Introduction

Tort, within the realm of private international law, presents a complex and multifaceted
challenge. This legal branch deals with disputes arising from wrongful acts that cause harm or
injury, where the parties involved have connections to multiple jurisdictions. The intricacy lies in
determining which legal system should govern these cases. Various factors come into play, such as
the location of the tort, the nationalities and domiciles of the parties, and the type of tort involved,
be it negligence, defamation, or others. The fundamental question revolves around whether a
uniform set of rules should be applied across all these aspects. 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. 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.
CHOICE OF LAW
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. 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” 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. 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.”
TORT
‘TORT’ may be defined to be an injury or a wrong committed with or without force to the person or
property of another. A tort is an act or omission that gives rise to injury or harm to another and
amounts to a civil wrong for which courts impose liability.
FOREIGN TORT
A foreign tort can be defined as “When a tort which is committed abroad by a person and therefore
the cause of action for such tort arises abroad”.
A who is an Indian visits Bhutan and there he commits a tort against B who is a citizen of
Bhutan. Here, the tort committed by A is a foreign tort.
Foreign Tort can be of two kinds:
 Tort of Realty: Whenever any tort is committed against a property which is situated in a
foreign country, the tort is called tort of reality. In such torts, the affected property is an immovable
property which means that such property is fixed at one place and it cannot be moved from its
position.
Illustration: A is resident of England who visits India on a business trip and while staying
in India, he commits a tort of trespass on B’s House. Here even though a tort has been committed
but since it has been committed against an immovable property which is situated in a foreign
country it is a tort of reality and such a case against A will not be maintainable.
In the case of Britten South Africa Co. v. Compania de Mecambique (1953) AC 602 the
defendant was a resident of England and he had trespassed into the mine of the plaintiff which was
situated in South Africa as a result, the plaintiff brought a suit against him in the Court for trespass.
It was held that, since the tort was committed against an immovable property in a foreign land, the
suit of the plaintiff cannot be successful and therefore the defendant was not held guilty.
In India also the same rule is applicable. If an action or trespass or any injury to land is
caused outside India then it cannot be brought in India as given under section 16 of CPC
Personal Tort: In foreign torts, whenever there is an unlawful act committed against a
person or against his movable property, such tort is known as personal torts.
Illustration: K, a resident of China, while on an internship programme in Singapore was
assaulted by B. Here, since the tort was committed against the body of K, it will be a personal tort
and the suit filed by K will be accepted by the Court and B will be held liable.
CHOICE OF LAW IN CROSS-BORDER TORT DISPUTES
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. However, this clarity is
available only when the tort is domestic in nature and there is not conflict of laws involved.
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.
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.

THEORIES RELATED TO CHOICE OF LAW IN THE CASE OF CROSS BORDER TORT

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. 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.
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.
The English court have never followed this theory as this doctrine would lead to the most
inconvenient and startling consequences.
There are barely any proponents of the application of the lex fori theory in the contemporary
world as even with its simplicity, if it were applied as a general rule, it would result in arbitrariness
and unfair decisions.
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.
According to Wills, ‘the civil liability arising of a wrong derives its birth from the law of the place,
and its character is determined by the law’.
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. 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.
 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. 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.
This theory prevails in the United States. The difficulty of application of this theory arises in
those cases where the facts constituting tortuous act take place in more than one country. There is
hardly any English decision on this aspect of the choice of law.
The proper law or social environment 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. 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. The proper law theory seeks to fill the gaps in the lex loci
delicti theory. The main criticism to this theory of choice of law is that it results in a fair amount of
uncertainty and unpredictability
POSITION UNDER ENGLISH LAW
With regards to the position of choice of law in the case of cross border torts, there are three
considerations – (a) position at common law, (b) statutory reform, and (c) reliefs. While the position
at common law in England was previously settled, there was a drastic alteration of English law on
the matter through the enactment by Parliament of the Private International Law (Miscellaneous
Provisions) Act 1995, under which a different set of choice of law rules were introduced.
The Act regulates choice of law for tort and delict. Section 9(2) states "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", which replicates the common law position in relation
to that issue.
Section 13 creates a general exception for libel and slander. Defamation continues to be
regulated by the common law rules and still requires double actionability.
Additionally, the matter of relief in English law is considered to be a procedural matter and so the
choice of rules that apply to them is lex fori.
POSITION AT COMMON LAW
The settled position in Common law in the case of cross border torts, and as applicable to
defamation related claims even today is the “double actionability rule,” the foundation of which
rule was laid down in the case of Phillips v. Eyre (1870) L.R. 6 O.B. 1.
The brief facts of the case are: The Governor of Jamaica, Edward Eyre declared marital
rule in 1865 in order to put down an insurrection. At this time Phillips was arrested at his house,
handcuffed and put on a ship and taken away. Post the suppression of the insurrection an act
indemnifying the Governor of any acts committed during the suppression was passed. Governor
Eyre then returned to England. Phillips had returned to England prior to the Governor. Phillips then
brought a claim against Eyre for assault and false imprisonment in an English Court. Eyre pleaded
the act of the Jamaican Parliament indemnifying him for anything done during the suppression
period as a defence. The Court of Exchequer Chamber sustained the defence, on the grounds that
“the civil liability arising out of a wrong derives its birth from the law of the place, and its character
is determined by that law.”
The basic rule in Phillips v. Eyre was laid down as follows:
“As a general rule, in order to found a suit in England for a wrong alleged to have been committed
abroad, two conditions must be fulfilled.

First, the wrong must be of such a character that it would have been actionable if committed
in England; …

Secondly, the act must not have been justifiable by the law of the place where it was done.”

In Carr v. Francis Times & Co. (1902) AC 760, following the proclamation of the Sultan
of Muscat, the defendant had seized the goods which were being carried on a British ship and thus
in the suit filed by the plaintiff, it was held that the act could not make the defendant liable because,
in the country where it had been done, such an act was not actionable.
In the maritime case of The Halley (1868) 2 P.C. 193, an English streamer was travelling in
Belgian water with a compulsory pilot which was required by law. Their ship ran down a
Norwegian barge and as a result, the suit was brought against him. Under the Belgian law, it was an
actionable claim but under British law, the defence of compulsory pilotage was open to him. Here,
the English law was applied by the Court and it was held that this suit was not maintainable in the
English Court.
POSITION IN INDIA
The Indian position on choice of law rules in the case of cross border torts is in the early
stages of development. For the most part, Indian jurisprudence on the matter follows the early
English Court decisions, prior to the engrafting of exceptions to the “double actionability” rule by
the English Courts.
Govindan Nair v Achuta Menon, (1915) I.L.R. 39 Mad 433.
The facts of the case are: The then Raja of Cochin (which was at the time an independent
Indian State), sent a communication to the plaintiff excommunicating him from his caste. This
communication was then sent to British India. The Madras High Court applying the “double
actionability” rule dismissed the claim stating that as the communication was from a superior to a
subordinate with no trace of malice, the defence of qualified privilege would apply thus not giving
rise to civil liability under the laws of the State of Cochin.
Kotah Transport Ltd. v. The Jhalawar Bus Service Ltd., A.I.R.1960 Raj. 224, In this
case the plaintiff filed for damages for injury caused due to rash and negligent driving by the
defendant’s driver. The accident took place in Jhalawar, and the action was brought in Kotah; both
these places were then independent Indian States. The court found for the plaintiff as there was
nothing in the law of the state of Jhalawar that justified his actions, and the act was a tort under the
laws of the state of Kotah, and thus the requirements of “double actionability” was satisfied.