Choice of Law (Tort)
Eg: Claimant v Defendant (always English in exam)
Tort occurred: aboard
Jurisprudence: UK court decide on choice of law
There are two frameworks to find applicable law of the tort, which using Private International
Law (Miscellaneous Provision) Act 1995 (PIL) when tort committed before 11 January 2009
and Rome II Regulation when tort committed after 11 January 2009 (Art.32).
Committeri v Club Mediterranee - Mr Committeri, an Italian national who lived and worked in
London, brought a claim in England against Club Med and their insurers for injuries he
sustained in February 2011, during a team building trip in France. The contract had been
entered between the then employers of Mr Committeri and Club Med and, very importantly, it
contained a clause that its terms and conditions were governed by English law. Nevertheless,
instead of relying on English law, Mr Committeri sought to claim damages from Club Med, by
invoking the French Tourism Code. That was because article L211-16 of the French law
imposes strict liability for the performance of a contract falling within it, as opposed to the
relevant English law (the Package Travel Regulations), which requires proof of failure to
perform or improper performance of the contract. The issue then in this case was the proper
characterisation of the claim. If it was contractual, the claim would be determined by the Rome
I Regulation and English law would be the governing law. If it was non-contractual, Rome II
Regulation would come into play and French law would apply (because of the location of the
accident). Court held it was a claim for damages for breach of the obligations, which was freely
entered into by both parties. The claim, then, being contractual one, fell within the ambit of
Rome I Regulation, governed by express choice of law: English
Intro
A and B would be suing D for his reckless driving which the cause of accidents. On the
fact, there are two main issue raise in regard to choice of law for tort committed by D.
Firstly, whether claimants would suffer any injustice if forum court (UK court) choose
Spanish law to be govern and if so, can claimants argue for English choice of law.
Secondly, whether there is any overriding factor that UK court would be considering in
deciding the applicable choice of law.
Since the fact is silent as to when the tort occurred, both framework of Private
International Law (Miscellaneous Provision) Act 1995 (PIL) and Rome II would be
discussed.
PIL
The fact mentioned that tort occurred in 2010, therefore relevant framework would be
Private International Law (Miscellaneous Provision) Act 1995 for determining issue
relating to tort or delict (s.9(1)) and expressly stated that common law rule was
abolished except for defamation (s.10).
S11(1)
Apply general rule in s.11(1), the governing law is governed by ‘lex loci delecti’, law of
country where the tort occurred. As such since place of personal injury sustained by C
(s.11(2)(a)) and the death occurred for B (s.11(2)(a)) and property damage occurs for C
(s.11(2)(b)), all in Spain, thus Spanish law shall govern.
o s.11(2)(a) in respect of personal injury or death, the governing law is the law of the
country where the injury was sustained or where deaths occurred. s.11(3) defines
personal injury to mean disease or any impairment of physical or mental conditions.
o s.11(2)(b) in respect of damage to property, the governing law shall be the law of the
country where the property was damaged.
o s.11(2)(c) for any other case, the governing law is the law of the country in which
most significant elements of those events occurred.
, SMA
A may argue for substantially more appropriate country under s.12(1). However, this
exception is not intended to operate every time when another country is more
appropriate, but only when the other country is substantially more appropriate (Hansard
(Volume 562)). Lord Wilberforce in Boys v Chaplin states the threshold for the
exception is high and general rule must apply unless clear and satisfying ground are
shown why it should be departed from.
On the fact, although the accident occurred in Spain, both claimant and defendant are
from England (s.12(2)(a)), the tort was caused by defendant’s fault entirely (s.12(2)(b))
and claimant was suffered the consequence of the tort in England (s.12(2)(c)). Taking
note that this exception must be applied sparingly, applying the above case and factors
in s.12(2) to find substantially more appropriate country, England is unquestionably the
greater and more direct and that the interest of Spain is at best minimal. Further, the
fact that Spain law prohibited claim …, will not apply to those visitors of Spain.
On the fact, the accident occurred in Spain, claimant is Spain and defendant is English
thus don’t share the same domicile (s.12(2)(a)), the tort was caused by defendant’s fault
entirely (s.12(2)(b)), claimant may return to Australian and she may suffer the
consequence of the tort in Australia (s.12(2)(c)). Taking note that this exception must be
applied sparingly, the fact in question shall distinguish from the above case and upon
careful consideration of the guideline factor in s.12(2), there is no substantially more
appropriate country. In another word, there is no one country that could be said central
of gravity or grouping of contexts. Thus general rule apply, the governing law remain
Spain.
Rome II
The fact mentioned that the tort occurred in 2010, therefore the relevant framework
would be Rome II Regulation. Rome II applies for determining issue relating to non-
contractual obligation (Art.1(1)) which includes tort (Art.2) and the governing law need
not be the law of member states (Art.3).
A4(1)
Applying general rule in Art.4(1), the governing law is Lex Loci Damni, law of country in
which damage occurs “irrespective of country in which the event giving rise to damage
occurred” and “irrespective of country or countries in which the indirect consequence of
that event occurs”. As such damages occurs in Spain since place of personal injury
sustained by C and the death occurred for B and property damage occurs for C, all in
Spain, thus Spanish law shall govern (Recital 17).
The present facts are similar to Lazar v Allianz. In Lazar, father of victims was in
Romania when he hears the news of his daughter death which occurred in Italy, and
claiming for non-material damages such as damages to health, psychological damages
and damage to personal relationship. Court held governing law is Italian law under
Art.4(1). The loss suffered by C the secondary victim is classified as ricochet losses and
Art.4(1) must read together with Art.2 which provides that damage shall cover any
consequence arising out of a tort, thus Spain law governs.
As Symeonides write, “general rule of Rome II is nothing but a restatement of
traditional ‘lex loci delicti’ rule”.
Problems
Applying Art.4(1), A cannot sue D because contributory negligent is complete defence
in Spain.
Applying Art.4(1), B cannot sue D for damages because assault is a criminal offence.
Applying Art.4(1), C cannot sue her husband D under Spain law.
HR
Individual - A may argue for Art.4(2), as an individual habitual residence shall be their
place of living. Thus, she could have been habitually residing in UK because of her work
Eg: Claimant v Defendant (always English in exam)
Tort occurred: aboard
Jurisprudence: UK court decide on choice of law
There are two frameworks to find applicable law of the tort, which using Private International
Law (Miscellaneous Provision) Act 1995 (PIL) when tort committed before 11 January 2009
and Rome II Regulation when tort committed after 11 January 2009 (Art.32).
Committeri v Club Mediterranee - Mr Committeri, an Italian national who lived and worked in
London, brought a claim in England against Club Med and their insurers for injuries he
sustained in February 2011, during a team building trip in France. The contract had been
entered between the then employers of Mr Committeri and Club Med and, very importantly, it
contained a clause that its terms and conditions were governed by English law. Nevertheless,
instead of relying on English law, Mr Committeri sought to claim damages from Club Med, by
invoking the French Tourism Code. That was because article L211-16 of the French law
imposes strict liability for the performance of a contract falling within it, as opposed to the
relevant English law (the Package Travel Regulations), which requires proof of failure to
perform or improper performance of the contract. The issue then in this case was the proper
characterisation of the claim. If it was contractual, the claim would be determined by the Rome
I Regulation and English law would be the governing law. If it was non-contractual, Rome II
Regulation would come into play and French law would apply (because of the location of the
accident). Court held it was a claim for damages for breach of the obligations, which was freely
entered into by both parties. The claim, then, being contractual one, fell within the ambit of
Rome I Regulation, governed by express choice of law: English
Intro
A and B would be suing D for his reckless driving which the cause of accidents. On the
fact, there are two main issue raise in regard to choice of law for tort committed by D.
Firstly, whether claimants would suffer any injustice if forum court (UK court) choose
Spanish law to be govern and if so, can claimants argue for English choice of law.
Secondly, whether there is any overriding factor that UK court would be considering in
deciding the applicable choice of law.
Since the fact is silent as to when the tort occurred, both framework of Private
International Law (Miscellaneous Provision) Act 1995 (PIL) and Rome II would be
discussed.
PIL
The fact mentioned that tort occurred in 2010, therefore relevant framework would be
Private International Law (Miscellaneous Provision) Act 1995 for determining issue
relating to tort or delict (s.9(1)) and expressly stated that common law rule was
abolished except for defamation (s.10).
S11(1)
Apply general rule in s.11(1), the governing law is governed by ‘lex loci delecti’, law of
country where the tort occurred. As such since place of personal injury sustained by C
(s.11(2)(a)) and the death occurred for B (s.11(2)(a)) and property damage occurs for C
(s.11(2)(b)), all in Spain, thus Spanish law shall govern.
o s.11(2)(a) in respect of personal injury or death, the governing law is the law of the
country where the injury was sustained or where deaths occurred. s.11(3) defines
personal injury to mean disease or any impairment of physical or mental conditions.
o s.11(2)(b) in respect of damage to property, the governing law shall be the law of the
country where the property was damaged.
o s.11(2)(c) for any other case, the governing law is the law of the country in which
most significant elements of those events occurred.
, SMA
A may argue for substantially more appropriate country under s.12(1). However, this
exception is not intended to operate every time when another country is more
appropriate, but only when the other country is substantially more appropriate (Hansard
(Volume 562)). Lord Wilberforce in Boys v Chaplin states the threshold for the
exception is high and general rule must apply unless clear and satisfying ground are
shown why it should be departed from.
On the fact, although the accident occurred in Spain, both claimant and defendant are
from England (s.12(2)(a)), the tort was caused by defendant’s fault entirely (s.12(2)(b))
and claimant was suffered the consequence of the tort in England (s.12(2)(c)). Taking
note that this exception must be applied sparingly, applying the above case and factors
in s.12(2) to find substantially more appropriate country, England is unquestionably the
greater and more direct and that the interest of Spain is at best minimal. Further, the
fact that Spain law prohibited claim …, will not apply to those visitors of Spain.
On the fact, the accident occurred in Spain, claimant is Spain and defendant is English
thus don’t share the same domicile (s.12(2)(a)), the tort was caused by defendant’s fault
entirely (s.12(2)(b)), claimant may return to Australian and she may suffer the
consequence of the tort in Australia (s.12(2)(c)). Taking note that this exception must be
applied sparingly, the fact in question shall distinguish from the above case and upon
careful consideration of the guideline factor in s.12(2), there is no substantially more
appropriate country. In another word, there is no one country that could be said central
of gravity or grouping of contexts. Thus general rule apply, the governing law remain
Spain.
Rome II
The fact mentioned that the tort occurred in 2010, therefore the relevant framework
would be Rome II Regulation. Rome II applies for determining issue relating to non-
contractual obligation (Art.1(1)) which includes tort (Art.2) and the governing law need
not be the law of member states (Art.3).
A4(1)
Applying general rule in Art.4(1), the governing law is Lex Loci Damni, law of country in
which damage occurs “irrespective of country in which the event giving rise to damage
occurred” and “irrespective of country or countries in which the indirect consequence of
that event occurs”. As such damages occurs in Spain since place of personal injury
sustained by C and the death occurred for B and property damage occurs for C, all in
Spain, thus Spanish law shall govern (Recital 17).
The present facts are similar to Lazar v Allianz. In Lazar, father of victims was in
Romania when he hears the news of his daughter death which occurred in Italy, and
claiming for non-material damages such as damages to health, psychological damages
and damage to personal relationship. Court held governing law is Italian law under
Art.4(1). The loss suffered by C the secondary victim is classified as ricochet losses and
Art.4(1) must read together with Art.2 which provides that damage shall cover any
consequence arising out of a tort, thus Spain law governs.
As Symeonides write, “general rule of Rome II is nothing but a restatement of
traditional ‘lex loci delicti’ rule”.
Problems
Applying Art.4(1), A cannot sue D because contributory negligent is complete defence
in Spain.
Applying Art.4(1), B cannot sue D for damages because assault is a criminal offence.
Applying Art.4(1), C cannot sue her husband D under Spain law.
HR
Individual - A may argue for Art.4(2), as an individual habitual residence shall be their
place of living. Thus, she could have been habitually residing in UK because of her work
