Modern development in the private international law of torts

Abstract

Torts has of recent years been a field of very fertile development in private international law especially due to the vast scientific and technological advances occurring especially during the latter part of this century. The traditional principles governing the choice of law of torts are the lex fori and the lex loci delicti commissi. The lex fori has largely gone by the board except for a few individual instances where it is still applied. The lex loci delicti commissi principle is still by large followed on the Continent although recently a lot of infringements upon it have been caused by the new doctrine of the proper law of torts which was originally brought forward by Dr. Morris in 1949. In the U.S.A. the lex loci delicti commissi principle has in a large number of States been abandoned so that today only a few States of the U.S.A. still resort to it as the principle governing the choice of law of torts. The majority of States follow in general some one or other of the various modern theories recently exposed, amongst which there are the 'principles of preference' theory of Cavers and the 'governmental interests' theory of Currie. The theory which is, however, by large followed in the U.S.A., is the proper law theory and it is generally followed in the form it has been given by the Second Restatement on the Conflict of Laws. In the U.K. and certain other Commonwealth States the principle which was traditionally followed consisted of an amalgamation of both the lex fori and the lex loci principle. This dual limb basis has evolved as a result of such cases as Phillips v Eyre and Machado v Fontes amongst others. Due to the latter case actionability was not required of the lex loci. All that was required was that the act be not legally innocent by the lex loci. Actionability was therefore only required of the lex fori. Since the decision of Chaplin v Boys the Machado v Fontes decision has been overruled so that the present English rule is that actionability is required of both the lex loci and the lex fori. Besides, according to this decision this rule is not absolute It is only a general rule so that in exceptional cases, as required by justice or otherwise to avoid 'forum shopping, the proper law of tort may be applied in lieu of this double actionability test. The need to regulate on the private international law of torts has also been felt at an international level so that various conventions whether general or particular to the conflict of laws of torts, whether governing the substantive law of torts or merely its private international law rules, whether universal or regional have been attempted. None have, as yet however been implemented Malta as yet has no positive conflict of laws rules of its own. The need is felt that legislation be enacted by which private international law rules be established for Malta. Malta, it is felt, cannot any longer remain without its own private international law rules, and this is especially imminent vis a vis the field of torts.