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Published online by Cambridge University Press: 17 January 2008
The Private International Law (Miscellaneous Provisions) Act 1995 introduced major reform to the common law choice of rule in delict/tort under Scots/English law respectively. To all intents and purposes, and in the face of sustained and strong criticism, the Act abandoned the common law rules based on double actionability with exceptions. The primary rule under the statute would appear to state that the applicable law is to be based on the general concept of the lex loci delicti. It is of some significance for the analysis here that the statute does not in fact utilise that Latin expression as it is indeed unclear that the expression has any technical meaning. Indeed, the provisions of the Act seek, but in the end fail, to achieve a greater degree of certainty than that rather nebulous though “right-minded” concept. Significantly, a principal objective of the reforms was to ensure that the lex fori no longer played a primary role in choice of law for delictual/tortious claims in private international law. Of course, doubts remain as to the likelihood of direct resort to the lex fori via potential escape devices provided for in the Act The two most likely stages for this arise during characterisation and later when the lex fori may be applied qua public policy.
1. With the exception of the retention of the common law rules on defamation-related actions. Sees. 13.
2. See general comments on the effect of the statute, and in particular the general rule, in Morse, C. G. J., “Torts in Private International Law: A New Statutory Framework” (1996) 45 I.CL.Q. 888Google Scholar; Rodger, , “The Halley: Holed and Now Sunk” (1996) S.L.P.Q., Vol. 1, No.5, 397.Google Scholar
3. See the brief discussion later on principled reform introduced under the Act's provisions.
4. See s.9 and s.9(2) in particular.
5. See s.14(3)(a)(i).
6. See the interesting debate on a similar point by Briggs in “Formation of International Contracts” [1990] L.M.C.L.Q. 192, on choice of law in contract prior to the Contracts (Applicable Law) Act 1990 coming into force.Google Scholar
7. Which expands upon brief comments made by other commentators on the Act, such as Morse, op. cit. supra n.2, and Reed, “The Private International Law (Miscellaneous Provisions) Act 1995 and the Need for Escape Devices” (1996) C.J.Q., Vol 15, 305.Google Scholar
8. S.9(2): “The characterisation for the purposes of private international law of issues arising in a claim as issues relating to tort or delict is a matter for the courts of the forum.” S.9(8): “In this Part ‘delict’ means quasi-delict”.
9. S.11(1): “The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict in question occur.”
10. Per s.14(3)(b).
11. The general rule may be displaced under this provision in any case in which it seems to be substantially more appropriate, having regard to the respective connecting factors, for the applicable law governing a claim, or particular issues arising in a claim, to be the law of another country.
12. S. 11(2): “Where elements of those events occur in different countries, the applicable law under the general rule is to be taken as being—
(a) for a cause of action in respect of personal injury caused to an individual or death resulting from personal injury, the law of the country where the individual was when he sustained the injury;
(b) for a cause of action in respect of damage to property, the law of the country where the property was when it was damaged; and
(c) in any other case, the law of the country in which the most significant element or elements of those events occurred.”
13. 1912 S.L.T. 111.Google Scholar
14. It may be argued that this was because the courts, e.g. in McElroy v. McAllister 1949 S.C 110 and James Burrough Distillers v. Speymait Whisky Distributors 1989 S.L.T. 561, were seeking the same jus actionis as existed under Scots law. This argument is misguided and confuses the identification of the locus delicti with that legal system's substantive legal rules.Google Scholar
15. Op. cit. supra n2, at p.896, n.72.Google Scholar
16. This adopts the terminology relating to events used in s.11(2).
17. In other words, which system points us to the factors which go to make up the delict/tort
18. Emphasis added.
19. Although without some initial, and hence resultant distorting effect of, reliance on the lex fori, this would be as intellectually impossible as a purely lex causae characterisation approach. However, see Briggs, op. cit. supra n.6 and note the approach under the Rome Convention, Art.8(2), although this indeed indicates that the putative approach can be viable only where a convention is in operation.
20. The example extending the Soutar v. Peters case, supra n.13. indicates a possibility of resulting injustice similar if not equivalent to the result of McElroy v. McAllister, supra n.14.
21. See e.g. Rodger and Reed, op. cit. supra nn.2 and 7.
22. See particularly Metall und Rohstoff v. Donaldson Lufkin & Jenrette Inc. [1988] 3 All E.R. 116Google Scholar and, e.g., the treatment of this issue in Cheshire and North, Private International Law (12th edn), pp.551et seq.Google Scholar
23. See Marinari v. Lloyds Bank plc [1996] 1 All E.R. 84Google Scholar(EC) and the discussion thereon in Rodger, op. cit. supra n.2, at pp.406–407. Although a jurisdiction case under the Brussels Convention, the case provides insights into possible methods of determining the locus of investment losses.Google Scholar
24. See e.g. National Bank of Canada and others v. Clifford Chance, Ontario Court (General Division) 65 A.C.W.S. 3d 577, September 19, 1996.Google Scholar This is abo essentially a jurisdiction case but it abo involves an interesting discussion regarding location both of the substance of the tort where negligent misrepresentation is involved and of financial losses suffered.
25. This connotes that it is known but held not to be available to those facts, e.g. economic loss resulting from negligent professional advice where there is no prior special relationship.
26. As noted above this would involve the same problems inherent in a lex causae approach to characterisation.
27. Unless this is irrelevant until one has chosen a governing law under s.11/12. Such an approach to renvoi is unlikely to be adopted by the courts.
28. There was little discussion of this issue at the working paper stage.
29. To adopt the terminology of the Law Commissions.
