Choice of Law in Cross-Border Torts
93 Pages Posted: 15 Jan 2009
Date Written: January 14, 2009
This Article is the first comprehensive study of how American courts have resolved conflicts of laws arising from cross-border torts over the last four decades. This period coincides with the confluence of two independent forces: (1) a dramatic increase in the frequency and complexity of cross-border torts generated by the spectacular expansion of cross-border activity now known as globalization; and (2) the advent of the American choice-of-law revolution, which succeeded in demolishing the old regime in forty-two U.S. jurisdictions, but failed to replace it with anything resembling a unified system.
One of the findings of the Article is that, despite using different approaches and invoking varied rationales, courts that have joined the revolution have reached fairly uniform results in resolving cross-border tort conflicts: they have applied the law of the state of either the injurious conduct or the resulting injury, but, in the vast majority of cases (86 percent), they have applied whichever of the two laws favored the tort victim. Another finding is that the vast majority of recent conflicts codifications around the world (a total of 20) have adopted the same solution: they apply whichever law favors the victim, by authorizing either the court or the victim directly to make the choice.
The Article concludes by examining whether the results of the American cases can be compressed into new content-sensitive, result-selective choice-of-law rules which would be free of the vices of the old rules and would be easy for judges to apply. It answers the question in the affirmative and, to prove the point, it offers three options for such rules.
Keywords: choice of law, conflict of laws, private international law, cross-border torts, trans-border torts, extraterritoriality, prescriptive jurisdiction, codification, favor laesi, environmental torts, internet torts, cross-border defamation
JEL Classification: K1, K10, K13, K19, K21, K29, K30, K32, K33, K40, K41
Suggested Citation: Suggested Citation