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It appears in hindsight that the early decisions to apply international law rather than the lex loci delicti as the rule of decision in alien tort litigation ultimately provided the doctrinal hook for the Supreme Court to restrict alien tort suits with the presumption against extraterritoriality.
The void, if any, was a byproduct of the era's prevailing common law choice of law rule, lex loci delicti. Under that rigid rule, "the law of the place where the tort was committed" was the only choice.
Desmond once described the rule of lex loci delicti as both "unjust and anomalous" in a nation that is essentially borderless, as it often leads to situations where the place of the accident is a result of merely fortuitous circumstances.
Early authority suggested that 'not justifiable' simply required that the wrong be civilly actionable in the lex loci delicti. (4) However, the issue was compounded when the English and Wales Court of Appeal, on an interlocutory application in Machado v Fontes, held that if libel was criminally punishable but not civilly actionable in Brazil then it was 'not justifiable' as this expression simply meant 'not innocent'.
Part I analyzes the relevant historical background and development of the two prevailing choice of law methodologies for tort cases--the traditional rule of lex loci delicti of the First Restatement of Conflict of Laws (16) and the "most significant relationship" rule of the Second Restatement of Conflict of Laws.
With respect to tons, it would seem that in Tolofson, Justice LaForest left the door open to the application of a law other than the lex loci delicti in the case of international torts.
Questions which might be caught up in the application of a flexible exception to a choice of law rule fixing upon the lex loci delicti in practice may often be subsumed in the issues presented on a stay application, including one based on public policy grounds.
As a result, choice of law rules in Australia for both interstate and international torts are generally governed by the law of the place of the tort (or lex loci delicti).
Thus, the court observed that under New York law, courts generally follow a lex loci delicti rule, that is they apply the law of the jurisdiction in which the injury occurred (here, Pennsylvania) unless "special circumstances" exist to justify a departure from that rule.
established lex loci delicti, or the place where the tort occurred, as a general principle for determining choice of law for torts.
Thus, the first question for the High Court to decide was whether the Zhang choice of law rule--which selects the law of the place of the wrong (lex loci delicti)--requires the court to look at the whole of the foreign law or only at foreign domestic law.