Tortious Liability and Conflict of Laws
| Author | Marija Krvavac, LLD |
| Position | Associate Professor. University of Prishtina, Republic of Kosovo |
| Pages | 109-126 |
Page 109
The evolution of the regulation of tortious liability in the civil law doctrine started in the 30s of the previous century. The tendency of both theory and practice are directed towards more efficient and rightful compensation of damage that arise in many cases as a consequence of the use of dangerous materials and products. (Josserand, 1937, p. 7 ) Besides, the need for the state intervention that is supposed to provide the protection of the injured party, most often economically weaker party in relation to the responsible party, is more frequently mentioned. The transformation of the rules about civil liability influenced the change of the attitude about kinds of liability and the manner of compensation, regulation of the position of certain social categories, legal position of customers and the manufacturers' responsibility to them.Page 110
The problem of smaller or bigger differences in regulating all the elements of non- contractual relationship has not disappeared by passing several international conventions that contain substantive and conflict of laws solutions. Numerous legal systems with ordinary rules for compensation of damage make solving conflict of laws in this filed a current issue.
European countries that are members of several bilateral and multilateral international legal documents that stipulate special conflict of laws solutions regarding compensation of damage in traffic accidents and the responsibility of manufacturers for their products. The application of convention rules in the so- called third countries that are not members of the EU may in the future depend on the results of the accession process to this regional and international organisation, having in mind the issue of determination of the application area of the source of secondary and convention law.
In the EU legal system the codification of conflict of law rules for non-contractual liability was done by The Rome II Regulation, which reconciled the interest integrated in the tort law of non-contractual obligations of European states, the Union regulations in force and national legislation.
The issue of conflict of law solutions in the area of delictual relationships, starting from the middle of the previous century until the present day is in the middle of a scientific discussions. (Freund, 1968, pp. 5-6) The choice of tort law in the earlier period of the development of legal science did not represent an issue of a primary interest. Today, the situation is different and this represents one of the most interesting matters in doctrinal discussions. Comparative international private law accepts different conflict of law solutions while dealing with conflict of law in delictual relationships. Although lex loci delicti commissi principle dominates, other solutions are also applied such as lex fori and lex loci delicti commissi cumulatively, the law of the closest connection with specific solutions of certain American states (application of more favourable law, analysis of the state interest).
In the doctrine of European international private law there were no supporters of lex fori application as an exclusive delictual law. However, a number of theoristsPage 111insisted that for certain matters of delictual liability lex fori1 together with lex loci delicti commissi should also be applied but only for the torts committed abroad. They assume that courts do not apply the same conflict of law provisions to torts committed abroad and torts committed in the native country. According to this and court practice, foreign law and law of forum should be cumulatively applied to tort qualification.
Lex fori as general conflict of law solution for tortious liability is abandoned today, apart from maritime torts committed on the open sea. In the period when the issue of applicable law was not mentioned this solution was dominant. Courts applied it as the only correct option in the disputes for which they decided they were competent. Besides, theorists also favoured the application of local law, particularly famous German authors Wechter and Savigni2. Today, there are few authors who support the application of this conflict of law solution as primary in conflict of law solving. (Ehrenzweig, 1960) (Sajko K., 1976, p. 9)
The source of conflict of law rules is court practice and the application of lex fori was characteristic for English judicature. The conflict of law solutions was different regarding local and foreign torts until the Law on international private law was passed3. The problem of conflict of law for English courts was an issue only in case of torts committed abroad. The conflict of law principles of tortious liability were set in the case Phillips v. Eyre and Machado v. Fontes4. The applied rulesPage 112correspond to the cumulative application of lex fori and lex loci delicti commissi rules. The court explained the choice of applicable law in the following manner: "If we are to decide about legal consequences of a foreign tort in England two conditions must be met and this illegal behaviour must be of such a character that if it were committed in England it would be actionable ... and the behaviour must not be unjustifiable according to the law of the state where it was committed".
Lex forii principle shaped by this decision was confirmed many years later by the decision in the case Boys v. Chaplin5. The adoption of the Private International Law (called Miscellaneous Provisions Act from 1955) meant the cessation of traditional application of lex fori in the collision law of delictual relationships. However, foreign law was marginalised until 1971 in order to start the application of cumulative conflict of law solution lex fori and lex loci delicti (Chesire, 1992, p. 533). American court practice was based on similar conflict of laws solutions, whereas the Restatement of International Private Law stipulates a larger number of conflict of law solutions for certain elements of tortious liability and the right to compensation of damage. Differently from English court practice, American court practice recognised the effect of foreign law but only if it was similar to the local one6. German legislation and court practice accept that in general, a conflict of law solution lex loci delicti commissi should be applied for delictual relationships7. If it directs to foreign applicable law, its application in local courts may occur only if the person responsible for the damage is a foreigner, and in other cases lex fori shall be applied. The application of rules of foreign applicable law is excluded if they are different from local law in understanding liability, the group of persons who are entitled to compensation, certain forms of compensations etc. (Morse, 1984, pp. 56-61)Page 113
The rules of tortious liability in French law were formed by court practice. In the middle of the previous century the Court of Cassation of France by the decision in the dispute Lautour v Guiarud (Loutaur v Guiarud, 1949, p. 89) determined lex loci delicti as a primary conflict of law principle which is abandoned only if foreign law is adverse to public order. The French Civil Law gives the character of the norms of direct application to the provisions that refer to torts which results in increased tendency of the application of the French Law of Torts (Lagarde, 1983, pp. 321- 333)8. The tendency of the courts to apply lex fori is justified by the fact that in that way local public order is protected, the interest of local citizens, by the legal nature of Law of Torts or the fact that lex loci delicti may have an accidental character. (Freund, 1968, pp. 24-28)
The facts that represent the most frequent connecting factors in Law of Torts of delictual relationship referring to the applicable law are the place where the damage occured (locus delicti) and the place where the event giving rise to the damage occurred (locus damni).
Lex loci delicti commissi, due to general acceptance in the doctrine, legislations and court practice, has become a universal conflict of laws solution. (Audit, 1991, p. 153) It was certainly most influenced by the relation of a tort and the law of the country where the tort occurred, in a delictual relationship. For a long time the doctrine considered this the most convenient solution to the conflict of laws with tortious liability, deriving theoretical justification from the principle of territorial sovereignty (Morse, 1984, p. 13) i.e. from the interest of the state to apply its own law and secure the observation of rules in the territory where the tort occurred. (Rabel, 1960, pp. 251-252) The protection of the country's interests and the parties themselves by the application of this conflict of laws solution, easy determination and application of the applicable law, legal security and uniformity of a solution satisfies the basic postulates on which international private law is based, i.e. its most typical part, the conflict of laws. (Hancock, 1982, p. 59) On the other hand, the tendency of the socialisation of indemnity, emphasising contemporary purpose and the goal of the law of torts in the context of...
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