Choice of Law in Delict: The Rise and Rise of the lex loci delicti commissi

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Author: John Kiggundu
• Date: 16 August 2019
• Citation: (2006) 18 SA Merc LJ 97
• Pages: 97-105

Choice of Law in Delict: the Rise and Rise of

the lex loci delicti commissi

JOHN KIGGUNDU*

University of Botswana

1 Introduction

For centuries, choice of law in delict was not considered an important aspect

of private international law.1 But developments in the latter part of the last

century and this century have made choice of law in delict a very important

aspect of private international law.2 These development include the following:

(a) Drugs: there are lots of new drugs on the market. They have been developed

by scientists to deal with the major medical and health problems we face

today. These include cancer, infertility and other reproductive problems,

depression, anti-smoking patches and pills, slimming pills and diets, and

birth control pills and patches. In terms of private international law, a drug

could be manufactured in the United States of America, sold to a person in

the United Kingdom who brings it to Botswana where it is consumed by a

relative who develops terrible side-effects and dies in a hospital in South

Africa. This could lead to delictual liability for negligence. The question of

choice of law would then arise. The recent developments involving Vioxx

neatly illustrate the problem here. Vioxx is a painkiller manufactured in the

United States by American drugs giant Merck & Co Inc. It was consumed

by over 20 million people all over the world. When it was realized that it

had terrible side-effects, it was withdrawn in September 2004. A widow of

a man who died after taking the drug sued the manufacturer in the United

States. She was recently awarded over $250 million by an American court.

There are more than 4 000 suits pending against Merck all over the world,

with 100 of these in the United Kingdom alone. Where will the plaintiffs

in these cases sue? Which courts have jurisdiction? Which law will be

applied?3

(b) Accidents: catastrophic accidents are occurring with alarming frequency.

97

* LLB (Hons) (Makerere) LLM PhD (London) Dip LP (Kampala). Associate Professor in the

Department of Law, University of Botswana, and Research Fellow in the Department of Mercantile Law,

University of South Africa, Pretoria.

1 See Chistopher Forsyth Private International Law: The Modern Roman Dutch Law Including

the Jurisdiction of the High Courts 4 ed (2003) 325–326; J Kiggundu Private International Law in

Botswana: Cases and Materials (2002) 281; JHC Morris The Conf‌l ict of Laws 3 ed (1984) 301ff; Morris:

The Conf‌l ict of Laws 5 ed by D McClean (ed) (2000) 353ff; J O’Brien Smith’s Conf‌l ict of Laws 2 ed

(1999) 371.

2 Forsyth op cit note 1 at 325–326; Kiggundu op cit note 1 at 281; McClean op cit note 1 at 353;

Morris op cit note 1 at 301.

3 In a clear case of forum shopping, victims of Vioxx in the United Kingdom intend to sue Merck in

the United States instead of the United Kingdom, because the American courts award far higher amounts

of damages than the British courts.

(2006) 18 SA Merc LJ 97

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