Double actionability

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Double actionability is a doctrine of private international law which holds that an action for an alleged tort committed in a foreign jurisdiction can be successful in a domestic court only if it would be actionable under both the laws of the home jurisdiction and the foreign jurisdiction. The rule originated in the controversial case of Phillips v Eyre (1870) LR 6 QB 1.

A tort, in common law jurisdictions, is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. It can include the intentional infliction of emotional distress, negligence, financial losses, injuries, invasion of privacy and many other things.

<i>Phillips v Eyre</i>

Phillips v Eyre (1870) LR 6 QB 1 is a famous English decision on the conflict of laws in tort. The Court developed a two limbed test for determining whether a tort occurring outside of the court's jurisdiction can be actionable. In time this came to be referred to as the "dual-actionability test".

The rule is no longer used in Canadian law and instead the lex loci delicti rule is used. [1] Likewise, the rule no longer forms part of Australian law which also uses the lex loci delicti rule. [2] This rule holds that the applicable law for a tort committed in a foreign place will be the tort law of the foreign place.

The rule was abolished in New Zealand tort law by section 10 of the Private International Law (Choice of Law in Tort) Act 2017.

The rule has largely been abandoned in English law by virtue of section 10 of the Private International Law (Miscellaneous Provisions) Act 1995, [3] although defamation claims are specifically excluded (cf. section 13(1)). However, even prior to it being abandoned the courts had increasingly distanced themselves from the rule by applying a "flexible exception". The exception was first applied in Boys v Chaplin [1969] 2 All ER 1085 and expanded upon in Red Sea Insurance v Bouygues SA [1995] 1 AC 190. [4]

Private International Law (Miscellaneous Provisions) Act 1995 United Kingdom legislation

Private International Law Act 1995 is an Act of the Parliament of the United Kingdom.

Modern libel and slander laws, as implemented in many Commonwealth nations as well as in the United States and in the Republic of Ireland, are originally descended from English defamation law. The history of defamation law in England is somewhat obscure; civil actions for damages seem to have been relatively frequent as far back as the reign of Edward I (1272–1307), though it is unknown whether any generally applicable criminal process was in place. The first fully reported case in which libel is affirmed generally to be punishable at common law was tried during the reign of James I (1603-1625). Scholars frequently attribute strict English defamation law to James I's outlawing of dueling. From that time, both the criminal and civil remedies have been found in full operation.

<i>Boys v Chaplin</i>

Boys v Chaplin [1971] AC 356 is a leading conflict of laws case decided by the House of Lords.

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<i>Itar-Tass Russian News Agency v. Russian Kurier, Inc.</i>

Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, was a copyright case about the Russian language weekly Russian Kurier in New York City that had copied and published various materials from Russian newspapers and news agency reports of Itar-TASS. The case was ultimately decided by the United States Court of Appeals for the Second Circuit. The decision was widely commented upon and the case is considered a landmark case because the court defined rules applicable in the U.S. on the extent to which the copyright laws of the country of origin or those of the U.S. apply in international disputes over copyright. The court held that to determine whether a claimant actually held the copyright on a work, the laws of the country of origin usually applied, but that to decide whether a copyright infringement had occurred and for possible remedies, the laws of the country where the infringement was claimed applied.

Forum non conveniens (FNC) is a mostly common law legal doctrine whereby a court "acknowledges that another forum or court is more appropriate and sends the case to such a forum. A change of venue, where another venue is more appropriate to adjudicate a matter, such as the jurisdiction within which an accident occurred and where all the witnesses reside."


Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states, or provinces. The outcome of this process is potentially to require the courts of one jurisdiction to apply the law of a different jurisdiction in lawsuits arising from, say, family law, tort, or contract. The law which is applied is sometimes referred to as the "proper law." Dépeçage is an issue within choice of law.

In conflict of laws, renvoi is a subset of the choice of law rules and it may be applied whenever a forum court is directed to consider the law of another state.

Characterisation, or characterization, in conflict of laws, is the second stage of the procedure to resolve a lawsuit that involves foreign law. The process is described in English law as Characterisation, or classification within the English judgments of the European Court of Justice. It is alternatively known as qualification in French law.

Incidental questions in private international law with respect to the problems and elements discussed below

In conflict of laws, the choice of law rules for tort are intended to select the lex causae by which to determine the nature and scope of the judicial remedy to claim damages for loss or damage suffered.

Lex causae, in conflict of laws, is the law chosen by the forum court from the relevant legal systems when it judges an international or interjurisdictional case. It refers to the usage of particular local laws as the basis or "cause" for the ruling, which would itself become part of referenced legal canon.

The lex domicilii is the Latin term for "law of the domicile" in the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are applied.

In the conflict of laws, the lex loci contractus is the Latin term for "law of the place where the contract is made".

Lex loci solutionis, in conflict of laws, is the law applied in the place of an event.

The lex loci delicti commissi is the Latin term for "law of the place where the delict [tort] was committed" in the conflict of laws. Conflict of laws is the branch of law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are applied.

The lex loci arbitri is the Latin term for "law of the place where arbitration is to take place" in the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are applied.

<i>Tolofson v Jensen</i>

Tolofson v Jensen, [1994] 3 S.C.R. 1022 is a landmark decision of the Supreme Court of Canada on conflict of laws in tort. The Court held that the primary determiner in selecting a country's law in tort should be the lex loci. The case was decided with Lucas v Gagnon.

In the conflict of laws, lex loci actus is the law of the place where the act occurred that gave rise to the legal claim. This is often confused with lex loci delicti commissi which is where the tort is committed. While typically they both point to the same location, in the case of product liability, for example, the lex loci actus would be the place of manufacturing, while the lex loci delicti commissi would be the place of injury.

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), was a United States Supreme Court case involving the Alien Tort Statute and the Federal Tort Claims Act.

<i>Red Sea Insurance Co Ltd v Bouygues SA</i>

Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190 is a judicial decision of the Privy Council relating to choice of law in tort. The case was an appeal from the decision of the Court of Appeal of Hong Kong, but as the case was decided in Hong Kong pursuant to the English Law Ordinance, section 3(1), it is also taken to be an authoritative statement of English law.

References

  1. ↑ Tolofson v. Jensen [1994] 3 S.C.R. 1022
  2. ↑ John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
  3. ↑ "Private International Law (Miscellaneous Provisions) Act 1995" . Retrieved 29 March 2017.
  4. ↑ Martin George (11 November 2006). "Forum Non Conveniens and Choice of Law in Tort & Equity in the Singapore Court of Appeal".


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