Introduction
The most common misdemeanors in common law are civil wrongs against a person, his property, or reputation, called torts which include, trespass, negligence, etc. Tort action can also result in contract situations, in which the injured person is given the option to take action as a result of a breach of contract or costs. The option to seek compensation by contract or tort is provided by English law[1] as well as India.[2]
The difficulty in identifying the correct applicable law in making the mistake of crossing the border is very complex. The reason for this is that at the very core of the details of the illegal activities there are many connecting factors such as the location of the crime, nationality and the place of residence of the parties, and so on. In addition to this basic concern, in the case of border crossings, there is another problem in locating the actual area in which the crime is committed.
A wide range of tortious issues may also arise including limitations, damages, etc. The question of concern here is “whether all the issues regarding cross-border torts be dealt with by the same law or some different law?” The other major concerning point is that applying foreign laws into any country regarding Torts may be unknown and new of that domestic jurisdiction. Due to which its implementation would be difficult, as people rely only on their domestic laws and not on foreign laws.[3]
A wide variety of solutions have come across and have been used worldwide for dealing with the issue of cross-border torts. Various choice of law rules including Lex fori, loci delicti, double actionability, etc. have been discussed in the article that is followed across different jurisdictions. In addition to this, the position of the same concerning England and India has been discussed.
The Concept of Choice of Law
The court which has been given the jurisdiction to hear the case, with regards to the Private International Law dispute, shall determine the law which is applicable to resolve the dispute. Thus, the process of choosing the law applicable in each dispute to resolve that dispute is known as “Choice of Law”. This choice of law that is practiced does not function as “one case one law”, that is it does not encompass a particular case as a whole.
Every issue in a case shall be decided concerning the appropriate applicable law. Thus, it can be said that the type of legal issues that occur in every case is the deciding factor of the choice of law in each claim. Sometimes, a conflict arises in the choice of laws when more than one connecting factor is present. The nature of the link and the intensity between two laws plays a huge role in choosing between them. Multiple factors shall be taken into consideration while determining the nature and intensity of the relationship including Domicile, place of incident, nationality, etc.
It is also possible in some cases that these considerations may have different meanings themselves according to the difference in the legal systems.
The different set rules are thus used for dealing with any such kind of ambiguity which occurs.
The applicability of Choice of Law in Cross Border Tort Disputes
The principle which is used most commonly in the law of tort is the principle of “Lex Loci delecti”. This means and deals with the place where an act of tort has been committed.[4] But such clarity can only be seen in the cases of domestic level tort and not in cases where there is a conflict of laws in the applicability of any foreign element. Several new contemporary approaches are being followed worldwide like:
- The governmental interest approach.[5]
- The significant relationship rule.[6]
- Comparative impairment analysis approach.[7]
There can be two such scenarios are, (a) when the act is committed in one country but the proceedings are brought forth in another; (b) when the act is committed in one country but its effect is felt in another country.[8]
Theories relating to Choice of Law regarding the Cross Border Tort Disputes
The Lex Fori Theory
Lex fori theory states that the law of that state would be applicable where the claim has been brought by the parties to the dispute. The application approach which is followed in the Lex Fori theory is simplistic and straightforward as in this theory the need to determine the place of occurrence of tort is absent. In addition to this, the need of proving that the tort which occurred was a tort in the law of the country where its occurrence took place is also absent under this theory.[9]
This could, on the other hand, work in the interest of the defendant, as the plaintiff could volunteer to choose the forum which was most favorable to him and for the dispute according to him. The defendant may be responsible for the act, which may constitute a tort in the jurisdiction of the occurrence of the tort, but not in the place where it was committed.[10] in contrast to this approach, if the theory of Lex Loci Delecti is followed, it would be suitable for both the plaintiff as well as the defendant in the way that the plaintiff does not suffer in any case if the facts presented by him true irrespective of the fact that he is successfully able to bring a claim in the forum state or not.[11]
Different thinkers have different approaches regarding the selection of forums. For example, Friedrich Karl von Savigny compared the tortious liability to the criminal liability and therefore stated that the result has close relation with the public policy of the particular forum of a particular state, thus shall be governed by the theory of Lex Fori to provide proper justice to the plaintiff. On the other hand, C. F. Forsyth criticizes the statement of the above two thinkers stating that in today’s legal scenario there is a very clear distinction in the concept of tort and crime, thus Savigny’s view of putting tort and crime on the pedestal has been discredited to a large extent.
Several proponents of the application of the Lex fori concept are present in the contemporary world[12] because despite being simple, it would result in injustice and lead to unfair decisions. So, looking for an equal basis for legal choice, we turn to the idea of Lex loci delicti.
The Lex Loci Delicti Theory
According to this theory, the law that applies to the issue of cross-border tort should be the law of the place where the tort was committed. Willis, J., quoted in the judgment of Phillips v. Eyre[13] that “any kind of civil liability arises from an error or wrong which arises from local law, and its nature is determined by that law.”[14] In the same vein, Westlake also raised the issue of whether, in the event of a tortious act, violates the public order of any country, it is the law of the land in which the act took place.[15]
The problem in the Lex Loci also arises in case the tort has been committed in more than one country, this means in cases where the commitment of tort has been done in one country and the injury has been caused in some other country. In such a situation it is very difficult to decide the country in which the tort took place and what is the loci delicti.[16]
This can be addressed to some extent if one accepts the idea that the concept of Lex loci delicti is based on the “theory of the granting of rights”. In that case, the plaintiff’s claim arises from the law of the place where the accident occurred and is entirely dependent on that law for its existence.
Thus, when the place of commencement of the action or the place where the effect of the hazard is felt is two different States, the essential State law in which the hazard arises applies.[17]
Furthermore, problems can arise while implementing the concept when the parties are almost alien to the place where the illicit act took place, i.e. the Lex loci delicti may not be common and completely unstable.[18]
One of the major points of concern regarding the Lex loci delicti theory is not that it is inherently unfair and arbitrary, instead, there is a lack of flexibility and it fails in addressing every question in the complex situations because of which there is a difficulty in deciding the jurisdiction of a particular case in the very first place.[19] Under this theory, complex situations are the ones where unfairness and unjustness may arise. To effectively deal with the ineffectiveness of the Lex loci delicti concept, we have continued to establish a “correct law”, based on the “most important relationship with the chain of actions and circumstances in a particular subject matter”.[20]
The Proper Law or Social Environment Theory
According to this method, the applicable law must be that which has the most important relationship with the circumstances and facts of different cases.[21] Lord Denning repeated this situation to some extent in the case of Boys v. Chaplin[22], where it was stated by him that the correct tort law should be chosen by stating which law is most closely related to both parties, as well as the action taken.[23] The correct legal theory is the one that tries to fill the gaps in the theory of the Lex loci delicti. According to Morris, “if the correct legal approach is used wisely in the proper manner, it can provide much-needed change”[24] in the legal choice process.
The main drawback of this theory is that it results in instability and unpredictability,[25] Although it is believed that in most cases it will not be necessary to review a law other than Lex loci delicti still exists, it is wise to have a sufficiently flexible approach to including complex situations including normal ones.[26]
Position in England
In the issue of the position of the Choice of law in different cases of Cross border tort, three considerations are to be looked into. They are:
- The statutory reform
- The position at Common law in the issue.
- And lastly the reliefs.
Although the status of the Common law in England had been resolved earlier, there was a major change in English law on this matter with the introduction of the Parliament of the Miscellaneous Provisions Act 1995, in which several legal choices were made.
In the view of the Common law regarding cross-border torts, the double actionability rule is applicable. This principle for the first time laid down in the case of Phillips v. Eyre.[27]
The basic rule in Phillips v. Eyre[28] was laid down two conditions that are to be fulfilled as a general rule for finding a case in England for any tort that has been alleged to have been committed abroad.
“The wrong which has been committed must be of a character that it would certainly have been actionable in case it would have been committed in England. The second condition which must be fulfilled includes that the act done must not at all be justifiable by the law of the particular place where it has been committed.”[29]
Talking about the first condition of the Principle, it was discussed and originated two years before the case of Phillips v. Eyre[30] in the case known as The Halley[31] case in the year 1868. In this particular case, the claim was dismissed by the Privy Council on an employer’s vicarious liability on the account that the tort which was committed was not recognized in English Law.
The case of Boys v. Chaplin[32] overruled the case of Phillips v. Eyre[33] which formulated the second condition in its judgment. This happened due to the judgment in the case Machado v. Fontes[34]. It was stated in this case that although the nature of the liability of the act which was committed was criminal in the Lex loci delicti, it would then also comprise within the second condition which was formulated in the Phillips v. Eyre[35] case. Thus, Non- Justifiability now included criminal liability as well under the Lex loci delicti.
In the case of Boys v. Chaplin[36], the above judgment was overruled where the term “actionable” replaced the term “non-justifiable”. Thus, this case acted as adding an exception to the general rule of the principle of double actionability. This has been done by way of making the awarding of reliefs a procedural matter.
Thus the decision of the Boys v. Chaplin[37] reduced the torture site rules law and reversed the forum law regarding the provision of additional costs and compensation. This situation was later clarified to some extent in the case of Red Sea Insurance case, where the general law was treated as a double standard, to give an exception in appropriate circumstances, where the plaintiff could ask individual Lex fori or Lex loci delicti individually for his indictment.[38]
Position in India
India’s position in the concept of choice of law in cross-border torts is at an early stage in development. There seem to be only two conclusions in this regard. For the most part, India’s legal code and jurisprudence, in this case, follow the preliminary decisions of the English court, before the exceptions to the “double actionability” law by English courts.[39]
The first decision, in this case, was that of the High court of Madras.[40] The court was dealing with a suit of defamation. The facts of the case are Raja of Cochin (then an independent state of India), communicated to the plaintiff to expel him from his caste. This communication was then sent to British India. The Madras High Court by applying the rule of “double Actionability” rejected the claim that, since the operation was from a senior person to a lesser-known person, the protection of fundamental rights will thus work without attributing public responsibility to the Cochin state legislation.
In the case of Kotah Transport Ltd. v. The Jhalawar Bus Service Ltd.[41], the plaintiff sought compensation for the damage caused by the negligent driving of the driver of the defendant. The incident took place in Jhalawar and the action was brought to Kotah. Both areas were independent states of India at the time. The court found that the plaintiff had nothing to do with Jhalawar state law to justify his actions and that the act was an offense under Kotah state law, so the requirements for “double actionability” were met.
Conclusion
In concluding the question of legal choice in the case of cross-border tort, the real problem is not how to apply a theory – Lex fori, Lex loci delicti, or the proper law – but the question of concern here is how to apply the theory in this way which provides certainty and is flexible enough to accept complex cases.
As for India, our courts will still raise a strong case in this regard. It would be better if they changed the existing law into the existing one, applying the best principles of Civil and Common Law, i.e. the flexible type of Lex loci delicti according to the correct law or social environment theory.
References:
[1] J. Chitty & H. G Beale, Chitty On Contracts: General Principles 142 (1 ed.2012).
[2] Manju Bhatia v. New Delhi Municipal Council, AIR 1998 SC 223.
[3] G.C. Cheshire, P.M. North & J.J. Fawcett, Cheshire and North’s Private International Law 605 (13 ed. 1999).
[4] Norris v. Taylor, 460 So. 2d 151 (1984, Supreme Court of Alabama).
[5] District of Columbia v. Coleman, 667 A.2d 811 (1995, District of Columbia Court of Appeals).
[6] Enron Wind Energy Sys. v. Marathon Elec. Mfg. Corp. (In Re Enron Corp.), 367 B.R. 384 (2007, the U.S. Bankruptcy Court for the Southern District of New York).
[7] Bernhard v. Harrah’s Club, 16 Cal. 3d 313 (1976, Supreme Court of California).
[8] A. M. Setalvad, Conflict of Laws 648 (1 ed.2007).
[9] Supra x, at 649.
[10] Supra x, at 648, 649; L.A. Collins, A.V. Dicey & J.H.C. Morris, Dicey and Morris on The Conflict of Laws 913 (12 ed.1993); Hayward & Mayss, supra iii, at 131.
[11] Collins, Dicey & Morris, supra xiii, at 913.
[12] Supra xi, at 552.
[13] 6 L.R. Q.B. 1, 28 (1870, Queen’s Bench).
[14] Phillips v Eyre, 6 L.R. Q.B. 1, 28 (1870, Queen’s Bench).
[15] J. Westlake, A Treatise on Private International Law, or, The Conflict of Laws with Principal Reference to its Practice in The English and Other Cognate Systems of Jurisprudence 282 (7 ed.1858).
[16] See W. W. Cook, The Logical and Legal Bases of The Conflict of Laws 345 (2 ed.1942); See also W. W. Cook, The Logical and Legal Bases of the Conflict of Laws, 33 Yale Law Journal 457, 466 (1924) (discussing how to determine the place where the tort was committed).
[17] Myers v. Hayes International Corp., 701 F. Supp. 618 (1988, United States District Court Middle District of Tennessee).
[18] Supra iii, at 131.
[19] P. Terblanche, Lex Fori or Lex Loci Delicti? The Problem of Choice of Law in International Delicts, 30 The Comparative and International Law Journal of Southern Africa 243, 250 (1997) (discussing the problems identified by the court in the application of lex loci delicti in the case of Tolofson v Jensen).
[20] Supra iii, at 131.
[21] See supra iii, at 131; see also J.H.C. Morris, The Proper Law of a Tort, 64 Harvard Law Review 881, 888 (1951) (discussing the proper law theory).
[22] 2 Q.B. 1 (1968, Queen’s Bench).
[23] Boys v Chaplin, 2 Q.B. 1 (1968, Queen’s Bench).
[24] Id.
[25] Supra iii, at 131.
[26] Morris, supra xxvi, at 884-885.
[27] Supra xviii.
[28] Id.
[29] Supra xviii, at 28-29.
[30] 6 L.R. Q.B. 1, 28 (1870, Queen’s Bench).
[31] The Halley, 2 L.R. P.C. 193 (1868, Privy Council).
[32] 2 Q.B. 1 (1968, Queen’s Bench).
[33] 6 L.R. Q.B. 1, 28 (1870, Queen’s Bench).
[34] 2 Q.B. 231(1897, Queen’s Bench).
[35] 6 L.R. Q.B. 1, 28 (1870, Queen’s Bench).
[36] 2 Q.B. 1 (1968, Queen’s Bench).
[37] Id.
[38] Supra iii, at137-139.
[39] Supra x, at 683.
[40] Govindan Nair v Achuta Menon, (1915) I.L.R. 39 Mad 433.
[41] The Kotah Transport Ltd. v. The Jhalawar Bus Service Ltd., A.I.R.1960 Raj. 224.
0 Comments