Equally, it is the commission of a tort that vests a right of action in a claimant and therefore, it should always be for the law of the place where that right was created to determine the extent of any remedy flowing from it.
This[clarification needed] led to a debate in which state interests, rather than strict territorial connections, were suggested as the basis of a new test.
In public policy terms, this is usually the law of the place where the key elements of the "wrong" were performed or occurred (the lex loci delicti).
Courts are more willing to accept cases with a foreign law element when one of the parties is domiciled or has residence within their territorial jurisdiction, or has assets against which judgment can be levied.
Hence, if A sent a reference to B about C in the ordinary course of business, or submitted for publication by B a review of an artistic work by C, the policy claims of State X would be strong.
In summary, therefore, selecting the proper law in tort cases is subject to a balancing of public policy and practical considerations and, although each set of choice of law rules will give an indication of likely outcome, the individual decisions on the merits are not strictly subject to precedent and outcomes may vary depending on circumstances.
Under Article 4 of the proposed Rome II Regulation on the Law Applicable to Non-Contractual Obligations (22 July 2003), there would be a general presumption that the lex loci delicti will apply subject to either: Until formal guidance is given on the circumstances in which either exception will operate, there will either be considerable forum shopping to select the states with the most favourable interpretation, or courts will resolve the uncertainty by applying the lex fori.
Article 6 specifies the lex fori for actions arising out of breach of privacy or defamation, a rule that may increase the risk of forum shopping.
With the exception of defamation which continues to apply the proper law test, s10 Private International Law (Miscellaneous Provisions) Act 1995 abolishes the "double actionability" test, and s11 applies the lex loci delicti rule subject to an exception under s12 derived from Boys v Chaplin [1971] AC 356 and Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190.
The English courts must apply wider international tests and respect any remedies available under the "Applicable Law" or lex causae including any rules on who may claim (e.g. whether a personal representative may claim for a fatal accident) and who the relevant defendant may be (i.e. the English court would have to apply the applicable law's rules on vicarious liability or the identity of an "occupier" of land).
Similarly, in Roerig v Valiant Trawlers Ltd. [2002] 1 Ll Rep 681, where the accident occurred on board an English ship, the main consequences in terms of loss were felt by the deceased's family in the Netherlands (their habitual residence), not England.
In Metall und Rohstoff AG v Donaldson Lufkin & Janrette Inc [1990] 1 QB 391 action in New York induced a breach of contract in England where the loss was sustained, so English law was the more significant.
In Morin v Bonhams and Brooks Ltd. (2003) 2 AER (Comm) 36 a bad buy was made in Monaco as a result of allegedly fraudulent information "fed" to the buyer in London.