Report No. 193
USA:
We have already referred to the decision of the US Supreme Court in The Harrisburg (1886) 119 US 199 (214) (see discussion under Australia above). As to American law, we shall refer to an article by Prof. William Tetley, Q.C. (Faculty of Law, McGill University, Montreal, Quebec, Canada) who has, in fact, written several articles on the subject. In the article 'A Canadian looks at American conflict of law Theory and Practice, Especially in the light of American Legal and Social Systems' (1999) 38 Col. J. Transnational Law 299-373), he states that the American Law 'remains uncertain' and he concludes:
"By comparison, a Canadian Court deciding a similar case arising in Canada, under the Canadian Conflict Rule laid down by the Supreme Court of Canada in Tolofson v. Jensen, would almost apply the lex loci delicti, including the time limitation of the province where the tort occurred, regardless of the resulting outcome. Such an approach would not assist the plaintiff, but would promote greater certainty of law than is presently formed in some American conflict cases. On the other hand, the need to implement corrective justice is not as urgent a matter in Canada as in United States, because Canada, with its stronger social security net, affords injured parties more opportunities for indemnification under legislation reflecting a distributive justice model."
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