A United Kingdom Perspective on the Proposed Hague Judgements Convention

Abstract

First paragraph: British involvement in the Hague Judgments Convention project was early and supportive. Following the U.S. proposal of 5 May 1992, the United Kingdom (UK) supported the decision of the Special Commission on General Affairs and Policy of the Conference which met from 1 to 4 June 1992, to establish a working group to examine the proposal. Indeed the UK sent two members to the Working Group of thirteen people. The UK members, appropriately, were drawn from England and Scotland, John Watherston of the Lord Chancellor's Department and Peter Beaton of Scottish Courts Administration. The appropriateness of involving a Scottish viewpoint within the UK delegation stems from the separate legal system in Scotland which has greater historical roots in the civil law than English law but, particularly since the union with England of 1707, has been significantly influenced by the common law. It has been suggested that Scotland may act as a "bridge" between the two main juridical groups represented in the Hague negotiations, i.e., the Anglo-American common law and the civil law. It may be significant that one of the most difficult issues in the Hague negotiations is resolving how to deal with conflicts of jurisdiction. The civil law doctrine of lis pendens is simple and certain but rather arbitrary. The Anglo-American doctrine of forum non conveniens is complicated and discretionary but does allow for appropriate results. The problem with the juxtaposition just enunciated is that it is essentially false, not only because it is too simplistic but also because it ignores the historical reality. Forum non conveniens is a doctrine of Scottish private international law which can be traced back to before the union with England and developed into its modern form in the nineteenth century. It is the product of a mixed legal system which has been exported to the United States, England and other common law countries in the twentieth century. It was not introduced in Scotland to deal with "abuses of personal service of process carried out on the territory of the forum" because Scotland never had such a basis of jurisdiction. This, unfortunately, is an example of the Hague Permanent Bureau transposing an English problem into a Scottish context and assuming that the Scottish doctrine was devised to deal with the English problem. A civilian mind assumes that the need to have discretion to decline to exercise jurisdiction must be because the country has over broad, or exorbitant, rules of jurisdiction. However, it may simply be the case that it is impossible to devise rules of jurisdiction which will always lead to an appropriate court hearing the case. Even the archetypically fair jurisdiction rule, the domicile of the defendant, the general rule of jurisdiction in the Brussels and Lugano Conventions, can lead to an inappropriate forum. If the Hague Convention is to be a success then stereotypical assumptions will have to be abandoned in the quest for a way of resolving conflicts of jurisdiction. At least in Scotland we are used to examining issues on their merits without too many legal preconceptions.