GURU GHASIDAS UNIVERSITY, BILASPUR, C.G.

SCHOOL OF LAW

PROJECT ON:

TORTS UNDER PRIVATE INTERNATIONAL LAW

SUBMITTED TO:
Mr. VINAY KUMAR SINGH
Assistant Professor
CONFLICT OF LAWS

SUBMITTED BY:
AMIYA BHUSHAN
B.A. LL.B.
10th Semester
ROLL N0. 16001105

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 ACKNOWLEDGEMENT

It feels great pleasure in submitting this research project to Mr. VINAY

KUMAR SINGH, Asst. Professor (CONFLICT OF LAWS), without whose
guidance this project would not have been completed successfully.

Next, I would like to sincerely thank my seniors, friends and family

members, whose suggestions and guidance assisted me throughout the
entire tenure of making the project. I would also like to express my special
thanks to those original thinkers, whom I have taken the privilege to quote.

Last but not the least, I would like to express my heartfelt gratitude
towards the examiner who would take pains to go through the project. Though a
lot of care has been taken, there may be scope for some improvement. All
criticism and suggestions are kindly invited.

AMIYA BHUSHAN

B.A.LL.B

10th Semester

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 CERTIFICATE

I am glad to submit this project report on “ TORTS UNDER PRIVATE

INTERNATIONAL LAW” as a part of my academic assignment. The project is

based on Research methodology and further discusses the doctrinal method. I

think this would be significant for academic purposes as well as prove
informative to all the readers.

Here though I declare that this paper is an original piece of research and the
borrowed text and ideas have been duly acknowledged.

Faculty Signature

________________

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 DECLARATION

I, AMIYA BHUSHAN, BA-LLB 10th Semester of GURU GHASIDAS

UNIVERSITY do hereby declare that this project is my original work and I
have not copied this project or any part thereof from any source without
acknowledgement.

I am highly indebted to the authors of the books that I have referred in my

project as well as all the writers of all the articles and the owners of the
information taken from the website for it.

It is only because of their contribution and proper guidance of my faculty

advisor Assist. Prof. Mr. VINAY KUMAR SINGH that I became able to
gather light on the subject.

AMIYA BHUSHAN

B.A.LL.B

10th Semester

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 TOPIC:

TORTS UNDER PRIVATE INTERNATIONAL LAW

TABLE OF CONTENTS

1. Introduction

2. Choice of Law
3. Choice of Law in Cross Border Tort Disputes

a. The Lex Fori Theory

b. The Lex Loci Delicti Theory

c. The Proper Law Theory

4. Conclusion
5. Bibliography

Introduction
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The problem of discerning the appropriate applicable law in the case of cross-border torts is
extremely complicated. The reason behind this is that at a very basic level of the facts of a
tort related claim there are multiple connecting factors such as the place of the tort, the
nationality and domicile of the parties, etc. To add to this basic concern, in the case of cross
border torts an added problem of determining the actual jurisdiction where the tort was
committed arises. In addition there are also a wide variety of tortious issues that may arise –
limitation, damages, etc. The question that then arises is whether the same law should govern
all of these issues. It is important to note that there are also different types of tort –
negligence, nuisance, defamation, etc. This then begs the question, should the same rule in
determining the applicable laws apply regardless of the type of tort? An additional issue to
consider is that application of a foreign law may lead to liability being imposed for torts that
are unknown in the domestic jurisdiction.1
An expansive set of solutions has been used by various nations in order to deal with this issue
and even among these solutions there has been considerable evolution over a period of time.
This paper discusses the various “choice of law rules” followed across jurisdictions – lex fori,
lex loci delicti, double actionability, etc. –focusing specifically on the position in England as
well as in India.

Choice of Law

1
G.C. Cheshire, P.M. North & J.J. Fawcett, Cheshire and North’s Private International Law 605 (13 ed. 1999).

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In the case of a Private International Law dispute, the court where the claim has been
brought, after deciding on the matter of jurisdiction – whether it has the power to hear the
case – must determine “which law” to apply in resolving the dispute. This process of electing
the applicable law is known as “Choice of Law.” The choice of law is not encompassing of
the case as a whole, i.e. choice of law does not function as “one case one law.” Each legal
issue in a case must be decided in accordance to the appropriate law and therefore choice of
law in a dispute is on the basis of the legal issues brought up in the claim; and it is important
to note that there can be any number of issues in a claim. A conflict of laws in choice of law
arises when there is more than one “connecting factor” (the point of contact, which matters
the most or is the most relevant) involved. In choosing between two laws, the intensity and
nature of the link between the law and the case plays a huge role. In determining the intensity
and nature of the relationship multiple factors such as domicile, nationality, place of incident,
can play a role. And sometimes, many of these considerations themselves have different
meanings under different legal systems.2 Therefore in order to deal with this extensive
ambiguity, certain sets of rules – lex fori, lex loci, lex causae, etc., – are applied in order to
determine the applicable law. These rules are referred to as “choice of law rules.” 3

Choice of Law in Cross Border Tort Disputes

Torts as commonly understood in Common law are civil wrongs against an individual, his
property, and/or reputation. This includes negligence, trespass, defamation, etc. In certain
2
F.E Noronha, Private International Law In India 68-69 (1 ed. 2010).
3
R. Hayward & A. J. Mayss, Conflict of Laws 1 (4 ed. 2006).

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instances the act may qualify as both a tort and a crime at the same time, for example assault.
A tortious act may also arise from a contractual background, in which case the injured party
is given the choice of suing either for breach of contract or damages for tort. The option of
claiming relief either in contract or tort is offered in English law4 as well as India.5
In the case of a tort the most basic principle in the case of the law to be applied is lex loci
delicti – the law of the place where the tortious activity was committed. 6 However, this
clarity is available only when the tort is domestic in nature and there is not conflict of laws
involved. There are newer more contemporary approaches adopted by various jurisdictions,
such as, the significant relationship rule,7 the governmental interest approach,8 and the
comparative impairment analysis approach.9 The most basic and chronologically the oldest
approach however, in the case of a tort or delict has always been lex loci delicti. The real
problem of choice of law arises in the case of cross border torts, i.e. with the arrival of a
foreign element. 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.10 Now with the possibility of conflicting laws – in case (a)
the law of the forum where the claim is brought, i.e. lex fori, or the law of the forum where
the tort was committed, i.e. lex loci delicti; and in case (b) the law of the forum where the
tortious act was committed or the law of the place where its effects were felt; the question
that then arises is which of the competing laws must be chosen and on what basis.
In order to solve this conflict in choice of law, in the case of cross border torts, the country
whose law will be chosen to solve the dispute is selected through application of the rules of
Private International Law. There are three main theories in relation to choice of law in cross
border tort cases, they are11:
 The lex fori,
 The lex loci delicti, and
 The proper law theory.

4
J. Chitty & H. G Beale, Chitty On Contracts: General Principles 142 (1 ed.2012).
5
Manju Bhatia v. New Delhi Municipal Council, AIR 1998 SC 223.
6
Norris v. Taylor, 460 So. 2d 151 (1984, Supreme Court of Alabama).
7
Enron Wind Energy Sys. v. Marathon Elec. Mfg. Corp. (In Re Enron Corp.), 367 B.R. 384 (2007, he
U.S. Bankruptcy Court for the Southern District of New York).
8
District of Columbia v. Coleman, 667 A.2d 811 (1995, District of Columbia Court of Appeals).
9
Bernhard v. Harrah’s Club, 16 Cal. 3d 313 (1976, Supreme Court of California).
10
A. M. Setalvad, Conflict of Laws 648 (1 ed.2007).
11
P. Diwan & P. Diwan, Private International Law: Indian and English 551 (4 ed.1998).

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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. 12 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 favourable 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.13 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. 14
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.15 This view is criticised 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” as it is only established “ex post facto” once the plaintiff
decides where he wishes to sue.16
There are barely any proponents of the application of the lex fori theory in the contemporary
world17 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 more fair basis for choice of law, we
move to the lex loci delicti theory.

The Lex Loci Delicti Theory

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. Willis, J., observed in
Phillips v. Eyre that “the civil liability arising out of a wrong derives its birth from the law of

12
Supra x, at 649.
13
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.
14
Collins, Dicey & Morris, supra xiii, at 913.
15
F. K. Savigny & W Guthrie, Private International Law 205-206 (1 ed.1869).
16
C. F Forsyth, Private International Law: The Modern Roman-Dutch Law Including The Jurisdiction of The
Supreme Court 304 (3 ed. 1996).
17
Supra xi, at 552.

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the place, and its character is determined by that law.” 18 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.19

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.20 This can be
dealt with to a certain extent if one adopts the view that the lex loci delicti theory is based on
the “vested rights doctrine.” In which case, a plaintiff’s claim is derived from the law of the
jurisdiction where the injury occurred and depends entirely upon such law for its existence.
Thus, 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.21

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.22 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.23

18
Phillips v Eyre, 6 L.R. Q.B. 1, 28 (1870, Queen’s Bench).
19
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).
20
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).
21
Myers v. Hayes International Corp., 701 F. Supp. 618 (1988, United States District Court Middle
District of Tennessee).

22
Supra iii, at 131.
23
Example is based on the facts of the case Corcoran v Corcoran [1974] VR 164 (Austl.), where under the then
law of New South Wales – where the accident occurred – a wife did not have the right to recover damages from
her husband though such a right existed under the laws of Victoria – where they ordinarily resided – in such a
scenario if the laws of New South Wales were to be applied under the principle of lex loci delicti, a right to sue
that would have otherwise be available to the parties would have been unfairly denied.

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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.24 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.”25

The Proper Law 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. 26 Lord
Denning 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. 27 The proper law theory
seeks to fill the gaps in the lex loci delicti theory. In the words of Morris, “a proper law
approach, intelligently applied, would furnish a much-needed flexibility” 28 in the process of
choice of law.
The main criticism to this theory of choice of law is that it results in a fair amount of
uncertainty and unpredictability;29 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. 30

24
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).
25
Supra iii, at 131.

26
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).
27
Boys v Chaplin, 2 Q.B. 1 (1968, Queen’s Bench).
28
Morris, supra xxvi, at 885.
29
Supra iii, at 131.
30
Morris, supra xxvi, at 884-885.

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Conclusion

In conclusion as far as choice of law in the matter of cross border torts is concerned, the real
problem is not really what theory to apply – lex fori, lex loci delicti, or proper law – but how
to apply the theory in such a way that it provide certainty and is still flexible enough to
accommodate complex cases.
As far as India is concerned, our courts are yet to develop a concrete position on the matter. It
would be advantageous if they could evolve a rule independent from those already in place,

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by adopting the best of both Civil and Common law, i.e. a flexible version of lex loci
delicti akin to the proper law or social environment theory.

Bibliography

Website referred –

 https://www.lawctopus.com/academike/cross-border-tort-disputes/

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 https://blog.ipleaders.in/foreign-tort/

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