Hostname: page-component-586b7cd67f-2plfb Total loading time: 0 Render date: 2024-11-27T14:07:37.086Z Has data issue: false hasContentIssue false
  • English
  • Français

The European Union and the Systematic Dismantling of the Common Law of Conflict of Laws

Published online by Cambridge University Press:  17 January 2008

Trevor C Hartley
Get access Rights & Permissions [Opens in a new window]

Extract

English conflict of laws is the creation of the common law. Prior to Britain's entry into the European Union, legislation played only a limited role. The few legislative measures concerning choice of law were narrowly targeted to remedy specific problems—for example the formal validity of wills, or torts. The rules for service outside the jurisdiction were a more important exception, but their practical operation largely depended on judge-made concepts and remedies, such as forum non conveniens and antisuit injunctions. The common law also provided a complete system for the recognition of foreign judgments that operated untrammelled with regard to judgments from many countries, including some of the most important, while the relevant legislation, where applicable, did little more than provide a simpler procedure.

Type
Article
Information
International & Comparative Law Quarterly , Volume 54 , Issue 4 , October 2005 , pp. 813 - 828
Copyright
Copyright © British Institute of International and Comparative Law 2005

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 The Wills Act 1963, replacing the Wills Act 1861.

2 The Private International Law (Miscellaneous Provisions) Act 1995.

3 This is now governed by Rules 6.17 et seq of the Civil Procedure Rules. For the original provisions, see the Common Law Procedure Act 1852, ss 18 and 19, subsequently replaced by Order 11 of the Rules of the Supreme Court.

4 eg the United States and Japan.

5 See the Administration of Justice Act 1920, Part II, and the Foreign Judgments (Reciprocal Enforcement) Act 1933.

6 The next six paragraphs highlight differences between the common law and the civil law. They are necessarily expressed at a high level of generalization. Some comparative lawyers might object to this and point to contrary examples. However, if one avoids generalizations, one can miss important truths. It is also possible that the decisions of the European Court discussed below owe as much to the make-up of the ECJ and the attitudes of its members as to any general civil-law mind-set.

7 Convention of 27 Sept 1968 on jurisdiction and enforcement of judgments in civil and commercial matters, OJ 1978, L 304/77. It came into force among the original six Contracting States on 1 Feb 1973.

8 Protocol of 3 June 1975, OJ 1978, L 304/97. It came into force among the original six Contracting States on 1 Sept 1975.

9 This was on 1 Jan 1987.

10 OJ 2001, L 12/1. It came into force on 1 Mar 2002.

11 A few small amendments have been made. Previously, small amendments were made by the various accession conventions, under which new Member States (including the United Kingdom) acceded to the Convention.

12 In some cases, a judgment given by one court (the one that gives judgment first) will constitute res judicata in the other, thus ensuring that the outcomes are the same.

13 The leading English case is Spiliada Maritime Corporation v Cansulex [1987] AC 460; [1986] 3 WLR 972; [1986] 3 All ER 843.

14 The leading case on antisuit injunctions is Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871; [1987] 3 WLR.59; [1987] 3 All ER 510 (PC).

15 Art 27 of the Brussels Regulation.

16 The original rule was that the law of the country in which proceedings were pending decided when that court was seised: Zelger v Salinitri (No 2), Case 129/83, [1984] ECR 2397; for the position in England, see Dresser UK Ltd v Falcongate Freight Management Ltd [1992] QB 502 (CA). The Brussels Regulation now provides a uniform rule: see Art 30.

17 Case C-159/97, [1999] ECR I-1597 (ECJ).

18 See the judgment of the European Court of Human Rights in Ferrari v Italy, 28 July 1999, available at <www.echr.coe.int/hudoc>>Google Scholar. According to the Human Rights Court, such breaches ‘reflect a continuing situation that has not yet been remedied’: ibid at 5 (para 21).

19 Franzosi, M ‘Worldwide Patent Litigation and the Italian Torpedo’ [1997] 7 EIPRev 382.Google Scholar

20 He said the Italian proceedings would take an ‘outrageous’ period of time.

21 Franzosi stressed that he was not inviting litigants to launch ‘torpedoes’ to block justified infringement actions, only unjustified ones. No doubt his law firm would not want to help unscrupulous litigants, though they might obtain the services of other firms.

22 The grounds on which the Italian courts might assume jurisdiction are discussed by Franzosi (n 19) pp 383–4.

23 Case C-116/02, 9 Dec 2003 (all recent decisions of the European Court of Justice are available on <http://www.curia.eu.int/en>). For a comment, see J Mance (2004) 120 LQR 357.

24 The relevant provision in the Brussels Convention is Art 17; in the Brussels Regulation it is Art 23.

25 Originally, under the Convention, these were insurance (Art 12) and consumer contracts (Art 15); but an amendment (Spanish and Portuguese Accession Convention of 1989 (Convention of San Sebastian) OJ 1989, L 285/1) added employment contracts: see what is now the last paragraph of Art 17. The rules on exclusive jurisdiction (rights in rem in land, for example) are also an exception.

26 The precise nature of these requirements has been changed several times by successive amendments. At the time of the Gasser case, the agreement had to be either (a) in writing or evidenced in writing; (b) in a form which accords with practices which the parties have established between themselves; or (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.

27 This is clearly stated in the Regulation. In the Convention, it is simply said that the chosen court has exclusive jurisdiction, without specifying what happens if the agreement expressly says that the jurisdiction conferred on it is not exclusive. On the position taken on this by the English courts, see Kurz v Stella Musical [1992] Ch. 196; [1991] 3 WLR 1046; [1992] 1 All ER 630; Gamelstaden v Casa de Suecia SA [1994] 1 Lloyd's Rep 433.

28 If at least one of the parties is domiciled in a Contracting State, the court chosen must hear the case and all other courts are prohibited from doing so; if none of the parties is so domiciled, the chosen court is not obliged to hear the case: other courts are precluded from hearing it unless and until the chosen court has declined jurisdiction.

29 The Austrian appeal court, the Oberlandesgericht Innsbruck, took the view that it was valid under sub-paragraph (c) of Art 17, set out in n 26 above.

30 For good measure, it also asked for damages against Gasser for failure to fulfil the obligations of fairness, diligence, and good faith.

31 Para 53 of the judgment.

32 The paragraph numbers in the quotations are those of the original judgment.

33 See, eg, the article by Véron, Pierre entitled ‘ECJ Restores Torpedo Power’ in the International Review of Industrial Property and Copyright Law (2004).Google Scholar

34 Efforts will now have to be made to find ways of destroying ‘torpedoes’, or at least countering their effects. Provisional measures are the most fruitful avenue to explore, since they are not subject to the lis pendens rule: see Art 24 of the Convention (Art 31 of the Regulation). See also the decision of the European Court in Van Uden Maritime v Deco-Line, Case C-391/95, [1998] ECR I-7091; [1999] 2 WLR 1181.

35 The European Court's judgment could give rise to a clash between the Brussels Convention and the European Convention on Human Rights. If the Italian proceedings were to drag on so long that Art 6 ECHR was infringed, Gasser could arguably bring proceedings against Austria (as well as Italy) before the European Court of Human Rights. It could be argued, therefore, that, by staying the proceedings out of deference to Art 21 of the Brussels Convention, the Austrian courts might be violating Art 6 ECHR. For a discussion of the legal issues involved in such a clash, see Hartley, ‘International Law and the Law of the European Union—A Reassessment’ (2001) 72 BYBIL 1 at 22–35.

36 The employment tribunal found that no less than three provisions of the Convention gave it jurisdiction. The first was Art 2, which confers jurisdiction on the courts of the defendant's domicile: although Harada Ltd was incorporated in Ireland, its central management and control were in England and it was therefore domiciled there: Civil Jurisdiction and Judgments Act 1982, s 42(1) and (3)(b). The second was Art 5(1), which provides that, in employment cases, the courts of the State in which the employee habitually carries out his work have jurisdiction. Turner habitually worked in England; his employment in Spain was only temporary. The third provision was Art 5(5), which provides that a dispute arising out of the operations of a branch, agency or other establishment of the defendant is subject to the jurisdiction of the courts of the place in which the branch, agency or establishment is located.

37 Turner v Grovit [1999] 3 WLR 794 (CA). The defendants were Grovit, Harada Ltd, and Changepoint SA.

38 Leave to appeal was granted on special terms: if the appeal was successful, Turner would not be liable for his opponents' costs; if the appeal failed, Turner could recover his costs.

39 Turner v Grovit, Case C-159/02, 27 Apr 2004, available at <http://www.curia.eu.int/en>. For a comment, see A Briggs (2004) 120 LQR 529.

40 Para 27 of the judgment.

41 Paras 24–6 and 28 of the judgment.

42 [1994] 1 WLR 588 (CA).

43 Art 919 of the Greek Civil Code states: ‘Whoever intentionally, in a manner which violates the commands of morality, causes damages to another is bound to make reparation to the other for any damage thus caused.’

44 There are only a limited number of grounds for non-recognition and this is not one of them: see Arts 27 and 28 of the Convention (Arts 34 and 35 of the Regulation).

45 If the Convention on Choice of Court Agreements opened for signature in The Hague on 30 June 2005 is ratified by the United States and the European Union, New York judgments given in proceedings brought under choice-of-court agreements will benefit from all the advantages given by the Brussels Convention (and Brussels Regulation), without suffering any of the drawbacks. The Hague Convention does not apply the doctrine of lis pendens and there is no provision prohibiting antisuit injunctions. Most important of all, in so far as it applies in New York, it will not be subject to the jurisdiction of the European Court. For details of the Hague Convention, see the website of the Hague Conference on Private International Law, <http://www.hcch.net>.

46 For this purpose ‘domicile’ has a special meaning: see ss 41 et seq of the Civil Jurisdiction and Judgments Act 1982 and Arts 52 and 53 of the Convention. See now Arts 59 and 60 of the Regulation.

47 The main exceptions are exclusive jurisdiction under Art 16 of the Convention (Art 22 of the Regulation), choice-of-court agreements and the lis pendens rule (both discussed above).

48 The rule is formulated in this way because it is possible for a person to be domiciled in more than one State for the purposes of the Convention.

49 Art 3 of the Convention and Regulation.

50 Art 4 of the Convention and Regulation.

51 Convention (and Regulation) provisions concerning exclusive jurisdiction, lis pendens and choice-of-court agreements can still apply to such a defendant, but they serve purposes other than that of protecting the defendant.

52 [1992] Ch 72; [1991] 3 WLR 397; [1991] 4 All ER 334.

53 This was the situation in Re Harrods.

54 The lis pendens rule does not apply if the court seised first is in a non-contracting State: see Art 21 of the Convention (Art 27 of the Regulation).

55 This argument is supported by the terms of Art 4 (second paragraph) of the Convention (and Regulation), which states that a person domiciled in a Contracting State must be given the same rights as nationals of that State to bring proceedings against persons not domiciled in any Contracting State. The main purpose of this is to extend to persons domiciled in France who are not French citizens the same rights as are given to French citizens by Art 14 of the French Civil Code. This notorious provision provides that anyone in the world can be sued in France for obligations contracted anywhere in the world, provided the claimant is a French citizen. This rule cannot be used against a defendant domiciled in another Contracting State, but the Convention (and Regulation) extend it to non-citizens domiciled in France.

56 The claimant was domiciled in Switzerland. At the relevant time, the Lugano Convention (which applies similar provisions to persons domiciled in certain non-EC States, including Switzerland) was not in force.

57 Case C-281/02, 1 Mar 2005, available at <http://www.curia.eu.int/en>.

58 The Court of Appeal reserved judgment on the correctness of this claim until it had obtained a ruling from the European Court on the question of forum non conveniens.

59 It also seems that Jackson's insurance would cover a judgment given by a Jamaican court but not by an English one.

60 If necessary, the English court could grant Jackson's application for a stay on condition that he submitted to the jurisdiction of the Jamaican courts, thus ensuring that the resulting judgment would be recognized and enforced in England.

61 Group Josi Reinsurance Company v Universal General Insurance Company, Case C- 412/98, [2000] I-ECR 5925.

62 Owusu v Jackson [2002] EWCA Civ 877; [2003] 1 CLC 246; [2002] ILPr 45 (CA).

63 The only exception might be if there were several defendants and some of them wanted a stay and others did not. This was not, however, the case in Owusu, where it was Jackson himself who applied for the stay.

64 Para 45 of the judgment.

65 This attitude by the European Court is possibly explained by the fact that most of its members have had careers in academia, the judiciary or the civil service, often moving effortlessly between the three. Few seem to have had experience of private practice. (On the Continent, would-be judges usually enter the judicial service immediately on graduating from law school. It is not usual for practitioners to be appointed as judges.) The attitude of the European Court to the interests of private parties is further exemplified by the fact that they took two and three-quarter years to give judgment—this despite the fact that the English Court of Appeal expressly asked them to expedite matters so that Owusu, a tetraplegic as a result of his accident, could get compensation reasonably quickly.

66 Regulation 2201/2003, OJ 2003 L338 (replacing Regulation 1347/2000, OJ 2000 L160) (‘Brussels II’).

67 This was Europeanized many years ago by the Rome Convention (Convention on the law applicable to contractual obligations 1980), which became applicable in the United Kingdom under the Contracts (Applicable Law) Act 1990. It was only recently, however, that the European Court obtained jurisdiction in the area, when a protocol attached to the Convention (the Brussels Protocol, contained in Schedule 3 to the 1990 Act) finally came into force. There is now a plan to replace the Convention with a Community regulation: see the Commission Green Paper on the conversion of the Rome Convention into a Regulation (COM (2002) 654 final.

68 This will take the form of a Community regulation: see Proposal for a Regulation of the European Parliament and the Council on the law applicable to non-contractual obligations, COM (2003) 0427 final.

69 See the Commission Green Paper on this: COM (2005) 82 final.

70 ibid 65 final.