Private international law may be defined as the rules voluntarily chosen by a given state for

the decision of cases which have a foreign element or complexion. Thus, where two
Englishmen make a contract in Portugal for the sale of goods situated in Lisbon, payment to
be made in London, an English court would certainly recognize and apply Portuguese law as
far as it affected the validity of the contract. The private international law forms part of
municipal laws of a state and is meant for purpose of deciding whether a given case involving
foreign element (i) shall be adjudicated upon by its own domestic laws or by laws of some
other state; and (ii) shall be subject of its courts of some other state. Thus private international
law deals with cases in which some relevant fact has a geographical connection with a
foreign country and may on that ground raise a question as to the application of Indian or
some other appropriate foreign law to the determination of the issue or as to the exercise of
jurisdiction by Indian or foreign courts.

The private international law has achieved to answer the peculiar feature that qualifies for the
quantification of damages.1 The term tort is generally recognized as civil wrong for which the
remedy is a common law action for unliquidated damages, and which is not exclusively the
breach of contract or the breach of trust or other equitable obligation. 2 It has been realized
that issues related to choice of law in tort is a different and complicated one. Moreover its
difficult stems from the many types of tort which exists, such as negligence, assault,
defamation and various other kinds' scenarios in which a claim in relation to a particular tort
may arise. It has been noted that the nature of the problem ascertaining the applicable law in
the case of tort is scarcely less perplexing than that in the case of contract. PIL is a separate
and distinct unit as much as the law of tort or of contract, but possesses the unity , not
because it deals with a particular topic but because it is always concerned with one or more of
three questions namely, jurisdiction, choice of law and recognition of foreign judgment. PIL
does not give a final decision. It is comparable with a railway inquiry room. By approaching
the inquiry room you can only ascertain the platform from which a particular train leaves. It
is the train that reaches you to your destination not the enquiry room.

Major problem which have been repeatedly pointed are variety of connecting factors that can
be raised by the facts of case; the place where tort was committed; the residence and habitual
relationship was centred. It has been said that if foreign tort law is applied it could to liability
being imposed for tort unknown to English law and it may effect in different interests from
those recognised under English law.3 Various solutions have been used in different countries
over the centuries. The very purpose of private international law is to avoid conflicts of law.

PIL contains the following basic nature:

1. its subject matter always includes a foreign element;

2. one of its prime nature is the pursuit and application of the appropriate legal system
and

3. Jurists have been more influential in this branch of the law than is typical with other
legal subjects.

THEORIES RELATING APPLICATION OF LAW TO FOREIGN TORT

Mr. Justice J.C. Shah (as he then was, afterwards C.J.I.) as late as 1963 in R. Vishwanathan v.
Syed Abdul Wajid gives an enlightening explanation of what Private International Law is It
is not the law governing relations between States. It is simply a branch of the Civil Law of
the State evolved to do justice between litigating parties in respect of transactions or personal
status involving a foreign element. Its rules in the very nature of things differ from State to
State, but by the comity of nations, certain rules have been recognized as common to
civilized jurisdictions. Through part of the judicial system of each State, these common rules
have been adopted to decide disputes involving a foreign element and enforce foreign
judgment, often as a result of International Conventions.In the main course there are three
theories which were evolved during centuries in understanding the core value of foreign tort
law there are three theories as follows; the lex fori, the lex loci deliciti and the proper law or
social environment theory. The Lex fori the theory that tort liability should be governed by
the lex fori is German origin. It was advocate savigny in 1849. 4 Theory of lex fori, was of the
view that delictual liability was either akin to criminal liability, or else closely connected with
the fundamental principles of public policy applicable in the country of the forum, and
therefore it should be governed entirely by the lex fori. 5 Westlake, said that an action for tort,
obtain damages for which the personal law of the defendant does not provide.6
In our contemporary world there are a very few protagonists of this view Westlake's view
could have some relevance if the jurisdiction of the court in personam was based not on mere
presence of the defendant within the jurisdiction but also on his domicile or ordinary
residence. Cockburn, C.J. very rightly said that the application of this doctrine would lead to
"the most inconvenient and startling consequences." This doctrine would mean that the
plaintiff would be free to choose the forum most favourable to him, provided he succeeds in
finding the dependent there. It may also happen that the defendant may be liable for an act
which was innocent under the law where it was committed, though a wrong under the law of
the country where he was sued. On the other hand by declining to exercise jurisdiction in
favour of the plaintiff simply because the tortious act complained of is not a tort under the lex
fori though it is a tort by the lex loci delicti commissi would not cause any injustice to the
plaintiffs.7 Criticism against this theory is that the plaintiff may sometimes have a choice of
forum in which to sue. Hence to apply lex fori is an encouragement to forum shopping. 8
Foreign laws are those laws enacted and in force in a foreign state or country. The courts do
not judicially take notice of foreign laws and so they must be proved as facts. Such proof
varies according to circumstances. When foreign law is applicable by virtue of the conflict of
laws rules of the forum, there are several methods by which that law can be made known to
the court:

( 1 ) by judicial notice,

(2) by pleading and proof and,

(3) by presumption.

These methods are governed by the lex fori. It is well established that knowledge of foreign
law is not to be imputed to a judge. It is also a basic principle that the judge can only apply
local law: foreign law when relevant operates not as law but as fact. It is, therefore,
concluded that the doctrine forum non conveniens is used as a weapon by the defendant in
home country where the parent company is incorporated to oust jurisdiction Although several
efforts were made in this trend, but in the light of their universal rejection and non-binding
character , it is recommended that courts in the host country are the convenient forum to
bring actions against subsidiaries rather than host country as their proceedings are often
thrown out on the ground of forum non conveniens.
Lex Loci Deliciti: The application of the Lex Loci Deliciti is the prevailing doctrine on the
continent of European countries and USA.9 Generally, where the central issue in an action
involves a tort, the court should apply the lex loci deliciti rule in choosing which substantive
law to apply. In general terms it can be said that civil liability arising out of a wrong derives
its birth from the law of the place, and its character is determined by that law.10 It is also said
that lex loci delicti commissi is that application usually accords with legitimate expectations
of the parties. The laws of torts attach certain kinds of conduct and to the certain social risk.

In support of this, theory Westlake said that if the defendant's act disturbed the social order of
any country, then it-was the law of the country where it was committed, the law of which
therefore is the best authority on the subject. Application of this theory arises in those cases
where the facts constituting tortious act take place in more than one country. Illustration,
suppose A standing on the Indian side of the Argentina-Chile border pushes a boulder which
rolls down and dashes against the van of B parked on the Chile side of the border. The
question: where the tort has been committed, in Argentina or Chile?

The difficulties occasionally turn out to be matters as there may be noticeable difference
between the laws of two main criticism against this theory is that when there is a dispute in
relation to incident and injuries it may not be desirable countries as to whether the act
constituted a tort or not, or as to the nature of tortious act.

Possible Suggestions:

Three possible solutions have been suggested by West lack the governing law should be of
the place where the act commenced which constituted the tort. This solution would fail if the
act commenced at more than one place, just as letter containing defamatory material is
written in country Angola and is posted from country Libya. The second suggestion is: the
tort may be deemed to be complete in the country the law of which is most favourable to the
plaintiff.11 This solution favors the plaintiff unduly. The third solution is: The tort is
completed in the country where the harm ensues.12
Objections to this theory are: harm of non-physical nature, such as harm to reputation, cannot
be localized physically except by resort to fiction, and it is possible that damage may occur in
more than one country.13

Cheshire suggests a test by which the theory of lex loci delicti Commissi can work in all
situations. According to him the lex loci delicti commissi is applied partly because it is the
law of the country which is most directly affected by the defendant's allegedly tortious
activity and partly in order to give effect to the reasonable expectations of the parties. "It
would not, therefore, be inappropriate to regard a tort as having occurred in any country
which is substantially affected by the defendant's activity or its consequences and the law of
which is likely to have been in the reasonable contemplation of the parties."14

The Proper Law Of The Tort:

After 1949, and partly as a result of the writings of Dr. Morris, the theory of the proper law of
the tort acquired an increasing degree of prominence. In broad terms, it was argued that in
most instances one would not need to go beyond the place of the wrong, but in certain cases
one should choose the law which, on policy grounds, seems to have the most significant.' 15 It
was suggested that effect of this theory was that most of the cases it will be lex deliciti
commissi theory.

"The rights and liabilities of the parties with respect to an issue in tort are determine by the
local law of the state which has to that issue, has tort are determined by the local law of the
state which, as to that issue, has the most significant relationship to the occurrence and the
parties."16 Morris compares this theory with theory of proper law of the tort. For there are
many different kinds of tort as there are different kind of contract and as many issue in tort
cases as there are different issues in tort cases as there are in contract cases. Hence there is no
one mechanical formula and there is no uniform formula will produce satisfactory results
when applied to all kind of tort and to all kinds of issues.17

This doctrine has been criticized that advantages of certainty, predictability and uniformity of
result which are claimed to follow from the application of the lex loci deliciti. It has been said
that the analogy from contract is not useful because the parties to a contract can avoid
uncertainty by choosing the proper law.18
CHOICE OF LAW AND ITS APPLICATION TO FOREIGN TORT CASES :

When cause of action arose in England, English domestic law applies alone.19 Choice of law
in England differs depending on whether the tort committed in England or abroad. The
leading case of English The foundation of the English rule of choice of law is still the
following passage in the decision of the Court of Exchequer Chamber in Phillips v. Eire 20 in
1865 there was an insurrection. In Jamaica and the Governor, Edward Eyre, proclaimed
martial law and called out the force to suppress it. During these days Phillips was arrested in
the house, handcuffed, put on board a ship and taken away. After the insurrection was
suppressed, the legislative council of Jamaica passed an Act of Indemnity saving Governor
Eyre from any liability for what was done in suppressing the revolt. Governor Eyre returned
to England. Phillips had already returned. On an action for assault and false imprisonment by
Phillips against Eyre in English Court, Eyre, inter alia, pleaded the Act of Indemnity as- an
answer to the action. This plea was sustained by the Court of Exchequer Chamber. In
sustaining the plea and in meeting plaintiff's argument that Jamaican Act cannot have any
extra-territorial validity, Wills, J. said that civil liability arising out of a wrong derives its
birth from the law of the place and its character is determined by that law. Therefore, an act
committed abroad, if valid and unquestionable by the law of the place, cannot so far as civil
liability is concerned, be drawn in question elsewhere. Two years earlier the Privy Council
had taken the same view in The Halley case 21 were an action of foreign ship-owners against a
British steamer to recover compensation for a collusion caused by the negligent navigation of
the British steamer in Belgian waters, the defendants pleaded that since at the time of the
collusion their steamer was under the charge of a compulsory pilot whom they were
compelled to employ under the Belgian law, they were not liable for the negligence of the
compulsory pilot under English law. But the defendants were liable even for the negligence
of compulsory pilot under the Belgian law.

The Privy Council was of the view that it was contrary both to principle and authority to give
a remedy for that which did not constitute wrong by English law, even though it was a wrong
under the lex loci delicti commissi. Thus, the double actionability test came to be applied: the
wrong complained of must be wrong not only under the lex loci delicti commissi but also
under the English law, the lex fori. As already stated, where a tort is committed in England,
English law will apply; but where it is committed in England, English law will apply but
where it is committed abroad, the double actionability rule in Phillips case will apply this rule
has two limbs: The act must be actionable as a tort in England and it must not have been
justifiable by the law of the place where it was committed. 22 Should this double test be
retained: What is the precise meaning of "actionable" in England? Cheshire says that position
could be alleviated by a liberal construction of the rule itself. "It might, for instance, be taken
to mean no more than that -the lex fori must recognize a type of liability roughly similar to
that for which the plaintiff seeks remedy."

The House of Lords decision in Boys v. Chaplin 23 which is mainly concerned with the second
part of the rule has not been critical of the first part of the rule. In fact, Wilberforce, L.J.
specifically said: "I am of opinion, therefore, that, as regards the first part of this rule,
actionability as a tort under and in accordance with English law is required." A question
arises at this stage as to whether there is ay difference in meaning between actionable and not
justifiable. The formulation of this proposition was made in Phillips case, the meaning; or
rather tile interpretation of the word "justifiable" has been giving trouble for now almost a
century. It appears that the real mischief was done by the decision in Machado v. Fontes 24 the
plaintiff Machado sued defendant Fontes in an English court for a pamphlet published in
Brazil containing libelous material against him (plaintiff). Under the then law of Brazil
publication was not actionable in civil proceedings, though it was probably subject to
criminal proceedings. It was obviously actionable as tort by English law. The main defence of
the defendant was that the publication was not actionable by the law of Brazil. Rejecting this
plea the court said that the two conditions laid down in Phillips case are fulfilled inasmuch as
the first condition was fulfilled because the libel was of such a character that it would have
been actionable if committed in England, and the second condition was fulfilled because it
was not justified by the law of Brazil, since it was not an innocent act there but subject to
criminal proceedings. Ever since this decision has been pronounced, it has been subject of
criticism.25 The main criticism that arose is not actionable by the lexi loci delicti commissi it
should not be held actionable just because it is actionable under lex fori. 26 In another very
interesting M' Elrory v. M' Allister27 the court of session refuse to follow Machado case on
the reasoning that it will lead to gross injustice. Court of Session has disregarded English
Law entirely and has applied Scots law as the proper law of tort. There are few English Cases
in which the scope of Boys case, as discussed above has been examined.

One such case is Johnson v. Coventry Churchill 28andRed Sea Insurance" is part of Singapore
law, the Plaintiff, a joiner, entered into what was held to be a contract of employment with the
defendant company which placed English personnel seeking to work abroad. The plaintiff
worked in Germany and was injured on a building site when the plank on which he was
crossing a trench collapsed. This would give rise in English law to liability for breach of the
employer's duty to provide safe system of work, but there would be no liability in German
law in the absence of a willful as opposed to negligent breach. It was held that the double
actionability rule should be displaced in favour of the application of English law. Applying
language in Dicey and Morris, the judge asked himself which was the country with which the
occurrence and the parties had the most significant relationship. The parties were both
English, the contract was expressly made subject to English law, and the judge found that the
fault which gave rise to the accident arose from decisions taken in England that safety issues
were not the defendants could and in fact had taken insurance cover against any liability
under the law, they would not be disadvantaged.29

In another case Privy Council reviewed and considered the dual actionability test in Red Sea
Insurance Co. v Bouyagues30 an act done in a foreign country was a tort and actionable as
such in England only if it was actionable as tort both actionable as such according to the law
foreign country was a tort and actionable as such in England only if it was actionable as tort
both according to English law & actionable according to the law of foreign country where it
was done. However, the privy council said the rule of double actionability was inflexible and
it was possible to depart from it on clear and satisfying ground and in order to avoid injustice
by holding that a particular issue between the parties to litigation should be govern by the law
of the country which with respect to that issue had the most significant relationship with the
occurrence and with parties.

REFORMS IN APPLICATION OF CHOICE OF LAW ON FOREIGN TORT CASES.

A new course to the PIL come into sight in the year of 1971 the House of Lords charted a
new course for PIL of tort and consequent decisions redefine and polish it up. In the year
1990's the law commission, and then parliament, persuaded them that they could do better;
and consequently the emergence of Private International Law (Miscellaneous Provisions) Act
1995 was enacted to cover some of the field. 31 Part III of the act deals with Choice of Law in
Tort and Delict purpose that act was the applicable law to be used for determining the issues
arising in a claim shall exclude any choice of law rules forming part of the law of the country
or countries concerned.32
Under section 12 of the act, defines choice of applicable law: displacement of general rule: If
it appears, in all the circumstances, from a comparison of (a) the significance of the factors
which connect a tort or delict with the country whose law would be the applicable law under
the general rule; and (b)the significance of any factors connecting the tort or delict with
another country, that it is substantially more appropriate for the applicable law for
determining the issues arising in the case, or any of those issues, to be the law of the other
country, the general rule is displaced and the applicable law for determining those issues or
that issue (as the case may be) is the law of that other country.33

(2) The factors that may be taken into account as connecting a tort or delict with a country for
the purposes of this section include, in particular, factors relating to the parties, to any of the
events which constitute the tort or delict in question or to any of the circumstances or
consequences of those events. Section 14 makes clear that the Act does not authorize the
enforcement of foreign panel or revenue or other public laws, nor of any foreign law which
would prevent a matter of procedure being governed by English law which is otherwise
mandatory.34

In Harding v. wealands,35 House of Lords answering question of damages remained

unaffected by the legislative changes to choice of law, on the ground that it was a matter of
procedure. Further it went to say classification as procedural established and set in stone by
the act. Adrian Bridggs, says that sometimes hard case sometimes do make a bad law; but
when this scheme for choice of law is displaced by Rome II Regulation, the Lex delicti
commissi will apply to the assessment of damages.36

Choice of Law : Regulation (EC): The Rome II Regulation (EC) which comes in to force
from January, 2009, Regulation (EC) 864/2007, which will be referred as Rome II, 37 becomes
applicable across the Europe Union. For all the tort claims under 1995 Act, imposed new
choice law rule which will also govern the law applicable should also govern the question of
the capacity to incur liability in tort/delict. This Regulation provides for the connecting
factors which are the most appropriate to achieve these objectives. Therefore, this Regulation
provides for a general rule but also for specific rules and, in certain provisions, for an escape
clause which allows a departure from these rules where it is clear from all the circumstances
of the case that the tort/delict is manifestly more closely connected with another country. This
set of rules thus creates a flexible framework of conflict-of-law rules. Equally, it enables the
court seized to treat individual cases in an appropriate manner.38
Under Article 15 of Rome II convention it says the principle of the lex loci delicti commissi
is the basic solution for non-contractual obligations in virtually all the Member States, but the
practical application of the principle where the component factors of the case are spread over
several countries varies. This situation engenders uncertainty as to the law applicable.
According to article 15, it extends to the nature and extent of liability, including vicarious
liability; existence, nature and assessment of damages,39 the transfer of right to damages, the
question of who may obtain damages for loss sustained personally; liability for the acts of
another, and limitation and prescription. It also applies to presumptions and burden of proof. 40
The Regulation set outs, in Articles 5-9, specific choice of law rules, or specific partial choice
of law rules for certain kind of tort claim for product liability, unfair competition,
environmental damage, infringement of IPR rights and industrial action. The rules are
detailed and, so far as their subject matter is concerned, is something of novelty for English
private international law. To reflect the view on range of claims making up the PIL of tort is
just too diverse for monolithic choice of law rule to sensible.

CONCLUSION : To sum up a clear cut lesson can be derived from the Rome II Regulation
enforcement which is an impressive reminder that classic Savignian conflicts thinking is far
from being old-fashioned. On the contrary, India and many other developing nations have not
laid clear cut provision in law in these aspects, Rome II convention will be a great help in the
drafting of governing law clauses its central part is the reduction of transaction costs and
international harmony of decisions, which are supported by modern economic analysis.
Conflict of laws should be independent of substantive policy issues, such as the need for
effective environmental protection, but if we see Rome II Regulation it demonstrates that
such type of questions are better left to the legislature rather than to open-ended judicial
discretion.

____________________________

* BA. LLB Hons., National Law University, Raipur, CG, India. End Notes

1. A.S.Bell, Forum Shopping and Venue in Transnational Litigation, Oxford Private

Int'l L J., 1-5, (2003).
2. Anglo-saxon Petroleum Co. Ltd v. Damant, [1947] K.B.794, and in Philip Morris v.
Airley [1975] V.R. 345

3. See generally, Briggs (1989) 105 LQR 359, 362 or see Pm North & Jj Fawcett,
Cheshire and North's Private International Law, LexisNexsis Butterworths, 605- 614,
( 13TH ED ,1999).

4. System des heutigen roemische Rechts (1849), Vol.8, pp. 275. et seq. Or see J.D.
Mc Clean, Morris : The Conflict of Law, 14th Ed, 277-78 (Universal Law Publication,
2004). [Morris] or See Generally, John Humphrey Carlile Morris, The Conflict of
Laws, 287, (Stevens, 1971).

5. Paras Diwan & Peeyushi Diwan, Private International Law, 551-552, (Deep &
Deep Publications, New Delhi, 1998). [Paras]

6. Id or see, The modern protagonists of this view are: Ehrenzweig, Treatise on the
Conflict of Laws, 211; Currie. Selected Essays on: Conflict of Laws, Chapter 1 or see
generally, Lawrence Collins, Essays In International Litigation and The Conflict of
Laws, 379-382, (Oxford University Press, 1996).

7. Paras Diwan supra note 6 at 552.

8. Morri supra note 4 at 277.

9. Morris supra note 5 at 278- 280.

10. Id

11. Generally See, Joseph H. Beale, Bartolus on the Conflict of Laws, Baker, 287,
(Voorhis & Co. 1935).

12. Id

13. Cheshire and North's supra note 4 at 255.

14. Id
15. Dr. Morris, (1949) 12 Mlr 248, (1951) 64 or See, John O'brien & Raymond Smith,
Conflict of Laws, 380 (2nd Ed. Revised, Routledge, 1999).

16. Morris supra note 5 at 279.

17. Id.

18. Boys v. Chaplin infra note. 23.

19. Adrian bridggs, the conflict of law, 189 (2nd ed, oxford univ. Press, 2008).

20. (1870) LR 6 QB 1

21. (1868) LR 2 P.C.193

22. Abla J & Licence En Proit, Conflict Of Laws, Ch.6, 93, (Cavendish Pub. Ltd,
2002).

23. [1969] 2 All E.R. 1085 (H.L.)

24. (1897) 2 Q.B. 231

25. See Abla J & Licence en Proit supra note 22 at 93 or see generally Paras Diwan
supra note 6 at 560.

26. In Canadian Pacific Railways v Parents, (1917) A.C. 195 views express in this
case by High Court of Australia, by Lord Haldane, severely criticized decision of
Machado v Fontes, see supra note 23. but the view express by Rigby LJ, in Machado
case were followed by the Supreme Court of Canada in Mclean v. Pitgrew, [1945] 2
DLR 65.

27. 1949 S.C.110

28. [1992] 3 All ER 14

29. Morri supra note 4 at 291.

30. (1994) 3 All ER 794.

31. See generally Adrian Bridggs, supra note 19.

32. Private International Law (Miscellaneous Provisions) Act 1995 (c. 42), Available
online at
http://www.opsi.gov.uk/acts/acts1995/ukpga_19950042_en_2#pt3-l1g9 (Accessed on
March.08.09).

33. See, Jason Chuah & Richard Earle, Statutes and Conventions on Private
International Law, 235, (Routledge Cavendish, 2004).

34. Craig Scott, Torture as Tort: Comparative Perspectives on the Development of

Transnational Human Rights Litigation, 320-21, (Hart Publishing, 2001).

35. [2007] 2 AC 1

36. Adrian Bridggs, supra note 19 at 197.

37. The Regulation is published at [2007] OJL199/40, (31July2007). It is called

'Rome II'. Objective is maintaining and developing an area of freedom, security and
justice. For the progressive establishment of such an area, the Community is to adopt
measures relating to judicial cooperation in civil matters with a cross-border impact to
the extent necessary for the proper functioning of the internal market.

38. Regulation (Ec) No 864/2007 of the European Parliament and of the Council of 11
July 2007, available online at, www. eur-lex.europa.eu/LexUriServ/LexUriServ.do?
uri=OJ:L:2007:199:0040:0049:EN:PDF [accessed on March. 01, 2009]

39. Adrian Bridggs says this must be see off the proposition that the assessment of
damage is a procedural matter (Harding case), notwithstanding Art. I(3).

40. Adrian Bridggs, supra note 19 at 201.