“(a) The law applicable to a non-contractual obligation arising out of a restriction of competition shall be the law of the country where the market is, or is likely to be, affected. (b) When the market is, or is likely to be, affected in more than one country, the person seeking compensation for damage who sues in the court of the domicile of the defendant, may instead choose to base his or her claim on the law of the court seised, provided that the market in that Member State is amongst those directly and substantially affected by the restriction of competition out of which the non-contractual obligation on which the claim is based arises; where the claimant sues, in accordance with the applicable rules on jurisdiction, more than one defendant in that court, he or she can only choose to base his or her claim on the law of that court if the restriction of competition on which the claim against each of these defendants relies directly and substantially affects also the market in the Member State of that court.”
“11. Choice of applicable law: the general rule. (1) The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict in question occur. (2) Where elements of those events occur in different countries, the applicable law under the general rule is to be taken as being - (a) for a cause of action in respect of personal injury caused to an individual or death resulting from personal injury, the law of the country where the individual was when he sustained the injury; (b) for a cause of action in respect of damage to property, the law of the country where the property was when it was damaged; and (c) in any other case, the law of the country in which the most significant event or elements of those events occurred.”
“Nothing in this Part applies to acts or omissions giving rise to a claim which occur before the commencement of this Part.”
“(1) Section 11 of the 1995 Act sets out the general rule for ascertaining the applicable law of a tort. It adopts a geographical approach to that question. (2) Where the elements of the events constituting the tort or delict occur in different countries and the cause of action relates to something other than personal injury or damage to property, then section 11(2)(c) requires an analysis of all the elements of the events constituting the tort in question. (3) In carrying out that exercise, it is the English law constituents of the tort that matter. (4) The analysis requires examination of the ‘intrinsic nature’ of the elements of the events constituting the tort. It does not, at this stage, involve an examination of the nature or closeness of any tie between the element and the country where that element was involved or took place. This latter exercise is only relevant if section 12 is invoked. (5) Once the different elements of the events and the country in which they occurred have been identified, the court has to make a ‘value judgment’ regarding the ‘significance’ of each of those ‘elements’. ‘Significance’ means the significance of the element in relation to the tort in question, rather than trying to judge which involves the most elaborate factual investigation. (6) Under section 11(2)(c) , (i.e. in relation to causes of action other than in respect of personal injury or damage to property where the elements of the events constituting the tort occur in different countries) the applicable law of the tort in question will be that of the country where the significance of one element or several elements of events outweighs or outweigh the significance of any element or elements found in any other country.”
“Application of the statutory formula will, first, involve identifying the various elements which, together, constitute the alleged tort, e.g. the acts or omissions involved, the damage suffered, and the various countries in which the various elements occurred. It will then be necessary to assess the “significance” of those elements. To do this it will be necessary, it is suggested to identify the ingredients of the alleged liability in tort which it is claimed has arisen and then to identify the country in which the events which constitute the most significant ingredients of that liability have occurred.”
“The banks were a driving force behind the IPO…. They agreed to it as they knew that the new management on the Global Board would continue to act in their common interest. While the European banks were aware that they would lose control over the body setting [EEA MIFs], they consented to the change in the organisation’s governance with the expectation that the independence of the Global Board would reduce each individual bank’s exposure to regulatory scrutiny and antitrust litigations…”
“By approving the IPO the banks effectively resolved to continue using the Global Board of [the First Defendant] as “common structure or body” for the co-ordination of their policies regarding the pricing of MasterCard and Maestro payment card acceptance. Decisions of the Global Board remain the “faithful expression of the association’s resolve to coordinate the commercial conduct of its members” as they reflect the common interest of the organisation’s 2,600 European member banks.”
“those that took place in Singapore. That is because the acts on which [the bank] principally relies occurred there. Although the loss is also significant, it is not the most significant element in this case. In a sense, [the bank] was out of pocket from the moment it reimbursed [the advising bank] in Tokyo. What really made the difference, on its case, was [sic] the actions of [the company] in Singapore.”
“Both the alleged misrepresentations on which VTB relies originated in Russia, but they reached VTB in London (very probably via VTB Moscow), and were relied upon by VTB there when it gave formal agreement to the facility agreement and interest rate swap there. Further, VTB sustained its loss by disbursing money in and from London, although, as will appear, it was in fact covered by VTB Moscow against any loss which it might otherwise make on the loan.”
“If section 12 has to be considered, we derive the following additional propositions from our consideration of the statute and the cases. (7) The exercise to be conducted under section 12 is carried out after the court has determined the significance of the factors which connect a tort or delict to the country whose law would therefore be the applicable law under the general rule. (8) At this stage there has to be a comparison between the significance of those factors with the other country. The question is whether, on that comparison, it is ‘substantially more appropriate’ for the applicable law to be the law of the other country so as to displace the applicable law as determined under the ‘general rule’. (9) The factors which may be taken into account as connecting a tort or delict with a country other than that determined as being the country of the applicable law under the general rule are potentially much wider than the ‘elements of the events constituting the tort’ in section 11. They can include factors relating to the parties’ connections with another country, the connections with another country of any of the events which constitute the tort or delict in question or the connection with another country of any of the circumstances or consequences of those events which constitute the tort or delict. (10) In particular the factors can include: (a) a pre-existing relationship of the parties, whether contractual or otherwise; (b) any applicable law expressly or impliedly chosen by the parties to apply to that relationship, and (c) whether the pre-existing relationship is connected with the events which constitute the relevant tort or delict.”
“The application of the displacement rule in s.12 first requires, taking account of all the circumstances, a comparison of the significance of the factors which connect the tort with the country the law of which would be applicable under the general rule and the significance of any factors connecting the tort with another country. Secondly, it then has to be asked, in the light of that comparison, whether it is “substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues,” to be the law of the other country. The provisions of s.12 have been applied to displace the law applicable under s.11 on very few occasions. The following points in particular are to be noted. First….Secondly, it would seem that the case for displacement is likely to be the most difficult to establish in cases falling within s.11(2)(c), because the application of that provision of itself requires the court to identify the country in which the most significant element or elements of the tort are located. Thirdly s.12 envisages displacement of the general rule not only in relation to the case as a whole, but also in relation to a particular issue or issues. Fourthly…Fifthly, the factors to be taken into account include, but are not limited to, factors relating to the parties, to any of the events which constitute the tort or delict in question or to any of the circumstances or consequences of those events. Sixthly, the relevant connection may be to the territory of a particular country, or to its legal system...Finally, it has been emphasised that “substantially” is the key word in determining whether displacement of the general rule should be permitted and that the general rule should not be dislodged easily, lest it be emasculated. The general rule in s.11 is not displaced simply because on balance, when all factors relating to a tort are considered, those that connect the tort with a different country prevail. Accordingly, the party seeking to displace the law which applies under s.11 must show a clear preponderance of factors declared relevant by s.12(2) which point towards the law of the other country. Whether that is the case will depend on the facts of the case and on the particular issue or issues which arise for decision. If, however, in addition to the other factors to which the general rule in s.11 refers, there are other significant factors connecting the tort to the country whose law applies under that rule (such as the fact that it is the national law or country of residence of at least one party), this will make it much more difficult to invoke the rule of displacement in s.12.”
“But where the general law, by virtue of section 11 being the law where the tort occurred, is also the national law of one of the parties, it will, I suggest, be very difficult to envisage circumstances that will render it substantially more appropriate than any issue could be tried by reference to some other law.”
“36. There was undoubtedly a shift in the understanding of the double actionability rule, which is well reflected in the changes to the rule as expressed in successive editions of Dicey & Morris, The Conflict of Laws. In the 8th ed (1967), pp 919-920, rule 1 58 stated: “An Act done in a foreign country is a tort and actionable as such in England, only if it is both (1) actionable as a tort, according to English law, or in other words, is an act which, if done in England, would be a tort; and (2) not justifiable, according to the law of the foreign country where it was done.”
“(1) As a general rule, an act done in a foreign country is a tort and actionable as such in England, only if it is both (a) actionable as a tort according to English law, or in other words is an act which, if done in England, would be a tort; and (b) actionable according to the law of the foreign country where it was done. (2) But a particular issue between the parties may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence and the parties.” 37. At this stage there are three significant points to note about this formulation. First, to be actionable as a tort in England, an act done in a foreign country must be “actionable” according to the law of the foreign country where it was done, not the lesser test of being “not justifiable” according to the foreign law. Secondly, while it must be actionable as a tort in England, it is sufficient that it is actionable in the foreign country, not necessarily a tort. Thirdly, the exception in para (2) would permit the English court to apply the law of either country to the exclusion of the other, whereas in Boys v Chaplin[1971] AC 356 the House of Lords applied English law to the exclusion of Maltese law, the lex loci delicti; it was uncertain whether the English court would exclude English law in favour of foreign law. 38. The issue, in effect, in Red Sea Insurance Co Ltd v Bouygues SA[1995] 1 AC 190 was whether the reformulated rule in Dicey & Morris was a correct statement of English law. The Privy Council held that it was: see p 199E-F (para (1)) and pp 206-207 (para (2)). The only refinement was that under para (2) it was open in an appropriate case to apply the foreign law to the whole case, rather than to a particular issue only. 39. Although Red Sea Insurance Co Ltd v Bouygues SA was a decision of the Privy Council on appeal from Hong Kong, English law applied in Hong Kong to the issues raised (see p 198E) and I take it as an authoritative statement of English law.” “An Act done in a foreign country is a tort and actionable as such in England, only if it is both (1) actionable as a tort, according to English law, or in other words, is an act which, if done in England, would be a tort; and (2) not justifiable, according to the law of the foreign country where it was done.” “(1) As a general rule, an act done in a foreign country is a tort and actionable as such in England, only if it is both (a) actionable as a tort according to English law, or in other words is an act which, if done in England, would be a tort; and (b) actionable according to the law of the foreign country where it was done. (2) But a particular issue between the parties may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence and the parties.”
“The general rule must apply unless clear and satisfying grounds are shown why it should be departed from and what solution, derived from that other rule, should be preferred.”
“(1) Subject to the following provisions of this Act, where in any action or proceedings in a court in England and Wales the law of any other country falls (in accordance with rules of private international law applicable by any such court) to be taken into account in the determination of any matter – (a) the law of that other country relating to limitation shall apply in respect of that matter for the purposes of the action or proceedings [subject to] [sections 1A and 1B]; and (b) except where that matter falls within subsection (2) below, the law of England and Wales relating to limitation shall not so apply. (2) A matter falls within this subsection if it is a matter in the determination of which both the law of England and Wales and the law of some other country fall to be taken into account.”
“By virtue of theForeign Limitation Periods Act 1984 , the defendant may allege that the claim is barred after the expiry of the shorter of the limitation periods of the lex fori and the lex loci delicti. For although the Act generally excludes the application of the English statute of limitation where the matter falls to be determined by a foreign law, that exclusion does not extend to cases where both English law and foreign law have to be taken into account in the determination of any issue before the court, as will be the situation where the court is applying clause (3) of the Rule. On the other hand, if English law is alone applicable to the case through the operation of the exception contained in clause (4) of the Rule, the English statute will apply to the exclusion of that of the lex loci delicti. And if the lex loci delicti is alone applicable by reason of clause (4) of the Rule, that country’s statute will apply to the exclusion of the English statute.”
“(1) In any case in which the application of section 1 above would to any extent conflict (whether under subsection (2) below or otherwise) with public policy, that section shall not apply to the extent that its application would so conflict. (2) The application of section 1 above in relation to any action or proceedings shall conflict with public policy to the extent that its application would cause undue hardship to a person who is, or might be made, a party to the action or proceedings.”