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Private International Law in English Courts by Briggs, Adrian (2014-11-06)

1 Introduction and Plan

From: Private International Law in English Courts

Adrian Briggs

Jurisdiction under the Brussels I Regulation — Contractual obligations — International Commercial Litigation

(p. 1) Introduction and Plan

A.  Introduction

1.01  A poet1 once observed that ‘no man is an island, entire of itself’, and that ‘every man is a piece of the continent, a part of the main’. He gave us a rather beautiful justification of private international law. An English court cannot sensibly proceed on the basis that it has jurisdiction over everyone and anyone and that every case, and every issue in every case, brought before it should be determined by the application of English domestic law, as though the rest of the world, and its courts and its laws, was an irrelevance. There is no need to dwell on the question of why this would be wrong. It is enough to point out that from the earliest times, courts and lawyers have known—intuitively or otherwise, it all comes to the same point—that there are some cases in which a court should not adjudicate, and some cases in which, if it does adjudicate, it should not apply the same legal rules as it would have applied if the matter before it had been in every respect a local one.

1.02  As a legal science, this did not begin in England, but in Rome. Two thousand years ago the Roman legal system understood that Roman civil law was applied as between, but only as between, Roman citizens, and that these rules did not apply where transactions involving persons who were not citizens were concerned. For such cases, different rules, said or understood to reflect the law of nations, was provided. ‘All communities of men governed by laws and customs, partly use their own particular law and partly that common to all men, for that law which each particular community establishes for itself2 is peculiar to that community and is called the civil law, as being the peculiar law of that community; but that which natural reason establishes between all men is equally maintained by all communities, and is called the law of nations,3 as being that law which is used by all nations.’ (p. 2) The opening words of the Institutes of Gaius4 may actually be the first recorded statement of a principle of choice of law. The question of whether, and if so how, to proceed when the material facts and matters before the court are not exclusively local is the point at which the study of private international law begins.

B.  The Common Law Approach to Private International Law

1.03  Although it is no easier to discover where it all began than it is to find the source of the Thames, the understanding which came to prevail in English courts was that the need of the law, and of those whom it was made to serve, was for rules to guide a court on whether it should apply English domestic law, or the law of a foreign country, or a combination of these, in the matter before it. In the beginning these rules clearly reflected a fundamental belief in a principle of territoriality as the proper solution to such problems: the validity of a contract would be answered by reference to the law of the place where it was made; the question of whether the facts and matters which gave rise to a claim in tort were justifiable or unjustifiable was a matter for the law of the place where the alleged wrong took place; the question of whether a disposition of property was effective to transfer or vest title in another was a matter for the law in the place where the property was when this took place; the validity of a marriage was governed by the law of the place where it was entered into,5 and so on. The question of whether a court had jurisdiction to adjudicate depended on whether the defendant was within the territorial jurisdiction of the court; the question of whether a foreign judgment might have any effect in England depended on whether the defendant had been within the jurisdiction of the foreign court when proceedings were begun, and so on.

1.04  Important to observe in all of this is the fact that the answers, both in terms of a general respect for the law of the place where the relevant event was carried out and in the elaboration of the details, were developed in the first place by judicial instinct or reflection, and in the second place by the common law’s strict sense of respect for precedent. No statute ever dictated the answer to any of these questions. The first time there was anything which could reasonably be described as a code of private international law was when Dicey compiled his Digest towards the end of the nineteenth century.6 He reduced the mass of common law materials to a number of Rules, which he elaborated with commentary; successive editors of Dicey, (p. 3) with a similar respect for precedent, have seen their task as essentially unchanging and unchanged, though one which is continuously growing in size and complexity.

1.05  The central importance of the principle of territoriality or place, however, was beginning to break down even before Dicey sought to capture the condition of English private international law. The proposition that the validity of a contract should be governed, invariably or generally, by the law of the place where it was made supposes that the place of its making is both identifiable and liable to reflect the intentions of the parties. International travel put paid to that. In 1865 the Privy Council, hearing an appeal by a passenger7 who had booked passage from England to Mauritius against the shipping company which had managed to mislay or otherwise lose his luggage at Suez, where he had boarded the ship on which he would complete the final leg of his journey, decided that the contract was governed by English law because the parties must have been taken to intend that it be an English contract, governed by English law.8 No doubt the court considered the possibility of holding that a contract, made between two parties who considered themselves thoroughly English, was governed by whatever law was in force at Suez just because it happened to be made there, and did not like it. The proposition that a contract was governed by the law of the place where it happened to be made was scarcely heard of again.

1.06  In fact, the private international law of contract was waking up to a problem which had already surfaced in the law of marriage. The idea that two English people might run away to Gretna Green9 to marry in spite of the opposition of their parents10 was one thing, but parental consent is, in the grand scheme of things, not so big a deal; Gretna was in any event in the United Kingdom, and even a lawyer can see that the occasional dash of romance has its place in public life. But when in 1850 an English widower travelled to Denmark to marry the sister of his recently deceased wife, he contracted a marriage which transgressed the prohibited degrees of relationship established by English law and printed at the back of the Book of Common Prayer.11 The marriage of such persons was, however, perfectly lawful as a matter of Danish law.12 The Lord Chancellor held the marriage to have been (p. 4) void.13 He did not consider that English marriage law could countenance its evasion by the simple expedient of hopping onto a ferry and taking advantage of a foreign freedom. From that point on, the unquestioned supremacy of the law of the place of marriage was a qualified one.

1.07  Whether it was the fear that the law of the place would allow something English law did not allow, or would not allow something which English law would have permitted, too rigid an adherence to the law of the place risked undermining the sense which judges knew their laws should reflect. In various areas of private international law, therefore, greater attention was paid to what the parties intended or expected, or could legitimately be seen to intend or to expect, and the rules of common law of private international law dissolved and reformed and refined themselves with no outside interference. In 1933, Dr Cheshire was able to say that private international law

offers the freest scope to the mere jurist. It is the perfect antithesis of such a topic as real property law. It is not overloaded with detailed rules, it has been only lightly touched by the paralysing hand of the Parliamentary draftsman, it is perhaps the one considerable department in which the formation of a coherent body of law is in course of process, it is, at the moment, fluid not static, elusive not obvious, it repels any tendency to dogmatism, and, above all, the possible permutation of the questions that it raises are so numerous that the diligent investigator can seldom rest content with the solution that he proposes.

1.08  When Dr Cheshire said this he was writing about the common law rules of private international law, though whether he was describing their golden age or the era in which they would have been at their most baffling to the inexpert is harder to say. But only the last of Dr Cheshire’s propositions could be advanced today; as to the rest, it describes a world which is gone, all gone.

C.  Fundamentals of the Common Law Rules of Private International Law

1.09  Before we address the new architecture of the subject, it is sensible to assess the legacy of the common law rules of private international law, and in particular its conscious or unconscious reliance on three fundamental principles. It will then be necessary to say something about statutes and the problems which they can provoke.

1.  Territoriality

1.10  The first great idea is that of territoriality. Although the common law re-thought the generality of the proposition that the legal analysis of an act or event should (p. 5) concentrate on the law of the place where the act or event took place, it certainly did not abandon it. In the context of contracts and marriages previously mentioned, it continued to accept that issues which it saw as formal validity or invalidity were to be assessed by reference to the law of the place where the transaction was entered into. It adhered, and still adheres, to the proposition that dispositions of property should be assessed by reference to the law of the place where the property was (and indeed, in the case of foreign land, assessed only by the courts where the land is). It accepts that a defendant, or a vessel, present in England may be served with a writ of summons, and that the transience of the presence of the defendant is nothing to the point of lawful service. It accepts that service of an English writ on a defendant who is not in England is impermissible unless the court exercises a statutory power—it seems never to have considered itself to have an inherent power—to permit service to be made, and even then, it requires the service to be consistent with the law of the place where it is to be made.14 It recognized and recognizes judgments from foreign courts if the defendant had been present in the country in question when the proceedings were begun. It regarded conduct which was in accordance with local law as immune from the allegation that it was actionable as a tort, and though it struggled fully to accept what many saw as the corollary—that conduct which was tortious according to the law of the place must on that account be actionable in an English court—it may have illustrated the truth, in this one area of legal life, that the lifeblood of the law was not logic but common sense. It regarded the laws made by foreign states and designed to operate within the territory of the foreign state as being immune from question or criticism, though reserving a power to make an exception for truly detestable cases. It regarded the acts and actions of foreign states done within the territory of the state as equally liable to be respected, though with the same reserve power for egregious cases.

1.11  Respect for the principle of territoriality leads to a number of supplementary questions. If an English court has reached the conclusion that it ought to apply the law of the place where someone was or something happened, the next question is to ask what ‘law’, in this context, means. Does it refer to the domestic law of the place where the property was, the act was carried out, the marriage was celebrated? Or should it instead refer to the law which would be applied by a local judge, including any rules of private international law which that judge might have applied if the matter had been in his court? Although this question has been said to bring the common law to the point at which it has to confront the principle of renvoi,15 a reservation should really be entered. Quite apart from the fact the common law had long since thrown off the need to express itself in some form of French, it was not engaging with some fancy scholarly theory. Common law reasoning is guided (p. 6) by pragmatism. All the court was doing, or should have been doing, was analysing whether a choice of law rule expressed in terms of the law of a place meant ‘the domestic law, so far as relevant to the matter for decision, in force at that place’ or ‘the whole of the law so far as relevant to the matter for decision, in force at that place’. A common lawyer does not need to use French to find the answer to that question. In a common law world, in which one is brought up to believe that the law is what a judge says it is, or would say that it was, as distinct from its being what the legislator has formulated as a code, and in relation to which the role of the judge is subordinate, there will always be a temptation to understand ‘the law of the place where...’ as though it meant ‘the law as it would be declared by the judge where...’. Or, to put it another way, if English law is whatever a judge in the Royal Courts of Justice would say that it was, it is easy to accept that French law is precisely what a judge in the Palais de Justice would point to as the law which he would apply to the issue. What we have been persuaded to call renvoi is, in truth, a perfectly natural elaboration of a choice of law rule which is formulated so as to direct attention to the law which is selected because it is the law of, the law at, a place.

1.12  This is not to say that the common law, thus understood, may not have set itself a question which could prove to be challenging to answer, but to make that point is not to excuse the throwing out of the baby with the bathwater. It may, however, go some way to explain why it is that renvoi has a natural kinship to rules which determine the applicable law in a particular way, in particular those which look to the law of (at) a place, and rather less natural affinity to others such as those which are based on intentions and on expectations rather than on geography. If one accepts that a contract is governed by the law which the parties intended or envisaged as governing it, and that this is the reason why the particular law applies, it is easy to see that the very formulation of the question paves the way to the answer: the intentions or expectations are likely to have been formulated in relation to, in terms of, the domestic law of a country. But where the law which applies does so because it is the law of a place, then even though it may also be true that this is the law which the parties might expect or intend to apply, their expectation or intention is not the reason it applies. It applies because it is the law of a place, and that fact makes it appropriate to ask more particularly which elements of the law of that place are being referred to.16

2.  Equity operates in personam

1.13  An introduction can only say so much about territoriality. The second great principle of the common law rules of private international law reaches into a different (p. 7) part of its legal history. It reflects the principle that equity operates in personam, and that if a person is within the jurisdiction of the court, he may be ordered to act in accordance with the obligations which he has assumed, or may be required to do what the court considers conscience and good faith to call for from him. So for example, although a court may not have had jurisdiction to determine title to foreign land, or to order a person to pay damages for trespass to foreign land, it did not follow that it lacked jurisdiction to enforce the obligations of a contract which concerned foreign land; it did not mean that it had no jurisdiction to enforce the obligations of a trust which had foreign land as its subject. Again, a court had neither jurisdiction nor power to determine whether a foreign court, before which a person had brought or was threatening to bring proceedings, had jurisdiction to entertain those proceedings. But that did not mean that it lacked jurisdiction to enforce a contract by the terms of which that person had undertaken not to issue proceedings in the foreign court. So again, the fact that a court had no jurisdiction to order the seizure of assets outside the territorial jurisdiction of the court did not mean that it had no jurisdiction to order a person to preserve those assets, or, indeed, to give evidence on oath as to what and where his assets were.

1.14  Whether it is completely helpful to explain all of this on the basis that equity operates in personam is debatable, for few expressions are as liable to be misunderstood as that one is, but the process of reasoning is so deeply ingrained in English legal thought that it is sometimes perplexing to find that others do not understand it, or that English law is accused of being willing to do indirectly something which it admits it is forbidden to do directly. That, however, is the strength, not the weakness, of English law. If a court can act indirectly, it has no need to be troubled by thoughts about what it might not have been able to achieve by other means.

1.15  Naturally, there is more to the common law rules of private international law than those two principles will disclose. But what there also is tends to operate at the level of supplementary detail, putting flesh on the bones of the two great principles, or making deductions which proceed from these two starting points. It is, however, necessary to try to say something about a third characteristic, which comes close to being a principle: the pragmatism of the common law rules of private international law.

3.  Pragmatism

1.16  No doubt there are those who will say that pragmatism is not a principle. Too bad: a principle it most certainly is. Pragmatism makes a powerful, if unstated, contribution to the force that drives the common law and its rules of private international law. A judge made the point in a telling way when he said: ‘Academic writers of distinction concern themselves with Conflict, not surprisingly since it is a subject of great intellectual interest. We must do our best to arrive at a sensible and practical (p. 8) result.’17 Academic writers, few in number though they are, evidently do find the subject a stimulating one, but it is the different duty of the court to find sensible answers to practical questions. A surprisingly large part of the way in which they do that is by the application of the homespun wisdom of the common law.

a.  The consequences of agreement

1.17  A party who agrees to something has to take the rough with the smooth, the bitter with the sweet. A person who makes a contract and chooses the law to govern it does not just make a contract: he makes (say) a Bangladeshi contract. It follows that when Bangladeshi law is changed in a way which is to his advantage, he takes the benefit, but when Bangladeshi law is changed in a way which is damaging to his interests, he has to take the hit, for he did not make a contract, he made a Bangladeshi contract.18 If he objects that he did not choose the law to govern the contract, with the result that the contract is governed by a law not of his choosing, the proper response is that it makes no difference: just as the voter who does not cast his vote cannot be heard to complain about the result of an election, a contracting party who does not make and express a choice of law cannot complain about the result which applies in default of his having asserted himself.

1.18  Likewise, a person who enters into relations with a company does not just make a contract with, or take a licence from, a company: he enters into a relationship with a company formed under, and living under and by reference to, a particular law. It follows that if he deals with a Spanish company, and the Spanish state then dissolves the company, his counterparty has gone.19 If the Spanish state confiscates the shares, causes new shares to be issued and new officers installed, with the result that the company prosecutes its claims in a new and more aggressive way, too bad: he did not contract with a company, he contracted with a Spanish company.20 The same is likely to apply to those who enter into legal relationships with a trustee: they did not deal with a trustee; they dealt with a Ruritanian trustee. If Ruritanian law allows a trustee to exculpate himself from certain liabilities which (p. 9) would otherwise apply to him, that potential for exculpation is part of the bargain which the investor makes.

1.19  If a person makes an agreement that all disputes between him and a counterparty will be determined by a foreign court, and the foreign court deals with them in a way which seems to him to be plainly wrong, he cannot be heard to complain: he made an agreement to abide by the determination of the foreign court, not an agreement to abide by it if the foreign court got the answer right. It is just the same if he did not make the agreement in advance of the dispute arising, but only after it had arisen, by appearing to answer the claim: he agreed to accept the adjudication of the court, not to accept the adjudication of the court only if it ‘was correct’, or if he was happy with it.21 If a person makes a contract to accept the exclusive jurisdiction of a court and then, and in breach of that contract, brings proceedings before another court in which he hopes for a better outcome, his breach of contract, in doing the very thing he has promised not to do, gives rise to a right to damages and a right to ask for equitable relief.22

b.  The consequences of submission

1.20  If a person appears in foreign proceedings when summoned, and then the claim is amended to add a further claim, or a further party, he cannot be heard to complain, for a person who submits to the jurisdiction of a court submits to the whole range of procedural powers which that court has at its disposal. He cannot be heard to say that he submitted to certain of the Rules of Court but not to others: when he chose to submit, he submitted, and that was that: the invitation was to submit to the jurisdiction of the foreign court, not only to those parts of its jurisdiction selected by the individual.23 If a person who has a claim against an insolvent company makes a claim in the liquidation, and in due course the liquidator decides that the boot is actually on the other foot and that the claimant creditor actually owes money to the company, he cannot be heard to say that he submitted to the process insofar as it was for his benefit, but not when the tables are turned: if he was in for a penny, he was in for a pound.24 A person who agrees that all disputes will be settled by arbitration plainly does not submit them to the jurisdiction of a court, but he does submit to the supervisory court which sits to keep an eye on and to assist the arbitration, and when that court makes orders against him, he has no ground (p. 10) to complain.25 Submission may be voluntary, but when it takes place it comes as a package. A person who submits to the jurisdiction of a foreign court but who, for one reason or another, only advances part of his case, or part of the arguments available in his defence, will not face an estoppel by res judicata, for there can have been no adjudication on matters not put in controversy before the court. But he may be met with the plea that he could and should have raised them, and that it is now too late.26

1.21  By contrast, a person who holds office in a foreign company which elects to defend proceedings against it in England is not sufficiently identified with the company and its defence of the proceedings for it to be said that he has laid himself open to the power of the court to require an officer to give evidence as to the assets of the company. The fact that he chose to hold office in a company does not mean that he put himself in the power of the company when it chose to participate in English proceedings: it just does not feel right to say he is bound to accept the jurisdiction of the English court just because the company which he served did so.27 Perhaps it is otherwise if you are a shareholder: if the company in which you hold shares submits to the jurisdiction of a foreign court which has power under its law to order that the share capital be redistributed, or that the shares be confiscated, maybe it is correct that you are bound to accept the consequences of what the company of which you are a member has done to you in your capacity—but only in your capacity—as a shareholder.28 There is an intuitive difference between being a member of a club and an employee of a club.29

c.  Even-handedness in jurisdiction

1.22  When it comes to the jurisdiction of the courts, the basic rule is very basic indeed: if the parties are willing to settle their dispute before the English court, only in very rare cases will the court say that it lacks jurisdiction to give them the adjudication they ask for. If the parties are not in agreement—this means, if the defendant is not willing—the court will ask itself where the litigation most naturally belongs. (p. 11) Though a number of cases have been fought on this very issue in the House of Lords and Supreme Court,30 the idea that a dispute belongs in one country more than any other is a proposition which is, one might have thought, rather hard to make complicated.

1.23  Of course the common law doctrines of private international law are more complex than this. Not all of them are derived from the simple and clear pragmatism of the common law’s view of what people should expect their answer to be. But a surprisingly large number of leading cases, especially in the area of commercial disputes and commercial law, are disposed of at the highest level by the application, more or less openly acknowledged, of principles of common sense and common law pragmatism. It means that when one seeks to explain the common law rules of private international law as a series of rules, something is missing, even though it is hard to say exactly what it is.31

4.  The role of statutes in a common law structure

1.24  The rules of English private international law are not all rules of the common law. Though it never took on the appearance of a flood, there was an irregular stream of legislative intervention in the subject. But remarkably, or at least characteristically, the legislation tended to accept that the foundations and structure of the subject were those which had developed at common law, and such adjustments as were made by Parliament were designed to amend individual elements of the common law. It was almost as though the legislator knew his place, which was to make respectful but necessary improvements to the body of common law rules, but otherwise to leave it well alone.

a.  Parliamentary legislation

1.25  The problems which this gave rise to were, and still are, numerous. Sometimes Parliament legislated in terms which left no doubt that an English statute was to apply in cases which may have a non-English element. A good example is to be seen in Section 18 of the Third Parties (Rights Against Insurers) Act 2010.32 But this was a rarity. Much more commonly, Parliament is found to have legislated in (p. 12) terms liable to raise issues of private international law but which give no clue as to the answer Parliament intended. One interpretation of the statutory language may be that it may have intended that the statute apply when, but only when, the rules of private international law selected English law as the lex causae: in such a case the legislation simply alters English domestic law. But Parliament may have intended the statute to apply whenever the relevant conduct or activity was in England, or when the court was concerned with the actions of an English party, or whenever the court had jurisdiction over the defendant. Or perhaps it simply intended to leave the question to the courts.

b.  Statutes and employment law

1.26  Employment law provides a vivid example of the problems caused by legislation enacted in terms which raise questions for the private international lawyer but which give no answer. Legislation giving statutory rights or protections to an employee, such as protection from unfair dismissal, is obviously intended to apply to English employees working in England for English employers under contracts of employment governed by English law. But if any one or more of the references to England or English in that sentence were replaced by a foreign country or foreign law, would the legislation still apply? It if were said that the legislation applied only if English law governed the contract of employment, it would be all too easy for the protection intended to be given to be evaded.33 If it were said that it applied whenever the duties of the employee were discharged in England, it would be superimposed on employment relationships created by foreigners who intended their contract to be governed by the law with which they were most familiar: it is not clear that this would be right, either. The question would also arise of how to treat the English employee sent to work overseas for his English employer, or sent by an English agency to work overseas for a foreign purchaser of his services. What of the English employee working overseas for a British embassy, or the British Council, or the BBC, or for an ‘international school’ outside the United Kingdom? Or, indeed, of the foreign employee working for such an employer overseas under a contract governed by English law?

1.27  Any general rule will yield answers which are to some degree unsatisfactory; indeed, judges have on occasion said that if Parliament has not laid down the limits of the law, it is not for them to make a law which the lawmaker has obviously not made. Even when the courts try to give guidance, a fair reading of the cases only suggests that a court should ask whether the connection with England was ‘sufficiently strong’ to make it appropriate for the legislation to apply to the particular employment, even though the duties were discharged overseas. The uncomfortable (p. 13) truth really is that even though such a test is well-intentioned, it does little more substitute one rather uncertain test for another.34

c.  Other examples

1.28  One may take another example from legislation allowing those who hold office in companies to be disqualified from office, or allowing those who have received payments from a company which is now insolvent to be required to restore the sums received. These are routinely enacted without any precise indication of the persons, or transactions, intended to come within the scope of the legislation or the power.35 The price which is paid for Parliament’s refraining from laying down rules of private international law is that the courts have to work out what to do with a piece of legislation which, as with the case of employment law described in paragraph 1.26, gives no obvious clue as to its intended scope or grasp.

d.  A presumption of territoriality

1.29  The most that was ever done was the articulation of a general principle that Parliament was presumed to have legislated within the bounds of the principle of territoriality. This may have been fair enough as a starting point but, as has been shown, it is less helpful when the questions become more detailed: ‘territoriality’, or connection with the territory of England, may be measured in terms of acts done in England, or of the effect of acts being felt in England, or of personal connection of one or more or the parties to England, and no doubt in other ways as well:36 almost every attempt at definition raises more questions than it answers. And at no point in the century and more during which Dicey and his successors as General Editor stated the principles of private international law, reducing the collection of wisdom in the authorities to a usable set of Rules, did the editors ever formulate a Rule by which to explain the operation of statutes which did not declare their precise scope on the plane of private international law. That absence speaks for itself.

e.  Foreign statutes

1.30  If the treatment of Parliamentary statutes was the Achilles’ heel of common law private international law, its treatment of foreign statutes was its blind spot. Of course the common law rules could cope with foreign statutes: it was not blind to them. If a contract were governed by German law, and a relevant rule of German law were to be found in the German Civil Code, an English court could, in principle at least, (p. 14) apply it, even though it were contained in a statute. Of course, if the court were also shown that a German judge would not have applied this provision if the matter had been before him, it would have had to know what to do with the information, but in principle the statutory nature of the law is incidental. So also if a traffic accident were to take place in France: the fact that the applicable rule of French law were contained in the Civil Code would be irrelevant to the fact and manner of its application by an English court.

1.31  But every state enacts laws for the regulation of everyday life. Take for example legislation which requires entities associated with a company whose pension fund has been depleted to make specified payments into it.37 Would it be possible for such a law to be applied by an English court if proceedings were to be brought in England, against an English company38 liable according to such a law, for an order for payment? The answer appears to be that there is nothing wrong with the law as such, but that an English court would not apply it. The explanation for this result is that an English court could only arrive at the point at which foreign law might be applied if the issue before the court were characterized as one on which a court might look to a foreign law. The rules which regulate the exercise of characterization are rigid. If the claim were contractual in nature, a court might apply a foreign lex contractus, but such a claim against an associated entity is not contractual. If the matter were tortious in nature, the court might apply, or at least take account of, the lex loci delicti commissi, but there is no basis for arguing that the associated entity has committed a tort. If the matter were one which fell within the principle which prevents unjust enrichment at the expense of another, it might apply a foreign law if that were the law which was closest to the supposed obligation. But if the issue in the matter before the court could not be said to be any of these, there would be no mechanism for applying foreign law, even though the legislation was plainly designed to apply and even though the foreign law of which the particular statute was a part may well have been the law with which the claim was most closely connected. In short, there would be no rule or category of private international law for ‘foreign statutory claims’.

1.32  The odd thing is that this process of characterization, of designing boxes into which the issue for decision had to be shown to fit, was all judge-made. No legislator ever had a hand in it. They were not—are not—matter of divine revelation or natural law. They were—are—invented by the judiciary to allow cases with an international element to receive the treatment which common law and common sense requires them to have.39 But no court ever developed a category bearing the label ‘foreign statutory claims’. Whether they should have done is, no doubt, a (p. 15) question which would have required a great deal of effort and thought. But it did not happen.

1.33  Even when the foreign statute on which a party sought to rely, was a close copy of an English statute, as sometimes happens when an international convention is incorporated in national laws, there was nothing to be done. To take an example derived from the facts of a famous case,40 suppose Parliament were to have given effect to an international convention by declaring that its provisions operated in the case of shipments out of an English port, and the legislature of a foreign country had enacted the same convention so as to apply to shipments out of the ports of that foreign country. Suppose that a contract is made for the shipment of goods out of the foreign port under a contract which was expressed to be governed by English law. If the matter were to come before an English court, the English statute would not apply, as the shipment was—as a matter of geography—not one to which it applied; the foreign statute would not apply either, for if a contract is governed by English law, statutory provisions of a foreign law are not looked at, even though it is common ground that the facts fell within the four corners of the foreign statute. The common origin of the two pieces of legislation makes no difference to the answer.

5.  Judicial development of the common law rules

1.34  Its treatment of statutes may be a weakness or a strength, but whatever it is, it is characteristic of the common law method of private international law; it is a direct consequence of the judge-made nature of the entire subject. Everything follows as a matter of common law logic; no-one has appeared to think that there is anything that needs to be done about it. But this is not to say that the courts have not been capable of making radical change when radical change was called for. Two examples may be given, though there are others.

1.35  First, when it became clear that an ancient rule of the common law—that an English court could only give judgment in sterling and that sterling sum would be calculated at the date on which the cause of action accrued—was doing real damage to claimants who could do nothing but watch as the real value of their claims depreciated along with the currency (it seems never to have happened the other way round), the House of Lords simply abolished the rule.41

1.36  Second, when it became clear that an ancient rule of the common law—that an English court had, and would exercise, jurisdiction when and whenever a defendant were present in England at the point when service of process was made, or would exercise its jurisdiction in rem in relation to a sea-going ship berthed at an (p. 16) English port—could cause real injustice, the House of Lords abolished it.42 The idea that injustice might have resulted from a trial in England was not one which leapt equally quickly to every judicial mind, but when it could be shown that it would be plainly more appropriate for a foreign court to deal with the case, or that it would be clearly more appropriate to allow a foreign court which was already dealing with the matter to complete its work without any distraction from parallel proceedings in the English courts, it would be prepared to stay its proceedings. There was never any possibility that the English court would ‘send’ the would-be claimant to the foreign court: it would never have occurred to it that it had any such power. But it could restrict the exercise of its own jurisdiction in a case in which the interests of justice could be shown to demand it.

1.37  That so radical an alteration to the practical jurisdiction—to its exercise, not to its existence, though the distinction will mean less to litigants than it does to their lawyers—of the courts could be made the stroke of a judicial pen comes as a surprise to some. The idea that a court could overwrite a fixed and clear rule of jurisdiction with a judicial discretion to not exercise that jurisdiction is one which fails to appeal to some civilian minds and plainly appals others, even though the doctrine was designed and engineered in Scotland and is operated with perfect calm in Québec. But these examples simply serve to illustrate the distinctive nature of the common law method of private international law.

1.38  Nevertheless, if one counts the first edition of Dicey’s Treatise as the starting date of the common law organization of private international law, even if much went on in a less organized way in the century beforehand, there was still a century or so during which the infrastructure and the superstructure strengthened themselves. The big ideas of the common law, supplemented by the smaller, more detailed rules, made for a system which had its own coherence as well as its own occasional incoherence. What it did not have was any obvious capacity to cope with and absorb law reform which did not start from the fundamental assumption that the basic structure of the subject was the one which the common law had developed.

6.  Terminology

1.39  It remains to say something of the terminology associated with this subject. When Dicey first compiled his Treatise, he used the nomenclature of the ‘conflict of laws’, as the purpose of the discipline was to explain the methodology for dealing with cases in which there was a conflict between the substantive rules of two or more (p. 17) legal systems which might, in some sense, have a claim to be applied. The law of jurisdiction was rudimentary, based on presence (in relation to which there was little basis for declining to exercise jurisdiction) and a limited power to serve out of the jurisdiction. It therefore made perfect sense to describe the corpus of the law as the conflict of laws, and the exercise on which the court would embark as one of choice of law: as Dicey put it in relation to contracts, ‘When, therefore, a contract contains any foreign element (ie whenever there is a possible choice of law), the question may arise, What is the law which governs the material validity of the contract?’43 The choice was, in this sense, a choice to be made by the court from the data before it; indeed, the use of ‘choice of law’ was confined to the judicial function. It was not admitted in terms that the parties chose the law. Even in relation to the proper law of the contract, ‘the proper law of a contract is fixed by the intention of the parties’ with the consequence that ‘their expressed intention with regard to it must in general be decisive’.44 The term ‘choice of law’ therefore indicated the common law rules by reference to which the court would choose the law to be applied.

1.40  Two developments in the common law made this original terminology rather unsuited to the task for which it had been designed. First, the common law departed from the view that the only solution to the problem of internationality was to embark on a choice between laws. From the last quarter of the twentieth century, as mentioned in paragraph 1.36, it came to accept that an alternative solution, which would be at least as good, would be to focus on the question of where the adjudication would best be done. The question of which law would apply was therefore part of the question of where adjudication should take place; and the conflict of jurisdictions became as significant a part of the common law rules as the conflict of laws. The language of the conflict of laws therefore ceased to reflect the way in which the subject worked. When one considers that the conflict of the results of adjudication, the conflict of judgments, is also a significant element, it can be seen that the terminology of the conflict of laws has passed its use-by date. Private international law is a much better label; it is preferred here, and for this reason.

1.41  Second, it was increasingly accepted that the parties to a relationship, or to litigation arising from it, were entitled to choose the law to govern it, and to expect the court to respect that choice. ‘Choice of law’ became a perfectly accurate description of the manner in which the parties’ intentions as to the proper law of the contract, in particular, was given effect;45 as it was increasingly accepted that the law which the court would duly apply could be chosen by the parties in other legal contexts, of which trusts were one,46 torts less certainly another,47 and dispositions (p. 18) of moveable property a third,48 the term ‘choice of law’ was liable to be met with the question: choice by whom? As a result of this, this book will try to refer to the rules by which the court picks between the laws which might be applied as rules for identifying the ‘applicable law’, and will reserve ‘choice of law’ for the exercise by the parties of a freedom to specify the substantive law to be applied to their relationship or in their litigation. To a traditionalist ear this may sound a little strained, but as the law is reassembled by legislative acts, from Westminster and Europe, which refer to ‘determination of the applicable law’ rather than ‘the choice of law’ for the exercise which a court is called upon to conduct, this book will endeavour to follow where the legislation leads.

D.  The European Scheme of Private International Law

1.42  And then Europe came along. The original aim of the European Union in the field of private international law was a limited one. According to the Treaty which established the European Economic Community in 1957, intrusion into the field of private international law was modest and practical:

Treaty of Rome, Article 220.

Member States shall, so far as is necessary, enter into negotiations with each other with a view to securing for the benefit of their nationals...the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and of arbitration awards.

1.43  And so the states did, agreeing the terms of a Convention, concluded on 27 September 1968, which regulated jurisdiction and the recognition and enforcement of judgments in civil and commercial matters—known then, and now, as the Brussels Convention. Though encouraged to negotiate as Member States, the states party to the Brussels Convention made it as sovereign states, and were therefore known as ‘contracting states’ to the Convention.

1.  Legislative ambition

1.44  But things have moved on. In the Treaty on the Functioning of the European Union, as the governing instrument is now known,49 the basis for legislative intervention in matter of private international law has become much more expansive.50

TFEU, Article 81 (ex Article 65 TEC):

(1) The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the (p. 19) laws and regulations of the Member States. (2) For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring: (a) the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases; (b) the cross-border service of judicial and extrajudicial documents; (c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction; (d) cooperation in the taking of evidence; (e) effective access to justice; (f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States; (g) the development of alternative methods of dispute settlement; (h) support for the training of the judiciary and judicial staff...

1.45  As can be seen, there will be no part of a textbook on private international law, save for those pages which are historical narrative, to which this power to make new law does not extend.

1.46  Armed with this warrant, the European Union legislated with Regulations, which are directly effective in national systems. Recitals to these Regulations make the underlying purpose of the law plain. The best way to grasp what is intended is to read the material at first hand. A couple of examples will serve to make the point in general terms.

1.47  First, in the Recital to the Brussels I Regulation,51 which now harmonizes the law on conflicts of jurisdiction and the recognition of judgments, it is explained that:

The Union has set itself the objective of maintaining and developing an area of freedom, security and justice, inter alia, by facilitating access to justice, in particular through the principle of mutual recognition of judicial and extra-judicial decisions in civil matters. For the gradual establishment of such an area, the Union is to adopt measures relating to judicial cooperation in civil matters having cross-border implications, particularly when necessary for the proper functioning of the internal market. Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters, and to ensure rapid and simple recognition and enforcement of judgments given in a Member State, are essential.

1.48  ‘Unify’ does not mean, and probably could never have meant, to meld all the existing national laws into one, but rather to lay down a single statute which will have the force of law in all Member States.

1.49  Second, the European legislator explained why a uniform rule for determining the law applicable to contractual obligations was required and was to be provided by (p. 20) the Rome I Regulation,52 though substantially identical language introduces the Rome II Regulation on the law applicable to non-contractual obligations:

The Community has set itself the objective of maintaining and developing an area of freedom, security and justice. For the progressive establishment of such an area, the Community is to adopt measures relating to judicial cooperation in civil matters with a cross-border impact to the extent necessary for the proper functioning of the internal market. According to Article 65, point (b) of the Treaty, these measures are to include those promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction...The proper functioning of the internal market creates a need, in order to improve the predictability of the outcome of litigation, certainty as to the law applicable and the free movement of judgments, for the conflict-of-law rules in the Member States to designate the same national law irrespective of the country of the court in which an action is brought.

1.50  The same broad agenda is at work in relation to family law. The Maintenance Regulation53 explains its purpose with an elaborate introduction54 too lengthy to set out verbatim, but which plainly shows that there is no interim stopping point. The European Union is creating a system of private international law, a uniform system designed to replace the rules by which national legal systems deal with the conflict of jurisdictions, conflict of judgments, and conflict of laws. Whether or not one is of the opinion that this is necessary or desirable, it is a fact. And the fact that so much of private international law, as operated in English courts, is statutory and made in Brussels means that very large parts of the subject form, in a fundamental sense, an entirely new subject.

1.51  In 2014 the European Commission announced its intentions for the six years to 2020.55 Proceeding from the assertions that ‘mutual trust is the bedrock upon which EU justice policy should be built’ and that ‘justice and citizens’ rights should know no borders in the EU’, it proposes further work in the field of private international law. Included in this may be codification, ‘notably in the area of conflict of laws’, of the existing set of European instruments. It seems inevitable that the pace of change will be rapid.

1.52  In addition to its project to harmonize the rules of private international law, so as to harmonize the private international law of the Member States, the European Union also acts by harmonizing the domestic laws of the Member States so that there is no conflict of, only uniformity in, domestic laws. Such measures—one (p. 21) may take data protection and consumer rights as examples—align domestic laws and, by so doing, sideline the traditional approach of private international law. Although they have a considerable impact, they lie beyond the edge of this subject as traditionally conceived, and their treatment must be sought elsewhere.

2.  Rules of interpretation

1.53  For practical purposes, the rules of European private international law are statutory, albeit supplemented with rules and principles of construction and interpretation designed to go with them. There is always a text to look to for an answer, and there is a single court with jurisdiction to give authoritative and conclusive rulings on the interpretation of that text. As a matter of European law, it is the Regulation, and the rulings of the European Court which interpret the Regulation, which represent the law.56 Although decisions of national courts are naturally of interest, it is to be questioned whether the common law method of reporting every case and fitting its ratio into a system of judicial precedent is altogether appropriate when the task of the court is to interpret and apply a European statute.

1.54  For example, there is a rule of the common law by which the High Court is bound by a decision of the Court of Appeal which it cannot properly distinguish, even though the High Court would consider the decision of the Court of Appeal to be wrong in law. If a matter before the High Court raises a question of the interpretation of a Regulation, it might be argued that the High Court would be bound to follow and apply the decision of the Court of Appeal—which is also bound to follow its previous decisions save in rare and defined circumstances, even where it has serious doubts as to the correctness of the decision, and even though it has reason to believe that it may be observing a rule of common law procedure so as to jeopardize the application of European law. In these circumstances it must be accepted that the common law rule of judicial precedent is inapplicable,57 for the primary duty of the national court is to apply European law properly. The Treaty, and the legislation made under it, and the duty to apply it properly, is the law. In (p. 22) this important regard, European law must override the limitations of the principle of national judicial precedent.

1.55  It is true that the European Court has said that what is now the Brussels I Regulation does not harmonize national rules of procedure,58 as distinct from jurisdiction, and that a court may therefore apply a rule of its procedural law provided that this does not jeopardize the practical effect of the Regulation.59 But the sting is in the proviso. The Court has also said that the rules of European law established to operate in a uniform manner across the European Union require a court to apply European law properly: the principle of ‘effectiveness’ requires that procedural rules applied by national courts should not make the exercise of Union law rights excessively difficult.60 This must certainly apply to the Union rules on private international law. Maybe the correct interpretation of these rather sweeping propositions is not always easy to forecast; however, whatever the answer is, it is ultimately the privilege of the European Court, and not of national courts, to tell us what it is.

3.  Purpose of European rules

1.56  It would be quite wrong to look on the European legislation as having been made to modify the common law rules of private international law in England, to modify the rules of French private international law in France, and so forth: indeed, nothing could be further from the truth. The entire point of the legislation is to lay a new foundation, built to operate in a uniform manner across the Member States. It follows, for example, that the rules designed to ascertain the law applicable to contractual obligations do not slot into the category of what the common law rules of private international law characterize (or used to characterize) as contractual issues. No doubt it is true that the domains of each set of rules will overlap, and maybe substantially, but the work of the private international lawyer is to map the edges of his categories—and in mapping the edges of what is covered by the Rome I Regulation, reference back to a common law past can only be a distraction; looking back will only show a mirage or a dream.

4.  Impact on the common law rules and method

1.57  But if that is true, as it must be, looking back to the common law method which provided the infrastructural support for that common law past is just as misguided. In order to gain a proper understanding of the uniform law put in place by the (p. 23) Regulations, there is nothing be gained from looking at the way the common law might have approached the legislative text if it had been enacted at Westminster. The law which the court is called upon to apply is not English private international law, if by that expression it is intended to suggest that it is private international law which forms a part of the system conceived and developed by English judges and writers. The law which the court is called upon to apply is an ever more uniform private international law, in a European Union which makes this as the private international law of a single law district which stretches from the Azores to Lapland, from Donegal to the edge of Africa. It is no wonder that the common law, properly so called, has no privileged position within, no claim to provide the driving force for, this new system of law.

1.58  The first step taken by the European Community was the creation of the Brussels Convention, an instrument for the harmonization—or partial harmonization—of rules for jurisdiction in, and for the recognition and enforcement of judgments from, the courts of what were then contracting states. It might have been reasonable at that point in 1987, when the Convention was amended and took effect in the United Kingdom, to regard private international law as a common law structure onto which had been grafted a set of rules. The debates which animated lawyers in those days concentrated on the extent to which rules and practices of common law rules of jurisdiction were compatible or incompatible with the Convention. A lively debate ensued over the issue of whether the Convention could properly prevent an English court, with jurisdiction over an English defendant, applying a rule of English procedural law which would allow the court to stay the proceedings if the natural forum for the resolution of the dispute between the parties were in Argentina61 or Jamaica.62 Some could not see why it should prevent it, for if the conflict of jurisdictions was between the United Kingdom and a non-contracting state, the question which called for decision fell outside the material scope of an instrument dealing with conflicts of jurisdiction as between the contracting states. Others could not see how it could fail to prevent it, for when an English court was given jurisdiction by the Convention, the uniform application of the Convention precluded the exercise by an English court of a jurisdictional discretion which would not be exercised by courts in other contracting states. Though it was really only yesterday, it all seems to have taken place a very long time ago. We now know the answer: the uniform rules of jurisdiction are not to be overlaid with a non-uniform patchwork of jurisdictional discretions. A court with jurisdiction under the uniform rules of the Convention, or Regulations which succeeded it, has jurisdiction and is required to exercise it when called upon to do so.(p. 24)

1.59  The impact of European legislation on the law of jurisdiction was sudden, to the point of being shocking, and it was not to every taste. But the real significance of the short summary given in the previous paragraph, and which may not have been seen at the time, lies in the distinction between the jurisdiction which a court ‘has’ as a matter of the common law rules of private international law, and the jurisdiction which the court ‘was given’ by the Brussels Convention. The former understands jurisdiction as being inherent63 in the High Court, and as subject to modification and control by the court whose power to regulate its exercise of jurisdiction is equally inherent. The latter sees jurisdiction as something conferred by an external authority, in relation to which the court simply obeys the instructions of the legislator and exercises that jurisdiction by reference, and only by reference, to the law which the legislator has laid down. If that is so, the question for the court in a case such as Re Harrods (Buenos Aires) Ltd,64 or Owusu v Jackson,65 or any other case, is whether its jurisdiction in the case before it was inherent, derived from the common law, or created, limited, conferred, and imposed by statute. As soon as one understands that it was the latter, the answer to the particular question is inevitable.

1.60  The result is that it is now understood, if with varying degrees of excitement or resignation, that an English court exercising European jurisdiction exercises that jurisdiction in accordance with European law. If it helps to think of as laws as territorial, the territory in question is Europe. It is not 28 countries which also happen to be Member States. It is bound to affect the way one thinks about the subject.

1.61  Another example can be taken.66 If parties had agreed by contract to bring their proceedings before and only before an English court, but one of them were to launch proceedings before a foreign court, an English court had power, if the wrongdoer could be brought before it,67 to order him by injunction to abide by his contractual promise and to cease his wrongdoing. The fact that the wrongdoer might be committing his wrong in Greece was neither here nor there, because equity operated in personam and was able to direct a person over whom it had personal jurisdiction to act in accordance with his conscience. But a Greek judge is a judge of co-ordinate jurisdiction and equivalent authority within this single legal area. If the question for decision is understood to be whether proceedings should or should not be allowed to continue in a Greek court—or, if to continue, to do so on what terms—the material issue is whether the scheme of jurisdiction put in (p. 25) place by the legislation gave the English or the Greek court the right to answer it. The unsurprising answer is that it was for the Greek court to do anything which needed to be done, and it was wrong to allow the English court to interfere.68 How could it really have ever been thought to be otherwise?

1.62  With the proper perspective, the view ahead is uncluttered. Although the Brussels Convention, which was the first step in what has become the remaking of private international law, was followed only slowly by the second step, which was the Rome Convention,69 the pace picked up fast, and a tipping point was reached some time ago. This is bound to affect the way in which the law is to be understood and presented; an account of the law as practised in the courts must be faithful to the material from which it is drawn. It is no longer possible to view private international law as a body of rules whose genetic code was written by common lawyers, into which the occasional statute will be absorbed and digested and its separate identity lost. Neither is it right to see private international law as practised in the English courts as a new thing, an example of specificatio, made from European material and common law material but producing something in which neither of the ingredients is recognizably dominant. It is rapidly becoming, and it is evidently destined to be, a European thing, alongside which parts of the common law may co-exist for a while, before being ejected. If an image were taken from the natural world, it would probably be that of the cuckoo.70

E.  Arrangement of This Book

1.63  The aim of this book is to attempt to describe private international law as understood and operating in the English courts—which, at the time of writing, involves two private international laws, in uneasy co-existence—from this perspective. It is no longer helpful to present the introductory chapters on private international law methodology as though the common law rules of private international law provided the infrastructure of the subject. It makes more sense, even though it looks odd—and, when one is dealing with an area of private international law from which the European Union has, for the time being, stood back, looks wrong—to deal with European law before dealing with the common law rules. But it is the better way.(p. 26)

1.  Scheme and organization

1.64  As the greater part of the law as applied in English courts is European in nature, the next two chapters, which deal with general principles and general techniques, deal with European law first and the common law afterwards. In the past this would have made no sense; in the present, little else does. It is therefore convenient to examine the substance of the law in chapters 2 to 14, as follows:

  1. (2)  European rules of private international law: structure and methods

  2. (3)  Common law rules of private international law: structure and methods

  3. (4)  Jurisdiction

  4. (5)  Judicial assistance and judicial intervention

  5. (6)  Foreign judgments

  6. (7)  Contractual obligations

  7. (8)  Non-contractual obligations

  8. (9)  Property

  9. (10)  Corporations

  10. (11)  Corporate insolvency and personal bankruptcy

  11. (12)  Adult relationships

  12. (13)  Children and parental responsibility

  13. (14)  Arbitration

1.65  There may be other issues which might, in some views, be regarded as a proper part of a book on private international law, but there are natural limits, and the one adopted here is conventional.

2.  Introduction to and summary of the coverage

1.66  So far as the two chapters which deal with technique and principle, Chapter 2 sets out the techniques and principles which provide the support mechanism for the private international law rules of European law, and Chapter 3 seeks to do the same thing for the common law rules of private international law. They provide the background techniques and principles to the substantive chapters which follow. It will be seen in the chapters which follow that the particular issue which the court has to address will, in principle at least, be governed by a private international law rule found in European legislation, or in a rule of the common law or Parliamentary legislation. If it is the former, the contents of Chapter 2, but not the contents of Chapter 3, will guide the court in the application of the law; if it is the latter, the court will look to the material in Chapter 3 but not that in Chapter 2. Any awkwardness simply reflects the fact that, as matters currently stand, private international law in English courts is in a transitional phase; it flows in two streams, and their waters have not commingled and are not intended to commingle.

1.67  Chapter 4 deals with the private international law of jurisdiction. It is organized on the basis that the framework of the law is European, provided by the Brussels (p. 27) I Regulation, Regulation 1215/2012. To be sure, there is a residual71 role within (rather than alongside) the Regulation for the common law rules, which is indicated where the Regulation directs an English court in certain circumstances to apply its domestic jurisdictional rules. And there are matters of jurisdiction (principally matters which are not civil or commercial) to which the Regulation does not apply at all: where this is the case, the rules which will apply are diverse, and will depend on the context.72 But the private international law of jurisdiction is best understood as being organized by reference to the Brussels I Regulation, and it is presented on that basis.

1.68  Chapter 5 deals with the assistance one court may be asked and able to provide to another. The powers under which this is done are partly European: of these, the Service Regulation, Regulation 1393/2007, and the Taking of Evidence Regulation, Regulation 1206/2001, are the most important. The powers are also derived in part from international convention and in part from the common law. It also deals with injunctions having the effect of preventing proceedings before the courts of another country, which is dealt with as part of the common law rules of private international law, as they play no part in European private international law. It may be thought of as being out of place in a chapter which is otherwise concerned with cross-border assistance, but cross-border interference is the other side of the same coin.

1.69  Chapter 6 deals with private international law of foreign judgments. It reflects the fact that there are many systems according to which a foreign judgment may be given effect in England. If the judgment comes from the courts of another Member State, it will take effect as though it were, or will have an effect which is very close to its having been, a judgment of the English court: the most extreme version of this is provided by the recast version of the Brussels I Regulation,73 which has gone as far as it seems possible to go to bring about the automatic enforceability of judgments from Member States; the original Brussels I Regulation and Lugano II Convention had already taken long steps in that direction. Judgments from non-Member States are dealt with under legislation giving effect to bilateral treaties or commonwealth legislation, or under the common law. The systems therefore have to be presented as a list, and one has to choose where to begin. However, as it would not be surprising for the European Union to propose new rules to deal with the effect of non-Member State judgments in the European Union, displacing existing national laws on the subject, the chapter starts with an examination of the European rules, (p. 28) even though they may apply to a minority of the foreign judgments coming before the English courts.

1.70  Chapter 7 deals with private international law of contractual obligations. It is organized on the basis that the framework of the law is European, provided by the Rome I Regulation, Regulation 593/2008. There is no significant role within the Regulation for the common law rules. There are matters of applicable law in relation to contracts (principally contracts which are not civil or commercial, but also contracts made before the Regulation74 came into effect) to which the Regulation does not extend: where this is the case, the rules which will apply are diverse, and depend on the context.75 But the law is best understood as being organized by reference to the Rome I Regulation and it is presented on that basis.

1.71  Chapter 8 deals with the private international law of non-contractual obligations. It is organized on the basis that the framework of the law is European, provided by the Rome II Regulation, Regulation 864/2007. There is no significant role within the Regulation for the common law rules. There are non-contractual obligations (principally concerning personality and defamation, and matters which are not civil or commercial) to which the Regulation does not extend: where this is the case, the rules which will apply are likely to be those of the common law rules of private international law as amended by Parliamentary legislation. But the law is best understood as being organized by reference to the Rome II Regulation and it is presented on that basis.

1.72  Chapter 9 deals with the private international law of property. It is still, perhaps surprisingly, mostly governed by common law rules of private international law, even though the voluntary assignment of some intangible property is governed by European rules. In addition, the European Union has made comprehensive provision for the private international law of succession (the Succession Regulation, Regulation 650/2012), and proposes to do so in relation to matrimonial property (the Rome IV Regulation, not yet adopted). The United Kingdom has, at least for the time being, stood aside from the former and given no indication that it would wish to be bound by the latter, but as these instruments will apply in almost all Member States, they will at least have an indirect effect in England.

1.73  Chapter 10 deals with the private international law of corporations. The private international law of corporations contains a substantial amount of common law and Parliamentary legislation. But jurisdiction over companies is covered by the Brussels I Regulation (which may, in certain cases, look to the residual rules of national law); European Treaty law on free movement plays a significant part in (p. 29) the establishment and migration of companies; and many of the legal relationships formed by companies will fall within the Rome I and Rome II Regulations.

1.74  Chapter 11 deals with the private international law of insolvency and bankruptcy. The selection of rules of private international law turns in large part on establishing where the debtor (which usually means the debtor company) has its centre of main interests. If this is in a Member State, Regulation 1346/2000, the Insolvency Regulation, will provide the rules of private international law; if it is not, it will be governed by common law rules of private international law and Parliamentary legislation made in part to give effect in England to an international agreement which takes the form of a Model Law.

1.75  Chapter 12 deals with law of adults and adult relationships. While issues concerning the validity of marriage remain governed by common law rules of private international law, the private international law of matrimonial causes is principally governed by Regulation 2201/2003, the Brussels II Regulation. So far as concerns jurisdiction, the Regulation authorizes the residual jurisdictional rules of the common law to apply in some cases and has no application to matrimonial decrees from a non-Member State, on which an English court will look to Parliamentary legislation. As to the law which applies in divorce proceedings, an English court applies English law: no choice of law is involved. However, a majority of Member States agreed to be bound by the Rome III Regulation, Regulation 1259/2010, which brings them closer to a uniform applicable law rule for the dissolution of marriage. Though the United Kingdom declined to be bound by this Regulation, the intention of the European Union to harmonize the private international law of adults is clear. So far as concerns financial provision and maintenance, Regulation 4/2009, the Maintenance Regulation, provides the framework for the private international law of maintenance and financial provision in English courts. It applies in England.

1.76  Chapter 13 deals with the private international law of children. The organization of this area of private international law is challenging, as the legislation which it has produced does not fit tidily together. Nevertheless, the Brussels II Regulation, Regulation 2201/2003, represents the starting point and provides the organizational framework for the law. It takes account of, and is intended to work alongside, Parliamentary legislation made to give effect to two Hague Conventions in particular, and the Supreme Court, in particular, has stressed the need to try to make these instruments provide a set of rules of private international law which is seamless and efficient.

1.77  Chapter 14 deals with arbitration. As the purpose of the book is to deal with private international law in English courts, and as the evident purpose of the parties, when they agree to go to arbitration, is to remove the process of dealing with disputes from the courts, the relationship between arbitration and the courts is in some respects contradictory. Its place at the end of the book is certainly not intended to suggest that it is of minor relevance, but rather to reflect its more distant relationship. The (p. 30) law of international arbitration has