Tetley (2002) introduction to conflict of laws 5
Damages & Conflict of Laws
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Damages & Conflict of LawsTetley – Restitutio in integrum is the key to a rational solution to damages and the conflict of laws. Once one awards proper damages in a proper currency and at a proper compounded interest rate, from a proper date, one can avoid much conflict of laws. Classical distinctions have been made in the past between remoteness of damage, heads of damage and measure of damage. Remoteness and heads of damages have traditionally been held to be substantive in contract while in tort they have usually followed the law of the tort. Measure of damages for its part has traditionally followed the law of the forum. Tetley – none of the above distinctions is clear and in reality damages have a proper law of their own which is usually the law to which they have the closest and most real connection. International Conventions Arrest of Ships Convention, 1952 – questions as to whether claimant is liable for damages for arrest of ship determined by law of the place where the arrest is made or applied for (likely that damage arose in same place) Rome Convention, 1980 – article 10(1)(c) governs the measure of damages and subjects to law of the contract only as governed by rules of law…when it is a question of fat it will be subject to law of the forum. UK Law Commissions – applicable law in tort and delict determine what head of damage are available and the measure or quantification of damages under those heads are governed by lex fori. US Restatement Second, 1969 – in contract and tort, damages follow law of juridical act – courts have sometimes taken view that damages are procedural. Canada – ComL distinguished between heads and measures of damages…CCQ suggest that damages follow law of contract or delict. With respect to PEL between Canada and US, each court have held that right to recover depends on law of the place of the collision (Gypsum Carrier 1978, Bethlehem Steel 1978, The Steelton No.2 1979, Bethlehem Steel Lim. Procs. (Steelton) 1981) Australia – heads of damages and laws establishing statutory ceiling on damages treated as substantive in both interstate conflicts and international cases…quantification of damages remains procedural and subject to law of the forum (except in interstate cases). Need a proper law for damages alone that is most closely to the applicable law, as decided by a consistent methodology. Currency of the JudgmentUnder a rule of thumb, albeit hardened in the jurisprudence, damages in foreign currency were refused. Fortunately the House of Lords changed the English rule in Miliangos v. George Frank Textiles (1976) giving judgment in a foreign currency as did a US court in The Amoco Cadiz (1992). United KingdomFor four hundred years under English common law, until 1975, debt in foreign currency had to be converted into sterling by the courts. Miliangos v. George Frank (1975) held that English judges could give judgment for an amount expressed in foreign currency. Beginning with The Despina R. and Folias (1978) courts have rendered judgments in the currency stipulated by the contract or the currency in which the expenditure or loss has been felt, on the basis of restitutio in integrum and the reasonable foreseeability of the damages sustained. The Federal Huron (1985) – set out six principles regarding awarding of damages in contract in foreign currency – “If the contract does not show an agreed currency the plaintiff should receive damages calculated in the currency in which the loss was felt or which most truly expresses his loss, which may or may not be the currency in which the loss first and immediately arose.” Conversion of currency has followed “breach date rule” but in above case followed conversion as it stood at time of payment or claim agreed to. This is fine as long as interest, etc. is done in appropriate currency. CanadaCanada had difficulty following Miliangos because of the Currency Act (s.12 – “any reference to money or monetary value in any indictment or other legal proceedings shall be stated in the currency of Canada.”). Provision applies only to court judgments and therefore does not prohibit arbitral awards rendered in Canada from being expressed in the foreign currency with which the contract is most closely connected. Conversion often ordered on date payment to be made or date loss was incurred (fine as long as inflation taken into account). To achieve RII the court should award pre-judgment interest at the prime rate of the foreign currency and post-judgemtn interst at the Canadian prime rate. United StatesFrom the very beginning it was commonly believed that judgments had to be rendered in US currency in the US (Coinage Act, s.20…also Restatement Second). In The Amoco Cadiz the US court awarded damages for pollution in a foreign currency (s.20 of Coinage Act had been repealed and court relied on UCC, Uniform Foreign-Money Claims Act and the Restatement Third of Foreign Relations Law all of which authorize the rendering of money judgments in foreign currency). Loss awarded in currency which best expresses where the loss was “felt” (even though it was still American). State courts generally applied the breach date rule for conversion – federal courts use this rule today as well. Interest in above case also was calculated from the date of the event…confusing. FranceAlthough French judges were not restricted in the same was as English judges and could render judgment in foreign currency they usually made awards in French currency. Great liberty with respect to date of conversion – takes into account lapse of time between injury and judgment. Among member-states of the EC, debts contracted in the currency of one member-state are payable in that same currency in any other member state (Treaty of Rome Art. 106) Directory: pubdocs -> files -> privateinternationallaw files -> Chapter 1: Property as rights, not thing files -> Insurance Law – May 4 files -> Contractual Obligations – Prof. Helge Dedek Introduction 1 files -> Constitutional Limits on Criminal Law 1 files -> Antonio Iacovelli Winter 2005 Advanced Criminal Law privateinternationallaw -> Private International Law – Prof. Walsh Summer 2005 files -> Part I: conceptualizing and justifying ip space 3 files -> Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law? Download 0.88 Mb. Share with your friends:
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