UK Supreme Court's Judgment in Zubaydah v Foreign Office Examines Application of PILA Principles in Multijurisdictional Tort Cases

Introduction

The UK Supreme Court’s judgment in Zubaydah v Foreign, Commonwealth and Development Office and others [2023] UKSC 50 signifies a crucial analysis of the Private International Law (Miscellaneous Provisions) Act 1995 (PILA) principles. This case presents an exploration into the determination of the applicable law in multijurisdictional torts involving allegations of complicity in unlawful detention and torture by UK security agencies. The contemplations herein revolve around the PILA’s general rule for the choice of applicable law in tort cases and the circumstances under which the courts may deem it appropriate to deviate from this rule.

Key Facts

Abu Zubaydah claims he was detained without trial by US authorities since March 2002, suffering from unlawful rendition, detention, and torture by the CIA in various countries, identified as the Six Countries. The UK Services, comprising the Security Service and the Secret Intelligence Service, while aware of his predicament, allegedly sent questions to the CIA to be used in his interrogation. The question before the court was which law should be applied to the torts claimed by Zubaydah: the law of England and Wales, or the law of the Six Countries where he was detained and tortured.

Legal Principles

The case called for the application of sections 11 and 12 of the PILA, which dictate the choice of law in tort cases. Section 11(1) establishes the general rule that the applicable law is the law of the country where the tort occurs. When multiple countries are involved, as per section 11(2)(a), for personal injury cases, the applicable law is where the individual was injured.

However, section 12 allows for displacement of the general rule if it is “substantially more appropriate” for the law of another country to be applied, considering the significance of the factors connecting the tort with various jurisdictions. Factors include parties’ connections, events constituting the tort, and circumstances or consequences of those events.

The court’s analysis was a juxtaposition between the strength of the connections the alleged torts had with England and Wales versus the Six Countries. The case acknowledges the severe undertone of torture and mistreatment but maintains an objective legal stance focused on analyses as provided under PILA.

Outcomes

The Supreme Court, by a majority, upheld the Court of Appeal’s judgment that the general rule should not apply and the law of England and Wales should govern the torts claimed, dismissing the appeal. The majority’s view was premised on the finding that factors connecting the torts with the Six Countries were significantly diminished due to the claimant’s lack of control over his presence there and the deliberate intention to evade local laws. Subsequently, it was substantially more appropriate for the law of England and Wales to apply.

However, a dissenting judgment argued that the applicable law for the torts relied on by the claimant are the laws of the Six Countries, focusing on the presence of the claimant and tortfeasors in those jurisdictions when the injuries were sustained.

Conclusion

In Zubaydah v Foreign, Commonwealth and Development Office and others, the Supreme Court rigorously applied the PILA to assess the complex interplay between facts and applicable legal principles in a multi-jurisdictional tort context. Through a systematic dissection of sections 11 and 12 of PILA, the court underscored the nuanced approach necessary for determining the law most appropriate for adjudicating alleged torts across international landscapes. The discourse contributes substantially to the evolving compendium of private international law, particularly in addressing the appropriate law in cases of serious human rights violations entangled with cross-border elements.