Homing devices in choice of Tort Law: Australian, British and Canadian Approaches

Mortensen, R. G. (2006) Homing devices in choice of Tort Law: Australian, British and Canadian Approaches. International and Comparative Law Quarterly, 55 4: 839-878. doi:10.1093/iclq/lei132


Author Mortensen, R. G.
Title Homing devices in choice of Tort Law: Australian, British and Canadian Approaches
Journal name International and Comparative Law Quarterly   Check publisher's open access policy
ISSN 0020-5893
Publication date 2006-10
Sub-type Article (original research)
DOI 10.1093/iclq/lei132
Volume 55
Issue 4
Start page 839
End page 878
Total pages 40
Editor Alan Boyle
Gilliam Triggs
Place of publication Oxford, England
Publisher Oxford University Press
Collection year 2006
Language eng
Subject C1
390204 Professional Ethics
780107 Studies in human society
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. © 2006 Oxford University Press.
Q-Index Code C1

 
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Created: Wed, 15 Aug 2007, 10:14:39 EST