Homing devices in choice of tort law: Australian, British, and Canadian approaches

Mortensen, Reid (2006) Homing devices in choice of tort law: Australian, British, and Canadian approaches. International and Comparative Law Quarterly, 55. pp. 839-878. ISSN 0020-5893

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[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.

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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: Published Version deposited in accordance with the copyright policy of the publisher.
Faculty / Department / School: Historic - Faculty of Business - Department of Law
Date Deposited: 25 May 2009 02:13
Last Modified: 02 Jul 2013 23:15
Uncontrolled Keywords: Australia; Britain; United Kingdom; Canada; cross-border torts; tort law;
Fields of Research : 18 Law and Legal Studies > 1801 Law > 180104 Civil Law and Procedure
URI: http://eprints.usq.edu.au/id/eprint/5023

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