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Cyclops Meets the Privy Council: The Conflict in theConflict of Laws
Published online by Cambridge University Press: 09 March 2016
Summary
In the Showlag case, the Privy Council had to decidewhich of two conflicting foreign judgments it was to enforce, thefirst-in-time or the last-in-time. The “Cyclops” chapter in JamesJoyce’s Ulysses presents a modernized reenactmentof the epic encounter between Odysseus and the cave dwellingone-eyed monster. The author explores the relationship between thelegal conflict and the dramatic conflict, together with the judicialresolution and the literary resolution of the problems at hand. Thearticle focuses on the nature of argument as displayed and workedthrough in the case law and in the novel, and points out thedifficulty law has in overcoming intractably conflicting rules. Indoing so, the author highlights the struggle in international lawbetween national independence and national submission to law — thevoices of sovereignty and the voices of internationalism.
Sommaire
Dans l’affaire Showlag, le Conseil privé devaitdécider lequel de deux jugements étrangers incompatibles il allaitexécuter, le plus ancien ou le plus récent. Le chapitre des“cyclopes” dans le roman Ulysse de James Joyceprésente une version modernisée de la rencontre épique entreOdysseus et le géant cyclope qui habite dans une caverne. L’auteurexamine le rapport entre le conflit juridique et le conflit évoquédans le roman et il se penche sur le règlement judiciaire et lerèglement littéraire des problèmes soulevés. L’auteur met l’accentsur la nature des arguments avancés et développés dans la décisionjudiciaire et dans le roman et il souligne les difficultés du droità résoudre tes problèmes posés par des règles contradictoires.Ainsi, l’auteur met en lumière Us tensions qui existent en droitinternational entre l’indépendance nationale et la soumissionthéorique au droit, c’est-à-dire entre les voix de la souverainetéet celles de l’internationalisme.
- Type
- Articles
- Information
- Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 33 , 1995 , pp. 3 - 39
- Copyright
- Copyright © The Canadian Yearbook of International Law/Annuaire canadien de droit international 1995
Footnotes
*
B.A. (1976, Northwestern); LL.B. (1984, Toronto); LL.M. (1986,Harvard), partner at Davies, Ward and Beck, Toronto, and speciallecturer in international law at the University of Toronto,Faculty of Law. A version of this paper was initially presentedat a panel on International Law Theory held at the University ofOttawa, Faculty of Law, in the fall of 1995. It was alsopresented at the 1996 conference on Contemporary Legal Issues atthe University of Toronto, Faculty of Law. I would like to thankthe organizers of and participants in both conferences forproviding an opportunity to present and refine my ideas. I wouldalso like to thank Steve Harris for his research assistance.
References
1 Showlag v. Mansour, [1994] 2 All E.R. 129, 131 (P.C.).
2 Owens Bank Ltd. v. Bracco, [1992] 2 AC. 443,484 (per Lord Bridge of Harwich): “A foreign judgment given by a court of competent jurisdiction over the Defendant is treated by the common law as imposing a legal obligation on the judgment debtor which will be enforced in an action on the judgment by an English court in which the Defendant will not be permitted to reopen issues of either fact or law which have been decided against him by the foreign court”
In Showlag, supra note 1 at 133, the Privy Council stated with respect to the above passage in Owens Bank: “That statement holds good in Jersey as it does in England.”
3 The Indian Endurance, [1993] A.C. 410 (H.L.), citing Spencer, Bower, , and Turner, , Res Judicata 331 (2nd ed., 1969)Google Scholar to the effect that a foreign judgment creates a bar per res judicata to proceedings in England by a plaintiff relying on the same cause of action.
4 All references are to the following edition: James Joyce, Ulysses (Penguin Books, *973) (hereinafter Ulysses). Although the chapters in Ulysses are unnamed, it is Chapter 12 of the novel that is described herein and that is generally referred to as “Cyclops.”
5 For a chapter by chapter explanation of Joyce’s Homeric parallels, see Blamires, , The Bloomsday Book (Methuen & Co., 1970).Google Scholar
6 For an extended discussion of nationalism and political identity in the works of James Joyce, see Cheng, , Joyce, Race and Empire (Cambridge University Press, 1995).Google Scholar
7 Showlag, supra note 1 at 133.
8 Ibid.
9 Ibid., 133: “The appellant, representing the heirs, contends that the judgment of Hoffmann, J. being earlier in time, should prevail over the decision of the Egyptian court The respondent on the other hand maintains that if either of the judgments is to be treated as creating an estoppel per res judicata it should be the later one. In their lordships’ opinion the choice must indeed be between these alternatives.”
10 In this, Lord Keith accentuated the “conflicts” or “private” part of this branch of international law. It is not so much that the private rights of the litigants are at stake, but rather that the “private” (as opposed to “public international”) rights of the competing legal regimes are at stake. See McLeod, , The Conflict of Laws 3, n.1 (Carswell, 1983)Google Scholar: “private international law or conflict of laws rules are national in character. They are not rules of general application throughout the world … [i]t may be suggested that it is somewhat misleading to refer to the body of laws dealing with the resolution of legal disputes involving foreign elements as private international law. It is not international law in the true sense of the word.”
The juxtaposition of “private” international law, which merely co-ordinates between competing national legal systems, and “public” international law, which is international law in the true sense of spanning and binding sovereign states, is truly ironic from the perspective of public international law, which has traditionally seen its own norms as representing not so much substantive limits on sovereign states but normative rules for co-ordination among the competing regimes. Thus, for example, the question is not so much whether one can attach a debtor’s ship, but whether one state’s legal system can intrude upon another’s flag: The Schooner Exchange v. McFadden, 11 U.S. 116 ( 1812). Likewise, the question is not the extent of a coastal state’s territorial sea, but whether the powers of sovereign states are subject to restraint: Croft v. Dunphy, [1933] A.C. 156 (P.C.) (Parliament unrestricted in its power to legislate beyond Canada’s territorial sea.)
11 Showlag, supra note 1 at 134-36, citing (but not applying) Judgments (Reciprocal Enforcement) (Jersey) Law 1960, Art 6( 1 ) (b): “[registration] maybe set aside if the Royal Court is satisfied that the matter in dispute in the proceedings in the original court had previously to the date of the judgment in the original court been the subject of a final and conclusive judgment by a court having jurisdiction in the matter.”
12 Showlag, ibid., 136: “their Lordships do not consider that the position in the United States is of assistance for present purposes.”
13 Ibid.: “So a judgment which is later in date than another foreign judgment which dealt with the same disputed matter is not to be recognized unless there exists some ground as discussed above which would have led to refusal to set aside the latter judgment had it been registered.”
14 In fact, English jurisprudence has recorded the recognition and enforcement of foreign judgments as far back as the seventeenth century. See Weir’s case (1607), 1 Roll. Abr. 530K. 12; McLeod, supra note 10 at 581, n. 9.
15 Dicey, and Morris, , The Conflict of Laws 985–96 (9th ed., 1973)Google Scholar: “A foreign judgment has no direct operation in England. It cannot, thus, be immediately enforced by execution. This follows from the circumstance that the operation of legal systems is, in general, territorially circumscribed.”
Accordingly, the early cases dealing with recognition and enforcement of foreign judgments were premised on a theory of comity among nations: Cottington’s case (1678), 36 E.R. 640; C.P.R. v. Western Union Telegraph Co. (1889), 17 S.C.R. 151, which only later developed into a theory of legal obligation. See Schibsby v. Westenhoh (1870), L.R. 6 Q.B. 155, 159.
16 Unlike the equivalent English law, under the American constitutional doctrine of full faith in credit, the lex fori, determines the enforcement of a judgment of a sister state. See Restatement of the Conflict of Laws (2d), para. 99. The federal constitutional policy thereby outweighs any competing policy of the individual states in viewing the judgment of another state to be territorially circumscribed (Milwaukee County v. M.E. Whiteco., 296 U.S. 268, 276-77 (1935)) although a balance is occasionally struck between the full faith in credit doctrine and the competing policy of maintaining and upholding the interest of the states where recognition and enforcement of another state’s judgment would undermine a fundamental policy of the recognizing and enforcing state: Restatement, supra, para. 103. The starting point of any full faith in credit analysis is with recognition rather than non-recognition. See generally, McLeod, supra note 10, at 579–80.
17 Showlag, supra note 1 at 136.
18 See generally, Ginsberg, , “Judgments in Search of Full Faith and Credit: The Last in Line Rule for Conflicting Judgments” (1989) 82 Harv. L. Rev. 498.Google Scholar
19 Weir’s case, supra note 14; Roach v. Garvin (1748), 1 Ves. Sen. 157, 159 (L.C.); Wright v. Simpson (1802), 6 Ves. 714, 730 (L.C.); see generally, Yntema, , “The Enforcement of Foreign Judgments in Anglo-Canadian Law” (1935) 33 Mich. L. Rev. 129.CrossRefGoogle Scholar
20 Schibsby, supra note 15 at 159; Goddard v. Gray (1870), L.R. 6 Q.B. 139, 149–50; Story, , Conflict of Laws 24 (8th ed., 1883)Google Scholar; Wheaton, , Elements of International Law 112(1836).Google Scholar On the mix of comity, reciprocity, and obligation, see McLeod, supra note 10 at 581–82.
21 [1907] 1 K.B. 235 (K.B.).
22 For a more extended description of the facts, see ibid., 235–36.
23 Ibid.
24 Ibid., 240: “The defendant, by joining this partnership for the working of the mine in Western Australia, must, I think, be taken to have contracted that all partnership disputes, if any, should be determined by the Courts of that country, and thereby subjected himself to the jurisdiction of those Courts.”
25 [1908] 1 K.B. 302 at 306.
26 Don v. Lippmoun (1837), 5 Cl. & F. 1, si; Sirdar Gurdyal Singh v. Rajah of Faridkote, [1894] A.C. 670, 685.
27 Emanuel, supra note 25 at 307.
28 Ibid., 307, referencing Schibsby v. Westenholz, supra note 15 at 161, and Sirdar Gurdyal Singh v. Rajah of Faridkote, supra note 26.
29 Ibid., 308.
30 Ibid., 309.
31 Ibid.
32 Ibid., 313.
33 Supra note 26.
34 Supra note 25 at 313.
35 [1969] 1 A.C. 33.
36 For a full rendition of the facts, see ibid,, 35–37.
37 Ibid., 34.
38 Ibid., 36–37.
39 [1895] A.C 517 (P.C.).
40 [1953] 2 A11E.R. 794 (C.A.).
41 Indyka, supra note 35 at 75–76.
42 Ibid., 76.
43 Ibid., 76–77.
44 Ibid., 105. Lord Wilberforce is cited with approval by Lord Pearson at 111.
45 [1990] 3 S.C.R. 1077.
46 For a more thorough version of the facts, see ibid., 1083.
47 Morguard Investments Ltd. v. De Savoye (1987), 18B.C.L.R. (2d) 262 (B.C.S.C.).
48 Morguard Investments Ltd, v. De Savoye (1988), 27 B.C.L.R. (2d) 155 (B.C.CA.).
49 See the discussion, supra notes 15-16 and accompanying text.
50 Supra note 45 at 1088.
51 Ibid., 1088-91, wherein LaForest,J. noted that Emanuel expressly rejected both the notion advanced in Becquet v. MacCarthy (1831), 2 B. & Ad. 951, 10g E.R. 1396 that recognition be extended to judgments respecting real estate held by defendants within the foreign jurisdiction where the cause of action arose while the defendant was within the jurisdiction, and the notion advanced in Schibsby, supra note 15 that a party may be taken to have implicitly consented to the jurisdiction of a foreign court where the party enters into a contract while residing in that jurisdiction.
52 Subsequent to Emanuel, the Travers doctrine was expressly limited by the English Court of Appeal to judgments in rem. See In re Trepca Mines Ltd., [1960] 1 W.L.R. 1273 (C.A.).
53 Morguard, supra note 45 at 1091. Prior to Morguard, the Canadian Constitution left no room for a distinction between inter-provincial and international issues of recognition and enforcement. See, for example, New York v. Fitzgerald, [1983] 5 W.W.R. 458 (B.C.S.C.); Walsh v. Herman (1908), 13 B.C.R. 314 (B.C.S.C.); Marshall v. Houghton, [1923] 2 W.W.R. 553 (Man. OA.); Matter v. Public Trustee (1952), 5 W.W.R. (N.S.) 29 (Alta. S.C.App. Div.); Wedlay v. Quist (1953), 10 W.W.R. (N.S.) 21 (AltaS.C, App. Div.); Bank of Bermuda Ltd. v. Stutz, [1965] 2 O.R. 121 (H.C.); Traders Group Ltd. v. Hopkins (1968),69 D.L.R. (2d) 250 (N.W.T. Terr. Ct.); Batavia Times Publishing Co. v. Davis (1977), 82 D.L.R. (3d) 247 (Ont. H.C.),aff’d (1979), 105 D.L.R. (3d) 192 (Ont. C.A.); Eggleton v. Broadway Agencies Ltd. (1981), 32 A.R. 61 (Alta. Q.B.); Weiner v. Singh (1981), 22 C.P.C. 230 (B.C. Co. Ct.); and Re Whalen and Neal (1982), 31 C.P.C. 1 (N.B.Q.B.). But see, however, Marcotte v. Megson (1987), 19 B.C.L.R. (2d) 300 (B.C. Co. Ct.).
54 Ibid., 1095.
55 Ibid.
56 Ibid., 1096, citing the United States Supreme Court in Hilton v. Guyot, 159 U.S. 113, 163–64 (1895), as cited in Spencer v. The Queen, [1985] 2 S.C.R. 278, 283 (per Estey, J.).
57 Ibid., 1098.
58 Ibid.
58 Ibid., 1099.
60 Ibid., HOI.
61 Ibid., 1103.
62 [1975] y S.C.R. 393.
63 Morguard, supra note 45, 1104–6.
64 Ibid., 1107.
65 Ibid., 1108.
66 See, for example, Amchen Products Inc. v. British Columbia (Workers Compensation Board), [1993] 1 S.C.R, 897. Numerous lower courts have followed suit. See Moses v. Shore Boat Builders Ltd. (1993), 106 D.L.R. (4th) 654 (B.C.C.A.), leave to appeal to the Supreme Court of Canada denied (1994), 23 C.RC. (3d) 294; Fabrelle Wallcoverings and Textiles Ltd. v. North American Decorative Products Inc. (1992), 6 C.RC. (3d) 170 (Ont. Gen. Div.); McMickle v. Van Straaten (1992), 93 D.L.R. (4th) 74 (B.C.S.C.); Stoddard v. Accurpress Manufacturing Ltd., [1994] 1 W.W.R. 677 (B.C.S.C.); Clancy v. Beach, [1994] 7 W.W.R. 332 (B.C.S.C.); Allen v. Lynch (1993), 111 Nfld. & P.E.I.R. 43, 348 A.RR. 43 (P.E.I.T.D.).
67 Arrowmaster Inc. v. Unique Farming Ltd. (1993), 17 O.R. (3d) 407, 411 (Ont. Gen. Div.); “I think it fair to say that the overarching theme of La Forest J.’s reasoning is the necessity and desirability, in a mobile society, for governments and courts to respect the orders made by courts in foreign jurisdictions with comparable legal systems, including substantive laws and rules of procedure.... The historical analysis in La Forest J.’s judgment, of both the United Kingdom and Canadian jurisprudence, and the doctrinal principles enunciated by the court are equally applicable, in my view, in a situation where the judgment has been rendered by a court in a foreign jurisdiction.” See also United States of America v. Ivey (1995), 26 O.R. (3d) 533 (Ont. Gen. Div.).
68 United States Constitution, Article IV, s. 1 : “Full Faith and Credit shall be given in each State to the public Acts, Records and the Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved and the Effect thereof.”
69 Dimock v. Revere Copper Co., 117 U.S. 559 (1886).
70 Ibid .
71 For a more thorough elaboration of the facts and procedural history, see ibid., 559–64
72 Ibid., at 564.
73 91 U.S. 521 (1875).
74 Dimock, supra note 69 at 565–66, citing Steward v. Green, 11 Paige 535; Hollister v. Abbott, 31 N.H. 442; and Bradford v. Rice, 102 Mass. 472.
75 308 U.S. 66(1939).
76 For a discussion of the procedural history, see ibid., 69–70.
77 For a thorough review of the facts, see ibid., 68–69.
78 Ibid., 74.
79 Ibid., 76–77.
80 342 U.S. 402 (1952).
81 For a complete discussion of the factual background and procedural history, see ibid., 405–6.
82 Ibid., 404.
83 Barber v. Barber, 323 U.S. 77 ( 1944) and Cook v. Cook, 342 U.S. 126 (1951).
84 Sutton, supra note 80 at 408, citing Treinies, supra note 75 at 76–78.
85 Ibid., citing Mittiken v. Mayer, 311 U.S. 457, 462 (1940).
86 Sutton, supra note 80 at 408–9.
87 One needs no authority whatsoever for the proposition that making one’s way through Ulysses is both a pleasure and an ordeal. Several generations of stu-dents have verified the point through experience. Ulysses is, according to Virginia Woolf, a piece of work that can be described as “undergraduate,” embodying both high modernist pretensions and seemingly adolescent narrative experimentation. Lecture notes for Richard Ellman’s course, “The Modern Novel,” Northwestern University, 1972–73, on file in the author’s memory.
88 Ulysses, 302.
89 Ibid., 304.
90 Ibid., 327.
91 Ibid., 327–28.
92 Ibid., 329–30.
93 Ibid., 331.
94 Ibid., 340.
95 See supra note 7 and the accompanying text.
96 Showlag, supra note 1 at 136.
97 In Showlag, the situation was even more extreme, given the differing procedural routes that the various proceedings followed: “Their Lordships do not consider that the position in the United States is of assistance for present purposes, but they observe that there would clearly have been no question of Hoffmann J.’s judgment being capable of being founded on as [sic] res judicata for the purpose of the proceedings in Egypt, considering that these proceedings were primarily of a criminal character”: Ibid.
98 Most discussions of the sources of international law identify the consent of sovereign powers as being first among sources. In effect, the consent theory has become a defence mechanism against the renowned Austinian positivist criticism of international law. See Austin, , The Province of Jurisprudence Determined 201 (1954 ed.)Google Scholar: “Law obtaining between nations is law improperly so called.” See also Reservations to the Genocide Convention Case, [1951] I.C.J. 32, (Gueriero, McNair, Read, and HusMo.JJ., dissenting): “the legal basis of… conventions, and the essential thing that brings them into force, is the common consent of the parties”; Asylum Case (Colombia v. Peru), [1950] I.C.J. 266, 277: “Custom formation based on a constant and uniform usage, accepted as law. …” Sovereign consent is posed as the ultimate source of a law that theoretically transcends sovereignty.
99 Article 27(5) of the Brussels Convention provides that a judgment shall not be recognized: “If the judgment is irreconcilable with an earlier judgment given in a non-contracting state involving the same cause of action and between the same parties, provided that the latter judgment fulfils the conditions necessary for its recognition in the State addressed.”
100 Showlag, supra note 1 at 136.
101 Ulysses, 343.
102 Ibid., 290.