JAMIA MILLIA ISLAMIA

FACULTY OF LAW

CONFLICT OF LAWS

TOPIC – FOREIGN TORTS & ITS TRADITIONAL

THEORIES

SUBMITTED TO:
Professor Dr. ALISHA KHATUN

SUBMITTED BY:
Md. Zeeshan Ali
B.A. LL.B. (Regular)
Roll No. - 38
Vth Year/ X th Semester
Batch -2018-2023

1
 ACKNOWLEDGEME
NT

I would like to express my special thanks of gratitude to my teacher Professor Dr. Alisha
Khatun who gave me the golden opportunity to do assignment on “FOREIGN TORTS &
ITS TRADITIONAL THEORIES” which also helped me in doing a lot of Research and I
came to know about so many new things, I am really thankful to him. Secondly, I would
also like to thank my parents and friends who helped me a lot in finalizing this assignment
within the limited time frame.

-MD. ZEESHAN ALI

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 INDEX

1. Introduction………………………………………………………………………..4

2. Kinds of Foreign Torts…………………………………………………………….5

3. Choice of Law……………………………………………………………………..8

4. Cross Border Dispute……………………………………………………………..10

5. Lex Fori Theory…………………………………………………………………..11

6. Lex Loci Delicit Theory………………………………………………………….12

7. Proper Law or Social Environment Theory………………………………………13

8. Indian Law (Position of India)……………………………………………………14

9. Conclusion………………………………………………………………………...16

10. Bibliography………………………………………………………………………17

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 Introduction
Every Country has its own laws which are made to regulate the conduct of the people who
live in such countries. For e.g., in India, the laws which govern Indian citizens are Indian
laws and thus the laws of other countries like that of England or China will not be binding on
Indians and such laws can only be referred to when there is a question of law on which the
Indian law is silent.

Usually, whenever a tort is committed, the plaintiff files a suit in the Courts for claiming
damages or other remedies for his loss against the defendant but a question arises, what will
happen if a tort is committed by a person in a foreign country? Will, such a person be bound
by the law of the country where such tort is committed or will the law of his country apply to
him? These kinds of torts are known as foreign torts.

Illustration:
A who is an Indian visits Bhutan and there he commits a tort against B who is a citizen of
Bhutan. Here, the tort committed by A is a foreign tort.
In India, the law of torts is not codified as a result there is no statute or an act of the
legislature which prescribes the unlawful acts and the punishments for the same. Thus, the
Indian Courts have to apply the principles of tort law on the basis of the English cases from
which the law of torts in India finds its origin. Also, due to the lack of awareness among the
Indian people about their various rights and the long amount of time which is taken in the
courts for deciding a case, In India, principles of law of torts have not developed as much as
the English law of torts. This is also another reason why English cases and laws are referred
to by the Indian Courts in deciding the cases of torts in India. Thus, the concept of foreign
torts in India is also on the same footing as that of the English law of torts.

Foreign Tort
A foreign tort can be defined as “When a tort which is committed abroad by a person and
therefore the cause of action for such tort arises abroad.
Thus, foreign torts are committed in a foreign nation. There are 2 kinds of foreign torts which
are as follows:

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1. Tort of Realty
Whenever any tort is committed against a property which is situated in a foreign country, the
tort is called tort of reality. In such torts, the affected property is an immovable property
which means that such property is fixed at one place and it cannot be moved from its
position.

Under the English law of torts, no action can arise in a case where any tort relating to
immovable property is committed and thus in such cases, the suit filed by the plaintiff is
rejected by the courts.

Illustration: A is resident of England who visits India on a business trip and while staying in
India, he commits a tort of trespass on B’s House. Here even though a tort has been
committed but since it has been committed against an immovable property which is situated
in a foreign country it is a tort of reality and such a case against A will not be maintainable.

In the case of Britten South Africa Co. v. Compania de Mecambique 1, the defendant was a
resident of England and he had trespassed into the mine of the plaintiff which was situated in
South Africa as a result, the plaintiff brought a suit against him in the Court for trespass. It
was held that, since the tort was committed against an immovable property in a foreign land,
the suit of the plaintiff cannot be successful and therefore the defendant was not held guilty.

2. Personal Torts
In foreign torts, whenever there is an unlawful act committed against a person or against his
movable property, such tort is known as personal torts. Unlike tort of reality, in cases of
personal torts, the person who suffers a loss has the right to file the suit against the tortfeasor
and such person’s suit is not rejected by the Courts. Thus for movable property and the body,
personal torts are applied and remedy is available to the injured person.

Illustration: A (a resident of Spain) is on a trip to Switzerland, and got his phone stolen by
B. Here, since the phone is a movable property, such a tort will fall in the category of
personal tort under foreign torts and the suit filed by A will be accepted by the court and B
1
AC 602 (1953)

5
will be held liable.

Illustration: K, a resident of China, while on an internship programme in Singapore was

assaulted by B. Here, since the tort was committed against the body of K, it will be a personal
tort and the suit filed by K will be accepted by the Court and B will be held liable.

So, personal torts are separate from the tort of reality because while in the tort of reality, there
is no right to file a claim against the wrongdoer, under personal tort a person can file a suit
for the injury or loss caused by a tortfeasor.

But all the suits under Personal torts cannot be accepted by the Courts and therefore only on
the fulfilment of certain conditions, a suit for a personal tort which has been committed
abroad can be accepted by the court.

The conditions are as follows:

The wrongful act is actionable in the country where such wrong has been
committed.
The first condition which has to be fulfilled in a case of personal tort to be successful is that
the tortious act which is committed by the defendant against the body or the property of the
plaintiff is actionable in the country in which this act has been committed. For e.g., If a tort is
committed against A’s body and he files a claim for damages. The Court will first see
whether a suit can be filed in the court of the country where such an act was committed or
not. If such an act is not actionable then the suit filed by A will be rejected.

In the case of Philips v. Eyre2, the plaintiff had filed a suit against the defendant who was the
governor of Jamaica because the defendant had falsely imprisoned him. The defendant
contended that he had done this in pursuance of the Act of the Jamaican legislature in order to
suppress the rebellion. It was held that since such an act was not actionable in Jamaica, the
place where the act was committed, therefore, the suit filed by the plaintiff could not be
accepted and thus the defendant was not held liable.

In the above case, it was also observed that a suit for a wrongful act cannot be enforced only

2
(1870) 6 QB 1

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if such an act is not actionable in the country because of no recognition being provided for
such a right. But if there is any limitation placed on an act from being actionable only on the
grounds of the procedure then, such an act is actionable

Illustration: If A is wrongfully detained in another country and he could not have filed the
case in their Court because of the limitation period being over, in that situation, the case can
be accepted by the Court of A’s country because the act was not actionable only on
procedural grounds.

In Carr v. Francis Times & Co.3, following the proclamation of the Sultan of Muscat, the
defendant had seized the goods which were being carried on a British ship and thus in the suit
filed by the plaintiff, it was held that the act could not make the defendant liable because, in
the country where it had been done, such an act was not actionable.

One more important rule under such suits is that when the cause of action is not of a local
nature then, the suit is allowed by the Courts.

In the case of Mostyn v. Fabrigas4, the defendant was the governor of Minorca and he had
locked the plaintiff for few days without any lawful justification. It was held in this case that
the act of the defendant was not of local nature and therefore the suit of the plaintiff was
allowed and the defendant was held liable.

In cases where an unlawful act is a civil wrong in one country and a criminal offence in
another country, the position of law was not clear. In the case of Machado v. Fontes 5, it was
held that a civil claim can be made even if the country where the act is committed regards it
as a criminal offence.

But this decision was overruled in the case of Boys v. Chaplin6, and now the current position
of law is that the act must be actionable in both the countries i.e., the country where the tort
was committed and the country where the suit is filed. In this case, the plaintiff and the
defendant got into an accident because of the negligent driving of the defendant. Both of

3
(1902) AC 760
4
(1774) 1 Cowp. 161
5
(1892) 2 Q.B.D. 231
6
(1969) 2 All. E.R. 1085

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them were British residents and the accident occurred in Malta. As per the law in Malta,
damages for the pain, suffering and agony were not awarded and only monetary
compensation for the loss suffered was given to the plaintiff but under the British law, these
factors were also relevant in the award of damages. It was held that British law will apply in
the case and the damages would be assessed as per the British law.

The act for which a suit is filed should be actionable if it had been
committed in the country where the case was filed.
This is the second condition which must be fulfilled for a successful claim in cases of
personal tort. If the country in which the plaintiff wants to enforce his rights does not provide
such right or it does not consider that act to be unlawful, then in such a case if the Court
allows the claim of the plaintiff it will amount to enforcing the laws of other nation and that
situation cannot be allowed. For e.g., If trespass to movable property is an offence in country
X but that is not an offence in country Y. A who is from Y wants to file a case in a court of Y
for trespass to movable property. The court will not allow such a claim because it is not an
offence in Y and thus there is no actionable claim in Y for such acts.

In the maritime case of The Halley7, an English streamer was travelling in Belgian water with
a compulsory pilot which was required by law. Their ship ran down a Norwegian barge and
as a result, the suit was brought against him. Under the Belgian law, it was an actionable
claim but under British law, the defence of compulsory pilotage was open to him. Here, the
English law was applied by the Court and it was held that this suit was not maintainable in
the English Court.

Cross Border Tort Dispute

The problem of discerning the appropriate applicable law in the case of cross-border torts is
7
(1868) 2 P.C. 193

8
extremely complicated. The reason behind this is that at a very basic level of the facts of a
tort related claim there are multiple connecting factors such as the place of the tort, the
nationality and domicile of the parties, etc. To add to this basic concern, in the case of cross
border torts an added problem of determining the actual jurisdiction where the tort was
committed arises. In addition there are also a wide variety of tortious issues that may arise –
limitation, damages, etc. The question that then arises is whether the same law should govern
all of these issues. It is important to note that there are also different types of tort –
negligence, nuisance, defamation, etc. This then begs the question, should the same rule in
determining the applicable laws apply regardless of the type of tort? An additional issue to
consider is that application of a foreign law may lead to liability being imposed for torts that
are unknown in the domestic jurisdiction.8

An expansive set of solutions has been used by various nations in order to deal with this issue
and even among these solutions there has been considerable evolution over a period of time.
This paper discusses the various “choice of law rules” followed across jurisdictions – lex fori,
lex loci delicti, double actionability, etc. –focusing specifically on the position in England as
well as in India.

Choice Of Law
In the case of a Private International Law dispute, the court where the claim has been
brought, after deciding on the matter of jurisdiction – whether it has the power to hear the
case – must determine “which law” to apply in resolving the dispute. This process of electing
the applicable law is known as “Choice of Law.” The choice of law is not encompassing of
the case as a whole, i.e. choice of law does not function as “one case one law.” Each legal
issue in a case must be decided in accordance to the appropriate law and therefore choice of
law in a dispute is on the basis of the legal issues brought up in the claim; and it is important
to note that there can be any number of issues in a claim. A conflict of laws in choice of law
arises when there is more than one “connecting factor” (the point of contact, which matters
the most or is the most relevant) involved. In choosing between two laws, the intensity and
nature of the link between the law and the case plays a huge role. In determining the intensity
and nature of the relationship multiple factors such as domicile, nationality, place of incident,
can play a role. And sometimes, many of these considerations themselves have different

8
G.C. Cheshire, P.M. North & J.J. Fawcett, Cheshire and North’s Private International Law 605 (13 ed. 1999).

9
meanings under different legal systems.9 Therefore in order to deal with this extensive
ambiguity, certain sets of rules – lex fori, lex loci, lex causae, etc., – are applied in order to
determine the applicable law. These rules are referred to as “choice of law rules.” 10

Choice Of Law in Cross Border Tort Disputes

Torts as commonly understood in Common law are civil wrongs against an individual, his
property, and/or reputation. This includes negligence, trespass, defamation, etc. In certain
instances the act may qualify as both a tort and a crime at the same time, for example assault.
A tortious act may also arise from a contractual background, in which case the injured party
is given the choice of suing either for breach of contract or damages for tort. The option of
claiming relief either in contract or tort is offered in English law11 as well as India.12

In the case of a tort the most basic principle in the case of the law to be applied is lex loci
delicti – the law of the place where the tortious activity was committed. 13 However, this
clarity is available only when the tort is domestic in nature and there is not conflict of laws
involved. There are newer more contemporary approaches adopted by various jurisdictions,
such as, the significant relationship rule,14 the governmental interest approach,15 and the
comparative impairment analysis approach.16 The most basic and chronologically the oldest
approach however, in the case of a tort or delict 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.17 Now with the possibility of conflicting laws – in case (a)
the law of the forum where the claim is brought, i.e. lex fori, or the law of the forum where
the tort was committed, i.e. lex loci delicti; and in case (b) the law of the forum where the
tortious act was committed or the law of the place where its effects were felt; the question
that then arises is which of the competing laws must be chosen and on what basis.

9
F.E Noronha, Private International Law In India 68-69 (1 ed. 2010)
10
R. Hayward & A. J. Mayss, Conflict of Laws 1 (4 ed. 2006)
11
J. Chitty & H. G Beale, Chitty On Contracts: General Principles 142 (1 ed.2012)
12
Manju Bhatia v. New Delhi Municipal Council, AIR 1998 SC 223
13
Norris v. Taylor, 460 So. 2d 151 (1984, Supreme Court of Alabama)
14
Enron Wind Energy Sys. v. Marathon Elec. Mfg. Corp. (In Re Enron Corp.), 367 B.R. 384 (2007, he U.S.
Bankruptcy Court for the Southern District of New York)
15
District of Columbia v. Coleman, 667 A.2d 811 (1995, District of Columbia Court of Appeals)
16
Bernhard v. Harrah’s Club, 16 Cal. 3d 313 (1976, Supreme Court of California
17
A. M. Setalvad, Conflict of Laws 648 (1 ed.2007)

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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 are18:
The lex fori,
The lex loci delicti, and
The proper law or social environment theory.

Theories Related To Choice Of Law In The Case Of Cross Border Tort

Disputes:
The Lex Fori Theory
According to this approach the applicable is the law of the forum where the claim has been
brought. The application of lex fori is rather simplistic and straightforward as there is no need
to determine where the tortious activity occurred, or to prove that it was in fact a tort in the
law of the country where the act occurred.19 On the other hand this could work to the
disadvantage of the defendant as the plaintiff could then indulge in forum shopping –
choosing a forum that is most favourable to him. The defendant may become liable for an act,
which may amount to a tort in the forum state – lex fori – but not in the place where it was
committed – lex loci delicti.20 Contrarily, if the act committed is not a tort under lex fori, but
it is under lex loci delicti – the plaintiff does not suffer as even if he cannot successfully bring
a claim in the forum state, he can bring it in the place where the act has been committed.21

Friedrich Karl von Savigny an advocate of the lex fori method proposed that tortious liability
is comparable to criminal liability and thus is closely related to the public policy of the forum
state and therefore should be governed by lex fori.22 This view is criticised by C. F. Forsyth,
who says that Savigny’s view opinion has been discredited to a large extent, as there is a clear
demarcation between crime and tort today. Forsyth also goes on to criticize the lex fori
approach for being “fickle” as it is only established “ex post facto” once the plaintiff decides

18
P. Diwan & P. Diwan, Private International Law: Indian and English 551 (4 ed.1998)
19
Supra x, at 649
20
Supra x, at 648, 649; L.A. Collins, A.V. Dicey & J.H.C. Morris, Dicey and Morris on The Conflict of Laws
913 (12 ed.1993); Hayward & Mayss, supra iii, at 131
21
Collins, Dicey & Morris, supra xiii, at 913
22
F. K. Savigny & W Guthrie, Private International Law 205-206 (1 ed.1869)

11
where he wishes to sue.23

There are barely any proponents of the application of the lex fori theory in the contemporary
world24 as even with its simplicity, if it were applied as a general rule, it would result in
arbitrariness and unfair decisions. Thus in a quest for a more fair basis for choice of law, we
move to the lex loci delicti theory.

The Lex Loci Delicti Theory

In accordance to this theory the applicable law in the case of a cross border tort ought to be
the law of the place where the tortious act has been committed. Willis, J., observed in
Phillips v. Eyre that “the civil liability arising out of a wrong derives its birth from the law of
the place, and its character is determined by that law.” 25 Similarly, Westlake has also opined
on the matter that in the event of tortious act that disrupts the social order of any country, it is
the law of that country where the act has been committed that must then apply as it would be
the best authority of the matter.26

The problem with the lex loci regime arises when the facts amounting to the tortious act take
place in more than one country, i.e. the act is committed in one country and the injury is felt
in another. It then becomes hard to decide which country is then the loci delicti – the place
where the act commenced or the place where the effect of the injury was felt. 27 This can be
dealt with to a certain extent if one adopts the view that the lex loci delicti theory is based on
the “vested rights doctrine.” In which case, a plaintiff’s claim is derived from the law of the
jurisdiction where the injury occurred and depends entirely upon such law for its existence.
Thus, when the place where the act commenced or the place where the effect of the injury
was felt is two different states, the substantive law of the state where the injury occurs
applies.28

23
C. F Forsyth, Private International Law: The Modern Roman-Dutch Law Including The Jurisdiction of The
Supreme Court 304 (3 ed. 1996)
24
Supra xi, at 552
25
Phillips v Eyre, 6 L.R. Q.B. 1, 28 (1870, Queen’s Bench)
26
J. Westlake, A Treatise on Private International Law, or, The Conflict of Laws with Principal Reference to its
Practice in The English and Other Cognate Systems of Jurisprudence 282 (7 ed.1858)
27
See W. W. Cook, The Logical and Legal Bases of The Conflict of Laws 345 (2 ed.1942); See also W. W.
Cook, The Logical and Legal Bases of the Conflict of Laws, 33 Yale Law Journal 457, 466 (1924) (discussing
how to determine the place where the tort was committed)
28
Myers v. Hayes International Corp., 701 F. Supp. 618 (1988, United States District Court Middle District of
Tennessee)

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Additionally there can also be problems in applying this theory when the parties have almost
no connection to the place where the tort occurred, i.e. the lex loci delicti may be entirely
coincidental and by chance.29 For example a couple living in state X are on vacation in state
Y, there is an accident while they are driving in state Y and the wife is injured. She wants to
sue her husband. The application of the laws of state Y in such a case would merely be by
chance and in the event that the laws of state Y do not support her claim (but state X’s laws
do) this would be highly unfair and application of state Y’s laws will be arbitrary.30

The real problem with the lex loci delicti theory is not that is inherently unfair and arbitrary,
but that it is not flexible and cannot address every single question in complex situations. 31
The possibility of unfairness only arises in complex situations, like in the instance of the lex
loci delicti being entirely fortuitous. In order to deal with this inefficiency of the lex loci
delicti theory there was a move towards creating a “proper law,” which is based on “the most
significant connection with the chain of acts and circumstances in the particular case in
question.”32

The Proper Law or Social Environment Theory

In accordance to this approach the applicable law must be the one that has the most
significant connection with the facts and circumstances in a particular claim/case. 33 Lord
Denning reiterated this position to a certain extent in the case of Boys v. Chaplin, where he
said that a proper law of tort ought to be determined by establishing which law has the most
significant connection to both the parties as well as the act done. The proper law theory seeks
to fill the gaps in the lex loci delicti theory. In the words of Morris, “a proper law approach,
intelligently applied, would furnish a much-needed flexibility” 34 in the process of choice of
law.

29
Supra iii, at 131
30
Example is based on the facts of the case Corcoran v Corcoran [1974] VR 164 (Austl.), where under the then
law of New South Wales – where the accident occurred – a wife did not have the right to recover damages from
her husband though such a right existed under the laws of Victoria – where they ordinarily resided – in such a
scenario if the laws of New South Wales were to be applied under the principle of lex loci delicti, a right to sue
that would have otherwise be available to the parties would have been unfairly denied
31
P. Terblanche, Lex Fori or Lex Loci Delicti? The Problem of Choice of Law in International Delicts, 30 The
Comparative and International Law Journal of Southern Africa 243, 250 (1997) (discussing the problems
identified by the court in the application of lex loci delicti in the case of Tolofson v Jensen)
32
Supra iii, at 131
33
Boys v Chaplin, 2 Q.B. 1 (1968, Queen’s Bench)
34
Morris, supra xxvi, at 885.

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The main criticism to this theory of choice of law is that it results in a fair amount of
uncertainty and unpredictability; and while it is conceded that in most situations there
wouldn’t be a need to look at a law outside of lex loci delicti it is still prudent to have an
approach that is flexible enough to include complex situations as well as the normal ones.

Indian Law (Position in India)

As mentioned before, the law of torts in India has been derived from the English law and
therefore, the principles and rules of the English law are also applied in India in relation to
foreign torts. So, it can be said that a suit for trespass to land outside India cannot be brought
in India.

In cases of movable property, the conditions which are required to be fulfilled in the case of
English law should also be fulfilled with respect to Indian cases. So, the defendant should be
in India, the act should be unlawful in the country where it has been committed and such an
act should also be actionable in India. Only on the fulfilment of these conditions, a claim for
foreign tort relating to movable property can be successfully filed in India.

The Indian position on choice of law rules in the case of cross border torts is in the early
stages of development. There seem to be only two decisions on the matter. 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.

The first decision on the matter is of the Madras High Court. The court was dealing with a
claim of defamation. The facts of the case are: The then Raja of Cochin (which was at the
time an independent Indian State), sent a communication to the plaintiff excommunicating
him from his caste. This communication was then sent to British India. 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.35In

35
The Kotah Transport Ltd. v. The Jhalawar Bus Service Ltd., A.I.R.1960 Raj. 224

14
this case the plaintiff filed for damages for injury caused due to rash and negligent driving by
the defendant’s driver. The accident took place in Jhalawar, and the action was brought in
Kotah; both these places were then independent Indian States. 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.

Conclusion
When a tort is committed in a foreign country, such a tort is known as a foreign tort. In such
torts the wrongful act against the immovable property cannot be filed because they are not

15
maintainable in Courts, they are also called torts of reality. In cases of tort affecting body or
movable property of a person, the suit is maintainable provided that such an act is unlawful in
the country in which it has been committed and such an act should be actionable in the
country in which such a suit has been filed. Thus, when these conditions are fulfilled, a
plaintiff can successfully claim damages from the defendant for the tort committed abroad.

In conclusion as far as choice of law in the matter of cross border torts is concerned, the real
problem is not really what theory to apply – lex fori, lex loci delicti, or proper law – but how
to apply the theory in such a way that it provide certainty and is still flexible enough to
accommodate complex cases.

As far as India is concerned, our courts are yet to develop a concrete position on the matter. It
would be advantageous if they could evolve a rule independent from those already in place,
by adopting the best of both Civil and Common law, i.e. a flexible version of lex loci delicti
akin to the proper law or social environment theory.

BIBLIOGRAPHY

1. Atul M Setalvad: Setalvad’s Conflict of Laws, LexisNexis, New Delhi

16
2. Chris Clarkson & Jonathan Hill, Conflict of Laws, Oxford University Press Canada
3. P. Diwan & P. Diwan, Private International Law: Indian and English 551
4. L.A. Collins, A.V. Dicey & J.H.C. Morris, Dicey and Morris: The Conflict of Laws
5. Cathy Okrent: Torts and Personal Injury Law, International Edition, Delmar Cengage
Learning

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