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Published online by Cambridge University Press: 17 January 2008
It is sometimes asked whether English private international law has a theory, or, if it has a theory, what this actually means. This may be a question for some, but it may have no answer. The purpose of this article is to take issue with the claim, sometimes made, that since Spiliada1 the subject has become less theoretical. To be sure, the deplorable quality of recent law reform lends powerful support to the proposition that concern for the theory of the subject (indeed, any form of reflective intelligence) has been notably lacking. But Spiliada may have been one of those defining moments in which the large theory of the English conflict of laws underwent a dramatic change and shone a light into areas of the subject which had been peacefully gathering dust.
1. Spiliada Maritime Corporation v. Cansulex Ltd [1987] A.C 460, HL.Google Scholar
2. Because the plaintiff chooses to institute proceedings in England, and the defendant elects to submit to the jurisdiction and not to seek a stay of proceedings.
3. As Editor of the 6th to 10th editions of Dicey, and Morris, , The Conflict of Laws. The 11th edition (1987) was prepared under the General Editorship of Dr Collins, and he united the topics of jurisdiction and judgments within Part III.Google Scholar
4. In Canada the Supreme Court has asked itself a very similar question, and has come close to accepting that a link in these terms does exist: Morguard Investments Ltd v. De Savoye [1990] 3 S.C.R. 1077Google Scholar; and in Amchem v. British Columbia Workers' Compensation Board [1993] 1 S.C.R. 897 the pivotal role of the doctrine of forum non conveniens was recognised in relation to the law on anti-suit injunctions. These attempts to weave a coherent pattern of rules to govern these closely connected issues are greatly to be applauded.Google Scholar
5. Davies, , Ricketson, and Lindell, , Conflict of Laws: Commentary and Materials (1997), para.7.3.1.Google Scholar
6. The Halley (1868) L.R. 2 P.C. 193Google Scholar; Machado v. Fontes [1897] 2 Q.B. 231, CA.Google Scholar
7. Boys v. Chaplin [1971] A.C. 356.Google Scholar
9. For this was what the forum shopping expedition would be mounted to avoid.
10. Had there been more time, it might have been possible to show how the exception to the general choice of law rule crafted by Lord Wilberforce could have been made redundant The question framed by his Lordship was whether Maltese law was “interested” in applying to the facts of the case; and it was found as a fact that it was not. The basis for this finding was unclear (see Boys v. Chaplin, supra n.7, at p.392E–F)Google Scholar; it did not appear to involve a detailed examination of the history and purpose of the rule of Maltese law, but was rather more short in its conclusion. But this awkwardness could have been avoided by asking whether a Maltese judge would have applied his domestic law to the case had he been seised with it If he would not have done so, applying instead the law of the common domicile, it follows easily that the Maltese rule has no interest in application. If he would have done so, it would be unthinkable that an English court should conclude that the Maltese legislator had no interest in the application of his law to the facts of the given case. Such an enquiry might have been more straightforward and rational than an excursion into the alien territory of interest analysis.
11. Note that MacShannon v. Rockware Glass Ltd [1978] A.C. 705, HL was an early example of a forum shopping plaintiff in a tort claim being despatched to where the tort was committed.Google Scholar
12. This is not the place to examine whether the Convention has removed the doctrine root and branch, or has left to operate in a few fringe areas. As between the contracting States in civil and commercial matters it has gone.
13. Private International Law (Miscellaneous Provisions) Act 1995, s.9(5).
14. Cf. Compagnie d'Armament Maritime SA v. Compagnie Tunisienne de Navigation SA [1971] A.C. 572, HL.Google Scholar
15. (1980) O.J. C282/17.Google Scholar
16. Or a court, which decides, exceptionally, not to stay the proceedings even though the plaintiff has sued in breach of the clause.
17. (1988) 165 C.L.R. 197.Google Scholar
18. (1989) 169 C.L.R. 41 (see Wilson, , Gaudron, , Toohey, JJ.).Google Scholar
19. If as a matter of Ruritanian law the issue of parental consent would be seen as a question of capacity or essential validity.
20. According to the Convention, no.
21. And here are some gimcrack new ones.
22. For a very fine illustration of many of the points which may be made, see Harris, (1998) 61 M.L.R. 33.Google Scholar It deals with the Private International Law (Miscellaneous Provisions) Act 1995; a more inviting target for scholarly attack is, mercifully, a very rare thing indeed.
