13
Tort

Selection of the governing law

The selection of the law which is to govern tort liability is conceptually one of the most difficult problems in the conflict of laws, at any rate if the vast amount of learned discussion given to it by the writers is anything to go by. Much of the modern academic discussion and most of the case law emanates from the United States, and it is on this topic that American methodologies and methodologists chiefly concentrate. There has been little English case law on the question (though much more in Australia and Canada). This may suggest either that there is little litigation about torts committed abroad, or that litigants here do not trouble to prove any relevant rules of foreign law, perhaps because these rules are little different in effect from English rules of tort law in many cases.1

Also, the relative profuseness of the case law from the United States and the Commonwealth as compared with our own meagre collection is easily explained. In those countries there are several different jurisdictions; in North America about sixty. Of course, there are several in the British Isles. But a very great number of modern cases in all countries have arisen out of road traffic accidents; it is easier to drive a car across a land frontier than to cross the sea with it, and England's only land boundary is with Scotland.

Several different choice of law rules have been proposed from time to time as being the most appropriate, but some which have been adopted abroad have ceased to be applied there. One is the law of the place where the tort was committed (lex loci delicti commissi). This has found favour on the Continent of Europe and was the prevailing rule in the United States until its disadvantages, which had already led to its being outflanked, caused it to be abandoned in most states after 1962 in favour of a more flexible but more amorphous rule.

The lex fori has also been suggested as the governing law. This is easy to apply and is superficially attractive. Its earliest advocates had in mind

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1
For an example of this, see Coupland v. Arabian Gulf Oil Co. [1983] 1 WLR 1136 CA. 220

-220-

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Conflict of Laws
Table of contents

Table of contents

  • Title Page *
  • Contents v
  • Preface to the Third Edition vii
  • Table of Statutes viii
  • Table of Cases xxiv
  • Part I - General Principles 1
  • 1 - Introduction 3
  • 2 - Characteristics of the English 8
  • 3 - Choice of Law Rules 11
  • 4 - Proof of Foreign Law 33
  • 5 - Domicile and Residence 37
  • 6 - Substance and Procedure 60
  • Part II - Jurisdiction and Foreign Judgments 69
  • 7 - Jurisdiction of the English Courts 71
  • 8 - Staying of English Actions and Restraint of Foreign Proceedings 84
  • 9 - Foreign Judgments 109
  • 10 - Jurisdiction and Judgments in the European Union and Efta 131
  • 11 - Arbitration 179
  • Part III - Law of Obligations 187
  • 12 - Contract 189
  • 13 - Tort 220
  • Part IV - Property and Succession 241
  • 14 - Property Inter Vivos 243
  • 15 - Succession 268
  • 16 - Matrimonial Property Relations 277
  • 17 - Trusts 286
  • Part V - Family Law 293
  • 18 - Marriage 295
  • 19 - Matrimonial Causes 319
  • 20 - Children 334
  • Part VI - Exclusion of Foreign Laws 359
  • 21 - Public Policy 361
  • Part VII - Theoretical Considerations 375
  • 22 - Reasons for and Basis of the Conflict of Laws 377
  • 23 - Public International Law and the Conflict of Laws 386
  • Index 395
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