Choice of Law in Tort: A Missed Opportunity?

Author(s): Pippa Rogerson

Source: The International and Comparative Law Quarterly , Jul., 1995, Vol. 44, No. 3
(Jul., 1995), pp. 650-658
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law

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650 International and Comparative Law Quarterly [VOL. 44

CHOICE OF LAW IN TORT: A MISSED OPPORTUNITY?

A. Introduction

Under the traditional common law rules a plaintiff wishing to recover dama
the English courts for harmful actions by a defendant abroad' will have an
struggle. First, the plaintiff has to persuade the court to take jurisdiction ov
matter.2 Second, as a rule the double-actionability test in Phillips v. Ey
restated by Lord Wilberforce in Boys v. Chaplin4 must be satisfied. In or
succeed under that test the plaintiff must show that liability in the domestic l
torts would arise between the actual parties to the action, assuming the acti
have all taken place in England; and that the defendant is liable for a civil
resulting from his conduct under the law of the place where the wrong was co
ted (the lex loci delicti commissi).5 In exceptional cases, where flexibil
required to avoid injustice, a plaintiff who is denied recovery under the ge
rule might succeed if the law with the most significant relationship with the o
rence and the parties would make the defendant liable. In the 25 years sinc
v. Chaplin was decided there has been much academic criticism of the ch
law rule, but few reported cases. However, in the past year two unrelated de
ments have brought the area to prominence again. The first is the case of R
Insurance v. Bouygues SA.6 The second is the Private International Law
(Miscellaneous Provisions) Bill introduced in the House of Lords in November
1994, which seeks to replace the common law on choice of law in tort.

B. Red Sea Insurance v. Bouygues SA

The late F. A. Mann, when considering Boys v. Chaplin, made an impassioned
plea:7

1. Alleged wrongful conduct of the defendant which was done in England does not raise
any choice of law problem even if there are substantial connections between the parties and
another country. English domestic law of tort will alone determine whether the defendant is
liable (Szalatnay Stacho v. Fink [1947] K.B. 1). Even if some actions of the defendant were
done abroad the English court can still hold that the tort was committed "in substance" in
England. In that case no choice of law arises and the English domestic law of tort solely will
apply (Metall und Rohstoff AG v. Donaldson, Lufkin & Jenrette Inc. [1990] 1 Q.B. 391). The
effect of the Private International Law (Miscellaneous Provisions) Bill changes the method
by which these cases were decided but the results would probably be the same.
2. The decision in Metall und Rohstoff, ibid, has made it unlikely that the English courts
will take jurisdiction over torts found to have been committed "in substance" abroad. Even if
the writ has been served on a defendant in England, the defendant can still ask the court to
stay its proceedings on the basis that England is not the forum conveniens where the tort is
committed elsewhere (cf. The Albaforth [1984] 2 Lloyd's Rep. 91).
3. (1870) L.R. 6 Q.B. 1.
4. [1971] A.C. 356. There are doubts about the exact ratio decidendi of Boys v. Chaplin.
However, both the Court of Appeal and now the Privy Council have adopted r.203(1) of
Dicey and Morris, The Conflict of Laws (12th edn, 1993), pp.1487-1488, which is derived
from Lord Wilberforce's opinion.
5. That place is determined according to English rules as the locus delictus is a connecting
factor.
6. [1994] 3 W.L.R. 926.
7. (1987) 36 I.C.L.Q. 437, 442.

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JULY 1995] Choice of Law in Tort 651
One can only hope that someday the House of Lords ... will have
create the certainty which is so badly needed and which five suf
minds, intelligently instructed and broadened by vision, imagin
ought to be able to bring about.

In Red Sea Insurance v. Bouygues SA the Privy Council was giv

to reconsider the double-actionability rule. In particular, the
the issue of the role of the lex fori and presented an occasion to
in The Halley."
On the appeal from the Hong Kong Court of Appeal Lord Sl
of their Lordships. Although it is a decision of the Privy Counci
cally binding on an English court, the case was expressly decid
the law of Hong Kong is the same as English law."
Bouygues had contracted to do some building work at the U
in Saudi Arabia and had subcontracted much of the work. It had taken out and
claimed under a policy of insurance with Red Sea Insurance to indemnify it against
losses which might be incurred if the buildings were defectively constructed. Red
Sea Insurance counterclaimed against the subcontractors, alleging that they had
breached a duty of care to Bouygues. If Red Sea Insurance were liable to
Bouygues, the insurance company argued, it could recover from the subcontrac-
tors by way of subrogation to Bouygues's rights. By this action the subcontractors
applied to strike out the counterclaim on the basis that it disclosed no reasonable
cause of action because under Hong Kong law, the lexfori, no right of subrogation
was available (as the insurance company had not yet paid on the policy). However,
by Saudi Arabian law it was argued that the insurance company had a right to
recover from the subcontractors directly."' The Privy Council's advice paved the
way for the insurance company to recover its loss from the alleged tortfeasor not-
withstanding that the company had no remedy under the lex fori.

1. Rationale for the rule in The Halley

The rule in The Halley, which requires liability to arise under English law qua lex
fori, has been criticised." However, the English courts have held on tenaciously to
the formulation of the rule requiring the defendant to be liable to the plaintiff in
tort as a matter of English domestic law. Are there any circumstances in which the
rule in The Halley is justified? It has been suggested that the law of tort is more akin
to criminal law than to the law of contract. Imposing liability for harm is a matter
which is rooted in the culture of the particular society and dependent, to a certain
extent, on public policy arguments. To abolish the requirement for liability to arise

8. (1868) L.R. 2 P.C. 193.

9. Application of English Law Ordinance, s.3.
10. As a matter of English law subrogation might be described as a remedy or as a pro-
cedural matter thus wholly to be determined by the lex fori. This argument was not pursued
at this interlocutory hearing. The issue in point was the alternative argument that the
insurance company be able to sue the subcontractors as a direct claim available under Saudi
Arabian law.
11. Dicey and Morris, op. cit. supra n.4, at p.1483; Cheshire and North, Private Inter
national Law (12th edn, 1992). pp.536-537; Collier, Conflict of Laws (2nd edn, 1994
pp.215-216: North, Essays in Private International Law (1992), pp.76-77; Hancock, Torts in
the Conflict of Laws (1942), p.89.

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652 International and Comparative Law Quarterly [VOL. 44

under English law would mean that the court may have to adjudicate on liability
without the cultural infrastructure to underpin the public policy decisions that may
be necessary. The rule does serve to keep out of the English courts actions for
wrongs that English law does not consider so harmful as to allow recovery in
respect of them. Examples include actions in respect of privacy, some actions for
economic loss and nervous shock, and actions under foreign antitrust legislation.
The rule also prevents a plaintiff from recovering in circumstances which would
give rise to strict liability under another law but in which the plaintiff cannot prove
negligence as would be necessary under English law. The counter-argument is that
the justification for the modern law of tort is not so similar to that of criminal law.
In many ways the law of tort now bears more similarity to the law of contract.
Indeed, often cases have facts which give rise to overlapping liability in tort and
contract or quasi-contract.'2
The rule earns the epithet "parochial" as it results in an application of English
law even if there is no connection between the facts and England.'3 Giving such a
dominant role to the lexfori is not in conformity with modern notions of the func-
tion of a choice of law rule.14 The lex fori is not made part of other choice of law
rules except that it is applied where English notions of public policy demand it or
where the issue before the court is one of procedure. The courts have appeared
willing, in other areas where the foreign law is properly pleaded and proved, to
allow a case to be decided on its merits according to some unfamiliar rules and
concepts. As well as the rule being inconsistent with the principles of choice of law,
it is unnecessary: the same results could be achieved in other ways. The choice of
law rule can be constructed in such a way as to refer the issue to English law where
there is sufficient connection with England to justify it in the same way that other
choice of law rules do. The policy of the lex fori could be protected in appropriate
circumstances by using the public policy exception to prevent liability arising
under a foreign law being recoverable in the English courts. Public policy is an
"unruly horse" but it can be ridden with care. It is no stranger to the courts in the
domestic law of tort. Alternatively, characterisation of the issue may prevent the
claim from arising in the English courts. Where the liability is of such a foreign
kind that the English courts cannot describe it as "tort" at all then the issue will not
be determinable in English law unless another category of liability can be found.'5

12. E.g. in The Evia Luck [1992] 2 A.C. 152, at first instance [1986] 2 Lloyd's Rep. 165;
Sayers v. International Drilling Co. Ltd [1971] 1 W.L.R. 1176; Coupland v. Arabian Gulf
[1983]1 W.L.R. 1151. These cases are especially hard as the different characterisations of the
particular issue can lead to different results. However, the same problem arises in domestic
law where the defendant may be liable in tort but not in contract and the plaintiff is allowed
to choose the most favourable category.
13. The only connection with Hong Kong in Red Sea Insurance seems to have been that
the insurance company was incorporated there. Its head office was in Saudi Arabia and all
the other elements of the case seem to have been connected to Saudi Arabia: the building
was constructed there, the policy of insurance was governed by Saudi Arabian law and so
were all the contracts between the various defendants.
14. There are a number of theories of the need for choice of law rules. The main justifica-
tion is that they implement the legitimate expectations of the parties and select the most
appropriate law to govern the issue (see e.g. Dicey and Morris, op. cit. supra n.4, at pp.5-6).
15. That might not be an attractive solution for some; see Carter (1991) 107 L.Q.R. 405,
408-409.

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 JULY 1995] Choice of Law in Tort 653
There are few reported cases in which the rule in The Hall
prevent the plaintiff from recovering because no liability arose
The rule is therefore upheld as one promoting certainty. H
reported cases does not mean that justice has always been d
can clearly not recover under English law will not risk an exp
if the defendant cannot be sued elsewhere. Nevertheless, a
Boys v. Chaplin had reaffirmed the rule in The Halley, with
Donovan and Pearson giving English law, the lex fori, the pre
substantive law.17 Although their Lordships discussed the po
their statements were only obiter dicta. There was no question
liability arose as a matter of English law. The Privy Council
was not bound by any recent decision and this was an ide
arguments. Lord Slynn without question upheld the rule,
appropriateness at any point. He merely decided that this ca
if (a) there was a flexible exception to the double-actionabilit
the rule in The Halley, and (b) the facts of this case satisfied th
exception.

2. The existence of the exception to double actionability

In two English cases18 the Court of Appeal has accepted that Lord Wilberforce's
flexible exception existed but in neither case was it adopted. The only English case
to use it as part of the ratio decidendi is the first-instance decision of Johnson v.
Coventry Churchill Ltd.19 On the basis of that rather slight authority Lord Slynn
held that the flexible exception was indeed part of English conflict of laws. How-
ever, the High Court of Hong Kong had relied on the arguments of the judges in
the New South Wales case of Kolsky v. Mayne Nickless Ltd2" to deny that the
flexible exception was accepted in Australia and agreed that it should not be
adopted in Hong Kong. Lord Slynn then examined some of the Australian cases,
culminating in Breavington v. Godleman,21 and found some endorsement for the
need for flexibility in the double-actionability rule. Lord Slynn also referred to the
Law Commission's Report on Choice of Law in Tort and Delict22 and the Amer-
ican Law Restatement.23 In both of these he also found support for the need for
flexibility in the choice of law rule.24 It is regrettable that the Privy Council appar-

16. DefLepp Music v. Stuart-Brown [1986] R.P.C. 273 and the Australian case of Ander-
son v. Eric Anderson (Radio & TV) Pty Ltd (1965) 114 C.L.R. 20 are the only ones strictly in
point. The former could have been decided on the basis that in an action for alleged breach of
copyright under the Copyright Act 1956 the correct choice of law rule was English law rather
than forcing the liability for "harm" into the general tort choice of law rule.
17. [1971] A.C. 356, 383, 387, 389 and 400.
18. Church of Scientology v. Commissioners of the Metropolis (1976) 120 S.J. 690 and
Coupland v. Arabian Gulf Oil Ltd [1983] 3 W.L.R. 1136.
19. [1992] 3 All E.R. 14.
20. [1970] 3 N.S.W.R. 511.
21. (1988) 80 A.L.R. 362.
22. The Law Commission and the Scottish Law Commission Report on Private Inter-
national Law: Choice of Law in Tort and Delict (Law Com. No.193, Scot. Law Com. No.129).
23. American Law Institute Restatement 2nd. Conflict of Laws (1971).
24. Almost all the academic writing on the subject argues likewise. There are some
authors who argue for the application of the lexfori alone; see Ehrenzweig (1968) 17 I.C.L.Q.
1.

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654 International and Comparative Law Quarterly [VOL. 44
ently failed to appreciate the fundamental differences underlying the material to
which reference was made.
It does not seem to have been brought to the attention of the Privy Council that
in Breavington v. Godleman the majority, led by Mason CJ, adopted a new choice
of law rule based on the lex loci delicti as the substantive law of the tort. If that
choice of law rule were to be applied in this case, the plaintiff would have been able
to recover. It may be perplexing that this argument was not used before their Lord-
ships but this might be explained. In the more recent Australian cases (McKain v.
Miller25 and Stevens v. Head26) Mason CJ's view became a minority one. The cur-
rent position in Australia is one of strict double actionability with the lexfori as the
substantive law and it is likely that there is no flexible exception in Australia, at
least for intranational torts."7 However, none of these cases was strictly in point as
in all of them the plaintiff could recover under the lexfori and was seeking to avoid
the application of the lex loci delicti,28 the reverse of Red Sea Insurance. Therefore,
the Australian cases do nothing to aid Lord Slynn's argument.
When looking at the position in the United States Lord Slynn found more to
buttress his view that it is necessary to import some flexibility into the general rule.
However, the American choice of law rule in tort is very different from the general
rule in England. The US courts had decided as early as 1918 that the lex fori was
inappropriate. Cardozo J said in Loucks v. Standard Oil: "We are not so provincial
as to say that every solution of a problem is wrong because we deal with it other-
wise at home."29 The American courts have even moved on from applying solely
the lex loci delicti towards the law of the most significant relationship with the
occurrence and the parties.3 Also, interest analysis is used to aid choice of law in
many States.
The Law Commission's proposals were much more radical than Lord Slynn was
prepared to be. It recommended abolishing the rule in The Halley for nearly all
cases." Lord Slynn directly quoted paragraph 2.7 from its report making that rec-
ommendation, but did not go on to consider the point that its conclusion was that
there is no justification for the application of the lex fori at all rather than giving
grounds for an exception to it. Lord Wilberforce had admitted much the same view
in Boys v. Chaplin32 but concluded, on very tenuous arguments,33 that there was no

25. (1991) 104 A.L.R. 257.

26. (1993) 67 A.L.J.R. 343.
27. Brennan J in Breavington v. Godleman (1988) 80 A.L.R. 362,398, who was part of the
minority in that case. He became the leader of the majority in the later cases.
28. The Australian case that might have been analysed but was not is Anderson v. Eric
Anderson, supra n.16, in which the plaintiff was unable to recover because his contributory
negligence barred his claim completely by the lex fori.
29. 120 N.E. 198 (1918).
30. Restatement, supra n.23, at s.145.
31. It recommended keeping the rule for those actions in which the conduct happened
entirely in England. There is some force in the argument that a defendant should not be
made liable under a perhaps unknown foreign law for activities entirely undertaken in
England.
32. [1971] A.C. 356, 387.
33. Lord Wilberforce accepted that the lex loci delicti would be the appropriate law to
apply but concluded that to apply a foreign law could be seen as cumbersome, expensive and
difficult. If this justification for not applying foreign law was widespread it would destroy all
choice of law rules. It cannot be accorded much weight.

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 JULY 1995] Choice of Law in Tort 655
better alternative to the application of English law. Lord Sly
Lord Wilberforce. Or he might believe that the abolition of
should be brought about only by Parliament-but if so, why
could at least have justified the continued reliance on the lex
but was silent on this as well.

3. Applying the exception

Having determined that there was evidence that flexibility needed to be incor-
porated into the general rule in the interests of justice Lord Slynn then advised that
in exceptional cases an issue may be decided by the application of the law with the
most significant relationship with the occurrence and the parties. This is consistent
with Lord Wilberforce's opinion in Boys v. Chaplin. However, Lord Slynn went on
to advise that the exception could be adopted to make the defendant liable in
circumstances where the defendant was not liable at all under the lex fori. The
Privy Council expressly retained the rule requiring liability under the lex fori for
most cases except where it was necessary in the interests of justice to ignore it.
However, Lord Slynn did not clarify why it was "just" in the circumstances of the
instant case to apply another law and not the lex fori.34 The only explanation for it
being "just" on these facts was that there was no very strong connection between
the parties and Hong Kong but, on the other hand, that there were powerful con-
nections with Saudi Arabia. These made it more appropriate that the law of Saudi
Arabia should govern the liability arising between the parties. Perhaps, had the
parties considered the possibility beforehand, they might have expected that
Saudi Arabian law would have governed the issue.3 Their reasonable expectation
would justify the application of that law. Applying the same reasoning to the appli-
cation of the lexfori one can see that it is "just" to apply the lexfori only when there
are strong connections between the parties and that law but not otherwise. The
wholesale application of the lex fori to every case is unwarranted and outdated.
Fortunately, this may not be a problem we have to deal with for too long. The Bill
adopts the Law Commission's proposals and abolishes, inter alia, the rule in The
Halley.36

C. Double Actionability: Rule or Exception?

Notwithstanding Lord Slynn's reiteration of the general rule and his assertion that
"the exception will not be successfully invoked in every case or even, probably, in
many cases",37 his advice clears the way for more cases being decided by the excep-

34. In passing, Lord Slynn noted that: "There is obviously a difference between a court
being able to apply its own law exclusively and it being required to apply exclusively another
system. This, however, is not necessarily fatal to the contention that only the lex loci delicti be
applied since the foreign law can be proved and it is clear that in appropriate cases the lex loci
delicti can be applied to give a just result when the lexfori might not do so" ([1994] 3 W.L.R.
926, 940). It could be contended that this provides justification for choice of law rules in
general, and so would explain abolition of the rule in The Halley rather than perpetuation of
any exception to it.
35. The parties had expressly chosen Saudi Arabian law to govern their contractual
relationships: ibid.
36. Private International Law (Miscellaneous Provisions) Bill, clause 10.
37. [1994] 3 W.L.R. 926, 939.

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656 International and Comparative Law Quarterly [VOL. 44

tion than by the rule. First, the arguments Lord Slynn used to justify the appli-
cation of the exception were largely attacks on the application of the lex fori. It is
probable that they can be deployed to weaken the role of the lex fori and allow
wider use of the exception. Second, he did not offer clear guidelines to define the
exceptional case for the future, beyond a reference to the interests of justice. The
courts now have considerable latitude in weighing factors and deciding whether
the general rule or the exception should be adopted. In both Boys v. Chaplin and
Red Sea Insurance v. Bouygues SA all the contacts bar one pointed to one country.
In the first case the "odd" contact was the place of the accident and in the second it
was the place of incorporation of the defendant. Neither of these factors is mini-
mal. If "in the interests ofjustice" either of these factors can be ignored in favour of
others having a more significant relationship with the parties and the occurrence
so may any other factor. The court is invited to look at everything and decide what
the interests of justice require. If the interests of justice require that the defendant
should not be liable, then the double-actionability rule might apply. However, that
result can be in the interests of justice only if a law with a significant relationship
with the facts and the parties would deny the plaintiff recovery. If, on the other
hand, it is just for the plaintiff to recover then the law with the most significant
relationship would apply, be that the lex fori or the lex loci delicti or, presumably,
some other law.38 In effect, the court will be applying the law with the most signifi-
cant relationship to the parties and the occurrence although it might describe its
conclusion differently.

D. A Proper Law Test?

The "significant relationship" test is the same as the "proper law" of the tort pro-
pounded by Dr Morris and so criticised by the House of Lords in Boys v. Chaplin
that it was rejected by all of them as the general rule. Lord Slynn in Red Sea
Insurance refused to adopt the proper law rule because of its complexities and
uncertainty.39 The English courts are apparently fearful of the experience in the
American courts where a similar test has been used. An American academic has
described the cases as: "Awesome to behold-dissents, shifting doctrine, results
not easily reconcilable. In short a law professor's delight but a practitioner's and
judge's nightmare."'4 However, the test adopted by many American States rests
upon a fundamentally different basis from that adopted as the exception to double
actionability by the English courts. In particular, reference is made to the underly-
ing purpose of the rule and the "interest" that a State may have in its own rule
applying.41 This additional policy element adds to the uncertainty and unpredict-
ability of the American cases but it is not a necessary part of the proper law test.42

38. The analysis permits a third law (neither lex loci delicti nor lexfori) to be applicable as
the law with the most significant relationship with the parties and the occurrence although
there is no case law to support it.
39. [1994] 3 W.L.R. 926, 933.
40. Weintraub (1977) 41 Law & Contemp. Prob. 146, 148.
41. The role played by the US Constitution in conflict of laws in the US should not be
underestimated. There is no such equivalent force in English conflict of laws. Choice of law
rules used in the US therefore need to be investigated carefully before being adopted by the
English courts.
42. Lord Wilberforce in Boys v. Chaplin did use a policy-orientated argument to deny

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JULY 1995] Choice of Law in Tort 657
Lord Slynn made no reference to the policy behind the Hon
concerned merely to find objectively the law with the most sig
to the parties and the occurrence.
In practice, whichever choice of law rule is adopted, the ou
the same. The Law Commission recommended using the le
proposal has, in part, been adopted in the Bill. It has been ar
much more certain and it has an almost intuitive appeal. Th
simple argument in favour of the lex loci delicti: the law of
defendant acted and where the plaintiff suffered harm is th
they considered the issue, they might have anticipated would
the law likely to fulfil the legitimate expectations of them b
There are several criticisms of the lex loci delicti. First, de
basis of foreign law involves the parties in unnecessary unc
However, that argument could also be used against choice of
It can be countered by the admission that in England the
choose to have the matter decided by English law alone by no
foreign law aided by the presumption that foreign law is th
Second, it has been said that a choice of law rule based up
accident is "inappropriate to modern conditions of travel".43
many circumstances in which the place where the harm w
matter of chance. Too much can be made of the "fortuitous"
in Boys v. Chaplin. The plaintiff was a pillion passenger on a
by the negligence of the defendant driving a car coming in th
the plaintiff had been suing the driver of the motor scooter
hold more weight. Third, and most important, the lex loci deli
rule as it might appear because of the difficulty in locating th
was not a problem encountered by the court in Red Sea Insu
was done and the harm suffered in Saudi Arabia.46
There are real problems in discovering the locus delictus in some cases. These
are magnified when the harm suffered is not physical but economic, or the defend-
ant's action is achieved by use of telecommunications. The English courts are no
strangers to these complexities. Generally, the test for finding the locus delictus is
the same for all torts. The court must determine the "substance" of the tort and
then locate where that "substance" occurred.47 As the substance of each tort
depends on the particular tort in issue the test is flexible enough to cover many

Maltese law's application, as did Deputy Judge Kay QC in Johnson v. Coventry Church
International Ltd [1992] 3 All E.R. 14.
43. Boys v. Chaplin [1971] A.C. 356, 387.
44. [1968] 2 Q.B. 1, 4.
45. See e.g. in relation to financial torts, Reed [1994] L.M.C.L.Q. 248.
46. The insurance company could, at a pinch, have argued that the harm for which it wa
counterclaiming was the amount it would have had to pay out on the policy if it had lost th
case brought by the insured. That payment would have to be made in Hong Kong where th
case was being heard and so the harm would be suffered there, making Hong Kong the locu
delictus. However, the insurance company was claiming a right of subrogation for loss suf
fered by the insured. The real harm (to the insured) was obviously suffered in Saudi Arabi
where the defendants had allegedly caused the physical damage to the buildings and to argu
that the harm occurred anywhere else would be artificial.
47. Metall und Rohstoff, supra n.1.

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658 International and Comparative Law Quarterly [VOL. 44
different types of liability. Each tort is given its own "substance" and the test
allows the English courts to take account both of the place where the defendant
acted and of that where the plaintiff suffered.48 The "substance" test in operation
has not been predictable, which gives the lie to the assertion that the lex loci is a
certain test.49 It is also apparent that the factors which are important to find the lex
loci delicti are the selfsame factors which determine the law with the most signifi-
cant relationship. Even when the court is expressly applying the lex loci, it is, in
effect, adopting the "proper" law.

E. Private International Law (Miscellaneous Provisions) Bill

The Bill does not use the terminology of "proper law" or of the "substance" of the
tort. Nevertheless, the concepts underlying the Bill and the common law are much
the same. The Bill provides that for a tort made up of "events" occurring in more
than one country the court is to apply the law of the country in which the "most
significant element" of those events takes place."' It would not be surprising if the
courts draw on the cases determining the "substance" of a tort to indicate its "most
significant element". The Bill also allows an exception to that general rule where it
is "substantially more appropriate" for another law to apply once the significance
of all the "factors" connecting the tort to the various countries is compared." The
factors to be taken into consideration52 are those which would be investigated as
part of the determination of the proper law. The exception in the Bill has therefore
much in common with the proper law test, which would certainly have become the
rule at common law after Red Sea Insurance. Legislative reform is, therefore,
probably unnecessary. One can only ruefully reflect on Professor Cheshire's
eulogy to private international law as a subject "only lightly touched by the para-
lysing hand of the Parliamentary draftsman".5
PIPPA ROGERSON*

48. The test has been most used to determine whether the English court should take juris
diction under RSC Ord.ll. There is weak authority that the same test should be used t
locate the lex loci delicti commissi as a matter of choice of law as required by the double
actionability test (Robert Goff LJ in the Court of Appeal in Armagas Ltd v. Mundogas SA
[1986] A.C. 717, 740 approving Staughton J [1985] 1 Lloyd's Rep. 1, 24-25). However, th
Ord.11 cases need to be used with caution before the rules for the locus of a tort are adopte
in choice of law. First, the element of the use of the judge's discretion is difficult to disen
tangle from the issue of the locus of the tort. Second, the court has only to decide if the tort
was committed within the jurisdiction not where exactly the tort was committed, i
elsewhere.
49. See Dicey and Morris, op. cit. supra n.4, at pp.1509-1512; Cheshire and North, op. cit.
supra n.11, at pp.552-557.
50. Private International Law (Miscellaneous Provisions) Bill, clause 11(2). The Bill
excludes "defamation claims" from its provisions (clause 13(1)). A "defamation claim" is
defined broadly as a claim under English law for libel, slander or malicious falsehood or any
claim analogous to such actions under the law of another country. The common law will still
operate in respect of such claims.
51. Idem, clause 12(1).
52. Idem, clause 12(2).
53. Preface to Cheshire, Private International Law (1935).
* Lecturer, Cambridge University, Fellow of Gonville & Caius College. The writer would
like to thank Mr J. G. Collier for his helpful comments on the draft of this article. Any errors
which remain, however, are undoubtedly her own.

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