Territoriality and Personality in Tort Conflicts
INTERCONTINENTAL COOPERATION THROUGH PRIVATE INTERNATIONAL LAW: ESSAYS IN MEMORY OF PETER NYGH, T. Einhorn, K. Siehr, eds., pp. 401-433, T.M.C. Asser Press, 2004
27 Pages Posted: 27 May 2006
The history of conflicts law, at least in the area of torts, has been characterized by a constant antagonism between two grand operating principles - territoriality and personality of the laws. For the last eight centuries, territoriality has been the dominant principle in most countries, including the United States. This position appeared to be in serious jeopardy with the advent of the American choice-of-law "revolution" of the 1960s. Indeed, as a result of the revolution, 42 U.S. jurisdictions abandoned the traditional, territorially-based lex loci delicti rule in favor of applying the law of the state that has "personal" connections with the tortfeasor and the victim. Does this portend the demise of territoriality? This Article explores this question and delineates the current position of these two grand principles.
The Article finds that, although the revolution caused a fundamental reorientation in choice-of-law analysis and methodology, it has had a much lesser impact in reducing the dominance of territorialist results. Specifically, territoriality has lost ground in only one category of tort conflicts - those in which both the tortfeasor and the victim are domiciled in the same state and the tort occurs in another state. In these cases, the courts have uniformly applied the law of the parties' common domicile, but only if the conflict involved an issue of "loss distribution" rather than "conduct regulation." In contrast, territoriality continues to reign supreme in conflicts between conduct-regulating rules. In these conflicts, the courts disregard the parties' domiciles and apply the law of the state or states that have one or both of the territorial contacts - the place of conduct, and the place of injury.
This leaves the middle ground of loss-distribution conflicts of the split-domicile pattern. This is the arena in which territoriality and personality continue to challenge each other. Although the courts that have abandoned the lex loci rule consider both the personal and the territorial contacts, the majority of courts end up applying the law of the state that has the territorial contacts (even if that state also has a personal contact), rather than the state that has only a personal contact. Thus, at least for now, territoriality continues to carry the day in these middle conflicts.
If the revolution's goal was to banish territoriality, the revolution has scored only a partial victory. However, the revolution's goals were neither as deliberate nor as narrow. The chief goal was to free the choice-of-law process from the shackles of a mechanical rule that inexorably mandated the application of the law of a state that had a single contact - which happened to be territorial - regardless of any other contacts or factors, such as the content or policies of the conflicting laws, and regardless of the issue involved in the conflict. Judged in this light, the revolution has succeeded in demolishing not only this particular rule, but also the mind set that gave birth to it. Along the way, the revolution has brought about a new accommodation or equilibrium between territoriality and personality.
This Article contends that this equilibrium can form the basis for the next step in the evolution of American conflicts law, which should lead to the formulation of new, issue-directed, content-sensitive, flexible and evolutionary choice-of-law rules based on the accumulated experience of American courts. It is hoped that, by cataloguing and analyzing the results of actual cases, this Article can make a small contribution in this direction.
Keywords: Torts, Choice of law, Conflict of laws, Private International law, Extraterritoriality, Territoriality, Non-territoriality, Personality, Prescriptive jurisdiction, Conduct regulation, Loss distribution, Loss allocation, Punitive damages, Compensatory damages, Choice-of-law Revolution, Damages
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