Abstract
This article compares Owen v. Galgey under Article 4 Rome II Regulation and YANG Shuying v. British Carnival Cruise under Article 44 Chinese Conflicts Act in the context of cross-border multi-party litigation on tort liability. The questions raised in these two cases include how to interpret the tort conflicts rules of lex loci delicti, lex domicilii communis and the closer/closest connection test when determining the applicable law. In particular, as regards the meaning of lex loci delicti, the notion of ‘damage’, the common habitual residence of the parties and the criteria to determine the closer/closest connection, different interpretations were provided in these two cases. In order to clarify certain ambiguity of tortious applicable law rules in cross-border multi-party litigation, a comparative study of Chinese and European tort conflicts rules is conducted. This article does not intend to reach a conclusion as to which law is better between the Rome II Regulation and the Chinese Conflicts Act, but rather highlights a common challenge faced by both Chinese courts and English courts in the field of international tortious litigation on personal injury and how to tackle such challenge in an efficient way under current legislation.
Highlights
Tort conflicts rules in China and the EUIt is a widely-accepted rule in the field of private international law that lex loci delicti will be the applicable law for cross-border tort liability
Lex loci delicti is superseded by the law chosen by the parties under Article 44 2nd sentence of the Chinese Conflicts Act and Article 14 of the Rome II Regulation, while lex domicilii communis takes precedence over lex loci delicti in accordance with Article 44 1st sentence of the Chinese Conflicts Act and Article 4(2) of the Rome II Regulation
In line with Article 44 of the 2010 Conflicts Act, the application of lex loci delicti to foreign-related tort disputes is the general rule, but the law chosen by the parties based on party autonomy and the lex domicilii communi prevail
Summary
It is a widely-accepted rule in the field of private international law that lex loci delicti will be the applicable law for cross-border tort liability This is the case in China and the EU with regard to tort conflicts rules, the interpretation of lex loci delicti and the conditions for its application may differ. Multi-party tort disputes might involve multiple countries, which would inevitably pose challenges to the application and interpretation of tort conflicts rules mainly designed on the presumption of tort liability between one victim and one tortfeasor Such challenges were faced by the judges in YANG Shuying v. The essential question is how to interpret the closer/closest connection test and on what criteria the law of one country, rather than another, is regarded as having closer/closest connection with the tort dispute
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