CO AUTHOR- DR.VIKAS
Tortious Liability Across Borders: Can Traditional Conflict Rules Handle Transnational Harms?
A Scholarly Blog on Private International Law | LAW584 | CA2
I. Introduction:
When Harm Doesn’t Respect Borders
Imagine waking up one morning to discover that a pharmaceutical company headquartered in Switzerland, manufacturing its drugs in India, sold a defective product through an online platform registered in Delaware — and you, a consumer in Nigeria, suffered serious harm. Who is liable? Under which country’s law? Which court even has the authority to hear your case?
This is not a hypothetical pulled from a law school exam. It is increasingly the lived reality of a globalized world where economic activity, digital commerce, and environmental degradation operate without regard for national borders. The law of torts, however, was built on a very different assumption: that a wrong happens in one place, between parties who share a common legal universe.
Private International Law (PIL), also called Conflict of Laws, steps in to answer the uncomfortable question — whose law governs when things go wrong across borders? The traditional answers, shaped over centuries of litigation and scholarship, are now straining under the weight of transnational harms. This blog critically examines whether those traditional conflict rules are still fit for purpose, and what a more coherent framework might look like.
II. The Traditional Framework: Lex Loci Delicti and Its Discontents
The foundational rule in choice-of-law for torts is deceptively simple: lex loci delicti commissi — the law of the place where the wrong was committed. If you’re struck by a negligently driven car in France, French law governs. This rule, famously crystallized in Chaplin v. Boys^1 and deeply embedded in common law systems, has a logical elegance to it. It is predictable, territorial, and neutral.
But even within domestic settings, courts began to question its rigidity. The American legal realists, led by Brainerd Currie, argued in the 1960s that the mechanical application of the place-of-the-wrong rule ignored the legitimate interests of different states in having their law applied.^2 Why should the law of a country where a chemical plant happened to dump waste govern a claim by victims who live downstream in a completely different nation?
The English courts themselves acknowledged this tension. In Boys v. Chaplin,^3 the House of Lords, while nominally applying lex loci delicti, carved out a “flexible exception” — recognizing that there may be circumstances where the law of another jurisdiction has a stronger claim. This cracks open a door that later jurisprudence would swing wide open.
The Rome II Regulation, adopted by the European Union in 2007, represents perhaps the most sophisticated modern attempt to codify choice-of-law rules for non-contractual obligations.^4 It retains the place-of-damage as its general rule (Article 4(1)), while introducing important qualifications: where both parties share a habitual residence, that law applies (Article 4(2)); and where the tort is “manifestly more closely connected” with another country, that country’s law prevails (Article 4(3)). It also provides special rules for product liability, environmental damage, intellectual property, and unfair competition.
Rome II is a significant improvement. But as we shall see, it was designed for a world where the place of damage remains reasonably identifiable — a world that is rapidly receding.
III. The Problem of Ubiquity: Where Did the Harm Happen?
The first major challenge to traditional conflict rules is what we might call the ubiquity problem: in many transnational torts, the harm is either impossible to localize or occurs simultaneously in multiple jurisdictions.
Consider environmental disasters. In the aftermath of the Bhopal Gas Tragedy,^5 victims in India sought to hold Union Carbide Corporation — an American parent company — accountable. The harm occurred in India, but the alleged negligence (inadequate safety protocols, failure of oversight) arguably originated in corporate boardrooms in the United States. The lex loci delicti pointed to India, but the deeper systemic wrong seemed to emanate from America. The litigation, famously chaotic, resulted in a settlement that many victims found deeply inadequate, partly because no single legal system could coherently govern the full scope of the harm.
The Chevron-Texaco litigation in Ecuador presents a similar labyrinth.^6 Decades of oil contamination in the Amazonian rainforest led to a $9.5 billion judgment against Chevron in Ecuadorian courts — a judgment that Chevron then successfully challenged in U.S. federal courts on grounds of fraud. The case ricocheted across jurisdictions for over two decades, consuming billions in legal fees while the affected communities waited for remediation.
Digital torts create an even sharper version of this problem. In eDate Advertising GmbH v. X,^7 the Court of Justice of the European Union was asked: where does an internet defamation occur? The Court held that victims may sue either in the country where the publisher is established (for the full harm) or in any country where the content was accessed (for harm suffered in that country alone). This “mosaic approach” has been criticized for fragmenting litigation, creating incentives for forum shopping, and placing enormous practical burdens on defendants.
When a single social media post causes reputational damage across fifty countries, applying fifty different legal systems to different “slices” of the harm is not a solution — it is an admission that our legal framework has no solution.
IV. The Asymmetry of Power: Multinational Corporations and the Governance Gap
Perhaps the most troubling dimension of transnational tort law is its political economy. Traditional conflict rules were designed for relatively symmetrical disputes — a car accident between two private individuals, a contract gone wrong between two merchants. They were not designed to address the structural power imbalance between multinational corporations (MNCs) and the communities they affect.
MNCs routinely structure their operations to exploit the fragmentation of international law. Harmful manufacturing is outsourced to subsidiaries in countries with weaker regulatory frameworks. The parent company, domiciled in a wealthy jurisdiction, can insulate itself behind the corporate veil while enjoying the profits. When harm occurs, the subsidiary may be judgment-proof, and the courts of the parent company’s home country may decline jurisdiction on forum non conveniens grounds — pointing the victim back to the very jurisdiction whose weakness made the harm possible in the first place.
This is precisely what happened in Lubbe v. Cape plc,^8 where South African asbestos mine workers attempted to sue the English parent company in English courts. The House of Lords ultimately allowed the case to proceed, recognizing that justice required an English forum because South Africa lacked the legal infrastructure to handle the litigation effectively. But Lubbe is the exception, not the rule.
The Lungowe v. Vedanta Resources litigation^9 and the Okpabi v. Shell^10 cases before the UK Supreme Court have pushed this frontier further, establishing that English courts may exercise jurisdiction over claims against a parent company for harm caused by its foreign subsidiaries, provided there is a real issue to be tried against the anchor defendant. These are welcome developments — but they depend on the creativity of individual courts, not on a coherent systemic framework.
The Rome II Regulation, for all its sophistication, does not fundamentally address this power asymmetry. It allocates governing law; it does not create substantive minimum standards for corporate conduct across borders. That gap is now partially being addressed by legislative developments — the French Devoir de Vigilance law of 2017^11 and the EU Corporate Sustainability Due Diligence Directive (CS3D)^12 — but these remain islands of reform in a sea of fragmentation.
V. The Closest Connection Principle: Promise and Peril
One response to the rigidity of lex loci delicti has been the rise of the “closest connection” or “most significant relationship” test, associated with the American Restatement (Second) of Conflict of Laws.^13 Rather than applying a single bright-line rule, courts weigh multiple factors: where the injury occurred, where the conduct causing the injury occurred, the domicile and nationality of the parties, and where the relationship between the parties is centered.
This approach is more sensitive to the complexity of transnational cases. It avoids the mechanical absurdity of applying the law of a country with a purely accidental connection to the dispute. But it comes at a cost: unpredictability. When parties cannot know in advance which law will govern their conduct, they cannot plan accordingly. For businesses operating across borders, this uncertainty is more than an academic inconvenience — it affects insurance, compliance, and risk management.
There is also a subtler danger. The flexibility of the closest connection test creates space for judicial discretion, which in practice may operate in ways that systematically disadvantage claimants from developing countries. When a court in London or New York weighs “contacts,” the home jurisdiction of the defendant multinational is likely to feature prominently — and that jurisdiction’s law may be more favorable to corporate defendants.
A more principled version of the closest connection approach would take seriously the interests of victims as a substantive consideration, not merely a background factor. Some scholars have proposed a “victim-protective” choice-of-law rule for mass torts — applying the law most favorable to the victim within a defined set of plausible candidate laws.^14 This has the advantage of honesty: it acknowledges that conflict rules are not neutral, and that the choice between them has real distributive consequences.
Environmental Torts and the Inadequacy of Current Rules
Environmental harms present the starkest test of our conflict rules. Transboundary pollution — acid rain crossing borders, rivers contaminated upstream affecting communities downstream, carbon emissions causing climate harm everywhere — defies the basic assumption of lex loci delicti that harm can be localized.
The Trail Smelter arbitration^15 between the United States and Canada, decided in 1941, established the principle that no state may use its territory in a manner that causes injury in another state. But this is a rule of public international law between states — it does not directly empower private litigants.
Rome II’s special rule for environmental damage (Article 7) allows claimants to choose between the law of the country where the damage occurred and the law of the country in which the event giving rise to the damage occurred. This “favor laesi” approach is a meaningful step — it gives victims some agency. But it still operates within a bilateral framework ill-suited to diffuse, long-term, or cumulative environmental harm.
Climate change litigation represents the cutting edge of this problem. In Milieudefensie et al. v. Royal Dutch Shell,^16 a Dutch court ordered Shell to reduce its global carbon emissions by 45% by 2030. The court applied Dutch law — but the harm at issue is planetary, the defendant is global, and the causal chain is complex. Traditional conflict rules had almost nothing useful to say about which law should govern, or how to allocate liability among dozens of potential defendants.
The courts are improvising. And while their improvisation is often admirable, it is not a substitute for a coherent framework.
VII. Toward Reform: What Would Better Rules Look Like?
Diagnosing the inadequacy of traditional conflict rules is easier than prescribing alternatives. But several reform directions merit serious consideration.
First, there is a strong case for a specialized international instrument on transnational tort liability — analogous to the Hague Conventions on choice of court and applicable law, but specifically designed for mass torts, environmental harms, and corporate human rights violations. Such an instrument could codify victim-protective choice-of-law rules, establish minimum standards of access to justice, and address the forum non conveniens problem through mandatory jurisdiction clauses.
Second, the rise of mandatory human rights due diligence legislation — the French Vigilance Law, the German Supply Chain Act, and the EU CS3D — offers a partial workaround. By imposing substantive obligations on parent companies regardless of where harm occurs, these laws sidestep the conflict-of-laws question for some purposes. They do not solve the problem of which law governs compensation, but they create a baseline of accountability that is not subject to manipulation through corporate structuring.
Third, courts and legislators should consider enterprise liability as an alternative to the single-entity model that traditional conflict rules assume. If a multinational group is treated as a single legal enterprise for the purpose of liability — rather than as a collection of separately incorporated subsidiaries — the fragmentation problem largely dissolves. The group is liable; the question of which jurisdiction’s courts adjudicate and which law governs becomes secondary.
Fourth, digital torts require their own dedicated framework. The mosaic approach of eDate is intellectually coherent but practically unworkable. A rule that identifies the “center of gravity” of the victim’s interests — likely their habitual residence — as the governing law for online harms would be simpler, more predictable, and no less just.
VIII. Conclusion: Adaptation, Not Abandonment
The traditional conflict rules for tortious liability — lex loci delicti, closest connection, party autonomy — are not worthless. For many ordinary cross-border torts, they work reasonably well. The problem is that the category of “ordinary” cross-border torts is shrinking, while the category of genuinely transnational harm — diffuse, multi-causal, structurally imbalanced — is growing.
The rules we have were designed for a world of discrete bilateral wrongs. The world we live in generates harms that are networked, systemic, and often invisible until they become catastrophic. Traditional conflict rules handle the former adequately; they struggle visibly with the latter.
The response cannot be to abandon the project of conflict of laws — legal pluralism, however messy, is preferable to either the tyranny of a single global legal system or the lawlessness of ungoverned transnational harm. The response must be to adapt: to build flexibility into our rules without sacrificing predictability, to take seriously the substantive justice implications of our choice-of-law decisions, and to develop new instruments for the genuinely new problems that transnational commerce and interconnected ecology have placed before us.
Justice, as the jurist Savigny understood, does not follow only one flag. But it must follow someone. The challenge for Private International Law in the twenty-first century is to ensure that, wherever harm crosses a border, accountability follows it.
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