Tort conflicts rules in cross-border multi-party litigation: Which law has a closer or the closest connection?
| DOI | 10.1177/1023263X211034103 |
| Date | 01 October 2021 |
| Author | Zhen Chen |
| Published date | 01 October 2021 |
| Subject Matter | Articles |
Article
Tort conflicts rules in
cross-border multi-party
litigation: Which law has
a closer or the closest
connection?
Zhen Chen*
Abstract
This article compares Owen v. Galgey under Article 4 Rome II Regulation and YANG Shuying v. British
Carnival Cruise under Article 44 Chinese Conflicts Act in the context of cross-border multi-party
litigation on tort liability. The questions raised in these two cases include how to interpret the tort
conflicts rules of lex loci delicti,lex domicilii communis and the closer/closest connection test when
determining the applicable law. In particular, as regards the meaning of lex loci delicti, the notion of
‘damage’, the common habitual residence of the parties and the criteria to determine the closer/
closest connection, different interpretations were provided in these two cases. In order to clarify
certain ambiguity of tortious applicable law rules in cross-border multi-party litigation, a com-
parative study of Chinese and European tort conflicts rules is conducted. This article does not
intend to reach a conclusion as to which law is better between the Rome II Regulation and the
Chinese Conflicts Act, but rather highlights a common challenge faced by both Chinese courts and
English courts in the field of international tortious litigation on personal injury and how to tackle
such challenge in an efficient way under current legislation.
Keywords
delicti,lex loci damni, International civil litigation damage, common habitual residence, closer/closest
connection test
* PhD Researcher, Department of Private International Law, Faculty of Law, University of Groningen, Groningen,
the Netherlands
Corresponding author:
Zhen Chen, PhD Researcher of Law Faculty, Groningen University, Poststraat 11, 9712 ER, Groningen, the Netherlands.
E-mail: zhen.chen@rug.nl
Maastricht Journal of European and
Comparative Law
ªThe Author(s) 2021
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DOI: 10.1177/1023263X211034103
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2021, Vol. 28(5) 626–647
1. Introduction: Tort conflicts rules in China and the EU
It is a widely-accepted rule in the field of private international law that lex loci delicti will be the
applicable law for cross-border tort liability. This is also the case in China and the EU with regard
to tort conflicts rules, although the interpretation of lex loci deli cti and the conditions for its
application may differ. The application of lex loci delicti, as a general rule, is set forth in Article
44 1st sentence of the Chinese Conflicts Act
1
and Article 4(1) of the Rome II Regulation
2
respectively. Yet such general rule is subject to several exceptions. The similarities of tort conflicts
rules in China and the EU are the preference of the parties’ choice of law and the law of the parties’
common habitual residence (lex domicilii communis) over lex loci delicti, for the consideration of
protecting the legitimate expectation of the parties as well as enhancing legal certainty. Specifi-
cally, lex loci delicti is superseded by the law chosen by the parties under Article 44 2nd sentence
communis takes precedence over lex loci delicti in accordance with Article 44 1st sentence of the
Chinese Conflicts Act and Article 4(2) of the Rome II Regulation.
The main differences of tort conflicts rules in China and the EU are twofold. First, as regards the
meaning of lex loci delicti, Article 4(1) of the Rome II Regulation explicitly refers to the place of
damage, namely ‘the law of the country in which the damage occurs’ (lex loci damni), and
expressly excludes the place of wrong (‘the country in which the event giving rise to the damage
occurred’) and the place of consequential loss (‘the country or countries in which the indirect
consequences of that event occur’). Stated differently, the lex loci delicti under the Rome II
Regulation refers to lex loci damni, namely, the law of the place of direct, initial or immediate
damage, rather than the law of the place of indirect, consequential or subsequent damage. By
contrast, it remains unclear whether lex loci delicti in Article 44 1st sentence of the Chinese
Conflicts Act merely refers to lex loci damni, as such provision does not expressly state so.
Second, the escape clause enshrined in Article 4(3) of the Rome II Regulation gives priority to
the law of the country which has a ‘manifestly closer connection’ with the tort/delict, of which
the pre-existing relationship between the parties, such as a contract (but not limited to contract),
may constitute a ‘manifestly closer connection’. By contrast, Article 44 of the Chinese Conflicts
Act per se does not provide an escape clause that takes precedence over lex loci damni and lex
domicilii communis, but the closest connection principle, which is comparable to the closer
sions.
3
The closest connection principle in the Chinese Conflicts Act could function as the closer
general tort conflicts rules.
Having in mind the similarities and differences of the tort conflicts rules between the Chinese
Conflicts Act and the EU Rome II Regulation, a further question is whether such choice-of-law
1. The Law of the PRC on Application of Laws to Foreign-Related Civil Relations, which was promulgated by the 17th
Session of the Standing Committee of the 11th National People’s Congress of the PRC on 28 October 2010, took effect
on 1 April 2011. Apart from being abbreviated as the LALFCR and the 2010 Conflicts Act, it is also referred as Chinese
Conflict Code, Chinese Conflicts Act, Private International Law Act, Chinese Private International Law 2010, or
Chinese PIL Statute in various academic books and articles.
2. Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to
non-contractual obligations (Rome II), OJ L 199/40.
3. Articles 2, 6, 19, and 41 of the Chinese Conflicts Act.
627
Chen
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