Delictual Obligations in Private International Law

Delictual Obligations in Private International Law

Resolution on Delictual Obligations in Private International Law by The Institute of International Law

The following is the Resolution concerning delictual obligations in private international law adopted on the 11th of September 1969 by the The Institute of International Law in its 53rd session (Edinburgh; 1969).

Note: It will he noticed that the general guidelines laid clown in this Resolution do not depart from tine rules adopted at The Hague in the particular realm of traffic accidents.

Being of the opinion that as a result of technical developments the principles governing
delictual liability in private international law have greatly gained in practical importance and that they continue to do so,

Observing that largely as a result of these developments the traditional application of the
law of the place of delict has been and is being questioned in many countries by courts and by
academic writers,

Being convinced that the application of the law of the place of delict should be subject to
exceptions where that place is merely fortuitous and where the social environment of the parties differs from the geographical environment of the delict but that nevertheless the rule by which the law of the place of the delict governs liability should be maintained.

Being further of the opinion that the extent to which and the way in which the law of the
place of delict is to be replaced by some other legal system must be worked out separately for
each type of delict (traffic accidents, accidents at work, defamation and infringement of privacy
through mass media of communication, unfair competition and other economic delicts, delicts
committed on the high seas, in the air, or in space, etc.) and transcends the limits of a general
resolution on delictual liability,

And being also of the opinion that the time has not yet arrived for the Institute to express
any view in favour or against the expediency of applying different laws to different issues arising from delictual liability.

Considering that the difference between liability for fault and liability for risk and
between the purposes of deterrence and of risk distribution are differences of degree and not
differences in kind, that it is impossible to establish different principles of private international
law for the two types of liability or for the two types of purposes, and that the same rules of
private international law should apply to fault liability and to risk liability as well as to rules
serving the primary purpose of deterrence and serving the primary purpose of social risk
distribution.

Considering further that it is inexpedient to establish abstract rules for the definition of
the place of delict, the determination of which must in each case depend on the degree to which the issue involved is connected with one of the places at which the conduct alleged to be delictual occurred or the effect of that conduct was produced,

Being of the opinion that it is inexpedient in a Resolution devoted to delictual liability to
establish any rules of law governing the characterisation (qualification) of a claim, a matter which can only be discussed within the framework of the general principles of private international law,

But considering that the scope of the following rules on delictual liability should not
include either contractual liability or liability for unjust enrichment, or any questions of the
immunity inter se of members of a family from delictual claims, or the transmission of delictual
claims to the estate, the heir or other successor in title of the victim of a delict or the transmission of delictual liability to the estate, the heir or other successor in title of the person responsible.

And considering further that the rights of an insurer of a victim to be subrogated to the
claim of the victim against the person responsible for the accident, and the right of the victim to
raise a direct claim against the insurer of the person responsible, are so closely connected with the sphere of the contract of insurance as to render it inadvisable for the Institute in this Resolution on delictual liability to express any views as to the law applicable to these rights.

And considering that in view of the rapid and often conflicting development of the law in
many countries the time has not arrived to formulate a precise draft of legislation, but that general principles are required which can give guidance to courts and to academic writers,

Has passed the following Resolution :

Article 1 of the Resolution on Delictual Obligations in Private International Law

On principle delictual liabilities are governed by the law of the place at which the delict is
committed.

Article 2 of the Resolution on Delictual Obligations in Private International Law

For the purpose of Article 1 a delict is regarded as having been committed at the place
with which, in the light of all the facts connecting a delict with a given place (from the beginning
of the delictual conduct to the infliction of the loss), the situation is most closely connected.

Article 3 of the Resolution on Delictual Obligations in Private International Law

In the absence of any substantial connection between the issue to be determined and the
place or places at which the delict has been committed, and by way of exception to the rules in
Articles 1 and 2, that law is to be applied which is indicated by a special relation between the
parties or between the parties and the occurrence :

  • a) thus the law of the common habitual residence may be applied between members of the
    same family, the law of the seat of an enterprise to liabilities arising between employers and
    employees and between fellow employees of the same enterprise;
  • b) thus the law of the registration of a vehicle may be applied to liabilities arising between
    its driver or owner and its passengers, whether for hire and reward or gratuitous, and between those passengers, the law of the place at which an expedition has been organised to delicts committed in the course of the expedition.

With the same intent the law of the flag may be applied to delicts on board a ship in
foreign territorial waters, and the law of the place of registration to delicts committed on board an aircraft.

Article 4 of the Resolution on Delictual Obligations in Private International Law

The principles expressed in Articles 1, 2 and 3 apply to all issues arising from delictual
liability, and notably :

  • a) to the standard of liability, including the question whether a person made responsible is
    liable for the creation of a risk or for fault, for gross negligence or simple negligence, and to all presumptions relating to this liability;
  • b) to the question how far contributory fault of the victim is relevant to the liability of the
    person responsible;
  • c) to the question of delictual capacity, including that of infants and mentally disordered
    persons, and of corporate bodies;
  • d) to immunities from delictual liability of charitable organisations and trade unions;
  • e) to questions of vicarious liability, including those of employers for their employees and of
    corporate persons for their organs, but not necessarily to that of husbands for their wives, parents for their children, or teachers and masters for their pupils and apprentices;
  • f) to the determination of the person or persons entitled to compensation, to the
    determination of the loss for which compensation can be claimed (including the question of
    dommage moral) and to the assessment of the damage (including financial limitations).

Article 5 of the Resolution on Delictual Obligations in Private International Law

The application of the law which is applicable in accordance with the preceding rules can
be only excluded in so far as such application to the issue to be determined would be manifestly incompatible with the public policy of the forum.


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