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MODERN
English doctrine really begins with the contemporaneous cases
of Godard v. Grey1 and Schibsby v. Westenholz.2 For present purposes
the second is the more instructive case. In it two Danish nationals made
a contract, probably in London. The plaintiff was resident in France; the
defendant in England. The plaintiff brought an action in France against
the defendant. To do so, he availed himself, as was his right, of the pro*
Fellow, St Edmund Hall, Oxford. This article is based on a paper given at the Cambridge meeting of the British Branch of the International Law Association, at Magdalene
College on 3 May 1986.
1. (1870) L.R. 6 Q.B. 139.
2. (1870) L.R. 6 Q.B. 155.
240
(1987) 36 I.C.L.Q.
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vision of the Civil Code which allowed him to sue the defendant. Article
14 provided that3 a foreigner may be sued in France in respect of contracts made with a Frenchman, even if the foreigner were not resident in
France; and Sirey's note 424 provided that this right extended to a
foreigner who had a business establishment in France. There was therefore a right to sue the defendant under domestic law, which in no sense
depended upon the discretion of the French court. Provisions for service
out of the jurisdiction were haphazard: the summons was forwarded to
the Procureur Imperial who, as a matter of courtesy rather than obligation, forwarded it to the French Consulate in London. Even so, the
defendant did not appear and suffered judgment against him by default.
In due course the plaintiff attempted to enforce the judgment in England.
He failed. The judges of the Court of Queen's Bench were obviously
uneasy about the enforcement-or even recognition-of foreign default
judgments. After all, Westenholz had some knowledge of the proceedings in France; but he might have had none, and it was the more
unthinkable that a foreign judgment against a defendant who knew
nothing about it should be enforceable in England. The court not considering that any line should be drawn between these two categories,
Schibsby had to lose. In the eyes of the judges, the French provisions for
taking jurisdiction over absent defendants were no more respectable
than the practice in Tobago of nailing the writ to the courthouse door.5
Neither process gave the foreign court jurisdiction in the international
sense, whatever local law might say.
The court had been pressed with the argument that as English law had
provisions-perhaps even similar provisions6-for service out of the
jurisdiction, the judgment of a French court founded in this way should
be recognised and enforced in England. But Blackburn J rejected the
argument, and in broad terms at that. He said7:
We think that if the principle upon which foreign judgments were
enforced was that which is loosely called "comity", we could hardly
declineto enforcea Frenchjudgmentgivenin Franceagainsta residentof
Great Britainunder circumstanceshardly,if at all, distinguishablefrom
3. "L'etranger meme non residant en France pourra etre cite devant les tribunaux
franqais, pour l'execution des obligations par lui contract6es en France avec un franqais; il
pourra etre traduit devant les tribunaux de France pour les obligations par lui contract6es
en pays etranger envers des francais."
4. "Un etranger qui a une maison de commerce 6tabli6 et patente en France, peut,
aussi bien qu'un francais, assigner un autre 6tranger devant un tribunal francais."
5. Buchanan v. Rucker (1809) 9 East 192.
6. Though not really so very similar. The French provisions availed a plaintiff as of
right, whilst the Common Law Procedure Act 1852 provisions gave the court a discretion
to allow service out and therefore a discretion whether to summon.
7. (1870) L.R. 6 Q.B. 155, 159.
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English obligation, and this kind of methodology has a long and respectable English pedigree. But today this should not be the preferred solution, even if it would be an improvement on the present state of the law.
Instead, we should return to Schibsby v. Westenholz to look again at
what Blackburn J really said.
II.
SCHIBSBY REASSESSED
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being competentin the internationalsense. So far from denyingthe relevance of the doctrine of reciprocity,Schibsbyv. Westenholzcan be
seen as a rathersubtle applicationof it. So subtle, indeed, that it has
long been hidden.
One factorwhichcontributedto the misunderstanding
that arose concerns the nature of the English and French rules for service out. In
Schibsby,the provisionof the Civil Code relied on to foundjurisdiction
was availableas of rightto the plaintiff,and he could invoke the jurisdiction of the Frenchcourtwithoutmore. On the other hand, the English rules for service out at the time, as today, were restricted and
discretionary;and the courts exercised their discretionsparinglyand
only when the action sought to be broughthad a clear connectionwith
England.22Consequently,to arguethat a Frenchjudgmentfoundedon
Article 14 shouldbe enforcedbecauseof reciprocitywith the provisions
of the Common Law ProcedureAct 1852 would not have been easy.
Article 14 jurisdictionwas substantiallydifferentfrom 1852Act jurisdiction, even if the particularcase mighthave fittedwithinsection 19 of the
1852Act. The facts were not well chosen for the applicationof the reciprocityruleswith a view to recognitionof the foreignjudgment;and the
width of BlackburnJ's language seems to have prevented the subsequentreopeningof the argument.
III.
SUBSEQUENT DEVELOPMENT
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away from the doctrine of obligation as outlined above were not much
favoured. The most notable attempt to break the mould was made,
inevitably perhaps, by Denning LJ in Re Dulles (No.2).26 He there suggested that in a tort case the judgment of the court of the locus delicti
should be recognised here. It was only obiter, but he supported it in two
ways. The first was by appeal to precedent, saying that in Harris v. Taylor27 the same view had been expressed. This is, however, not easy to
defend. The second was by reference to the service out provisions of
R.S.C. Order XI, rule 1, which would, mutatis mutandis, have been
applicable on such facts; and the application of the doctrine of reciprocity to this. We allow service out in such cases so, it is argued, we should
recognise the consequent competence of the foreign court. Not surprisingly, this attracted hostile comment. In Henry v. Geoprosco28where an
argument based on reciprocity with Order XI would equally have been
available in aid of an Albertan judgment, Roskill LJ said that to have
accepted it would have been "quite unprecedented". And surely he was
right. Simple uncritical reciprocity with the bases of jurisdiction in
Order XI, rule 1, would indeed be going too far. Dicey and Morris
agrees.29
However, we can disentangle two objections to Denning LJ's statement. First, the traditional search had been for a connection between a
defendant and a forum, but Denning LJ had suggested a connection
between a cause of action and a forum. This was seen as radical, and it
was admittedly unprecedented. Second, he seemed prepared to argue
for reciprocity with Order XI, rule 1. But this was an unrealistic proposition. The grounds listed in rule 1 are themselves many and wide, but
when it actually comes to obtaining leave to serve out they are substantially narrowed by rule 4(2), which provides that service out is not to be
permitted "unless it shall be made sufficiently to appear to the Court
that the case is a proper one for service out . . . ". In substance, therefore, English jurisdictional rules in service out cases are not those listed
in rule 1, and reciprocity with rule 1 alone would be reciprocity with
jurisdictional rules substantially wider than those we claim for ourselves. That this cannot be acceptable is clear.
If Denning LJ thought that we should recognise the jurisdictional
competence of the courts of the locus delicti just because of reciprocity
with Order XI, rule 1-and that is what he appears to say-he was
indeed on thin ice. Indeed, in Henry v. Geoprosco, where service out of
Alberta had been allowed on the basis of there being a contract made in
Alberta, the recognition and enforcement of the judgment based on
26.
27.
28.
29.
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reciprocity with Order XI, rule l(l)(f)(i), was so unthinkable that the
point was not even argued. However, if Denning LJ's intent was that the
court of the locus delicti was the proper and sensible forum for litigation
over a tort, and that the judgment should be recognised for that reason,
the case changes its complexion. For whilst the ice was thin in 1951, it
has thickened up tremendously in the last twelve years. It may now support the argument that, however may be the defendant's connection
with the foreign court, the cause of action may itself be sufficiently connected with the foreign court for the foreign judgment to be enforced
here.
When? and which court? Presumably when the connection between
the cause of action and the foreign court is strong enough; when an English court sees the foreign one as being that in which the action should be
tried; when the foreign court is the one best placed to analyse the evidence and reach a conclusion. Perhaps when the foreign court is in
favour of trial when an English court would have been prepared to stay
English proceedings; when it is the natural forum for the trial of the dispute.
The argument so far has come to this. When it comes to recognising
foreign judgments, in cases where the defendant has not submitted to
the jurisdiction of the foreign court the judgment will be recognised on
grounds which are approximately reciprocal with the domestic jurisdictional rules of the common law. That is to say, that the defendant was
there present or resident. But a foreign judgment will not be recognised
on the basis of reciprocity with R.S.C. Order XI, rule 1. If this be so, the
common law rules on recognition do in fact base themselves, if inexactly, on the idea of reciprocity with common law jurisdiction. And the
question which then has to be asked is this: what is the effect on the
rules for the recognition of foreign judgments of the changing rules for
the taking of jurisdiction at common law?
IV.
IN recent years the view that whenever an English court has jurisdiction
after the defendant has been served with a writ, the defendant has an
almost irresistible obligation to appear to defend the merits of the cause,
has been rejected. The view that he must do so unless he can show an
equitable right not to be made to do so-such right being founded upon
the oppressive or vexatious conduct of the plaintiff-no longer represents the law. The rejection of the St Pierre30approach by a series of
House of Lords cases commencing with The Atlantic Star31and ending
30. St Pierre v. South American Stores (Gath & Chaves) Ltd [1936] 1 K.B. 382.
31. [1974] A.C. 436.
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with Spiliada v. Cansulex,32 and the admission by Lord Goff in that last
case33 that we now have our own doctrine of forum non conveniens,
allows one to argue that we have a new basis for the taking of jurisdiction at common law. That is to say that, having taken jurisdiction, an
English court retains it if the defendant is prepared to accept it, and also
if he contests its propriety but cannot show another court as being the
natural forum for trial of the dispute. In other words, the court hears the
merits of the case where the defendant submits to its jurisdiction, and
where England is not shown not to be the natural forum for the trial.34
But if neither of these conditions is satisfied, the chances are that the
case will be stayed and heard in another forum. Though it may not have
been put in quite these words, the reason is simply that in such a case
England is not an internationally proper forum for the action to be tried
in. So, for example, if proceedings in respect of a Scottish tort35were to
be commenced in London, and the defendant sought a stay of proceedings showing the natural forum to be Scotland, the English action would
be stayed: MacShannon v. Rockware Glass36 is a clear example.
Because the defendant did not wish the trial to be in England, and could
show Scotland to be the natural forum, the action was stayed. Since that
time, MacShannon has been seen to illustrate a general rule to the effect
that the place of the tort is almost always the natural forum for the trial
of a tort issue: The Albaforth37 and The Forum Craftsman38 accept the
point. Indeed, the number of cases being decided by an application of
the new rules-most of them reported by Lloyd's but disregarded by the
Official Series and All England reports-has grown enormously. When
issues relating to jurisdiction are raised the argument usually turns to an
identification of the natural forum.
If this were to be related to the rules for the recognition of foreign
judgments, the argument would be as follows. As we now claim and
retain jurisdiction on grounds approximating to submission or the fact
that England is the natural forum, we should in like manner adapt our
view of what constitutes jurisdiction "in the international sense" when
32. [1986] 3 All E.R. 843. The House concurred with the opinion of Lord Goff.
33. Idem, p.853. For accounts of the development see (1983) 3 Legal Studies 74; [1984]
L.M.C.L.Q. 227; (1986) 35 ICLQ 374; [1985] L.M.C.L.Q. 360. Others have also taken
the same view: cf. (1985) 101 L.Q.R. 48.
34. If the defendant shows the natural forum to be elsewhere, the English action will be
stayed unless the plaintiff can show that great injustice will be done to him thereby.
35. By which is meant one occurring in Scotland, and in which the plaintiff and defendant were resident in Scotland.
36. [1978] A.C. 795.
37. Cordoba Shipping Co. Ltd v. National State Bank, Elizabeth, N.J. [1984] 1 Lloyd's
Rep. 90.
38. [1985] 1 Lloyd's Rep. 291; accepting the general point but denying its application to
a case where a tort was committed on a ship in port about to set sail.
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foreign court had patently misapplied the (English) lex causae, its judgment would not be recognised in England. The court, no doubt mindful
of the difficulties that would follow if the argument were accepted,
simply said that as the defendant had submitted to the jurisdiction of the
French court he was obliged to obey its judgment; and whilst certain factors might lead the court to deny the existence of the obligation in particular cases, this factor did not. It was never doubted that the court was
one of competent jurisdiction, and so the case is not very informative on
the rules which might lead to the defendant's "obligation" in cases of
non-submission. In Schibsby v. Westenholz the case would, according to
the views then predominant, have had little to do with the (French)
court in which the default judgment was obtained: the contract was
made in England47;the defendant, who was resident in England, seems
never to have set foot in France; the contract had little enough to do
with France (it was the place of delivery of the goods only), and the
defendant had even less. On any view of what obliges a non-submitting
defendant to obey the judgment of the court, there were no sufficient
grounds for the obligation here. Even if it is admitted that the court
thought that a connection between the defendant and the foreign court
was what gave (or did not give) rise to an obligation, there is no express
rejection of the view that this connection can be found in what the
defendant did, rather than where he resides. That is to say, that if the
defendant does something which gives rise to a claim for civil redress, he
is bound to obey the judgment of the natural forum for the trial of the
dispute. His conduct identifies, or helps identify, the court to which he
should be obliged, rather than the fact of his subsequent residence.
There is no essential change resulting from this: something still identifies the natural forum, and it is to this which the defendant is obliged to
defer (subject, of course, to the usual defences). The concept of an obligation created, and therefore adaptable, according to English law is
retained; in consequence there is no great difficulty in seeing the obligation as arising in this different way.
The third objection has little substance in it. It may be that the
parallel is inexact, because the courts do have a discretion whether to
stay actions, and to tie recognition to a doctrine of obligation is to tie it
to something different in kind. But in truth, under the doctrine of obligation however it is understood there is a large element of judicial discretion, particularly in the application of the recognised defences to an
application for recognition. Even that, though, is not a point which
needs to be made. For if English law has decided that an English court47. The court does not expressly say what the proper law of the contract was; at that
time the idea that the law governing a contract's validity was that of the place of its making
was still current. Accordingly this was an English contract in which the defendant was an
English resident.
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FURTHER POINTS
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foreign court; and if it is thoughtthat there should not be needless dissimilaritybetween the two sets of rules, that shouldlead us to conclude
that judgmentsof the courtof residenceshouldbe recognised.If all this
were to be accepted the common law and the Conventionwould be
strikinglysimilar.Under the Convention,whenjudgmentsfall withinits
scope they will, unless another court has exclusive jurisdiction,53be
recognisedif they are judgmentsof the defendant's"domicile".54The
Act55 defines domicile for the purposes of the Convention in terms
whichadd up to residenceof more thanmerelytransitoryquality:it may
be surmisedthat few seen as resident under the common law will not
satisfythe definitionof "domicile"in section41. In addition,a courthas
jurisdictionif the defendantsubmitsto it56;or if in a numberof casesthe
foreign court is the naturalforum for the action. The methodologyin
the identificationof the naturalforumis ratherdifferentfrom the common law way-Articles 5 and 6 list cases and identifycourtswhichhave
(additional)jurisdiction,ratherthan simplyestablishinga generalprinciple. Thus, for example, the courtsof the place where the contractual
obligation was to be performed,or the courts of the place where the
allegedly delictual act occurredor damagewas done have jurisdiction
underthe Convention.57Whilstthe resultantset of rulesdiffersin detail
from the proposedcommonlaw restatement,the two wouldbe remarkably similar:underthe Conventionthe defendantis liableto have recognised and enforcedagainsthim judgmentsof the courtsof his residence,
of the courts to which he submitted, and those of some naturalfora.
Such differencesas exist are of detail ratherthan basics:and even the
defences to recognitionin Article 27 are similarto those whichexist at
common law. If the restatementof the common law has the effect of
bringingit close to the rules under the Convention,this would surely
only be desirable.
VII.
CONCLUSIONS
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natural forum for the action should be one which an English court will
recognise, and that the reasons for this are to be found in the recent
development of the doctrine of forum non conveniens. But this in turn
suggests a far more profound change in the subject as a whole, which is
that the primacy of choice of law as the intellectual issue in conflicts has
been, if not dethroned, at least shaken by the realisation that there is
another tenable approach to the subject. This is that there is a right
place for cases to be heard, and the isolation of that place is what matters most. In other words, jurisdiction rather than choice of law is the
more important issue. This does not mean-even though some gloomily
prognosticate that it will58-that private international law will be
"reduced" to sending cases to a court in which the domestic lex fori will
invariably apply. If parties whose dispute has little or nothing to do with
England wish to have the benefits of trial in an English court, well and
good. No rational system of private international law would deny them
their choice, and in such a case the choice of an appropriate law to govern their dispute (always assuming they do not both consent to the application of English law) is the main task facing the court. But if there
should not be this shared willingness to accept trial in England, what
then? The answer is not that we will continue to hear the action but will
apply choice of law rules designed as far as possible to minimise the
effect of the forum being an English one. Instead, there is today a basic
and wise presumption that a case should be tried where a case belongs if
the parties cannot agree to accept trial in England. And a case belongs
in its natural forum (and with the consequences for recognition of
foreign judgments that that implies).
The reasons for the new approach are two, even though the judges
may not always be aware of them. First, there is now a realisation that in
1987 the number of countries in which litigation may "belong" but in
whose courts the quality of the judicial process would make us uneasy is
small. Were not classical choice of law rules developed at, and is not the
perception of conflicts as a subject largely concerned with choice of law
traceable to, a time when there were thought to be far fewer reliable
judicial systems overseas? And should it not now be admitted that the
conditions which shaped the classical framework of the subject do not
obtain today? Thus, the stages in a conflicts case today should be to ask:
1. Do the parties consent to trial in an English court? If so, what
choice of law rule do we apply?
2. If not, where does this litigation most naturally belong?
3. If not in England, are there any strong reasons for not letting
58. Carter, op. cit. supra n.44, at pp.111-112 is such a notable prognosticator. See also
idem, pp.354-355 for unenthusiastic references to the natural forum.
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