Sudhir Yadav (KIIT School of Law, Bhubneshwar)

Elasha Saha (Army Law School, Pune)


Yash Raj Gupta (Department of Law, CU)


Choice of law scholarship, however, is negligible on the role of the interests of the international community in the resolution of choice of law disputes engaging norms of fundamental concern to the international community. The dilemma in such cases is how national courts, applying domestic tort choice of law theories, can incorporate the interests of the international community to advance the prohibition of the violation of such international fundamental norms. In an age where business and social activities ignore inter-State boundaries, a consideration of how the existing rules in some jurisdictions may be or have been applied to deal with such situations is valuable. The reason behind this extremely complicated tort related claim is that at the very basic level there are multiple connecting factors such as,

(a) The place of the tort.

(b) The nationality and domicile of the party. Etc.

This article considers the tort choice of law rules in Canada, England, India and the United States. Canada embodies both the common law and the civil law traditions. The aim here is twofold. The first is to evaluate the suitability of their choice of law rules for addressing cases alleging violations of international fundamental norms. The second is to see what other jurisdictions can learn from the experiences of these jurisdictions in their adjudication of international norms.


The choice of law clause or the proper law clause is a word where the two parties specify that any problem or dispute arising under this contract shall be concluded in harmony of a specific authority. It helps the parties to agree on a particular state law which should be applied on their contractual relationship. The state may or may not be the place where the contract has been signed or where the parties live. The court that practices authority establishes which law to apply and that includes foreign parties, foreign transactions, and a lot of foreign components. In a basic world, the court would consistently apply own law, the “law of the gathering” (referred to in Latin as the Lex fori). In fact, some advanced procedures, especially in the United States, favour the Lex fori approach. The choice of law clause decreases the time taken to resolve the dispute and the parties are aware of which state’s law governs their contract and what could be the possible conflicts that could arise from it. Domicile, nationality, place of incident plays a major role in finding out multiple factors of nature and the intensity of the link to choose between the two laws. But sometimes all these considerations have their own different meanings under various legal systems. Therefore, in order to deal with such ambiguity, there are sets of rules that have been established, such as – Lex fori, Lex loci, Lex causae etc.


Tort, in common law, is a civil wrong committed against an individual, his property, and/ or his reputation and the vast majority of legal systems that derive from them, any instance of harmful behaviour, such as physical attack on one’s person or interference with one’s possessions or with the use and enjoyment of one’s land, economic interests, honour, reputation, and privacy. The option of claiming relief is offered in English law as well as in Indian. The term is derived from Latin tortum, meaning “something twisted, wrong, or crooked.” This concerns only those civil wrongs independent of contracts.

In the case of a tort, the most basic principle to be applied is lex loci delicti – the law of the place where the tortious activity was committed (Norris v. Taylor,). However, this clarity is available only when the tort is domestic in nature and there is no conflict of laws involved. There are newer and more contemporary approaches adopted by various jurisdictions, such as, the significant relationship rule, the governmental interest approach and the comparative impairment analysis approach vide different judgements. The most basic and chronologically approach in the case of a tort has always been lex loci delicti. 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.

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. There are three main theories in relation to choice of law in cross border tort cases, they are

a) The lex fori, (applicability of the law of the forum where the claim has been brought.)

b) The lex loci delicti, (applicability of the law of the place where the tortious act was committed in case of a cross border tort) and

c) The proper law or social environment theory. (applicability of law where most significant connection with the facts and circumstances of a particular claim arises.)


Tort choice of law in Canada is governed by the Supreme Court of Canada in Tolofson v Jensenand Gagnon v Lucas– two companion cases that presented similar fact-situations and similar questions of law.. Put simply, the plaintiffs in both cases were residents of Province A. Also, there cars and the drivers of those cars were of Province A. The passengers were injured in an accident which occurred in Province B. The drivers of the other cars were residents of Province B were their cars were registered. In one case, liability was covered by an insurance contract made in Province B. In the other, it was covered under the terms of Province B’s ‘no fault’ insurance scheme. The plaintiffs brought suit in Province A against the two drivers. The question thus was which Province law should govern. The Supreme Court held that the Lex loci delicti rule governed, subject to a flexible exception.

In Hanlan v Sernesky, the Ontario Court of Appeal affirmed the decision of the Ontario Superior Court applying the Lex fori in an international case engaging Ontario and Minnesota. The reason for applying the Lex fori was not because the case was litigated in Ontario. The Court stated that Tolofson allows ‘a discreation to apply the Lex fori in circumstances where the Lex loci delicti rule would work an injustice. While what amounts to injustice informing the application of a law other than the Lex loci remains unclear, the law applied in the case, the Lex fori, happened to be the personal law of the parties. Injustice would result in applying the Lex loci in the case because

(1) the parties were both Ontario residents;

(2) the contract of insurance was issued in Ontario;

(3) the only connection between the case and Ontario was the occurrence of the accident;

(4) the consequences of the accident were directly felt in Ontario; and

(5) Minnesota law – the Lex loci – did not allow claims of the nature in question in the case.

Craig Forcese has pointed out that the consideration of the difference in the law of the two jurisdictions went against the views of La Forest J who stated that difference in the laws of the two jurisdictions does not amount to injustice. While this is accurate, the other factors present in Hanlan might have contributed to giving different shading to the difference in the laws of the two jurisdictions.


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 Law Reform (Miscellaneous Provisions) Act 1995, under which a different set of choice of law rules were introduced. The position on defamation related torts is still unchanged and is still the same as settled in common law. 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. [8]


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 as decided in the famous case of Phillips vs Eyre.

The first decision on the matter is of the Madras High Court in Govindan Nair v Achuta Menon. The court was dealing with a claim of defamation. 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.

The second case is that of The Kotah Transport Ltd. V. The Jhalawar Bus Service Ltd., 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.


US choice of law jurisprudence has considered a magnificence of theories over a span of a century. Broadly speaking, the courts have considered the lex fori, the doctrine of comity, the lex loci, the vested rights theory, the rule in Babcock v Jackson, governmental interest analysis and its variant the comparative damage approach, the Restatement of the Conflict of Laws, the better law theory, and hybrid approaches. This assortment of approaches emerged as a result of the influence of legal commentators and the fact that every state of the US is free to create its own choice of law rules. This is in keeping with the nature of private international law, whereby each unit of a federating state is regarded as a distinct legal system. At the same time, the classification of approaches reflects the inherent difficulty of choosing a substantive rule to govern choice of law determinations. Lawyers, judges and litigants are left with ‘Hobson’s choice’ as to which of the contrary themes and policies to choose.


As noted early on, ‘the smooth functioning of the interstate and international systems in private law matters should be the basic consideration in the decision of every choice of law case. Mostly, the jurisdictions examined here do not have tort choice of law rules tailored to address violations of international fundamental norms.

If the universal condemnation of a norm violation is a key factor justifying the assumption of jurisdiction in a particular case, there is no reason why choice of law theories applicable to those disputes should not point to a law that best promotes those values. The goal of choice of law should be to advance the prohibition of the violations. One merit of this approach is that because of the overriding international interest in the violation, it would be difficult for either party to complain that looking to international standards would produce an unfair result. This approach has the merit of forum-neutrality.


1.  Choice of Law in Tort. (1969). The International and Comparative Law Quarterly, 18(4), 1014-1016. Retrieved August 12, 2020, from




5. Norris v. Taylor, 460 So. 2d 151 (1984, Supreme Court of Alabama)

6. Tolofson v. Jenson and Gagnon v Lucas (1994) 3 S.C.R. 1022

7. Hanlan v Sernesky (1998), 38 OR (3d) 479

8. Supra x, at 663, 674.

9. Phillips v Eyre, 6 L.R. Q.B. 1, 28 (1870, Queen’s bench)

10. Govindan Nair v Achuta Menon, (1915) I.L.R. 39 Mad 433

11. The Kotah Transport Ltd. V. The Jhalawar Bus Service Ltd., A.I.R. 1960 Raj. 224

12. Babcock v Jackson 191 N.E. 2d 279; 12 N.Y.2d 473

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