An upheaval of the choice of law in tort in English private international law

Abstract

The choice of law process in the field of tort and delict has exasperated so many that Lord Denning M.R. has described it as "one of the most vexed questions in the conflict of laws"The intricacies of the difficulty of indicating which law should be applied to an 'international' tort has fascinated and even exasperated so many that the past century has witnessed a sudden burst in literature on the subject of conflicts of law in tort. This has been attributed to the explosion of technological and international manufacture, international transport, communications and health services. Thus people get involved in accidents whilst travelling or working abroad. Defamatory words are written or spoken in one country but cause injury to a person's reputation elsewhere. National frontiers are no obstacle to the transport of goods and these have adverse effects on recipients in countries other than where the good was manufactured.Trade has thus become international and consequently unfair competition is not longer confined to one country. The international character in all these situations pose a difficult question to the court concerned: which particular law should be applied? Unless one can successfully argue that Malta is not involved in any of theabove activities, the oblivion with which the matter has been regarded can hardly be justified. Most legal systems on the Continent seem to have adopted at least as a general rule the law of the place where the tort occurred. Whilst, the developments made in this area by the courts in common law countries, though inconsistent and at times confused, can hardly be considered as static. The dearth of significant cases in England may hint that the courts have shied away from the difficulties which this issue presents. However, this is probably more correctly explained by the reluctance of litigants to attempt to prove any of the relevant rules of the foreign law and if the litigants do not plead the foreign law, the court will not raise it itself. Notwithstanding, the courts and even more so academic writers in the UK, have struggled to formulate a just and certain solution. Some regard the resulting position at common law as fair and appropriate whilst others consider that the outcome is an entangled maze.Thus the Law Commissions of England and Scotland resolved to define the issue which culminated in a report which was presented in 1990. After a period of silence, a bill was presented before the House of Lords in November 1994. The initial inertia was remedied as the bill was speedily pushed through the jellicoe procedure and now awaits its report stage and third reading in the first two weeks of the next session of the House of Commons. It is here proposed to examine the sequence of the developments in the UK due to the exhaustive manner in which the matter has been discussed.