PRIVATE INTERNATIONAL LAW

Torts
Torts are civil crimes and intentional torts are those cases which
involve an intentional act that resulted in a negative outcome.
Tort laws allow individuals to seek compensation for acts which
resulted in a negative outcome. It is somewhat easier to prove
culpability in intentional tort cases. The main difference being that
in tort cases individuals may not have knowingly caused the
outcome. For example, an individual took some action or inaction
which resulted in a negative outcome that they did not foresee.
In intentional tort, the individual took actions in the hopes that it
would cause the negative outcome for another individual. The intent
may have been malicious or it may not have been. All that is required
to prove intentional tort is that the individual had a plan for some
outcome which would result from their actions.
The first attempts to establish a choice of law rule for tort cases
involving a foreign law element varied between favoring the Lex Fori
(the law of the place where the tort was committed). The public
policy of territorial sovereignty was always the principal
consideration. Hence, the forum courts claimed their right to apply
their laws to determine whether any lawsuit initiated in their
jurisdiction allowed a remedy. Equally, it is the commission of a tort
that vests a right of action in a claimant and therefore, it should
always be for the law of the place where that right was created to
determine the extent of any remedy flowing from it. In the end, a
compromise emerged where the Lex Loci Delicti was the first point of
reference but courts retained a discretion to substitute the Lex Fori if
the foreign law was deemed unfair and other practical considerations
pointed to the application of forum law.
The presumptive choice of law rule for tort is that the proper
law applies. This refers to the law that has the greatest relevance to
the issues involved. In public policy terms, this is usually the law of
the place where the key elements of the “wrong” were performed or
occurred (the Lex Loci Delicti). So, if A is a pedestrian injured by B’s
negligent driving, the law of the state in which the injury occurs
would logically be applied because, in public policy terms, the
citizens of that state have a clear interest in regulating the standard
of driving on their roads. That either or both the parties might have
domiciles outside that state would be irrelevant.
But, if A buys a car from B in State X and drives it into State Y where
A is injured by a defect in the car, the choice of law is not as evident:
there is potential liability both for breach of and for negligent
misstatement, deceit and failure to adequately maintain the vehicle
prior to sale. There is no genuine connection either in fact or law with
the law of State Y. It was pure chance that the injury occurred there.
In fact, the law of State X is the Lex Loci Contractus and the most
appropriate law since everything relevant to the potential tortious
liability occurred in that state which has the greatest interest in
maintaining consumer confidence in the motor trade. Thus, no
matter where A sues B, the forum court should apply the law of State
X to resolve the various causes of action.
For these purposes, the Forum Convenience would be the State in
which B has residence and/or holds assets. One of the key
considerations in any conflict dispute is the enforceability of the
resulting judgment. Courts are more willing to accept cases with a
foreign law element when one of the parties is domiciled or has
residence within their territorial jurisdiction, or has assets against
which judgment can be levied.
However, if the tort was intentional, there are two competing theories
as to which law is the most appropriate. For example, A writes a
defamatory letter in State X and posts it to B in State Y, clearly
damaging the reputation of C in State Y.
The initiatory or subjective theory provides that the proper law is the
law of the state in which all the initial components of the tort
occurred. In the example given, A may never have left State X and
the argument would be made that State X would have the better
claim to determine the extent of liability for those who, whether
temporarily or not. Hence, if A sent a reference to B about C in the
ordinary course of business, or submitted for publication by B a
review of an artistic work by C, the policy claims of State X would be
strong. The terminatory or objective theory provides that the law of
the state in which the last component occurred (i.e., where the loss
or damage was sustained) should be the proper law. Here, the
argument is that unless and until the damage is sustained, the tort
is not complete.
Unlike criminal law, there is no liability for attempted tort. Hence,
since the tort does not exist to give rise to liability until the letter is
read by B in State Y, only State Y has an interest in the application
of its laws. There is no international agreement on which theory is to
be preferred and each state therefore applies its local choice of law
rules. But the enforceability of any judgment would be a relevant
consideration. Suppose that the law of State X might offer a partial
or complete defense to A. Hence, C naturally prefers to invoke the
jurisdiction of State Y's courts. If there is no system for reciprocal
and automatic registration and enforcement of judgments between
the two states, State Y (and any other State in which jurisdiction
might be sought) would be reluctant to accept the case since no court
likes to waste its time in hearing a case if it is not going to be
enforceable.
In summary, therefore, selecting the proper law in tort cases is
subject to a balancing of public policy and practical considerations
and, although each set of choice of law rules will give an indication
of likely outcome, the individual decisions on the merits are not
strictly subject to precedent and outcomes may vary depending on
circumstances.
THEORIES RELATED TO CHOOSE OF LAW IN THE CASE OF
CROSS BORDER TORT DISPUTES
The Lex Fori Theory
According to this approach the applicable is the law of the forum
where the claim has been brought. The application of Lex Fori is
rather simplistic and straightforward as there is no need to determine
where the tortious activity occurred, or to prove that it was in fact a
tort in the law of the country where the act occurred. On the other
hand, this could work to the disadvantage of the defendant as the
plaintiff could then indulge in forum shopping – choosing a forum
that is most favorable to him. The defendant may become liable for
an act, which may amount to a tort in the forum state Lex Fori – but
not in the place where it was committed – Lex Loci Delicti(the law of
the place of the wrong or tort). Contrarily, if the act committed is not
a tort under Lex Fori, but it is under Lex Loci Delicti – the plaintiff
does not suffer as even if he cannot successfully bring a claim in the
forum state, he can bring it in the place where the act has been
committed.
Friedrich Karl von Savigny an advocate of the Lex Fori method
proposed that tortious liability is comparable to criminal liability and
thus is closely related to the public policy of the forum state and
therefore should be governed by Lex Fori. This view is criticized by
C. F. Forsyth, who says that Savigny’s view opinion has been
discredited to a large extent, as there is a clear demarcation between
crime and tort today. Forsyth also goes on to criticize the Lex

Fori approach for being “fickle(अस्थिर)” as it is only established “ex

post facto” once the plaintiff decides where he wishes to sue.

There are barely any proponents of the application of the Lex
Fori theory in the contemporary world as even with its simplicity, if
it were applied as a general rule, it would result in arbitrariness and
unfair decisions. Thus, in a quest for a fairer basis for choice of law,
we move to the Lex Loci Delicti theory.
The Lex Loci Delicti Theory
It is a recognized principle of the law of the conflict of laws that the
law of the state where an alleged tort is completed controls the
liability. Where a tort is committed in one state and sued on in
another, the Lex Loci Delicti principal controls. In accordance to this
theory the applicable law in the case of a cross border tort ought to
be the law of the place where the tortious act has been committed.
PHILLIPS
V.
EYRE
It was said by the Court that the civil liability arising out of a wrong
derives its birth from the law of the place, and its character is
determined by that law.
Similarly, Westlake has also opined on the matter that in the event
of tortious act that disrupts the social order of any country, it is the
law of that country where the act has been committed that must then
apply as it would be the best authority of the matter.
The problem with the lex loci regime arises when the facts amounting
to the tortious act take place in more than one country, i.e., the act
is committed in one country and the injury is felt in another. It then
becomes hard to decide which country is then the Loci Delicti – the
place where the act commenced or the place where the effect of the
injury was felt.
When the place where the act commenced or the place where the
effect of the injury was felt is two different states, the substantive law
of the state where the injury occurs applies. Additionally there can
also be problems in applying this theory when the parties have
almost no connection to the place where the tort occurred, i.e. the Lex
Loci Delicti may be entirely coincidental and by chance.
For example, a couple living in state X are on vacation in state Y,
there is an accident while they are driving in state Y and the wife is
injured. She wants to sue her husband. The application of the laws
of state Y in such a case would merely be by chance and in the event
that the laws of state Y do not support her claim (but state X’s laws
do) this would be highly unfair and application of state Y’s laws will
be arbitrary.
The real problem with the Lex Loci Delicti theory is not that is
inherently unfair and arbitrary, but that it is not flexible and cannot
address every single question in complex situations. The possibility
of unfairness only arises in complex situations, like in the instance
of the Lex Loci Delicti being entirely fortuitous. In order to deal with
this inefficiency of the Lex Loci Delicti theory there was a move
towards creating a “proper law,” which is based on “the most
significant connection with the chain of acts and circumstances in
the particular case in question.”
The Proper Law or Social Environment Theory
In accordance to this approach the applicable law must be the one
that has the most significant connection with the facts and
circumstances in a particular claim/case.
The Court reiterated this position to a certain extent in the case of
BOYS
V.
CHAPLIN
where he said that a proper law of tort ought to be determined by
establishing which law has the most significant connection to both
the parties as well as the act done. The proper law theory seeks to fill
the gaps in the Lex Loci Delicti theory.
The main criticism to this theory of choice of law is that it results in
a fair amount of uncertainty and unpredictability; and while it is
conceded that in most situations there wouldn’t be a need to look at
a law outside of Lex Loci Delicti it is still prudent to have an approach
that is flexible enough to include complex situations as well as the
normal ones.
Position In England
With regards to the position of choice of law in the case of cross
border torts, there are three considerations –
(a) position at common law,
(b) statutory reform, and
(c) reliefs.
While the position at common law in England was previously settled,
there was a drastic alteration of English law on the matter through
the enactment by Parliament of the Law Reform (Miscellaneous
Provisions) Act 1995, under which a different set of choice of law
rules were introduced. The position on defamation related torts is still
unchanged and is still the same as settled in common law.
Additionally, the matter of relief in English law is considered to be a
procedural matter and so the choice of rules that apply to them is Lex
Fori.
Position In India
The Indian position on choice of law rules in the case of cross border
torts is in the early stages of development. There seem to be only two
decisions on the matter. For the most part, Indian jurisprudence on
the matter follows the early English Court decisions, prior to the
engrafting of exceptions to the “double actionability” rule by the
English Courts
The position at common law in England is it also relevant to India,
as the few cases that have dealt with the question of choice of law in
India have placed reliance on English Common Law Decisions.
The first decision on the matter is of the Madras High Court that is
GOVINDAN NAIR
V.
ACHUTA MENON
(1915)
The court was dealing with a claim of defamation. The facts of the
case are: The then Raja of Cochin (which was at the time an
independent Indian State), sent a communication to the plaintiff
excommunicating him from his caste. This communication was then
sent to British India. The Madras High Court applying the “double
actionability” rule dismissed the claim stating that as the
communication was from a superior to a subordinate with no trace
of malice, the defence of qualified privilege would apply thus not
giving rise to civil liability under the laws of the State of Cochin.

The second case is that of

THE KOTAH TRANSPORT LTD.
V.
THE JHALAWAR BUS SERVICE LTD.
(1960)
In this case the plaintiff filed for damages for injury caused due to
rash and negligent driving by the defendant’s driver. The accident
took place in Jhalawar, and the action was brought in Kotah; both
these places were then independent Indian States. The court found
for the plaintiff as there was nothing in the law of the state of
Jhalawar that justified his actions, and the act was a tort under the
laws of the state of Kotah, and thus the requirements of “double
actionability” was satisfied.

DRUG AND TORT

Where defective goods are manufactured in one country and sold to
a wholesaler there for resale in some other country it is clear that one
might locate the tort of negligence for jurisdictional purposes as
having occurred:-
(1) at the place of manufacture;
(2) at the point of original sale;
(3) at the point where resale, use and damage occurred.
 THOMPSON
V.
DISTILLERS
(1968)
the New South Wales Court of Appeal was asked to determine
whether it had jurisdiction in the following circumstances. Distillers
Co. Ltd., an English company, not carrying on business in Australia,
had produced the drug, Distival, containing thalidomide and sold
the drug in England to a company incorporated in New South Wales.
Eventually, after distribution through retailers and wholesalers in
New South Wales, the drug was consumed in that State by the
mother of the plaintiff. In due course the mother gave birth to a
deformed child in New South Wales. In order to obtain leave to serve
the overseas manufacturer, proceedings were instituted under s. 18
(4) (a) of the New South Wales Common Law Procedure Act, which is
in identical terms to the English Common Law Procedure Act 1852,
and allows jurisdiction to be taken over an absent defendant where
there is a cause of action which arose ,within the jurisdiction.
The defendants in Thompson’s Case relied strongly on MONRO V.
AMERICAN CYANAMID CASE(1944) for the proposition that the tort
of negligence should be regarded as having been committed in the
place where the defective goods were produced and originally sold.
This argument ,was, however, rejected both at first instance and on
appeal. The Court at first instance found for the plaintiff because he
found the defendants had broken their duty to supply the plaintiff’s
mother with a drug which could have an adverse effect on her unborn
child. The Court’s view that the duty, breach and damage had all
occurred in New South Wales. This view was upheld in the Court of
Appeal relied strongly on dicta of GRANT V. AUSTRALIAN
KNITTING MILLS LTD.(1936) that the thing might never be used; it
might be destroyed by accident, or it might be scrapped, or in many
ways fail to come into use in the normal way. In other words, the duty
cannot at the time of manufacture be other than potential or
contingent, and can only become vested by the fact of actual use by
a particular person.
TRANSPORT AND TORT
In Conflict of Law, Tort in respect of transport is divided into two
parts:
1. Maritime Tort
2. Flight Tort
MARITIME TORT
The law that governs maritime torts depends upon whether they have
been committed within the territorial waters of some State or upon
the high seas.
In the former case the ordinary , doctrine as laid down in Torts in
PHILLIPS V. EYRE applies. The tort is treated as having been
committed within the jurisdiction or the country possessing
sovereignty over the waters.
The High Court has jurisdiction to entertain a suit in respect Torts of
injurious acts done on the high seas, even though both the litigants
are foreigners. It is a little difficult, however, to specify with absolute
certainty the law which the court will follow in determining the rights
and liabilities of the parties.
Confined to one ship
It seems clear, in the first place, that the law of the flag is the decisive
factor wherever the acts complained of have all occurred on board
single vessel, for a ship is regarded for certain purposes as a floating
island over which the national law prevails.
If, therefore, the tort is committed on board of English vessel, English
law will alone apply, but if it is committed wholly upon a foreign ship
and an action is brought in England, the plaintiff, if the analogy of
wrongs done in a foreign country is followed, will have to prove that
the act is unjustifiable by the law of the flag and is also actionable by
English law. Where a flag is common to a political unit containing
several different systems of law, as in the case of the British
Commonwealth or USA, the law of the flag means the law of the port
at which the ship is registered.
External to Ship
It is possible, however, that the law of the flag should govern all
wrongs committed on the high seas.
Suppose that the act giving rise to the dispute is external to the
foreign ship in the sense that it has affected persons or property not
on board as for example where is negligent navigation leading to a
collision or to the destruction of a submarine cable. Is such an act
the point of view of choice of law with an act, such as an assault
which took place entirely on the ship?
The question that now arises is whether this maritime law must be
applied to all external acts, i.e., to all cases. Where the alleged wrong
consists of some acts, other than a collision, govern by a foreign ship
to the property of another, as, for example, where a submarine cable
is fouled or where possession is seized of a wreck that is being salved
by a third party.
In many such cases, unlike the case of a collision, there would be
little difficulty in applying the principle of PHILLIPS V. EYRE, but in
others it would be almost impossible. If, for instance, two or more
foreign ships carrying different flags were involved in a dispute
concerning the capture of whales it might be virtually impossible to
refer to each law, since the act might be innocent in one of the
countries and wrongful in the others.
Again, it seems a little strained to treat the law of the flag in maritime
wrongs as being equivalent to the Lex Loci Delicti commission in the
case of torts on land. The reason why English law requires proof that
a wrong committed in a foreign country is unjustifiable by the Lex
Loci is that the offending act has been committed within the exclusive
jurisdiction of a foreign sovereign, but, as there is no such thing as
exclusive jurisdiction over the high seas.
If the place where a wrong is committed is subject to no exclusive
jurisdiction, it is surely a misnomer to speak of a lex loci. It is possible
to speak of a lex loci only where all the acts have occurred on board
a single foreign ship. Finally, the sphere of authority possessed by
the general maritime law has been described. In such comprehensive
terms by the judges that it would appear to cover
Therefore ,it can be said that the rules adopted by English courts lor
the choice of law so far as regards torts committed at sea, may be
stated as follows:
Firstly, when a plaintiff who sues in England m respect of acts, all of
which have occurred on board a single foreign vessel, must prove that
the conduct of the defendant was not justifiable by the law of the flag,
and that it would have been actionable had it occurred in this
country.
Secondly, all other acts occurring on the high seas and later put in
suit in England must be tested solely on English Maritime Law.
FLIGHT TORT
There appears to be no relevant authority. The questions which arise
in this context are similar to those which arise in connection with
ships, although the legal treatment recognized to aircraft is not
entirely similar to that recognition to ships. In particular, it appears
that the concept of the “law of the flag” has not been developed to the
same extent in relation to aircraft as it has in relation to ships. In
consequence it may therefore be that in the case of a tort or delict
confined to one aircraft over the high seas, the applicable law will be
the Lex Fori and that the law of the state of registration of the aircraft
would be irrelevant. In all other cases a rule corresponding to that
applying to ships may exist, the Lex Loci Delicti, where relevant,
being that of the subjacent territory.
Some of the issues which may arise in this field involve also a
contract of carriage and are the subject of uniform rules arrived at
by international agreement, which means that, in a case to which the
rules apply, the choice of law rule in tort and delict will not in practice
be invoked, and probably cannot in any event apply.
SATELLITE AND TORT
As people begin to live and work in space, incidents of damage caused
by intentional actions or negligence are certain to occur. Individuals
seeking compensation for damage to property or personal injury may
look either to international space law or to the tort laws of their own
or other nations. Unfortunately, none of these courses of action is
without difficulty. Current international space laws are little more
than agreed fundamental principles, and no efficient mechanisms
exist for applying these principles to specific cases.
National tort laws, on the other hand, are well developed but vary
drastically from country to country. In the United States, certain
elements of tort law are not even consistently applied among the
different States. Furthermore, some States have recently enacted
legislation that limits the recovery of certain types of damages in tort
suits.
Lack of attention to damage caused by, and the liability of,
individuals. Both the Outer Space Treaty and the Liability
Convention focus on damage caused by space objects rather than on
damage caused by individuals in space. This is understandable
because the primary concern of the drafters was probably to offer
some degree of protection from falling or colliding space objects. The
crash of the radioactive Soviet satellite, Cosmos 954, in Canada was
an example of the kind of injury best suited to the protections of the
international treaties.
The Lex Loci Delecti, that is, the law of the place where the offense
occurred. Outer space, being res communis(a thing which has no
legal title) and, therefore, not subject to national law, has no clear
‘law of the place’. Whether or not the Lex Loci Delecti rule can be
applied to the space station will depend on how nations agree to
exercise jurisdiction and control over the space station. The Lex Fori,
that is, the law of the forum where the case is brought. This approach
could be used on the space station, but again, would depend on how
questions of jurisdiction and control are resolved.
ENVIRONMENT AND TORT
The major question in cross-border environmental torts is what law
should a court apply when the case before it involved out-of-state
parties or occurrences:
The law of its own state or that of a perhaps more connected
jurisdiction’s? Choice of law is important in the context of
environmental torts because of the gravity of environmental harm
due to the many irreversible effects of pollution and because of the
critical need to protect public health and safety.
In the case of England and other common law countries, the common
law. There are major differences between the tort laws of various
States. For example, Germany, France, and England have great
differences in terms of the role of rights, the role of strict liability, and
liability of lawful acts in their tort law.
In England, the role of rights has been piece meal and ad hoc
compared to the role of rights in Germany and France, and the
English common law system has historically focused on remedies
rather than on rights . Strict liability is most popular in France,
including liability for persons, whereas in Germany, liability for
persons is not strict but a liability for rebuttable negligence and
England only allows for strict liability in exceptional circumstances.
So, it an be said that in environmental tort, Indian follow the rules of
Law of England. In England, the common law of England is followed
in National Tort and Proper Law in Conflict with Law. India also
follows the same concept.