International Private Law - Lecture 4 - The Law Applicable to Non-Contractual Obligations
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International Private Law (LAW10118)
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Edinburgh Napier University (ENU)
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International Private Law
Lecture notes for the International Private Law module linked to E B Crawford and J M Carruthers, International Private Law in Scotland book. Author achieved a first-class grade for the module.
International Private Law - Lecture 3 - Choice of Law for Contractual Obligations
International Private Law - Lecture 9 - Choice of Law for Property and Succession
International Private Law - Lecture 7 - Recognition and Enforcement of Foreign Divorces and Dissolution of Civil Partnerships
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Topic 4: The Law Applicable to Non-Contractual Obligations
Recommended Reading
▪ Crawford and Carruthers, Chapter 15 paras 16.01- 16.52 in particular.
Introduction
▪ What potential law applies to a cross-border delict…
▪ Lex fori? – should the law of the forum, wherever the parties bring their case, be the applicable
law of a delict?
▪ Lex loci delicti? – this is not necessarily the most appropriate law to apply to cross border
delict. Just in the same way that the lex fori is not the most appropriate law to govern a
contract. The lex loci delicti is the default choice of law rule for delicts. The law of the place
where the harm occurred is the default rule for choice of law. So you can bring a claim in delict
under Scots law if you can establish jurisdiction in Scotland, but that does not necessarily
mean that Scots law will apply. If the regulation applies, then the default rule that applies is
the lex loci deliciti.
A tourist who is Scots domiciled visits a restaurant abroad in France and becomes ill by food
poisoning. Intuitively, the Lex loci delicti is French law, the law of the place where the harm
occurred. So the Lex loci delicti unlike the lex fori or the proper law provides certainty. You
can anticipate your applicable law through the Lex loci delicti, it provides a just solution.
Because if you are in France, you would expect French law to govern matters relating to non-
contractual obligations and avoidance of harm, health and safety rules, consumer protection
rules, etc. The point is that you can reasonably anticipate if you use Lex loci delicti.
The parties’ duty as a consequence should be judged by there, so the old phrase when in Rome
do as the Romans do, that is the point of the Lex loci delicti. If you are travelling somewhere,
you are going to be judged by the law of that place not by your home law.
This could be subject to some exceptions. The ways in which you can part from the Lex loci
delicti. So if you have parties who have a closer connection to a place other than the Lex loci
delicti, all of the parties are connected to another country, should you justifiably part from
the Lex loci delicti and apply the other law? More than one party involved, and they are from
Germany instead of France, should you apply German law? there may be some situations
where it is justified to depart from the Lex loci delicti.
▪ Double actionability? – operates outside of the scope of the regulation. The regulation is
based on the Lex loci delicti approach, but Double Actionability is different, it does not apply
to the scope of the regulation it only applies to defamation cases. Double means you have to
take account of two different laws before applying the Lex loci delicti. The relevant case is
Boys v Chaplin [1971] AC 356. For something to be doubly actionable, therefore to be justified
to be applying the Lex loci delicti, you have to jump through two hoops. To get to the Lex loci
delicti, that is where you are heading you have to say that if it is a double actionability case,
then it has got to be a delict under Scots law (first hoop) and that it is not an action that has
been justified by the foreign law (second hoop) because we cannot say that if it is a delict
, under the foreign law, we cannot use that classification it because it would narrow it too
much, you just have to say that it cannot be justified under the foreign law. Only applies to
defamation.
▪ Proper law? – this applies before the 1995 Act, you are just using a situation where it is
justified or appropriate to use the law of the closest connection. That should be the Lex loci
delicti. The proper law is the law of closest connection being the Lex loci delicti or some other
law by way of exception. Only for cases way back before 1995 Act.
The Lex fori does not really come into it, the Lex loci delicti is the general rule under the
Regulation.
Deutsche Bahn v Mastercard [2018] EWHC 412 (Ch), in this case they said that they had to use
all of these choice of law rules, the Regulation, the 1995 Act, proper law, because each of the
different delicts occurred in the different timescale.
You need to know when the delict occurred, so is it Regulation, 1995 Act, Common law? and
what kind of dispute is it? Does it fall within the scope of the Regulation, if not, then does the
1995 Act operate, or are we dealing with a defamation claim and we need to apply the
common law?
Introduction: Legislative and Common Law Approaches
▪ Rome II Regulation: as of 11 January 2009, to all cases except rights relating to personality
including defamation/privacy
▪ PIL ACT 1995: to all cases pre 11 January 2009, where acts or omissions are post 1 May 1996
(except defamation)
▪ Common law: to all acts or omissions pre 1 May 1996 and to all defamation actions
▪ You need to know when the delict occurred, so is it Regulation, 1995 Act, Common law? and
what kind of dispute is it? Does it fall within the scope of the Regulation, if not, then does the
1995 Act operate, or are we dealing with a defamation claim and we need to apply the
common law?
▪ Therefore, need to know both the temporal and substantive aspect to the rules to know which
one applies!
▪ Deutsche Bahn v Mastercard [2018] EWHC 412 (Ch), this case was about a competition
dispute. It was about higher transaction charges. The point was that the time period in which
this was kicking off was such that all of the choice of law rules had to apply. So it was an act
or omission before 1996, it was an act occurring between the timescale of the 1995 Act, and
it was an act occurring within the Regulation.
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