Lloyd's Maritime and Commercial Law Quarterly
DO AS YOU WOULD BE DONE BY? SYSTEM-TRANSCENDENT JUSTIFICATION AND ANTI-SUIT INJUNCTIONS
Thomas Raphael*
English private international law prides itself on respecting comity, but recent developments in the English courts’ approach to anti-suit injunctions are problematic from an international perspective. The recent case law on anti-suit injunctions, culminating in Petter v EMC, has revealed an inconsistency: the English courts will override foreign public policy by anti-suit injunction in order to enforce English forum clauses, but will override comparable foreign forum clauses by anti-suit injunction to enforce English public policy. The current approach is likely to meet with little sympathy abroad, and with reason. A better balance needs to be struck, which is capable of being justified in a “system-transcendent” fashion.
THE GOLDEN RULE
The Golden Rule, “Do as you would be done by”, was known to Confucius,1 and has been a moral starting point since earliest times. It is not enough for a moral or legal philosophy; but, if not respected, it is a canary in a mine—something is likely to be wrong. The notion of comity is itself an application of the Golden Rule. Comity is “the accepted rules of mutual conduct as between state and state which each state adopts in relation to other states and expects other states to adopt in relation to itself”.2 That different countries will have different approaches to the conflicts of laws is inevitable; but national rules of private international law should be capable of being rationalised on a universalisable3 basis, and be susceptible to “system-transcendent” justification: so that another legal system could, in principle, be rationally persuaded to accept them as legitimate from an international perspective, even if its own rules differ. There may be cases where naked national
* QC, 20 Essex St, Temple, London. A version of this paper was delivered as a lecture to Combar on 16 December 2015. It has been much improved by the comments of Sir Bernard Rix, Andrew Baker QC, Belinda McRae and Penelope Nevill, to whom many thanks.
1. “Never impose on others what you would not choose for yourself”: Confucius, Analects XV. 24 (tr. David Hinton). The Bible says the same: see Matthew 7:12.
2. Buck v Attorney-General [1965] 1 Ch 745 (CA), 770.
3. In moral philosophy, universalisable propositions of morality are those that can rationally be accepted by other persons in analogous situations. Universalisability can be seen as a condition of a valid moral proposition. So Kant’s categorical imperative requires: “Act only in accordance with that maxim through which you can at the same time will that it become a universal law”: I Kant, The Groundwork for the Metaphysics of Morals (1797), ed. A Wood (Yale, 2002), 37.
Do as you would be done by?
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