Lloyd's Maritime and Commercial Law Quarterly
Choice of choice of law?
Adrian Briggs *
This paper seeks to examine the freedom of a claimant to choose the choice of law rule which will dictate the result of the claim he advances against a defendant, and the associated problems raised by the overlapping of causes of action. Its point of departure will be the methodology of the common law conflict of laws, but it will also be necessary to consider the extent to which this is altered or overridden by European legislation. Its conclusion will be that an unconstrained freedom to choose the choice of law rule on which the claimant chooses to rely is unjustified in principle, barely required by any common law authority, and incompatible with European legislation incorporated into the English conflict of laws.
1. INTRODUCTION
By far the most significant judicial development in the common law conflict of laws in the last 30 years was the creation and refinement of the principle of forum conveniens
. Across most of the common law world it has been customized as the organizing tool for the establishing of jurisdiction,1
the staying of proceedings,2
the restraint of foreign proceedings3
and the recognition of foreign judgments.4
The rapidity with which it struck root does rather suggest that there were many symptoms in need of the same basic treatment; but it also suggests that the principle of forum conveniens
offered an attractive solution to shortcomings in the common law conflict of laws. The allure lay in recognizing that, where parties to a dispute cannot agree where it should be litigated, an impartial rule
* Fellow and Tutor in Law, St Edmund Hall, Oxford; Barrister, Blackstone Chambers, Temple. Thanks are offered to Ed Peel of Keble College, Oxford, who read a draft; and to the Dean and Faculty of Law of the National University of Singapore, who generously provided the academic and social hospitality in the summer of 2002 without which this article would have remained unwritten.
1. Most usually when jurisdiction is established by discretionary service ex juris
: the principles in Spiliada Maritime Corp.
v. Cansulex Ltd
[1987] A.C. 460 are accepted throughout the common law world except Australia, where Regie Nationale des Usines Renault SA
v. Zhang
(2002) 187 A.L.R. 1 removed the trace of alignment with Spiliada
which had been preferred in Voth
v. Manildra Flour Mills Pty Ltd
(1990) 171 C.L.R. 538.
2. The previous footnote applies here also.
3. As a component, though not the main engine, of the rules: see Airbus Industrie GIE
v. Patel
[1999] 1 A.C. 119; though for a more complex application of the principle of forum conveniens
in this context, see the decision of the Supreme Court of Canada in Amchem Products Inc.
v. British Columbia (Workers’ Compensation Board)
[1993] 1 S.C.R. 897.
4. It is not so generally accepted that forum conveniens
has a part to play here, but see the decision of the Supreme Court of Canada in Morguard Investments Ltd
v. De Savoye
[1990] 3 S.C.R. 1077 and Spar Aerospace Ltd
v. American Mobile Satellite Corp
. (6 December 2002) [2002] S.C.C. 78 (a case on stays of proceedings).
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