Editing Tort (section)

==Conflict of laws==
{{Main article|Conflict of tort laws}}
In certain instances, different jurisdictions' law may apply to a tort, in which case rules have developed for which law to apply. In common law jurisdictions, the traditional approach to determine which jurisdiction's tort law is applicable is the [[Proper law|''proper law'' test]]. When the jurisdiction is in dispute, one or more [[Jurisdiction (area)|state]] [[law]]s will be relevant to the decision-making process. If the laws are the same, this will cause no problems, but if there are substantive differences, the choice of which law to apply will produce a different [[Judgment (law)|judgment]]. Each state, therefore, produces a set of rules to guide the choice of law, and one of the most significant rules is that the law to be applied in any given situation will be the ''proper law''. This is the law which seems to have the closest and most real connection to the facts of the case, and so has the best claim to be applied. The general rule is that the ''proper law'' is the primary system of law that governs most aspects of the factual situation giving rise to the dispute. This does not imply that all the aspects of the factual circumstances are necessarily governed by the same system of law, but there is a strong presumption that this will be the case (see [[characterisation (conflict)|characterisation]]). Traditionally, common law jurisdictions such as England required "double actionability" for torts, effectively requiring the conduct to be considered tortious both in England and in the jurisdiction whose law is to apply under the proper law rule.

Over time, the proper law test has been refined or replaced in many common law jurisdictions either with reference to all instances of conflict of laws or specifically in the case of tort law. In English law, with the exception of [[defamation]] which continues to apply the ''proper law'' test, s10 [[Private International Law (Miscellaneous Provisions) Act 1995]] abolishes the "[[double actionability]]" test, and s11 applies the ''lex loci delicti'' rule subject to an exception under s12 derived from ''[[Boys v Chaplin]]'' [1971] AC 356 and ''[[Red Sea Insurance Co Ltd v Bouygues SA]]'' [1995] 1 AC 190. Thus, it is no longer necessary for the case to be based on a tort actionable in England. The English courts must apply wider international tests and respect any remedies available under the "Applicable Law" or ''lex causae'' including any rules on who may claim (e.g. whether a personal representative may claim for a fatal accident) and who the relevant defendant may be (i.e. the English court would have to apply the applicable law's rules on [[vicarious liability]] or the identity of an "occupier" of land). The first step is for the court to decide where the tort occurred, which may be complicated if relevant events took place in more than one state. s11(2) distinguishes between:
*actions for personal injuries: it is the law of the place where the individual sustained the injury;
*damage to property: it is the law of the place where the property was damaged;
*in any other case, it is the law of the place in which the most significant element or elements occurred.
In exceptional circumstances, the ''lex loci delicti'' rule is displaced in favour of another law, if the "factors relating to the parties" or "any of the events which constitute the tort" show that this other law will be ''substantially'' more appropriate.

Within the European Union, there have been efforts to harmonise conflict of tort laws rules between member states. Under Article 3 of the proposed ''[[Rome II Regulation]]'' on the ''Law Applicable to Non-Contractual Obligations'' (22 July 2003), there would be a general presumption that the ''lex loci delicti'' will apply subject to either: an exception in Paragraph 2 for the application of the law to any common [[habitual residence]] between the parties, or an exception in Paragraph 3 for cases in which "the non-contractual obligation is manifestly more closely connected with another country. . ." the so-called ''proximity criterion''. In effect, where other specific rules of the regulation are not applied, these general rules replicate the effect of the English rules outlined above. In [[product liability]] cases, Article 4 selects the law of the injured party's habitual residence if the product was marketed there with the consent of the [[defendant]]. The rationale is that if a defendant knows of, and is benefiting from, sales in the [[plaintiff]]'s state, the choice of that state's law is reasonable. Article 6 specifies the ''lex fori'' for actions arising out of breach of [[privacy]] or [[defamation]], a rule that may increase the risk of forum shopping. Whether the plaintiff has any right of reply in a defamation case will be determined under the law of the state where the broadcaster or publisher is established. In cases where contract and tort issues overlap, Article 9 states that the same law should govern both sets of issues, thus applying contractual [[choice of law]] clauses to related tort litigation.

In the United States, where each state constitutes a distinct jurisdiction for the purposes of tort law, different jurisdictions take different approaches to conflict of laws, and rules regarding conflict of tort laws apply equally to conflicts between the tort laws of two American states and conflicts between an American state and a foreign jurisdiction. Until the 20th century, traditional choice of law rules were based on the principle that legal rights vest automatically at legally significant and ascertainable times and places. For example, a dispute regarding property would be decided by the law of the place the property was located.<ref>7 Restatement (First) of Conflict of Laws, §§208--310.</ref> Disputes in tort would be decided by the place where the injury occurred.<ref>9 Restatement (First) of Conflict of Laws, §377.</ref> During the first half of the 20th century, the traditional conflict of laws approach came under criticism from some members of the American legal community who saw it as rigid and arbitrary; the traditional method sometimes forced the application of the laws of a state with no connection to either party, except that a tort or contract claim arose between the parties in that state.<ref>See e.g. ''Alabama G.S.R. Co. v. Carroll'', 97 Ala. 126, 11 So. 803 (Ala. 1892) (holding Alabama employee could not sue Alabama employer for on-the-job injury because an accident occurred in Mississippi whose law disallowed the cause of action)</ref>  This period of intellectual ferment (which coincided with the rise of the [[legal realism]] movement) introduced a number of innovative approaches to American choice of laws jurisprudence:<ref>Brainerd Currie, Selected Essays on the Conflict of Laws (1963); Robert A. Leflar, Choice Influencing Consideration in the Conflict of Laws, 41 N.Y.U. L. Rev. 267 (1966).</ref>
*[[Renvoi]]: Under this approach, courts look for a provision in the law of the choice of the law state that permits the court to use the [[lex fori]], i.e. law of the forum state.
*Significant contacts test: This test evaluates the contacts between the states and each party to the case, and determines which state has the most significant contacts with the litigation as a whole.
*Seat of the relationship test: This test specifically examines the relationship between the parties to the lawsuit, and uses the law of the state in which the relationship between the parties was most significant.
*Balance of interests test: This test examines the interests of the states themselves, and the reasons for which the laws in question were passed.  It is the brainchild of [[University of Chicago]] law professor [[Brainerd Currie]], who outlined the doctrine in a series of articles from the 1950s and 60s. Under this form of analysis, the court must determine whether any conflict between the laws of the states is a true conflict, a false conflict, or an unprovided-for case. A true conflict occurs when one state offers a protection to a particular party that another state does not, and the court of the state that offers no such protection is asked to apply the law of the state offering the protection. In such a case, if the interests are balanced, the law of the forum will prevail. A false or apparent conflict occurs when the state offering the protection has no actual interest in the endorsement of that protection against the particular parties to the case. In this case, since neither party is from the forum state, it has no interest in the application of the law to these persons. An unprovided-for case is one in which each party is seeking to apply the law of the ''other'' state. In such a case, the law of the forum will prevail.
*Comparative impairment test: This test asks which state's policies would suffer more if their law was not applied. This is similar to interest analysis, in that the interests of the state are taken into account - however, this test does not look to see which state benefits more from the application of its laws, but rather for situations in which the other state's interests will actually be harmed by the application of the laws of the forum state.
*Better rule test: The better rule test presupposes that, between the laws presented by the two or more states in which the action arose, there is one set of laws that is empirically better, and which is therefore more meritorious of application by the forum court. Use of the "better rule" test, like renvoi, is frowned upon because it appears to be little more than a gimmick to allow a court to apply the law of its own state.