Overview

Tort is a civil wrong other than breach of contract for which a remedy may be obtained,usually,in the form of damages.For centuries the law of torts was a neglected topic in the conflict of laws.For instance,Story did not refer to it at all.The last edition of Westlake,published in 1925,contained only seven pages devoted to torts other than collisions at sea.1 The sixth edition of Dicey’s Conflict of Laws,published in 1949,contained only nine pages on torts compared with 175 pages on contracts.2 All this is now changed.The literature on torts in the conflict of laws has now become almost unmanageable.Almost as many articles and notes are written each year on torts as on all the rest of conflict of laws put together.In the meantime,more and more countries have improved their existing conflict rules for tort,with the result that tort has become one of the fields that progressed most significantly in the legislation of private international law.

The reasons for this new-found interest are not far to seek.Just as the law of contract responded to the pressures of international trade in the 19th century,so in the late 20th century and the 21st century the law of torts has responded to the pressures of the technological revolution as applied to the manufacture and distribution of products and to the means of transport and communications.Most of these pressures operate regardless of national or other frontiers.3 Dangerous drugs can cause babies to be born without arms or legs thousands of kilometers from the factory where the drugs were made.Unfair competition is no longer confined to a single country.Every year millions of tourists travel internationally which inevitably leads to various tortious disputes.With the spread of high-speed internet,the world is becoming smaller and smaller,private reputations may suffer internationally very easily.For all these reasons,the conflict of laws no longer rest content with solutions designed for nineteenth-century conditions.

The problem of ascertaining the applicable law in the cases of torts is scarcely less perplexing than that in the case of contract.4 As a matter of fact,the choice of law process in the field of tort has been said to raise “one of the most vexed questions in the conflict of laws.”5 The difficulty stems from the many types of torts which exist,such as negligence,assault and defamation,etc.,and the various kinds of scenarios in which a claim in relation to a particular tort may arise.Moreover,unlike contracts,where disputes can be anticipated and a choice of law clause to this effect may be inserted by the parties,tort injuries are most unexpected and parties are hardly likely to give advance thought to any choice of law.Until injuries occur and the injured party decides to pursue a claim for compensation,the issue of choice of law in tort will not arise.6

This question has become all the more complicated since the latter half of the 19th century,largely due to technological advances,modern means of transport,and the fact that the marketing of products is no longer restricted to national boundaries.Suppose that a kind of milk powder is manufactured in China and marketed in South Korea,where X,a Japanese national consumes it and suffers personal injuries as a result.In this case,which law should govern his/her claim to seek damages? Another example,Y,a Russian citizen,is injured as a result of drinking polluted water.The water was polluted by a Chinese chemical factory which is located in the head waters of the river.In this situation,the wrongful act took place in China,and the consequent injury in Russia,and there was a serious definitional problem in determining the place where the tort was committed.If an action is brought in China on tort,which law should a Chinese court apply,Chinese law or Russian law? Obviously,these are very important yet difficult legal problems.(https://www.daowen.com)

There are a wide variety of solutions that have been used in different countries over the years.The first attempts to establish a coherent choice of law rule for tort cases involving a foreign law element varied between favoring the lex fori (i.e.the law of the forum country) and the lex loci delicti (i.e.the law of the place where the tort was committed).

The public policy (ordre public) of territorial sovereignty was always the principal consideration.Hence,the forum courts always claimed their rights 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 discretion to substitute the lex fori if the foreign law was deemed unfair and other practical considerations pointed to the application of forum law.

However,in modern times both the lex fori and the lex loci delicti have revealed their deficiencies.To apply the law of the forum may lead to injustice and inconvenience,for a defendant may be held liable for an act which may constitute a tort in the country of forum,but not in the place where it was committed.Besides,if the law of the forum were to apply as a general rule,then that would give the plaintiff an incentive to forum shopping for a place where the law is more favorable to him or her than that of the place where the tort was committed.On the other hand,to apply the law of the place of tort,though probably giving effect to the natural expectations of the parties,may provoke doubts as to whether that law is the most appropriate one to apply,especially in the case where the parties have little or no connection with that place.

Within such a setting,modern private international law has introduced flexible rules into torts.For instance,in the U.S.,the Second Restatement of Conflict of Laws provides that the applicable law should be the one with the “most significant relationship” to the tort.In other common law states,a parallel movement occurred and resulted in the adoption of a proper law test.In civil law countries,rigid rules such as the lex fori and the lex loci delicti gradually give way to flexible rules such as most significant relationship or limited party autonomy.In substance,both common law and civil law families are similar in their development tendency.The modern approach,though appearing sound and fair,sacrifices the advantages of certainty and predictability to some extent.