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Published online by Cambridge University Press: 02 January 2018
Ten years ago, the House of Lords decided the case of The Atlantic Star. Hitherto it had been clear beyond argument that English law denied the idea that an action brought in English courts could be stayed on the ground (however the criteria be formulated) that a foreign court was more suitable for the case to be adjudicated in. That case, however, touched off the process of reconsideration: a process which continues today, and which shows no clear signs of settling down to a coherent and well-founded body of law applicable to motions for stays. It is the purpose of this paper to examine the progress which has been made so far, and to demonstrate that it does contain the raw material from which an entirely satisfactory restatement of English law could be made.
1. [1974] AC 436; judgment delivered 23 April 1973.
4. See, For example, Dicey, and Morris, The Conflict of Laws (9th edn, 1973) p. 220 Google Scholar.
3. ‘Domicile’ b r the purposes of the Convention is defined in s. 41 of the Act, and is a markedly different concept from domicile at common law.
4. Additional grounds for jurisdictional competence are found in arts 5 and 6.
5. Arts 21–23.
6. Art 3.
7. Art 4.
8. [1919] 1 KB 410.
9. At 414.
10. [1936] 1 KB 382.
11. At 398.
12. Dicey and Morris p. 248; Cheshire and North p. 116–7; Morris p. 89.
13. [1974] AC 436.
14. [1978] AC 795.
15. [1981] 1 All ER 143.
16. (1982) 31 ICLQ 189. Briefly, the case concerned a suit for an injunction to prevent a plaintiff from prosecuting his case in Texas. The House considered that this case fell to be decided by the same criteria that govern the staying of English actions. It was argued that this was incorrect, but given the difference between the facts of Castanho and the present enquiry it is not proposed to refer much to it.
17. At 817.
18. At 152.
19. At 468.
20. See the analysis of MacShannon by Carter in 1978 BYBIL 291 at 293.
21. [1981] 2 Lloyds Rep 651; affd. [1982] 2 Lloyd's Rep 356.
22. At 151–2.
23. Unreported: The Times 17 May 1982. Like Castanho, an application for an injunction to restrain a plaintiff from suing for breach of contract in America. Unlike Castanho the application was granted, the Court concluding that the prospect of higher damages ($160m was claimed) was not a legitimate personal or juridical advantage.
24. At 655–6.
25. 1926 SC (HL) 13.
26. MacShannon requires the alleged advantage to be demonstrably real: at 812 (Lord Diplock), at 821 (Lord Salmon), at 829 (Lord Keith).
27. Lord Wilberforce in The Atlantic Slur at 468.
28. For an account of the Scottish approach, see Anton, Private International Law pp. 148–154 Google Scholar.
29. (1892) 19 R 665.
30. It does not appear that the doctrine is to be found in other civil law systems.
31. [1980] 2 Lloyds Rep 229.
32. At 818.
33. At 812.
34. [1981] 2 Lloyds Rep 61.
35. [1980] 1 Lloyds Rep 390.
36. [1981] 2 Lloyds Rep 119.
37. [1978] 2 Lloyds Rep 520.
38. This is not, however, the view put forward in the Restatement, Second. 84 says a state will not exercise jurisdiction if it is ‘a seriously inconvenient forum’ and another more appropriate forum is available. See too the adoption of this formulation in Vandam v Smit 148 A 2d 289 (1959), Supreme Court of New Hampshire.
39. 427 P 2d 765 (1967).
40. L'étranger, meme non résident en France, pourra etre cité devant les tribunaux francais, pour l'execution des obligations par lui contractées en France avec un Francais; il pourra etre traduit devant les tribunaux de France pour les obligations par lui contractécs en pays étranger envers des Frarcais.
This provision is not apparently softened by the staying of actions on the ground of lis alibi pendens: Clunet 1896/402, 1897/326, 1924/395.
41. 1968 Convention, arts 3 and 4.
42. Dicey and Morris Rule 145. Note also that this formulation is very close to that of Lord Keith in MacShannon.
43. [1939] AC 277.
44. Lord Wright seemed to think it was significant that the underwriters were likely to be English: no-one today publically shares that view.
45. [1982] 1 All ER 1076.
46. [1970] P 94.
47. [1981] 2 Lloyds Rep 119 at 129.
48. See, for example, Cheshire and North pp. 661–5.
49. [1981] 2 Lloyds Rep 651 at 658; affd. [1982] 2 Lloyds Rep 356.
50. Supra, n. 48. As to foreign judgments to which the 1968 Convention applies, non-recognition is covered by art 27, which does not forbid recognition on the grounds of fraud or want of natural justice; but which may come close to doing so by allowing nonrecognition where this would be contrary to public policy. However this may be, the common law standard seems appropriate here as we are dealing solely with common law rules as to jurisdiction.
51. Cheshire and North pp. 661–5, Dicey and Morris Rules 187–9.
52. [1979] 2 Lloyds Rep 286.
53. [1982] 1 Lloyds Rep 151. See too The Adolf Warski [1976] 1 Lloyds Rep 107 (Brandon J), [1976] 2 Lloyds Rep 241, CA, where the Court of Appeal expressed the tentative opinion that the operation of a foreign limitation statute was a ‘neutral factor’ in deciding whether to grant a stay of English proceedings.
54. See the account in Cheshire and North pp. 695–6 and the cases there cited.
55. Law Commission Report no. 114 (Cmnd. 8570, 1982).
56. Para 4.13 and Draft Bill, s. 1.
57. [1982] 1 All ER 1076; affd. [1982] 3 All ER 1141.
58. This may be significant: see below, n. 64.
59. It is suggested by Lord Denning MR at 1079 that the Dutch will soon ratify the new Rules. In fact, the only foreign countries to have done so are Belgium, Denmark, Ecuador, France, Lebanon, Norway, Singapore, Sweden, Switzerland, Syria and Tonga. S.I. 1885 of 1978 where this list is given has not yet been superceded.
60. Art III, para 8.
61. sub nom The Morviken supra, n. 34.
62. Who must be taken to have won the interesting argument that he (in 95 LQR 59) has engaged in with Dr Mann (in 46 BYBIL 117).
63. Carriage of Goods by Sea Act 1971, s. 1(2), (3).
64. Or so it would seem. In fact the Court of Appeal says that the selection of Dutch law as the lex causae must be struck down too: Lord Denning MR (at 1080), Sir Sebag Shaw (at 1082), Ackner LJ (at 1086). With respect, this simply cannot be right. The evil of the low level of liability which the Act prohibits will follow from the trial of the action in Holland, and on the view taken by the Court, the choice of forum clause is struck down. But the question of choice of law will arise when the case is sent back for trial, and there appears to be no reason why the lex causae should not be Dutch law, subject to amendment in the one point of limitation of liability. Even if the choice of law clause is struck down, it may well be that the system of law with which the agreement has the closest and most real connection is Dutch, which would then be the lex causae. This conclusion would not then be because of a clause in the bill of lading, but because Dutch is the objectively determined proper law of the contract, and so could not be struck down by the statute. The true answer is surely that the lex causae is Dutch law, the limit of liability £11,000, and the forum England. The Court of Appeal's conclusion on this point can only be supported if it is held that the choice of forum and choice of law were expressed in the same clause in the bill of lading (which they were: clause 2), and art III, para 8 requires the striking down of the entirety of any clause which offends. Had there been two different clauses the result would have been different. And capricious. The clause should have been treated as severable, which was what Sheen J actually held.