In Walton v. Arabian American Oil Co., an Arkansas resident was injured in Saudi Arabia by the employee of an American company incorporated in Delaware with substantial business operations in New York. Suit was brought in federal court in New York. What law should apply to plaintiff's claim that defendant's employee negligently harmed him and that defendant is vicariously liable for the damages resulting from that harm?
The distinguished panelists who have addressed this question seem to agree that their initial intuition is that Saudi law should apply as the place of the conduct and injury if one of the parties proves what that law is. The debate revolves around the question of whether it is constitutional or otherwise permissible to apply forum law if neither party seeks to apply Saudi law. It seems to be unanimous that it would be wrong to apply Arkansas law (the law of the plaintiff's domicile) and that it would be wrong to apply New York law if defendant can prove that Saudi Arabia has a more defendant-protecting law and seeks to have it apply.
With respect, I beg to differ. The case appears to be a Saudi case only because the conduct giving rise to the claim occurred there. Brainerd Currie taught us to look at such a case in a different way. First, Currie emphasized that we should look at the policies underlying the laws of the affected jurisdictions, not merely the contacts with the case. It is not determinative that the facts seem to be centered in Saudi Arabia. Second, Currie taught us the significance of the domicile of the parties and the places where companies do business. Although the First Restatement gave the parties' domiciles no significance in torts cases, Currie made the domicile determinative in certain cases. Third, Currie taught us that it is proper and not a parochial or perverse exercise for the forum to apply its own law, unless it has reason not to do so. I submit that these three insights suggest a different result than those proposed by most of the panelists.
Singer, Joseph William
"Justice and the Conflict of Laws,"
Mercer Law Review: Vol. 48
, Article 11.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol48/iss2/11