criticised,l0 but it has this
to be said for it, that where only two countries are involved it
takes account of the involvement of both, although the way that
the rule combines a reference to both does make it difficult to see
how it can be called a “choice of law” rule.
No
choice is being
made between the only two laws which could be applied.
A
more substantial criticism of the double actionability rule is
that it gives too much emphasis to the
locus
delicti,
fails
to
take
into account the possible greater involvement of the
lex fori
and
completely ignores the involvement of other countries. It presup-
poses that the involvement of both countries is equal when often
this will not be the case. Lords Hodson,” Pearson’* and
Wilberforce13 all pointed out that the place where a tort occurs
may be fortuitous in this age of rapid and easy international travel.
It is hard to justify application of the law of the place where the
Lord Hodson at pp.376-377, Lord Wilberforce at p.389, Lord Guest at p.381.
At p.389.
lo
For
early criticisms see Robertson, (1940) 4 M.L.R. 27; Cheshire,
Private
International Law
(1935
,
pp.215-221; Graveson,
Conflict
of
Laws
(3rd ed., 1955),
pp.428-429; Dicey,
Conjict
of
Laws
(5th ed., 1932), p.770;
Wolff,
Private International
Law
(2nd ed., 1950), p.492. More recently see Morns,
The Conflict
of
Laws
(2nd ed.,
1980), p.249.
’
l1
At
pp.377, 380.
l2
At p.403.
l3
At p.388.
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