TORT CHOICE OF LAW BEYOND THE RED SEA ... - Faculty of Law

1 Singapore SJICL Journal Tort of International Choice of & Law Comparative Beyond Law the Red Sea: Whither the Lex Fori?
(1997) 1 pp 91 – 116
TORT CHOICE OF LAW BEYOND THE RED SEA:
WHITHER THE LEX FORI?
In Red Sea Insurance Co Ltd v Bouygues SA, 1 the Privy Council held that as a matter
of English law, when a wrong is committed overseas, in exceptional circumstances it
is possible to sue on a tortious cause of action founded on the law of the place of
the wrong that does not exist under the law of the forum. It is the purpose of this
article to study, first, the implications of this case for the exception to the general rule
of double actionability in tort choice of law rules, and secondly, the wider ramifications
that the case holds for the general rule itself.
I. INTRODUCTION
CROSS-BOUNDARY torts 2 present special problems for conflict of laws
because of the multiplicity of policy considerations and the absence of an
obvious focal point. Historically, the appropriate connecting factor had been
thought to be either the lex fori or the lex loci delicti. 3 In modern times,
the former is thought to be too parochial, and the latter may be hard to
determine, 4 and may in any case turn out to be fortuitous. On the other
hand, too much uncertainty may result if rigid connecting factors are abandoned
in favour of flexible approaches that take into account the connections and
the policy issues in each case. The common law has sought to maintain
a balance between these two extremes.
In 1868 The Halley 5 established that when a tort is committed overseas,
the plaintiff can only sue on the principles of the forum’s tort law. The
1
[1995] 1 AC 190 (PC HK). Hereafter, it will be referred to as Red Sea Insurance. For
commentaries on the case, see: Briggs, “The Halley: Holed, but Still Afloat” (1995) 111
LQR 18; Dickinson, “Further Thoughts on Foreign Torts: Boys v Chaplin Explained?” [1994]
LMCLQ 463; Rogerson, “Choice of Law in Tort: A Missed Opportunity?” (1995) 44 ICLQ
650; Carter, “Choice of Law in Tort: The Role of the Lex Fori” [1995] CLJ 38.
2
This article will not deal with the special rules applicable to mass disaster, maritime and
aerial torts.
3
Morse, Torts in Private International Law (1978), Chs 2-3.
4
Ibid. See, eg, Distillers Co (Bio-Chemicals) Ltd v Thompson [1971] AC 458; Castree v
ER Squib & Sons Ltd [1980] 2 All ER 589; Metall und Rohstoff AG v Donaldson, Luftkin
and Jenrette Inc [1990] 1 QB 391.
5
(1868) LR 2 PC 193.
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92 Singapore Journal of International & Comparative Law (1997)
defendants, while navigating Belgian waters, were compelled by Belgian
law to employ a pilot, whose negligence caused damage to the plaintiffs.
The defendants were vicariously liable for the acts of their compulsory pilot
by the lex loci delicti but not the lex fori. 6 Selwyn LJ, delivering the judgment
of the Privy Council, sitting on appeal from the High Court of Admiralty,
dismissed the action because the defendant was not liable under English
law.
Two years later, Phillips v Eyre 7 demonstrated the relevance of the lex
loci delicti in addition to the lex fori. The action was for assault and false
imprisonment committed in Jamaica. These torts were recognised in both
England and Jamaica, but a statute had been passed in Jamaica that had
retrospectively validated the defendant’s acts. Willes J dismissed the plaintiff’s
action because, although the requirements of English tort law had been met,
the defendant’s acts were justifiable by Jamaican law. His Lordship said:
As a general rule, in order a found a suit in England for a wrong alleged
to have been committed abroad, two conditions must be fulfilled. First,
the wrong must be of such a character that it would have been actionable
if committed in England; ... Secondly, the act must not have been
justifiable by the law of the place where it was done. 8
In 1971, the House of Lords had to interpret this statement. In Boys
v Chaplin, 9 the plaintiff and defendant, both British military servicemen
posted to Malta, were involved in a road accident in Malta caused by the
negligence of the defendant. The plaintiff could sue the defendant in tort
by the laws of both England and Malta. However, by English law but not
by Maltese law the plaintiff could recover damages for pain and suffering
and loss of future earnings. The question before the House of Lords was
whether the plaintiff could claim these heads of damages.
All their Lordships accepted Willes J’s statement of law in Phillips v
Eyre as authoritative. There was unanimity that the action, following The
Halley, must be tested by the substantive law of the forum but the unanimity
ended there. Lord Pearson and Lord Donovan allowed recovery on the basis
that the reference to the lex loci delicti was only to establish that the act
was not innocent by that law. Lord Donovan alternatively relied on the
6
For a survey of compulsory pilotage laws of the early trading nations and their effect on
the development of the conflict of laws, see: Bederman, “Compulsory Pilotage, Public Policy,
and the Early Private International Law of Torts” (1990) 64 Tulane LR 1033.
7
(1870) LR 6 QB 1.
8
Ibid, at 28-29.
9
[1971] AC 356. McGregor, “The International Accident Problem” (1970) 33 MLR 1; Briggs,
“What did Boys v Chaplin decide?” (1983) 12 Anglo Am LR 237.

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Tort Choice of Law Beyond the Red Sea: Whither the Lex Fori?
characterisation of the issue of recovery for heads of damages as procedural
and thereby governed by the lex fori. Lord Wilberforce, Lord Hodson and
Lord Guest required civil actionability by lex loci delicti as well, but while
Lord Wilberforce and Lord Hodson allowed recovery by the way of an
exceptional application of the lex fori to displace the lex loci delicti because
the double actionability test failed, Lord Guest circumvented the rule
altogether by a procedural classification of the issue.
In the shadow cast by this decision, the received wisdom in England
has been that Lord Wilberforce’s reasoning represented the common law
position. 10 In Lord Wilberforce’s view, the tension between certainty and
flexibility was to be resolved into a general rule of double actionability
with a flexible exception:
I would, therefore, restate the basic rule of English law with regard
to foreign torts as requiring actionability as a tort according to English
law, subject to the condition that civil liability in respect of the relevant
claim exists as between the actual parties under the law of the foreign
country where the act was done. 11
His Lordship added that this general rule should be applied in most cases,
but there was a flexible exception which could only be invoked where there
are “clear and satisfying grounds” for not applying the general rule. 12 In
relation to the exception, the specific issue must be segregated and tested
to see, in respect of that issue, which law bears the closest and most significant
relationship with the occurrence and the parties. 13
II. RED SEA INSURANCE CO LTD V BOUYGUES SA
In this case, the respondents (plaintiffs), none of whom were from the forum
(Hong Kong), were all engaged in a construction project in Saudi Arabia.
The respondents can be conveniently divided into three groups. The first
group comprised the main contractors for the project, the second group
consisted of suppliers of building materials, and members of the third group
were the consultants. The appellant (defendant), incorporated in Hong Kong
with its head office in Saudi Arabia, was the insurer of the building works.
10 See, eg, Dicey & Morris, Conflict of Laws (12th ed, 1993), Rule 203; Cheshire & North,
Private International Law (12th ed, 1992), Ch 20; Church of Scientology of California v
Commissioner of the Metropolitan Police (1976) Sol Jo 690; Coupland v Arabian Gulf Oil
Co [1983] 2 All ER 434; Sayers v International Drilling Co NV [1971] 1 WLR 1176.
11 Supra, note 9, at 389.
12 Supra, note 9, at 391.
13 Supra, note 9, at 391-392.
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94 Singapore Journal of International & Comparative Law (1997)
The appellant was resisting a claim from the respondents in respect of
structural damage to the building works. Inter alia, it denied that the second
group of respondents were parties to the insurance contract, 14 and counterclaimed
against them in tort.
The specific issue before the Privy Council was whether the appellant
could amend its pleadings to include a counterclaim of an alleged direct
cause of action in tort against the second group of respondents in negligence
for supplying defective materials to the other respondents in the course of
the construction, thereby causing economic loss to the appellant. This cause
of action did not exist by the lex fori, but purportedly existed by the lex
loci delicti. The Hong Kong Court of Appeal, 15 following its earlier decision
in The Adhiguna Meranti, 16 had denied the existence of the exception on
the basis that it did not represent the majority views in Boys v Chaplin
and refused the amendment because the action was thereby unsustainable
in law. 17
The Privy Council heard the case on the basis that English law was
applicable. 18 The questions as defined by the Board for decision were:
(1) whether there was an exception to the double actionability rule
in Boys v Chaplin;
(2) whether the exception could operate to displace the lex fori in
favour of the lex loci delicti; and
(3) whether the exception could be applied to the entire case. All
were answered affirmatively.
1. Is there an exception?
III. IMPLICATIONS FOR THE EXCEPTION
A. The Points Addressed
The Board’s acceptance that the exception formed part of English law
is unsurprising. Cases after Boys v Chaplin have generally assumed its
14
This is significant because on the assumed facts no contractual question arises, and hence
no issue of concurrent liability is involved.
15
16
17
[1993] 2 HKLR 161.
[1988] 1 Lloyd’s Rep 384.
The Court of Appeal had allowed an amendment in respect of a similar counterclaim framed
in terms of a subrogatory right that, although it could not arise by Hong Kong law (the
insurer not having paid out the monies), arguably arose under the proper law of the insurance
contract (Saudi Arabian law). Nothing more will be said about this counterclaim.
18
Application of English Law Act (Cap 88, Laws of Hong Kong).

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Tort Choice of Law Beyond the Red Sea: Whither the Lex Fori?
existence, 19 and it has been applied recently by the High Court in Johnson
v Coventry Churchill International Ltd. 20 However, in deciding that the
exception is discernible from Boys v Chaplin itself, the Board was taking
a liberal approach towards the interpretation of precedent. Lord Donovan
had explicitly opposed it, and no support was forthcoming from Lord Guest.
Lord Pearson had said in obiter that if double actionability was the rule,
then an exception should be made on the facts to allow recovery. 21 It remains
speculative whether the Lord Pearson was talking about the same exception
as Lord Wilberforce and Lord Hodson. In the face of such divergence, it
is not surprising that the Privy Council opted to resolve the issue at the
level of principle, asking whether there was majority support for flexibility
in the application of the double actionability rule. It found this in the
judgments of Lord Wilberforce, Lord Hodson and Lord Pearson. Support
in principle was also culled from the Law Commission 22 and the American
Law Institute. 23
In principle, if Lord Wilberforce’s double actionability formulation is
accepted, then, because the requirements are so strict, 24 an exception is called
for. Otherwise, there is a danger of courts manipulating other techniques
in a less than satisfactory fashion to achieve desired results in particular
cases. 25 The Hong Kong Court of Appeal in The Adhiguna Meranti 26 was
of the opinion that the requirement of civil liability in the place of the wrong
was not as strict as it was made out to be in Lord Wilberforce’s judgment, 27
19
See cases mentioned in supra, note 10. Contra the rejection of the exception by the Australian
High Court, at least in relation to interstate torts, in McKain v RW Miller (1991) 104 ALR
257.
20
[1992] 3 All ER 14.
21
Supra, note 9, at 406.
22
Private International Law: Choice of Law in Tort and Delict (Law Com No 193).
23
Second Restatement of the Law: Conflict of Laws (1969).
24
The defendant has a double advantage: the plaintiff must show that the defendant is liable
by both laws and the defendant can excuse himself by either.
25
For example, the classification of heads of damages as procedural by the minority in the
House of Lords in Boys v Chaplin. In Australia, the notion of procedure in this context
has been pushed very far: Stevens v Head (1993) 112 ALR 7; Opeskin, “Statutory Cap on
Damages in Australian Conflict of Laws” (1993) 109 LQR 533.
26
Supra, note 16.
27
Lord Hodson agreed with the lex loci delicti requirement of Lord Wilberforce. Lord Pearson
and Lord Donovan, taking the Machado v Fontes [1897] 2 QB 231 approach (which was
overruled by Lord Hodson and Lord Wilberforce expressly, and Lord Guest by implication),
required only moral or criminal culpability. Lord Guest required double actionability, but
what he meant by actionability by the lex loci delicti remains conjectural because he classified
the issue out of tort choice of law rules. This particular aspect of Boys v Chaplin did not
arise for consideration in Red Sea Insurance. For this reason, we have probably not heard
the last of The Adhiguna Meranti, supra, note 16.
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96 Singapore Journal of International & Comparative Law (1997)
and so, perhaps with some justification, 28 thought that it was unnecessary
to create more uncertainty by having an exception. The exception is totally
untested by Singapore law. 29 Two Malaysian tort cases have considered
Boys v Chaplin, but neither are satisfactory. In one, an exception was arguably
applicable, but it did not appear from the judgment to have been considered, 30
and in the other, the exception appeared to have been applied, although
it was not explained why the general rule had been displaced. 31 Therefore,
on this point, Red Sea Insurance, as a highly persuasive authority, is welcome.
2. Is there an exception to the lex fori?
Red Sea Insurance gave a resounding affirmative answer. This issue was
not directly addressed in Boys v Chaplin. It has been pointed out by a
commentator that although Lord Hodson’s judgment is probably phrased
broadly enough to comprehend an exception to the lex fori, Lord Wilberforce’s
judgment does not explicitly go so far, and that many of judges in the
Australian High Court in Breavington v Godleman 32 did not read the judgment
to go so far. 33 However, it must be noted that Lord Wilberforce’s judgment
must not be read like a statute, and that in both cases, the situation did
not call for an analysis of the displacement of the lex fori. Although Lord
Wilberforce at one point talked about the displacement of “foreign rules”
in the operation of the exception, 34 the tenor of his Lordship’s judgment
supports such an exercise. One aspect of the judgment picked up by the
Privy Council in Red Sea Insurance is the need for flexibility in the operation
of the exception. It is just as likely that there are cases where the lex loci
delicti should apply exclusively in the interests of justice as it is that there
are other cases like Boys v Chaplin where the lex fori should apply to the
28
At least in relation to the lex loci delicti requirement. The objection that the lex fori
requirement is also too strict, however, is not met.
29
In fact, the only reported Singapore tort choice of law case is the High Court decision in
RJ Sneddon v AG Shafe [1947] SLR 27, which applied Phillips v Eyre, supra, note 7, and
so obviously did not consider the exception.
30
Chan Kwon Fong v Chan Wah [1977] 1 MLJ 232; Beazley, “Jurisdiction and Choice of
Law in Tort Conflicts” (1977) 19 Mal LR 391.
31
Bank Bumiputra Malaysia v Osman [1987] 1 MLJ 502; Tan, “The Carrian Carcass?” (1989)
31 Mal LR 157.
32
(1988) 62 ALR 447.
33
Dickinson, supra, note 1.
34
Supra, note 9, at 391. Hodgson J in Coupland v Arabian Gulf Petroleum Co [1983] 2 All
ER 434, in an obiter dictum, had suggested the possibility of the lex loci delicti displacing
the lex fori, at least with respect to an isolated issue. See also Dicey & Morris, supra, note
10, at 1499. See, however, Toohey J in Breavington v Goldleman, supra, note 32, who
thought that the exception should in the interest of certainty only operate to displace the
lex loci delicti in favour of the lex fori.

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Tort Choice of Law Beyond the Red Sea: Whither the Lex Fori?
exclusion of the lex loci delicti. Further, Lord Wilberforce utilised interest
analysis 35 in the exception, and this analysis does not invariably lead to
the application of the lex fori.
This is the most important aspect of the decision in Red Sea Insurance.
It is not easy to be indifferent to this development. The immediate implication
is that it is now possible, in exceptional circumstances, to sue in the forum
for totally foreign torts. The wider ramifications for choice of law methodology
will be addressed in Parts IV and V.
3. Can the exception be applied to the whole claim?
Lord Wilberforce’s approach towards the application of the exception
requires that each issue should be segregated and tested whether an exception
was appropriate and if so, for its applicable law. This is depeçage – different
laws may apply to different issues arising out of the same transaction. 36
On the other hand, in Red Sea Insurance, Lord Slynn said, “In their Lordships’
view the exception is not limited to specific isolated issues but may apply
to the whole claim, for example where all or virtually all of the significant
factors are in favour of the lex loci delicti.” 37
In so far as the cause of action itself is concerned, the position is correct
in principle. It is artificial to distinguish between the cause of action and
other questions of liability. This aspect of the decision appears to have been
pre-empted by the High Court in Johnson v Coventry Churchill International
Ltd. 38 The English defendant had failed to provide a safe system of work
in Germany, causing injury to its employee, the English plaintiff, there.
The failure of the defendant amounted to the tort of negligence by English
law, but there was no civil liability by German law because a wilful breach
of duty could not be shown to satisfy German rules. The High Court applied
the exception to the issue of liability itself. If necessary, it might have been
possible to classify the subject matter of the exception as the issue of standard
of care. Moreover, the issue in Boys v Chaplin, though characterised as
whether the plaintiff could recover for particular heads of damage in a tortious
claim recognised by both the forum and the place of the tort, could equally
have been characterised as whether the plaintiff had a cause of action in
tort with respect to the particular kinds of loss.
35 Discussed in greater detail infra, Section B.3.
36 This is to be differentiated from the situation where an issue in the dispute is classified
as non-tortious (eg, the issue of quantum of recovery as procedural, or the issue of interspousal
immunity as family law) and therefore not subject to the tort choice of law rules.
37 Supra, note 1, at 207. Emphasis added.
38 Supra, note 20.
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98 Singapore Journal of International & Comparative Law (1997)
An ambiguity, however, arises from the passage quoted above: is there
an element of discretion in the application of depeçage? On one reading,
what is meant is: “Where all connecting factors for all other issues point
to one law, it is possible to say that even though the factors for one issue
(or perhaps a minority of issues) do not point towards that law, it (or they)
may nonetheless be governed by that law.” Another interpretation is: “Since
all or virtually all such factors point towards one law for every possible
issue, the entire case is ex hypothesi governed by that law.” The first reading
represents a departure from the strict legal approach of Lord Wilberforce
towards depeçage, and gives the court some discretion to decide whether
to apply depeçage to some issues that may arise at the substantive trial.
The second is tautologous, and further, it is not plausible that the Board
had in mind every possible issue that could have arisen from the case.
There is merit in the more liberal interpretation that allows judges to
refrain from applying depeçage in certain circumstances. This will give
judges greater flexibility in the application of the exception. Depeçage should
be applied cautiously. 39 From the point of view of justice to the parties,
it is probably only in unusual cases that it would be appropriate to apply
different laws to different aspects of the tort. The possibility of re-classification
of certain issues, 40 and the doctrine of incorporation 41 militate
against this need. This need must further be balanced against the uncertainty
of depeçage in its application, and the potential result of anomalous combinations
of different laws applying in a single dispute. 42
B. The Open Questions
1. When can the exception be invoked?
The Board in Red Sea Insurance was of the tentative 43 opinion that the
case was eminently one which calls for the application of the exception,
because the proper law of construction contracts and the insurance contract
was Saudi Arabian law, the property was owned by the Saudi Arabian
39
Eg, in contract choice of law, depeçage is not to be lightly inferred: Libyan Arab Foreign
Bank v Bankers Trust Co [1988] 1 Lloyd’s Rep 259.
40
41
See supra, note 36.
For example, even though the standard of care may not be governed by the lex loci delicti,
that law may still be relevant as datum (and not choice of law) to measure the reasonableness
of the defendant’s actions.
42
For these reasons, the Law Commission argued against splitting the applicable law in this
fashion: supra, note 22, at 27. But see infra, Part VI.
43
This was because the only issue before the Board was whether leave could be given in
principle.

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government, and the entire construction work, the alleged breach of duty
and damage, and the expense of repair took place there. On the other hand,
the only connection with the forum was the fact that the appellant had been
incorporated there, even though its head office was in Saudi Arabia. Like
the two previous English cases 44 where the exception had been invoked,
there is an abundance of connections with one country and a lack of connections
with the other.
In the light of the Board’s emphasis on the flexibility of the exception,
it can only be dangerous to attempt any exhaustive guidelines on the
circumstances in which the exception may be invoked. 45 One clear inference
from the Red Sea Insurance decision is that the connections must be subject
to cautious scrutiny. The appellant was domiciled in the forum by virtue
of its incorporation there. 46 However, no weight was accorded to it, and
correctly so, since that connection was in fact tenuous. It remains unclear
whether it is a necessary condition for the displacement of the general rule
that the contacts with the state which law is sought to be displaced are
minimal, or whether it is enough that the connections with the state which
law is sought to be applied by the exception are substantially stronger than
the connections with the state which law is sought to be displaced. Its status
as an exception suggests that the former position is to be taken. Moreover,
in principle, if the general rule is well-founded, then the latter position is
harder to defend for the greater uncertainty that it generates. 47 For the time
being, this issue remains unresolved at common law, 48 although it may be
said that no authority exists so far to support incontrovertibly the latter
position.
44
In Boys v Chaplin, supra, note 9 (assuming that Lord Wilberforce’s reasoning represented
the ratio decidendi of the decision), the only connection with Malta, apart from being the
place of accident, was the fact that the parties were posted there, and in fact they were only
a few days away from returning to England. In Johnson v Coventry Churchill International
Ltd, supra, note 20, the plaintiff had been sent to work in the place of the tort (Germany)
temporarily.
45
Carter (1992) 63 BYBIL 519, 531; For a fairly detailed consideration of possible scenarios
where the exception may be applicable, see Dicey & Morris, supra, note 10, at 1499-1501;
Morse, supra, note 3, at 285-294. Some judicial guidance can be found in Johnson v Coventry
Churchill International Ltd, supra, note 20.
46
Dicey & Morris, supra, note 10, Rule 154.
47
The former position was originally proposed by the Law Commission in its Working Paper
in relation to the circumstances in which it is appropriate to depart from prima facie applicable
rules in favour of a contact weighing approach. It adopted the latter position in its Report.
This has been criticised as an unacceptable compromise on certainty: North, Essays in Private
International Law (1993), Ch 4, at 85.
48
The English statutory position has followed the Law Commission proposal in this respect:
see infra, Part VI.
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100 Singapore Journal of International & Comparative Law (1997)
2. Can the exception work in favour of a third country?
Given the specificity of the issues in Red Sea Insurance, the discussion
was unsurprisingly framed in terms of the exclusive applicability of the
lex loci delicti because it was the law with the closest and most significant
relationship with the occurrence and the parties, and not in more general
terms of which law had the closest and most significant relationship with
the occurrence and the parties. However, it is to be noted that the dominant
theme of the judgment is the need for flexibility in the application of the
general rule of double actionability, and it was this rationale that led the
Board to accept the exception to the lex fori. Hence, although Red Sea
Insurance does not directly address the issue of the applicability of a third
law, there is nothing to bar the application of such a law.
If a third country’s laws are potentially applicable, an issue as to its
scope of operation arises. Suppose that the case has very little connection
with the locus delicti and the forum but an abundance of connections with
the third country. At a time when it was still uncertain whether the lex
fori could be displaced at all, it could be argued that the role of the third
law was only to replace the lex loci delicti in the rule of double actionability. 49
But this argument depends on the tenacity of the lex fori, and after Red
Sea Insurance, it can be persuasively argued that the law of the third country
can apply exclusively. 50
3. How is the exceptionally applicable law determined?
It is clear that while the House of Lords in Boys v Chaplin rejected
any notion of “proper law” as the general rule governing choice of law
in tort, 51 both Lord Wilberforce and Lord Hodson adopted something like
it by way of exception. Both endorsed the American approach, but the
problem is that there was (and is) no single American approach. 52 While
Lord Hodson’s approach is more equivocal, 53 Lord Wilberforce adopted
49
See, eg, Cheshire & North, supra, note 10, at 548; Cf Dicey & Morris, supra, note 10, at
1499.
50
It would be different if the third country was only marginally more connected with the parties
and the occurrence than the forum. In such a case, there is justification for departing from
the lex loci delicti rule, but not for departing from the lex fori rule. The same reasoning
applies mutatis mutandis, if the forum is substituted with the locus delicti.
51
Cf Lord Denning in Boys v Chaplin [1968] 2 QB 1 and Sayers v International Drilling
Co NV, supra, note 10.
52
53
See, eg, Scoles & Hay, Conflict of Laws (2nd ed, 1992), Ch 17.
The language is arguably consistent with both the proper law approach and the interest
analysis approach.

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101
governmental interest analysis. 54 But there are many variants of this doctrine,
and it is hard to determine which was being used. The Board was not called
upon to decide the issue of the content of the exception, but in thoroughly
approving of specific passages from Lord Wilberforce’s judgment “as to
the extent and application of the exception”, 55 which contained very clearly
the interest analysis approach, it appeared to have indirectly endorsed that
approach.
Interest analysis requires a consideration of the competing laws which
are potentially applicable to a particular issue because of the contacts the
issue has with the relevant states, and comparing the interests protected
and policies intended to be promoted by the states through these laws. Where
only one state is interested in its laws being applied in a specific situation,
a situation of “false conflict” is said to arise, and that law is applied. But
it is often the case that more than one state is interested. A sampling of
three solutions to the true conflict, by no means exhaustive, may be culled
from the American literature. In the simple approach, the lex fori applies
to avoid any weighing of competing interests. 56 In the comparative impairment
approach, the law of the state which interests and policies would be
impaired the most if not applied ought to be applied. 57 In another variation
called functional analysis, the law with the greatest interest in the issue
will be applied. 58 Lord Wilberforce found that Malta had no interest in
applying its law to a case where all the parties were domiciled and resident
elsewhere, whereas England had an interest in applying its policies to its
own residents and domiciliaries. This conclusion is consistent with any of
the three approaches. To similar effect is Johnson v Coventry Churchill
International Ltd, 59 where the court found that Germany had no interest
54 Currie, Selected Essays on the Conflict of Laws (1963). The Second Restatement contains
elements of this approach. Apart from interest analysis, other advocated approaches in
America include: the “lex fori” approach – Ehrenzweig, Private International Law (1967);
the “principles of preference” approach – Cavers, The Choice of Law Process (1965); and
the “better rule” approach – Leflar, “The Nature of Conflicts Law” (1981) 81 Colum L
Rev 1080.
55 Supra, note 1, at 200-201, 206. Carter’s argument (Carter, “Torts in Private International
Law” (1981) 52 BYBIL 9) that the Boys v Chaplin exception is based on the proper law
and not interest analysis is not totally convincing as an interpretation of the case. The
argument appears to be based on the general rejection of interest analysis by the House
of Lords as the general rule (ibid, at 27). But the proper law of the tort received the same
treatment.
56 Currie, supra, note 54. Currie later modified his views such that the disinterested forum
will weigh the competing interests of two foreign states: Cramton, D Currie & Kay, Conflicts
of Law, Cases, Comments, Questions (4th ed, 1987), at 202-205.
57 Baxter, “Choice of Law and the Federal System” (1963) 16 Stan L Rev 1.
58 Von Mehren & Trautman, The Law of Multistate Problems (1965), Ch 3.
59 Supra, note 20.

102 Singapore Journal of International & Comparative Law (1997)
in applying its policies restricting recovery to wilful breach of duty to parties
who do not belong there. In Red Sea Insurance, interest analysis was not
overtly applied, but it is arguable that the forum had no interest in applying
its policy against recovery by a direct tort action to the parties in the
circumstances.
The juristic foundation of interest analysis has been the subject of much
cogent criticism. 60 It is questionable whether it is the role of conflict of
laws, which deals with the private rights of individuals, to give effect to
foreign state interests in this way. 61 The only relevant state interests, from
the point of view of the forum, are those of the forum. 62 Moreover, the
approach requires a knowledge and understanding of foreign laws and
policies, and, apart from the simple approach, requires courts to pass judgment
on the interests of different countries. This imposes an unreasonable burden
on any court. In contrast, the Law Commission’s proposal of a “proper
law” approach may be mentioned. This approach seeks to apply the law
of the country with the closest and most real connection with the parties
and the occurrence. 63 It is similar to American interest analysis in that it
also studies the contacts in the case, but it is fundamentally different, because
the contacts are scrutinised to determine not which country’s interests are
paramount but which law would do justice to the parties in the case. The
exceptional application of interest analysis probably represents the limits
of tolerance of the common law for the doctrine. 64
60 See especially, Fawcett, “Is American Governmental Interest Analysis the Solution to
English Tort Choice of Law Problems?” (1982) 31 ICLQ 150; Carter, supra, note 55; Law
Commission Working Paper No 87, Consultative Memorandum No 62, Private International
Law: Choice of Law in Tort and Delict.
61 State interests, even if relevant in private international law, cannot be the primary consideration
as proposed by interest analysis: Morse, supra, note 3, at 225; Carter, supra, note 55, at
17; Jaffey, “Choice of law in tort: a justice based approach” (1982) 2 LS 98, 115-116. The
situation in the United States is somewhat different. The federal system requires sister-states
to give effect to each other’s policies in a way that is impossible in true international conflicts,
and moreover, the competing laws tend to differ in points of detail only.
62 The idea of foreign mandatory rules in the conflict of laws is alien to the common law.
See the rejection of such a concept by the United Kingdom Parliament in enacting the Rome
Convention: Contracts (Applicable Law) Act 1990 (UK), s 2(2).
63 The proper law idea for tort owes its intellectual debt to Dr Morris: Morris, “The Proper
Law of a Tort” (1961) 64 HLR 881. In the Law Commission proposal, a set of presumptions
will determine this law in most cases. But even so, the presumptions can be displaced.
64 See also, eg, reservations about interest analysis in family law, see North, Essays in Private
International Law (1993), Ch 6; Tan, Conflicts Issues in Family and Succession Law (1993),
at 215-216.

1 SJICL
Tort Choice of Law Beyond the Red Sea: Whither the Lex Fori?
IV. IMPLICATIONS FOR THE MEANING OF “TORT”
103
The immediate difficulty which arises from the forum’s willingness to hear
cases involving totally foreign torts is one of characterisation – the forum
has to decide if the foreign cause of action is a “tort” at all. The question
did not arise directly for consideration in Red Sea Insurance because it
was assumed that the foreign action was a “tort” action for choice of law
purposes. The problem of characterisation can arise at different stages of
litigation. Characterisation is necessary for determining whether the action
is one in “tort” for the purpose of Order 11 65 service out of jurisdiction.
At the choice of law stage, only the characterisation of the action as a tort
can lead to the application of tort choice of law rules. The characterisation
of the tort is also an essential step in the determination of the place of
the tort, which is an important indicator of the natural forum for jurisdiction
purpose, 66 and which is also critical for the double actionability test in choice
of law.
Red Sea Insurance has necessitated a wider view of the process of
characterisation for choice of law. So far, the characterisation of an action
as a “tort” and the determination of the place of the tort for the purpose
of the application of the Boys v Chaplin rule has been assumed to be tested
solely by the lex fori. This will no longer be adequate, and classification
in foreign law will have to be taken into account, in order not to rule out
in limine the exception to the lex fori. But the consideration of foreign law
in characterisation by the lex fori, in other contexts, can and has been done, 67
and it is not thought that this will present insurmountable difficulties. If
the plaintiff is relying on the general rule of double actionability,
characterisation by the lex fori as usual will be sought. If the plaintiff
is relying on the exceptional application of foreign law, then characterisation
by that foreign law ought to be given due consideration, though arguably
it ought not be conclusive. Characterisation is still done in accordance with
the lex fori, but taking an international approach, which “should not be
constrained by particular notions or distinctions of the domestic law of the
lex fori, or that of the competing system of law, which may have no
counterpart in the other’s system.” 68 One specific problem of characterisation
may arise in this context. The forum may view the action as only contractual,
65
66
O 11 r 1(f), Rules of the Supreme Court (Cap 322 R 5, 1990 Ed); S 278/93; S 299/93.
The Albaforth [1984] 2 Lloyd’s Rep 91; Metall und Rohstoff AG v Donaldson, Luftkin and
Jenrette Inc, supra, note 4.
67
68
In re Cohn [1945] 1 Ch 5; and more controversially, Re Maldonado [1954] P 223.
Macmillan Inc v Bishopsgate Investment Trust plc (No 3) [1996] 1 All ER 585, 604, per
Auld LJ.

104 Singapore Journal of International & Comparative Law (1997)
but it is a tort by the lex loci delicti. In such a situation, the plaintiff should
be left to his choice of framing his action either in contract or in tort. 69
It is also not anticipated that Red Sea Insurance will create any grave
difficulty for the determination of the locus of the tort. Although the test
for the localisation, the “substance of the tort” test, 70 is determined by the
lex fori because it is a connecting factor to the application of foreign law, 71
there is nothing to prevent the court in applying the forum’s test to the
elements of the foreign tort, 72 taking account of foreign law as datum to
discover the elements of the cause of action.
The possibility of totally foreign torts being heard in the forum has also
made it imperative for the relevant Order 11 head to be capable of capturing
actions that may possibly fall outside domestic definitions of “tortious” acts. 73
On the other hand, one does not have to go so far as to ascribe to it the
meaning according to the choice of law rules of the forum. 74 It is submitted
that it is sufficient that the word bears a meaning that comprehends foreign
notions of tortious liability, 75 ie, in the enlightened lex fori sense. 76
69
Morse, supra, note 3, at 296.
70
See Distillers Co (Bio-Chemicals) Ltd v Thompson, supra, note 4.
71
See Metall und Rohstoff AG v Donaldson, Luftkin and Jenrette Inc, supra, note 4, at 434.
72
As pleaded by the party seeking to rely on it.
73
O 11 r 1(f)(ii) gives the Singapore court jurisdiction where the “tortious acts or omissions”
wherever occurring cause some damage in Singapore. O 11 r 1(f)(i) gives jurisdiction for
“torts committed within the jurisdiction”, and at first sight, such torts are governed exclusively
by the lex fori anyway (infra, main text surrounding footnote 114). However, the place of
the tort for choice of law may be found elsewhere even if it can be said for jurisdiction
purposes that the tort was committed within the jurisdiction: Carter (1979) 50 BYBIL 241,
242-243; Cheshire & North, supra, note 10, at 553-554; Dicey & Morris, supra, note 10,
at 1507-1512; Tan, “Choice of Law in a Question of Jurisdiction” (1990) 32 Mal LR 363,
365. However, it is likely that courts will use the same place of the tort for jurisdiction
and choice of law purposes – see, eg, the application of the jurisdiction concept for choice
of law purposes in Metall und Rohstoff AG v Donaldson, Luftkin and Jenrette Inc, supra,
note 4.
74
This appeared to be the construction of the English Order 11 in Metall und Rohstoff AG
v Donaldson, Luftkin and Jenrette Inc, supra, note 4. This issue is considered in greater
detail in Yeo, “Jurisdiction Issues in International Tort Litigation: A Singapore View” (1995)
7 SAcLJ 1.
75
But contra Staughton J in The TS Havprins [1983] 2 Lloyd’s Rep 256, who opined that
the domestic meaning should be given as far as the contract head in O 11 is concerned.
76
Kahn-Freund, General Problems in Private International Law (1980), at 227-231. See also,
main text to supra, note 68.

1 SJICL
Tort Choice of Law Beyond the Red Sea: Whither the Lex Fori?
V. IMPLICATIONS FOR LEX FORI PREFERENCE
A. The Tenacity of the Lex Fori
105
It has been seen that The Halley 77 was the foundation for the first limb
of the double actionability rule. The rationale for the rule was stated to
be that it was:
alike contrary to principle and to authority to hold, that an English
Court of Justice will enforce a Foreign Municipal law, and will give
a remedy in the shape of damages in respect of an act which, according
to its own principles, imposes no liability on the person from whom
the damages are claimed. 78
Since then, the principle had been described by Lord Wilberforce as
parochial and wanting in doctrinal justification. 79 The Law Commission
considered the rule “exceptional”, rationalising it on historical grounds. 80
The dissatisfaction with this rule has been described in one eminent textbook
as a conclusion that “cannot be escaped”. 81
In Red Sea Insurance, the Board recognised that it was departing from
the “strict rule” in The Halley. Once the breach has been made, it must
be questioned what role, apart from questions of procedure, mandatory rules
and public policy, is left to the lex fori. One hallmark of an enlightened
legal system is its ability, subject to the above qualifications, to enforce
foreign rights without corresponding local equivalents. 82 If indeed the principle
in The Halley is well-founded, then there must be some reason for its existence
in tort, but not, say, in contract. 83 One reason for the continuing support 84
77
78
79
Supra, note 5.
Supra, note 5, at 204.
Boys v Chaplin, supra, note 9, at 387; See also Carter, “Torts in Private International Law”
(1981) 52 BYBIL 9.
80
Supra, note 22, at 7. First, the historical link between tort and criminal law led many jurists
in the past to argue that tort was purely a matter of lex fori justice. Secondly, under the
old jurisdictional rules of England, the plaintiff in a foreign tort had to lay a fictitious venue
in England for the purpose of jury trial, and thereby removed all foreign elements from
the action. See Morse, supra, note 3, Ch 2.
81
82
Dicey & Morris, supra, note 10, at 1502.
Kahn-Freund, supra, note 76, at 208; Re Bonacina [1912] 2 Ch 394; Phrantzes v Argenti
[1960] 2 QB 19. See also, in the context of enforcement of foreign judgments: Cablevision
Systems Development Co v Shoupe [1986] 39 WIR 1.
83
See Re Bonacina, ibid, where the absence of consideration was not fatal to a contractual
claim governed by foreign law.
84
Other suggested reasons are not convincing at all: whatever advantages that are derived
from the savings on the expense of proving foreign law, or the ability of the courts of the

106 Singapore Journal of International & Comparative Law (1997)
for the lex fori rule in tort is that it shields the courts from having to decide
on foreign rights with foundations which are dubious according to the forum’s
notions of justice. 85 Another is that the forum may have a legitimate interest
in applying its own policies to the case in spite of its foreign complexion. 86
In Red Sea Insurance, the Board thought that the unavailability of the
cause of action in the forum is one factor to be considered when deciding
whether to invoke the exception. 87 No guidance is given on the question
of when the foreignness of the cause of action will prevent this escape from
the lex fori, except for the obvious inference that its alien status itself cannot
be conclusive. Whatever these criteria may turn out to be, three observations
may be made. First, the release from the stranglehold of The Halley means
that there is no longer an overriding concern to apply the substantive law
of the forum in all tort cases. Secondly, in practice The Halley will no
longer completely shield the courts from consideration of exclusionary
techniques in tort conflicts. Finally, even if the traditional exclusionary
techniques are not invoked, it may still be necessary within the present
legal framework to articulate the reasons for imposing the lex fori where
the exception thereto is otherwise applicable. When they are set out, the
question has to be asked why the legitimate concerns of the forum cannot
be handled by either traditional or even special conflicts techniques specific
to tort without resorting to the full rigour of the lex fori actionability rule.
Therefore, one effect of Red Sea Insurance is to focus our attention on
the application of exclusionary techniques in tort choice of law.
Some of these techniques may be considered. One way for the forum
to avoid foreign tort claims is to stay the action for forum non conveniens,
on the basis that the place of the tort is the natural forum. 88 This does not
always work. For example, in Red Sea Insurance, the respondents, having
chosen to sue the appellant in Hong Kong, were not strategically placed
to ask for a stay of the counter-claim. Application of tort choice of law
rules can also be evaded by characterisation of the specific issue out of
tort. 89 For example, the issue of spousal immunity has been considered a
forum to give effect to its own notions of justice, are countervailed by the necessity to
establish the second limb of the rule in Boys v Chaplin.
85
Evidence of this concern can be seen in Briggs, “Tort in the Conflict of Laws” (1989) 105
LQR 359.
86
Jaffey, supra, note 61, 115; Reed, “Commercial torts choice of law provisions” [1994]
LMCLQ 148.
87
88
Supra, note 1, at 206.
The Albaforth [1984] 2 Lloyd’s Rep 91; cf The Forum Craftsman [1985] 1 Lloyd’s Rep
291.

1 SJICL
Tort Choice of Law Beyond the Red Sea: Whither the Lex Fori?
107
family law issue. 90
Characterisation can be used to avoid the application of foreign tort law,
if it can be said that the foreign action does not fall within even an enlightened
definition of “tort”. Indeed, some writers have gone further to argue that
the first limb of the double actionability rule should be re-interpreted as
articulated characterisation, so that any foreign action would satisfy it so
long as it is analogous to an action available in the lex fori. 91 This technique
may, for instance, be used against the recognition of the tort of invasion
of privacy. 92 This would remove the parochialism from the first limb without
abdicating the control of the lex fori. Difficulties and uncertainty may arise,
however, in determining when such foreign actions are to be considered
analogous. America’s experimentation and eventual discarding of its “similarity”
doctrine in favour of outright consideration of public policy 93 is
instructive. It is not enough simply to compare the content of the laws.
Evaluative criteria are needed, and these could possibly be based on the
social functions of the laws, or the nature of the interests sought to be
protected. But if the underlying concern is the fear that foreign laws may
serve purposes objectionable in the eyes of the forum, it may be better
to address it at the public policy stage.
Public policy is probably the most powerful control mechanism in the
conflict of laws. 94 For its purposes, a distinction is drawn between domestic
policies which courts apply to all local cases and such policies that are
so fundamental that they must also be applied in spite of the foreign
complexion of the case. 95 Moreover, it is generally not the foreign law itself, 96
89
Classification as procedure is a very common evasive technique, but the court in these cases
ends up applying the lex fori.
90
See Morse, supra, note 3, at 155-158.
91
Hancock, “Torts in the Conflict of Laws: The First Rule in Phillips v Eyre” (1940) U of
Tor LJ 400; Carter, supra, notes 1 and 55; Carter, “Choice of Law in Tort and Delict” (1991)
107 LQR 405.
92
See, eg, under New Zealand law, Bradley v Wingnut Films Ltd [1993] 1 NZLR 415.
93
Morse, supra, note 3, at 12-13. Boer, Beyond Lex Loci Delicti (1987) 147-149.
94
Indeed, the lex fori requirement in The Halley had been argued to be an instance of the
application of the public policy of the forum: Dicey, The Conflict of Laws (3rd ed, 1922),
at 37; Kahn-Freund, “Reflections on Public Policy in the English Conflict of Laws” (1953)
39 Grotius 39, 49-53. This entails saying that it is against a fundamental principle that an
(English) employer should be liable for the acts of a servant whose employment did not
arise from his free choice. This public policy argument is inconsistent with the House of
Lords’ interpretation of The Halley in Boys v Chaplin.

108 Singapore Journal of International & Comparative Law (1997)
but the application of the foreign law creating consequences (usually within
the forum) that contravene some fundamental principle or policy of the
forum, 97 that is objectionable. The principle of relativity must also be noted. 98
The strength of the public policy objection must be assessed in each case,
depending on the connections of the facts with the forum. 99 Because of
its ability to distort the conflicts process, judges usually caution that public
policy must be wielded with restraint. 100 Generally, they are reluctant to
declare either the content or application of foreign laws to be contrary to
the forum’s fundamental principles or morality, or otherwise against the
public policy of the forum. 101
One possible development in this area lies in the increased use of forum
mandatory laws. Such laws are mandatory in the sense that they apply
irrespective of the lex causae. The basis of such laws is often public policy,
though political policy may be the reason for some forum mandatory statutes.
Like public policy, the effect of mandatory laws is to override foreign law.
But unlike public policy, they do not operate to exclude foreign law as
such, but to superimpose themselves on the applicable foreign law. It is
a process of selecting a law (in this case, the forum’s) to apply, rather than
rejection thereof. 102 Thus, mandatory laws can be a stronger expression of
95
Vervaeke v Smith [1983] 1 AC 145, 164, per Lord Simon; Boys v Chaplin, supra, note
9, at 392, per Lord Wilberforce; Loucks v Standard Oil Co 120 NE 198, 220 (1918), per
Cardozo J. Cheshire & North, supra, note 10, at 128-131. For example, in The Halley (1867)
LR 2 Adm & Ecc 3, Sir Robert Phillimore J, in a learned judgment, thought that the domestic
English policy of not imposing vicarious liability for compulsorily hired servants did not
apply to a tort committed outside of England. This decision was overruled by the Privy
Council, but on the basis that the substantive governing law was the lex fori.
96
Unless the law is so extremely odious that it infringes the fundamental liberties of individuals:
Carter, “Rejection of Foreign Law: Some Private International Law Inhibitions” (1982) 53
BYBIL 111, 123-124.
97
Carter has noted that the heads of public policy in England can be broadly categorised into:
(1) laws which are in themselves objectionable;
(2) the application of the law would be against the forum’s national interests;
(3) the application would cause injustice in the particular facts of the case; and
(4) the inchoate head of overriding principles of morality.
See Carter, “The Role of Public Policy in English Private International Law” (1993) 42
ICLQ 1, 7.
98
Kahn-Freund, supra, note 94, at 58; Morse, supra, note 3, at 98; Boer, supra, note 93, at
141. Vervaeke v Smith, supra, note 95.
99
For example, in contract law, foreign agreements in restraint of trade in the forum are
objectionable to forum public policy, but where the relevant markets are foreign, they
arguably do not impinge upon the policy of protecting the forum’s economy: Apple Corps
Ltd v Apple Computer Inc [1992] FSR 431.
100
Supra, note 95.
101
The Law Commission observed that judges are fearful of so stigmatising foreign law: supra,
note 22, at 15.

1 SJICL
Tort Choice of Law Beyond the Red Sea: Whither the Lex Fori?
109
forum public policy than the public policy doctrine itself. Forum mandatory
laws are well-known in civil law systems, where they are known as rules
of immediate application (or lois d’application immédiate).
Two potential obstacles stand in the way of this development. First,
although common law jurisdictions do use the forum mandatory statute in
its reasoning, 103 the technique is unknown in tort choice of law, 104 and for
that reason it may be doubted whether such an exclusionary technique does
exist for tort. 105 Secondly, the notion of non-statutory forum mandatory law
has yet to take root in the common law. In principle, both problems can
be resolved. There is no reason to suggest that mandatory rules cannot apply
to tort choice of law cases. The fact that they have never been applied
can be explained simply on the basis that with The Halley, there was never
any need to consider this technique, and therefore cannot be conclusive.
Further, there is no difference between common law and statute, and one
can be as mandatory as the other. 106 Furthermore, English courts now have
to grapple with the concept of forum mandatory rules which may not be
statutory for contracts under the Rome Convention. 107 Generally mandatory
laws seek to protect the national or economic interest of the forum, or to
protect individuals or classes of persons. 108 Doubt has also been expressed
as to whether law serving purely private purposes (such as the protection
of individuals in a contractual or tortious relationship) can ever achieve
such status. 109 This doubt is understandable, because of the danger of legitimising
forum preference in substantive private law, but it is recognised that problems
may arise in determining when such laws actually vindicate state interests.
As in public policy, there must be sufficient connection between the transaction
and the forum to justify the application of the mandatory rules of
the lex fori. 110 Like public policy, it is also not to be lightly invoked. The
102
Jackson, “Mandatory Rules and Rules of ‘Ordre Public’”, in North, ed, Contract Conflicts
(1982), at 59, 62. The distinction is brought out most clearly when the civilian concept of
foreign mandatory rules is considered, but see supra, note 62.
103
Golden Acres Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418; The Hollandia [1983]
1 AC 565; Chiron Corp v Organon Teknika (No 2) [1993] FSR 567.
104
Although where contractual issues are also involved, the technique has been invoked in
a Scottish case: Brodin v Seljan [1973] SLT 198.
105
Fawcett, “Product Liability in Private International Law: A European Perspective” (1993)
I Hague 9, 209-210.
106
Jackson, supra, note 102, at 61; Kahn-Freund, supra, note 94. Cf the Law Commission only
considered forum mandatory statutes as one of the exceptions to the application of the proper
law in its proposals: supra, note 22, at 27-28.
107
Art 7(2) Rome Convention, Contracts (Applicable Law) Act 1990 (UK), Sch 1.
108
See Fawcett, “Evasion of Law and Mandatory Rules in Private International Law” [1990]
CLJ 44.
109
Vischer, “General Course on Private International Law” (1992) I Hague 9, 157-158.

110 Singapore Journal of International & Comparative Law (1997)
merit of this approach 111 is that it gives precedence to the law of the forum
without fear of stigmatising foreign law. Foreign law is not applied, not
because its content or application is objectionable, but because the forum
has an interest in the case that is overriding in the circumstances. For example,
in a case where a foreign tort in respect of pure economic loss is brought
in the forum for a statement made therein, the forum may decide to apply
its rule 112 against recovery for pure economic loss. 113 Whether this technique
or public policy will be used depends on the degree of tolerance of divergence
of foreign law from forum standards.
B. The Exception for Local Torts
Relaxing control over foreign actions only through the operation of the
exception has another unfortunate consequence. It reinforces the fallacy that
there is no room for choice of law when the tort is committed in the forum, 114
because the position adopted shuts out the escape route. Before Red Sea
Insurance, given the paramountcy of the lex fori under The Halley, the
lex fori rule for local torts made some sense. Since the lex fori coincided
with the lex loci delicti, and it was not yet possible to have an exception
to the application of the lex fori, it was only sensible to short-circuit the
process in favour of a simple lex fori rule. This rule was supported by the
Law Commission, even though it recommended the abolition of the lex
fori requirement, largely because of inhibitions about foreign causes of
action. 115 However, the only justification for reserving such inhibitions to
110 Kahn-Freund, supra, note 94, at 64-65.
111 Contra North who argued that this technique is not fruitful because it is limited and it is
forum-preferring: North, Private International Law Problems in Common Law Jurisdictions
(1993), at 157-158. But the learned writer was only talking about forum mandatory statutes,
and it is arguable that it is necessary to allow the courts to give effect to forum interests
in some cases, either because it is legitimate to do so (Briggs, “Tort in the Conflict of Laws”
(1989) 105 LQR 359), or even because it is an empirical fact that there is a forum bias
in tort choice of law cases: Carter, “Choice of Law in Tort and Delict” (1991) 107 LQR
405; see also Lord Hodson in Boys v Chaplin, supra, note 9, at 380.
112 In the form of restrictive rules of recovery. The forum has to decide whether such a rule
exists or not. Merely because the forum has not considered the point should not be decisive.
The court should be able to discern a positive prohibition as such.
113 Reed, “Commercial torts choice of law provisions” [1994] LMCLQ 148 argues that in the
context of the Law Commission’s proper law proposal, in such a case there should be a
lex fori exception. Forum mandatory rules may provide a principled way of creating such
“exceptions”, in this case, possibly on the basis of protection of the domestic information
economy.
114 Szalatnay-Stacho v Fink [1947] KB 1; Metall und Rohstoff AG v Donaldson, Luftkin and
Jenrette Inc, supra, note 4. See also RJ Sneddon v AG Shafe, supra, note 29.

1 SJICL
Tort Choice of Law Beyond the Red Sea: Whither the Lex Fori?
111
torts committed within the jurisdiction can be forum preference, and any
diminution of the present role of the lex fori may shed some needed light
in this area. Once the inhibitions are openly confronted, the dichotomy of
treatment between local and foreign torts will prove difficult to justify. 116
VI. BEYOND THE RED SEA: SOME FURTHER DEVELOPMENTS
Two significant Commonwealth developments in tort choice of law after
Red Sea Insurance must be mentioned. The first is the judicial change brought
about by the Supreme Court of Canada. The second is the statutory transformation
of choice of law rules in England.
Canada had been plagued for half a century by its Supreme Court decision
in McLean v Pettigrew, 117 which had applied Machado v Fontes, 118 the
decision that was later overruled in Boys v Chaplin. Under this approach,
the lex fori is the governing law, and the lex loci delicti is only referred
to test if the act in question was “innocent” by that law. In recent years,
lower courts had attempted to confine McLean v Pettigrew to its facts, ie,
where the plaintiff and defendant are both from the forum. 119 In other cases,
Boys v Chaplin with its exception would be applied. Thus, Canada probably
had the most complex structure of choice of law rules for tort in the
Commonwealth.
In Jensen v Tolofson, 120 the Supreme Court overruled McLean v Pettigrew,
and began on a new slate. Under the new approach, the applicable law
is the lex loci delicti. La Forest J, delivering the majority judgment, justified
the reference to the place of the wrong on the theory of territoriality of
tort law, 121 and also for the practical reasons that the rule is certain, easy
to apply and predictable. 122 The abolition of lex fori actionability was justified
on the basis that the proper role of the forum was in imposing jurisdictional
thresholds and in considerations of forum public policy. In Canada (and,
it may be noted, indeed in most countries including Singapore today), there
are adequate independent rules to handle both. Although the Supreme Court
was dealing with interprovincial torts, the reasoning applies equally to true
international torts, and it is likely that it will be so extended. Red Sea
115
Supra, note 22, at 15.
116
See also North, supra, note 111, at 169-172; Cf Jaffey, supra, note 61, 113-114, 116.
117
[1945] 2 DLR 65.
118
Supra, note 27.
119
Grimes v Cloutier (1989) 61 DLR (4th) 505; Prefontaine Estate v Frizzle (1990) 65 DLR
(4th) 275.
120 (1995) 120 DLR (4th) 289.
121 Ibid, at 302-305.
122 Ibid, at 305-306.

112 Singapore Journal of International & Comparative Law (1997)
Insurance was referred to in the judgment, but the Court thought that
Canadian law could go further to abolish the lex fori requirement altogether. 123
A more worrisome aspect of the decision is the rejection by the majority
of any flexible exception to the choice of law rule for interprovincial torts.
It has not been precluded for international torts. Major J, with whom Sopinka
J concurred, preferred to retain an exception even for interprovincial torts.
The lesson from Australia is that the absence of flexibility may simply cause
the courts to resort to other less open techniques. 124
The Court was concerned with road accident cases, so that there was
no problem in finding the place of the tort. However, the Court stated in
obiter dicta that in more complex cases, it may be prepared to classify
the place where the consequences of the tort are felt as the locus delicti.
The Court also admitted that territorial considerations (and implicitly, therefore
the case for the application of the law of the place where the events occur)
may not be so strong where the tort arises from transnational or interprovincial
activities. It would therefore seem that in the scheme envisaged by the
Supreme Court, at least in complex interprovincial cases and possibly
international ones, much of the work will be done at the phase of localising
the tort. 125
Another interesting feature of the case is the majority’s suggestion that
the lex loci delicti characterises the tort. 126 This contrasts sharply with the
English common law position, now codified, 127 that the lex fori characterises
the tort. 128 The Canadian position requires the determination of the locality
of the tort before the issue of the existence of the tort. The use of a concept
of a putative lex loci delicti is necessary: to determine whether a tort has
occurred, one has to assume that a tort has occurred in a locality, and then
apply the law of that place to determine whether a tort has occurred. 129
The English Parliament has enacted the Private International Law
(Miscellaneous Provisions) Act 1995. 130 Among other things, it changes the
entire basis of tort choice of law rules in England. The reform is a refinement
of the proposal by the Law Commission. 131 The Act applies to torts, delicts
123
Ibid, at 308.
124
See supra, note 25.
125
See eg, the localisation of the tort in the place most substantially connected with the tort
by the minority in the Canadian Supreme Court in Interprovincial Co-operative v The Queen
(1975) 53 DLR (3d) 321, 339-340, per Laskin CJC (Judson and Spence JJ concurring).
126
Supra, note 120, at 305: “It is in [the lex loci delicti] that we must seek [the tort’s] defining
character”.
127
S 9(2), Private International Law (Miscellaneous Provisions) Act 1995 (c 42, UK).
128
See supra, Part IV.
129
The analogy with the putative proper law of contract in the issue of formation of contracts
is not surprising.
130
Supra, note 127.

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and quasi-delicts, but reserves the issue of characterisation to the forum,
thus legislatively mandating an enlightened lex fori characterisation of the
event.
There are four key elements to the English statutory reform of tort choice
of law.
First, the double actionability rule and exception in Boys v Chaplin are
abolished. 132 Secondly, the applicable law in international torts is the essentially
law of the place of wrong, though the expression is not used. This is in
the first place the “law of the country in which the events constituting the
tort or delict in question occur”. 133 Where the events take place over several
countries, then in cases of personal injury or death and damage to property,
it is presumed to be where the injury was sustained or where the damage
occurred respectively. 134 In other cases, it is “the country in which the most
significant element or elements of those events occurred”. 135 In the circumstances,
it will not be surprising if the English courts continue to use the
common law “substance of the tort” test, with its attendant difficulties. 136
Thirdly, the proper law of the tort may be invoked in certain situations.
It is possible that the courts will treat this step as the statutory analogue
of the common law exception, and take an equally cautious approach towards
its invocation. 137 The fact that the first step is called a “general” rule implies
that the displacment must be exceptional. However, if upon comparing the
connections of the tort with the country of the applicable law as found
and the connections with another country, it is “substantially more appropriate”
for the law of the latter to be the applicable law, it will be so applied. 138
Thus the proper may be invoked even if the applicable law determined above
is not an inappropriate law, so long as the proper law is substantially more
appropriate to the issue or issues. Further, nothing in the Act compels the
use of interest analysis.
Fourthly, there is an express reservation of the forum’s powers not to
apply the applicable law in certain cases. Thus, reservations are made with
respect to the public policy of the forum, 139 the unenforceability of foreign
penal, revenue or public law, 140 and the application of “forum mandatory
131 Supra, note 22.
132 S 10, supra, note 127.
133 S 11(1), supra, note 127.
134 Ss 11(2)(b) and (c), supra, note 127.
135 S 11(2)(c), supra, note 127.
136 Supra, notes 4 and 70.
137 S 11 is expressly stated to be a “general rule”, so that s 12 is by implication applicable
only in exceptional circumstances.
138 S 12, supra, note 127.
139 S 14(3)(a)(i), supra, note 127.

114 Singapore Journal of International & Comparative Law (1997)
rules”. 141 In respect of the last, it may be noted that the draft bill of the
Law Commission only referred to statute law. This legislation paves the
way for the development of forum mandatory rules at common law.
The statutory scheme also differs from the proposal of the Law Commission,
in allowing depeçage. For the reasons discussed above, it is a move
in the right direction, provided it is applied with circumspection, but it has
perhaps not gone as far as Red Sea Insurance to allow the courts to disapply
depeçage in respect of one issue where all other issues are more appropriately
governed by another law.
There is also an important reform for torts committed within the forum.
It reverses the common law position that no choice of law is engaged for
torts committed within the forum. 142 The rules above will apply equally
to such torts.
The Act does not apply to defamation, and the common law tort choice
of law rules continue to be relevant there. Defamation issues may raise
fundamental questions on the freedom of expression, and England wanted
uphold its own values in this respect. 143 Thus Boys v Chaplin and Red Sea
Insurance remain food for thought for English judges.
Australian developments are also notable. The majority in the High Court
had accepted the lex loci delicti rule for intranational torts in Breavington
v Godleman, 144 but of the majority, only the reasoning of Mason CJ is of
general application outside of the Australian Federal context. 145 Subsequent
decisions from the High Court have returned to the strict rule of double
actionability in the intranational context, but without the flexible exception. 146
The Australian position with respect of international torts is still the Boys
v Chaplin position, but the High Court has not had the opportunity to confront
the issue in relation to international torts directly, 147 with the benefit of
Red Sea Insurance, Jensen v Tolofson, and the English statutory reforms.
140 S 14(3)(a)(ii), supra, note 127.
141 S 14(4), supra, note 127.
142 S 9(6), supra, note 127. See supra, Part V.B.
143 See the Law Commission Report, supra, note 22, at 19-20. Also, the media is naturally
a force to reckon with. See, eg, their initial response to the introduction of the bill into
Parliament: “Stand up for free speech: Anthony Whittaker on a threat to our legal sovereignty”,
The Times, 19 January 1995, at 18; “Law from Abroad: A foreign threat to free speech
to this country”, The Times, 19 January 1995 at 19 (Editorial).
144 Supra, note 32.
145 His Honour’s conclusion, based on one of the models proposed by the English Law
Commission in its Working Paper for discussion, was very similar to the eventual proposal
of the Law Commission, and the present English statutory position.
146 McKain v RW Miller, supra, note 19; Stevens v Head, supra, note 25.
147 See Voth v Manildra Flour Mills Pty Ltd [1990] 65 AJLR 83, at 94, where double actionability

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The Federal Court has held that the application of the exception is still
arguable with respect to international torts, and has expressed receptiveness
to the Red Sea Insurance case. 148
VII. CONCLUSION
Red Sea Insurance has clarified some important questions relating to the
exception in Boys v Chaplin. It is likely that the Privy Council’s emphasis
on flexibility will set the tone for the future application of tort choice of
law rules. It has also given the common law a nudge towards reform. In
deciding that it is possible invoke an exception to the lex fori, the Board
has more than just extended the principles enunciated in Boys v Chaplin.
The first limb of the double actionability rule is too entrenched in English
law for the Privy Council to depart from it in an interpretive exercise. 149
At the same time, however, its recital by the Privy Council is bound to
lend it greater authority in Commonwealth countries. Nevertheless, the Privy
Council has indirectly challenged the rule itself by eroding the hegemony
of The Halley. Under the framework set out in Red Sea Insurance, it has
become necessary to develop exclusionary techniques in conflict of laws
relating to tort. This in turn challenges the necessity for a rule of lex fori
actionability.
The only real virtue of the lex fori actionability rule then lies in the
simplicity and certainty that it lends to tort choice of law. Even so, this
virtue cannot be overstated, for so long as the threshold requirements for
the application of the exception remain uncertain and there is dissatisfaction
with the double actionability rule, the operation of the exception can still
work uncertainty. Its abolition has been accomplished in England by statute.
But Canada’s example 150 shows that it is not beyond judicial development.
Conflicts scholars have traditionally been opposed to legislative intervention,
often for good reasons. But sometimes it is the lesser evil to judicial inertia.
England had an strong incentive to modify its choice of law rules for tort
– it is unlikely that its common law rule of double actionability rule could
was assumed to be applicable where the tort was held to be committed in Missouri. The
exception was not in issue.
148
Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No G381
of 1994 FED No 822/94).
149
Where English law is applicable, as in this case, the Privy Council is obliged to defer to
the House of Lords: de Lasala v de Lasala [1980] AC 546. The Singapore courts, however,
are presently not so constrained.
150
And to a more limited extent, Australia’s: particularly Mason CJ’s judgments in the cases
cited, supra, notes 144 and 146.

116 Singapore Journal of International & Comparative Law (1997)
stand up to European scrutiny in any harmonisation exercise. But even apart
from it, this article has hopefully demonstrated that there are adequate reasons
to say farewell to The Halley.
YEO TIONG MIN*
* LLB (NUS); BCL (Oxon); Lecturer, Faculty of Law, National University of Singapore.
This is a substantially revised, expanded and updated version of part of a paper presented
at the Faculty of Law’s Continuing Legal Education Conference, Conflict of Laws in
Commercial Practice on 31 March 1995.

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