Homing devices in choice of tort law: Australian, British, and Canadian approaches
Article
Article Title | Homing devices in choice of tort law: Australian, British, and Canadian approaches |
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ERA Journal ID | 33425 |
Article Category | Article |
Authors | |
Author | Mortensen, Reid |
Journal Title | International and Comparative Law Quarterly |
Journal Citation | 55, pp. 839-878 |
Year | 2006 |
Place of Publication | Cambridge, United Kingdom |
ISSN | 0020-5893 |
1471-6895 | |
Digital Object Identifier (DOI) | https://doi.org/10.1093/iclq/lei132 |
Web Address (URL) | http://journals.cambridge.org/action/displayJournal?jid=ILQ |
Abstract | [Abstract]: Since 1994, Canada, the United Kingdom and Australia have adopted new choice of law rules for cross-border torts that, in different ways, centre on the application of the law of the place where the tort occurred (the lex loci delicti). All three countries abandoned some species of the rule in Phillips v Eyre, which required some reference to the law of the forum (the lex fori) as well as the lex loci delicti. However, predictions were made that, where possible, courts in these countries would continue to show a strong inclination to apply the lex fori in cross-border tort cases—and would use a range of homing devices to do so. A comprehensive survey and analysis of the cases that have been decided under the Australian, British and Canadian lex loci delicti regimes suggests that courts in these countries do betray a homing instinct, but one that has actually been tightly restrained by appeal courts. Where application of the lex fori was formally allowed by use of a 'flexible exception' in Canada and the United Kingdom, this has been contained by courts of first appeal. Indeed, only the continuing characterization of the assessment of damages as a procedural question in Canada and the United Kingdom, seems to remain as a significant homing device for courts in these countries. |
Keywords | Australia; Britain; United Kingdom; Canada; cross-border torts; tort law; |
ANZSRC Field of Research 2020 | 480502. Civil procedure |
Public Notes | File reproduced in accordance with the copyright policy of the publisher/author. |
Byline Affiliations | University of Queensland |
https://research.usq.edu.au/item/9yz5z/homing-devices-in-choice-of-tort-law-australian-british-and-canadian-approaches
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