¹ Theme song to children's television show: Lambchop's Playalong.

² Australian Law Reform Commission, Choice of law rules (Report No 58, 1992).

³ The argument that choice of law rules should do justice to the parties is certainly not new, nor is the more specific argument that equates doing justice with giving effect to the parties' expectations, but these are both enjoying a relatively modern and overt popularity. See, for example, A J E Jaffey on choice of law generally in “The Foundations of Rules for the Choice of Law” (1982) 2 Oxford J of Leg Studies 368, and on tort specifically in “Choice of Law in Tort A Justice-Based Approach” (1982) 2 Legal Studies 98.

⁴ “Jurisdiction-selecting rules” are, in the words of Cavers who coined the phrase, rules “indicating the source of the law to be applied without regard to the law's content'. See Cavers, D, The Choice of Law Process (1965) at 9Google Scholar. Jurisdiction-selecting rules thus interpose a selective rule between the dispute and the applicable law. They differ in character from choice of law rules which provide a direct response to a dispute as to applicable law. Examples of these include “apply the better law” and “apply the law of the forum”.

⁵ Such concerns have been given more attention in the United States where they are often referred to as “the needs of the multistate system”. See The Restatement of the Conflict of Laws 2d (1971).

⁶ The truth of this is so evident as to render almost any choice of law decision vulnerable to the epithet “result-driven”. It is submitted that those tort choice of law decisions which do not appear to be result-driven are often those in which the choice of law analysis has been abstracted and refined to a point which, in turn, strikes many as unacceptable. Thus the court is presented with a true dilemma, at least in so far as it is concerned with producing a decision which “looks” defensible.

⁷ Amin Rashid Corp v Kuwait Insurance Co [1984] AC 50 at 65.

⁸ The law of the place of the tort has perhaps the strongest intuitive appeal. Unfortunately, it has been advocated by theorists who defended it on less than credible grounds and attacked by others eager to discredit those grounds: see L Brilmayer, Conflict of LllWs: Foundations and Future Directions (1991) ch 1. All this infighting amongst choice of law scholars has, it is submitted, left us with no feeling, intuitive or otherwise, that there is a natural solution to most tort conflict of laws questions.

⁹ See Tolofson v fensen (1995) 120 DLR (4th) 289.

¹⁰ See L Brilmayer, above n 8 on the link between vested rights and the declaratory view of the common law and the successful attack made on both by the American Realists.

¹¹ At least those tort rights arising from personal injury claims. See Holdsworth, W S, “The History of Choses in Action” (1919-20) 33 Harvard L Rev 997 at 1029CrossRefGoogle Scholar and Marshall, O R, The Assignment of Choses in Action (1950) at 24Google Scholar.

¹² The relevant policy concern appears to have been the avoidance of maintenance according to Holdsworth, ibid. And perhaps the demand for tort rights in the market place was insignificant.

¹³ Cook, W W, The Logical and Legal Bases of the Conflict of Laws (1942)Google Scholar.

¹⁴ L Brilmayer, above n 8 at 43.

¹⁵ Currie, B, Selected Essays on the Conflict of Laws (1963)CrossRefGoogle Scholar particularly ch 4 “Notes on Methods and Objectives in the Conflict of Laws”.

¹⁶ This method examines the interests the relevant legal systems have in seeing their laws applied to the case at hand and emphasises the court's obligation to apply the legislation and precedents of its own jurisdiction.

¹⁷ By which is meant a focus on the legitimacy of applying a given law to the dispute. Such legitimacy may derive from, among other things, the territorial power of a sovereign to “reach” the dispute or from the valid interests of a sovereign in seeing its law applied to the dispute.

¹⁸ This important difference is observed by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at footnote 51.

¹⁹ For many legal positivists such a superlaw concept is an uncomfortable one. Hence the readiness of some to infer a constitutional imperative perhaps. See below text at n 37.

²⁰ The Restatement of the Conflict of Laws 2d (1971), s 145 coupled with the general concerns identified in s 6.

²¹ (1870) LR 6 QB 1.

²² See the judgment of Brennan Jin Breavington v Godleman (1988) 169 CLR 41 at 110.

²³ Also, s 20(4)(e) of the Act counts the appropriate law to be applied to a matter as a factor to be taken into account by a court considering whether to stay its proceedings in favour of the court of another state. This makes a nonsense of the first limb of Phillips v Eyre which requires the matter to be actionable according to the law of the forum.

²⁴ See Clark v Clark 222 A2d 205 (1966) where the court openly considered the inherent superiority of its law to the proffered guest statute as a factor in choosing forum law, cited in R Leflar, American Conflicts Law (3d ed 1977) at 108-109.

²⁵ In Australia the approaches taken to consumer protection in respect of defective products have been more uniform legislative ones and, of course, the common law is truly common, but the divergence of common law rules in the United States and of international rules elsewhere has driven a good deal of choice of law theorising.

²⁶ Ehrenzweig argued that plaintiffs should have their choice of forum (within jurisdictional limits) and thus of applicable law (under his forum-biased theory) in product liability cases because only the defendants could determine which jurisdictions became available fora through their choices where to market their products. See A Ehrenzweig, A Treatise on Conflict of Laws (1962) at 591-593.

²⁷ See The Hague Convention on the Law Applicable to Product Liability.

²⁸ See D Berman, “To Brainerd Currie: A Fallen Giant” in Symposium on Interest Analysis in Conflict of Laws: An Inquiry into Fundamentals with a Side Glance at Products Liability (1985) 46 Ohio State LJ 457.

²⁹ For example, in the agent orange cases, In Re Agent Orange Product Liability Litigation 580 F Supp 690 (1984), plaintiffs suffered injuries in all fifty of the United States as well as in various other countries, exposure to agent orange happened in Vietnam, Cambodia and Laos, agent orange was manufactured in five US states as well as in two other countries, the companies that manufactured agent orange were incorporated in, and/ or had their principal places of business in, seven US states and the decisions to use the substance were made both in Washington, DC and in Vietnam. See R Weintraub, “A Defense of Interest Analysis in Conflict of Laws and the Use of that Analysis in Product Liability Cases” in ibid at 503-504.

³⁰ See F Juenger, “A Page of History” (1984) 35 Mercer L Rev 419.

³¹ Bois, A Du, “The Significance in Conflict of Laws of the Distinction Between Interstate and International Transactions” (1933) 17 Minnesota L Rev 361Google Scholar as cited in the preface to Sykes, E and Pryles, M, International and Interstate Conflict of Laws (1975) at 14-16Google Scholar.

³² City of Detroit v Proctor 61 A2d 412 (1948) at 416.

³³ Chaff and Hay Acquisition Committee v JA Hemphill and Sons Pty Ltd (1947) 74 CLR 375 at 396 per Williams J.

³⁴ (1988) 169 CLR 41.

³⁵ Ibid at 78.

³⁶ McKain v Miller (1991) 174 CLR 1 and Stevens v Head (1993) 176 CLR 433.

³⁷ (1988) 169 CLR 41 at 98.

³⁸ Scoles, E and Hay, P, Conflict of Laws (1982) at 89-95Google Scholar.

³⁹ Detmold, M J, The Australian Commonwealth: a fundamental analysis of its constitution (1985) ch 8Google Scholar.

⁴⁰ (1988) 169 CLR 41 at 122.

⁴¹ The source of this principle is not explained in Deane J's judgment but is fully explored by M J Detmold, above n 39. It seems to go to the very heart of many jurisprudential divides in both tort and choice of law by treating the conflict of laws as a conflict as to directives to the individual as to how to behave instead of conflicts as to what is to be done about the fact that the individual has behaved in a particular fashion. It is submitted that (particularly in a federation where standards of behaviour are fairly uniform) the conflicts will almost always be of the second type. In such a conflict, the citizen is subjected to only one standard – that which the forum court applies to him or her. Rules estopping the other party from relitigating the issue elsewhere prevent the application of inconsistent laws to the same set of facts.

⁴² (1988) 169 CLR 41 at 122-124.

⁴³ Ibid at 128.

⁴⁴ Ibid at 134-135.

⁴⁵ Opeskin, B, “Constitutional Dimensions of Choice of Law in Australia” (1992) 3 Pub L Rev 152Google Scholar.

⁴⁶ (1991) 174 CLR 1.

⁴⁷ Wilson J had left the Court and McHugh J had been appointed.

⁴⁸ [1971] AC 356.

⁴⁹ (1991) 174 CLR 1 at 39 per Brennan, Dawson, Toohey, McHugh JJ. In Tolofson v Jensen (1995) 120 DLR (4th) 289, five members of the Supreme Court of Canada took this inflexible view of inter-provincial conflicts, while allowing for the possibility of a flexible exception to the lex loci rule in international torts. Sopinka and Major JJ would have kept open the possibility of flexibility in the inter-provincial setting. Also note that Rich, Dixon and Evatt JJ in Merwyn Pastoral Co v Moolpa Pastoral Co (1933) 48 CLR 565 stated that, while it might be desirable to exclude the application of a foreign lex loci on grounds of forum policy, such an approach is inappropriate in the Australian federal context and not permitted by s 118. These views were adopted by Brennan and Dawson JJ in Breavington. See Nygh, P, Conflict of Laws in Australia (6th ed 1995) at 18Google Scholar.

⁵⁰ Continuing the common law tradition of giving “procedure” a wide scope so as to render some of the laws of the place of the tort inapplicable in the forum on the basis that they are procedural. In McKain the relevant provisions of the Limitation of Actions Act 1936 (SA) were classified as procedural, allowing the plaintiff to sue in New South Wales where he was not time barred. In Stevens v Head (1993) 176 CLR 433, provisions of the Motor Accidents Act 1988 (NSW), which limited the amount of damages available, were classified as procedural, enabling the plaintiff to have the benefit of forum (Queensland) damages.

⁵¹ All Australian states and territories have now legislated (as part of a uniform reciprocal legislative scheme within Australia at least) to reverse the effect of McKain v Miller on the characterisation of statutes of limitations. See Limitations Act 1985 (ACT), ss 56-57; Choice of Law (Limitations Periods) Act 1993 (NSW), s 6; Choice of Law (Limitation Periods) Act 1994 (NT), ss 5-6; Choice of Law (Limitation Periods) Act 1996 (Qld), ss 5-6; Limitations of Actions Act 1936 (SA), s 38A; Limitations Act 1974 (Tas), ss 32C-32D; Choice of Law (Limitation Periods) Act 1993 (Vic), ss 5-6; Choice of Law (Limitation Periods) Act 1994 (WA), ss 5-6. See also ALRC 58, above n 2, Draft Bill cl 42 which treats statutes of limitation and rules limiting damages or heads of damage as substantive.

⁵² To be fair, the Service and Execution of Process Act 1992 (Cth) which renders Phillips v Eyre a nonsensical choice of law rule within Australia (see above text at n 23) was only enacted following McKam v Miller. The legislation was, however, in the pipeline and could have been taken into account. (The Australian Law Reform Commission had reported on Service and execution of process in 1987 in ALRC 40.) See also the comment by H Johnson, “Historical and Constitutional Perspectives on Cross-Vesting of Court Jurisdiction” (1993) 19 MULR 45 at 78: “To leave the cross-vesting scheme afloat in the currently turbulent choice of law seas [following McKain] is to invite serious inefficiency and possible miscarriages of justice.”

⁵³ The recommendations in ALRC 58, above n 2, have languished since 1992. The Standing Committee of Solicitors-General are working toward agreement on uniform state legislation on interstate choice of law in tort.

⁵⁴ ALRC 58, above n 2.

⁵⁵ Ibid para [6.78]. It was recommended that the law of the place of the tort may be displaced but “should be displaced only where there is a 'substantially greater connection' with a place other than that where the tort occurred” (para [6.62]) or where to apply the law of the place of the tort would violate the public policy of the forum (para [6.78]).

⁵⁶ Red Sea Insurance Co Ltd v Bouygues SA (1995] 1 AC 190. This decision left the double actionability rule of Phillips v Eyre intact as a starting point but allowed that the lex fori could be excluded in much the same way as the lex loci had been excluded in Boys v Chaplin (1971] AC 356. Either could be excluded as to one issue, as in Boys, or as to the entire case, following Red Sea.

⁵⁷ (1995) 120 DLR (4th) 289.

⁵⁸ Lookofsky, J, “The State of the Union … in Contract and Tort” (1993) 41 Am J of Comp Law 89CrossRefGoogle Scholar. And see Morse, C G J, “Choice of Law in Tort: A Comparative Study” (1984) 32 Am J of Comp Law 51CrossRefGoogle Scholar.

⁵⁹ See The Hague Convention on the Law Applicable to Traffic Accidents, art 3 and The Hague Convention on the Law Applicable to Product Liability, arts 4 and 5.

⁶⁰ Th Boer, M De, Beyond Lex Loci Delicti (1987) at 351-372Google Scholar.

⁶¹ See for example Ehrenzweig, A, “A Counter-Revolution in Conflicts Law? From Beale to Cavers” (1966) 80 Harvard L, Rev 377CrossRefGoogle Scholar and S Symeonides, “Revolution and Counter-Revolution in American Conflicts Law: Is There a Middle Ground?” in Symposium, above n 28 at 547.

⁶² B Currie, above n 15 at 6 said it had been “some years since Walter Wheeler Cook discredited the vested-rights theory as thoroughly as the intellect of one man can ever discredit the intellectual product of another”.

⁶³ Dane, P, “Vested Rights, 'Vestedness' and Choice of Law” (1987) 96 Yale Law Rev 1191CrossRefGoogle Scholar.

⁶⁴ Ibid at 1205. This is what vestedness requires. What it is is less accessible. It grows out of a view of all law similar to that view of Australian constitutional law taken in Breavington by Wilson and Gaudron JJ and by Deane J. According to Dane, at 1245, a proper (norm-based) view of law cannot allow the analysis of substantive rights to depend on where they are litigated.

⁶⁵ Ibid at 1209.

⁶⁶ Breavington v Godleman (1988) 169 CLR 41 at 122 and 128.

⁶⁷ Ironically, it is the majority of the High Court in McKain v Miller who appeared to hold this metaphysical view of the common law, at least in regard to the substance versus procedure dichotomy, where they held that rights may be statute-barred but not extinguished. One must wonder on what plane these rights continue to exist. And of course Phillips v Eyre itself was a product of vested rights thinking: “[C]ivil liability arising out of a wrong derives its birth from the law of the place, and its character is determined by that law.” [1870] LR 6 QB 1 at 28 per Willes J.

⁶⁸ The paradox of McKain v Miller and Stevens v Head is that they preserved Phillips v Eyre with its open reliance on vested rights while rejecting the role the lex loci logically plays in such a theory. Phillips v Eyre itself did not present such a paradox in so far as it is viewed as providing a jurisdiction rather than a choice of law test.

⁶⁹ In the United States at least, the “better law” theorists such as Leflar and Juenger have a toe-hold on mainstream thinking. Juenger claims better law theory is the heir to the jus gentium. See F Juenger, above n 30.

⁷⁰ L Brilmayer, above n 8. This is not helpful in any specific sense in Australia with its lower personal jurisdiction threshold. And it clearly flies in the face of whatever “one nation” feelings survive in the High Court.

⁷¹ Brilmayer offers this as a threshold test, ibid at 208.

⁷² In Tolofson v Jensen (1995) 120 DLR (4th) 289 at 302, La Forest J referred to the expectations of the parties as “a somewhat fictional concept” and went on to say that “[t]he truth is that a system of law built on what a particular court considers to be the expectations of the parties or what it thinks is fair, without engaging in further probing about what it means by this, does not bear the hallq1arks of a rational system of law”.

⁷³ [1971] AC 356.

⁷⁴ P Kincaid, “Justice in Tort Choice of Law” (1996) 18 Adel L Rev 191. Kincaid is actually arguing for a party expectation exception to a lex loci delicti rule.

⁷⁵ To the extent that I can imagine the parties having had any expectations at all regarding applicable law as to damages available in the event of their being involved in an accident.

⁷⁶ Other similar instances which have captured worldwide attention involve products which are not inherently unsafe if used in accordance with accompanying written warnings but which will not be safe in the places where they are marketed where literacy levels are low or other factors make the product unsuitable or unsafe. Examples are infant formula powdered milk in areas without clean water, and anti-diarrhoeal drugs (which may be inherently unsafe for small children) in areas where many infants and children are at risk of death from diarrhoea.

⁷⁷ As Union Carbide presumably did prior to the Bhopal disaster.

⁷⁸ In the Bhopal case, one ground on which the forum non conveniens application was granted by the United States court was that Indian law would apply to the dispute: In Re Union Carbide Gas Plant Disaster 809 F2d 195 (1987). The choice of law question has been raised directly in the agent orange litigation, above n 29, and found to be too hard. The very nature of these actions makes any attempt to give effect to each party's expectations so inefficient as to militate toward unfairness to all parties in the form of excessive time and money spent on the exercise. Thus Judge Weinstein in the agent orange cases decided to apply “national consensus common law to all substantive issues”: In Re Agent Orange Product Liability Litigation 580 F Supp 690 at 711 (1984). Whether this solution would have withstood further appellate scrutiny is unknown as the parties to the class action ultimately settled.

⁷⁹ Breavington v Godleman (1988) 169 CLR 41 at 77.

⁸⁰ Mason CJ provided for this by also recognising that a substantial connection between the applicable law and the matter in dispute is necessary, ibid at 79. In the United States the Due Process clause of,the Fourteenth Amendment has been held to require that the applicable law be that of a state with a significant interest in the application of its law to the case: Allstate Insurance Co v Hague 449 US 302 (1981).

⁸¹ Certainty and predictability are, of course, about more than giving effect to expectations. They allow people (not yet parties) to plan their activities so that perhaps disputes are avoided in the first place, and, once a dispute does arise, certainty as to applicable law would mean that choice of law need not be litigated and the likelihood of the substantive dispute's being settled would in most cases be greatly increased.

⁸² ALRC 58, above n 2.

⁸³ And, if in interstate situations, the objects and purposes of laws of both places will be promoted: ibid, Draft Bill cl 8.

⁸⁴ Choice of Law (Miscellaneous Provisions) Act 1995 (UK), s 12(1).

⁸⁵ Of course statutes of limitation are just that — statutes (and I am proposing a common law rule). But while settling on an arbitrary rule which will be fairly rigidly applied may be more appropriately done by a legislature, settling on a principled rule which will be applied fairly rigidly is done by courts all the time.

⁸⁶ Specifically certainty, predictability, prevention of forum-shopping opportunities and the political right not to be subjected to a legal regime unrelated to one's activities.

⁸⁷ Any tort law regime will effectuate some jurisdiction's tort concerns. The fact that these differ more radically than do different regimes' contract or property concerns is not going to go away, which is a very good argument for putting our energies into fashioning a choice of law rule around choice of law concerns and dropping the pretence of using it to give effect to tort law concerns.