Conferences, academic events etc. Developments in PIL

A Symposium for Trevor Hartley at LSE on 27 October 2023 – Report

This post has been written by Jacco Bomhoff (LSE)Uglješa Grušić (UCL), and Manuel Penades (KCL).

As previously announced, the LSE Law School hosted a symposium to celebrate the scholarly work of Emeritus Professor Trevor C. Hartley on 17 October 2023.

The Symposium brought together around 70 participants, colleagues, and friends from the UK and abroad, who celebrated and discussed Trevor’s many contributions.

The first contribution to the Symposium was a keynote by Professor David Kershaw, Dean of the LSE Law School. He reminded us that Trevor came to LSE from the University of Western Ontario in 1969 and taught at LSE for a record-breaking 54 years. In that time, Trevor firmly established himself as a leading scholar in private international law and EU law, and inspired many generations of law students.

Subsequently, Lord Collins gave another keynote in which he commented on Trevor’s contributions to private international law. Trevor has pursued many topics in the field, but is perhaps best known for his work on mandatory rules, choice-of-court agreements, and comparative international civil and commercial litigation. He joined the team of editors of Dicey and Morris on Conflict of Laws (as it then was) in 1985 and was one of the specialist editors responsible for 10 chapters in the 11th edition (1987) and 12 chapters in the 12th edition (1993). He sat on the Lord Chancellor’s Committee for Private International Law, gave a Hague Academy special course on the common law approach to mandatory rules in international contracts in 1997 and a general course on the modern approach to private international law in 2006, and was a rapporteur on the 2005 Hague Choice-of-Court Convention. Trevor has authored many books in the field, including a student textbook on International Commercial Litigation (CUP, now in its 3rd edition from 2020), and monographs on Civil Jurisdiction and Judgments in Europe (OUP, now in its 3rd edition from 2023) and Choice-of-Court Agreements under the European and International Instruments (OUP, 2013).

These keynotes were followed by the first panel of the day, which focused on global and comparative private international law, one of the main themes of Trevor’s scholarship. This panel was chaired by Dr Roxana Banu (Oxford), who noted that the aim of the Symposium was to celebrate Trevor and, through Trevor, the field of private international law.

The first speaker in this panel, Professor Paul Beaumont (Stirling), outlined the 2019 Hague Foreign Judgments Convention and explained its relationship with the 2005 Hague Choice-of-Court Convention. He commented on key features of the 2019 Convention, such as the broad range of judgments that come within its scope, the broad set of indirect jurisdictional rules, and exclusion of arbitration. Furthermore, he noted that the 2019 Convention supplements the 2005 Convention in different ways, for example by covering non-exclusive choice-of-court agreements, providing for a defence of breach of a jurisdiction agreement, and covering asymmetric choice-of-court agreements (as confirmed in Etihad Airways PJSC v Flother, where the Court of Appeal referred to the Hartley and Dogauchi Explanatory Report at [85]). Finally, Professor Beaumont confirmed that the two conventions should be interpreted in a systematic way. The 2005 and 2019 Conventions represent two key pieces of the Hague global justice system, which is a fitting legacy for Trevor’s excellent work on the 2005 Convention.

Professor Alex Mills (UCL) commented on the importance of the 2005 Convention. He remarked that the fact that the 2005 Convention exists and is in force is important for the Hague Conference and global private international law. However, a relatively modest number of ratifications demonstrates challenges of international harmonisation. Nevertheless, the success of a treaty is not measured only in terms of number of ratifications – the 2005 Convention crystalised the importance and acceptance of party autonomy in the field of jurisdiction and foreign judgments, and is an important sign of consensus in this respect. The 2005 Convention is important for the London litigation market because it provided a degree of continuity after Brexit. Finally, Professor Mills noted the value of the Hartley and Dogauchi Explanatory Report for interpreting and applying the treaty, and its contribution to the success of the treaty.

Professor Koji Takahashi (Doshisha) commented on comparative private international law by pointing out that the relationship between the common law and civil law systems in private international law is often analysed in terms of well-known dichotomies. One of those dichotomies is pragmatism v dogmatism (idealism). Nevertheless, Professor Takahashi noted that all private international law systems combine elements of both pragmatism and dogmatism. He demonstrated this point by showing the pragmatic aspects of pleading and proof of foreign law, renvoi, and the choice-of-law rules for divorce in Japanese law. The application of these doctrines often allows Japanese courts to apply Japanese law.

Professor Veronica Ruiz Abou-Nigm (Edinburgh) closed the first panel by discussing the protection of global commons in private international law, a subject that Trevor touched on in his 2009 Revue Hellenique de droit international article on ‘Multinational Corporations and the Third World’. Prof Ruiz Abou-Nigm did this by drawing out attention to three points: (1) power imbalances and access to justice, particularly in the context of business and human rights litigation; (2) accessibility of the private international law logic to ordinary people and lawyers; and (3) impact of differentials in capacity and expertise. Professor Ruiz Abou-Nigm concluded by remarking on the importance of local solutions to global problems such as sustainable development, and by recognising the importance of academic activism.

This panel was followed by a third keynote given by Professor Hans van Loon, who, as former Secretary General of the Hague Conference, is particularly well placed to comment on Trevor’s contribution to the work of the Conference. Professor van Loon expressed a view that the Hartley and Dogauchi Explanatory Report is a “masterpiece”. Professor Van Loon also reminded us that Trevor is a key member of the European Group of Private International Law (GEDIP).

A fourth keynote was given by Professor Carol Harlow (LSE, emerita). Since Professor Harlow and Trevor joined LSE at around the same time, she was able to comment on Trevor’s contributions to the LSE Law School, as well as on Trevor’s contributions to public law and EU law scholarship. Some readers of the blog may not know that Trevor was a pioneer in EU law in the UK and that his book on the Foundations of European Community Law (Clarendon Press, 1981) had a significant impact in the English-speaking world.

The day’s second panel was chaired by Professor Pippa Rogerson (Cambridge). Its remit was Trevor ’s well-known ICLQ article on the CJEU’s “systematic dismantling of the common law” in its decisions in Gasser v Misat, Owusu v Jackson, and Turner v Grovit. The panel’s task was to revisit the article, almost 20 years after its publication, and in light of all that has happened in the law of civil jurisdiction since.

Professor Andrew Dickinson (Oxford) spoke first, on anti-suit injunctions. Professor Dickinson sketched a contrast between Trevor’s view of anti-suit injunctions, which he characterized as one of “wary receptiveness”, and his own, which was “warier and less receptive”. Zooming out from the discussion of Turner v Grovit, Dickinson also looked further back – to the Privy Council’s seminal decision in Aérospatiale v Lee Kui Jak, on which Trevor recently published a case comment – and to more recent developments, notably the CJEU’s decision in Charles Taylor Adjusting Ltd v Starlight Shipping Co. Professor Dickinson’s conclusion was that “[The] anti-suit injunction is as controversial as it ever was, and the issues that it throws up have become more complex as the world and the ways in which legal systems interact with one another have evolved over time. It is a good thing that Trevor has been willing to serve as one of our principal guides, highlighting the trade-offs involved in choosing between unilateralism and multilateralism.”

Professor Jonathan Harris (KCL) discussed forum non conveniens, taking up not just the ICLQ article just mentioned, but also Trevor’s book on Civil Jurisdiction and Judgments (Sweet & Maxwell, 1984), and his 1992 comment in the European Law Review on the Court of Appeal’s decision in Re Harrods (Buenos Aires) Ltd [1992] Ch 72. Professor Harris noted how Trevor thought the Court of Appeal had reached the right decision in that case, and how he “did not hold back” in his later criticism of Owusu, in both the ICLQ article and in his lectures for the Hague Academy. Again taking a broader perspective, Professor Harris noted that the answer to the question “forum non conveniens – where are we now?” seems to be, roughly, “where we were 35 years ago”, at the time of Spiliada. Professor Harris concluded by giving his views on why, in the way English law is currently structured, so much still turns on the ability of claimants to serve defendants within the jurisdiction, as compared to having to obtain permission to serve out.

Professor Eva Lein (BIICL and Lausanne) was slated to speak on “torpedo” actions – another topic of concern in the “systematic dismantling” article – but unfortunately had to cancel at short notice.

The last speaker for this panel, therefore, was Professor Adrian Briggs (Oxford), who addressed the topic “What is left of the Brussels I Regulation in English law and in the English courts?”. Professor Briggs identified four different layers to the lingering effects of the Brussels regime. First, the direct legacy of the rules of section 15 of the Civil Jurisdiction and Judgments Act 1982, as amended, on jurisdiction in certain cases involving consumers and employees. Second, and a little more indirect, is the baggage of CJEU interpretations of key terms in the Rome I and Rome II Regulations that built on their approach to the Brussels regime, and that now threaten to affect the English courts’ approach to the retained rules on choice of law. For both these instruments, in Professor Briggs’ view, the conclusion is that there is nothing much wrong with the “European” rules themselves, but rather a lot wrong with the CJEU’s interpretation of them. The third and fourth layers to the legacy of the Brussels regime in English law, in Professor Briggs’ view, sound in cultural terms. First, certain basic ideas and outlooks familiar from practice under the Brussels rules may still influence English law. The main example for this is perhaps the basic proposition, patterned on Article 4 of Brussels I bis, that it is right that claimants should always be able to sue English companies in England. For the fourth and last lingering effect of the Brussels regime, Professor Briggs returned to the main theme of Trevor’s “systematic dismantling” article. This is the lasting memory, stated bluntly, of a Court of Justice preaching mutual respect but acting with disrespect; to Member States courts and legal systems in general, and to the common law in particular.

The last keynote speaker for the day was Professor Damian Chalmers (National University of Singapore). His speech combined an appraisal of Trevor’s early and seminal contributions to the study of the law of the European Communities, with a more personal reflection on Trevor’s role as mentor.

The final panel dealt with the relationship between dispute resolution clauses and EU law, another of Trevor’s significant themes of scholarship. The panel was chaired by Professor Yvonne Baatz (QMUL, retired). She opened the session by highlighting the breadth of Trevor’s work and his characteristic ability to explain complex ideas in accessible and clear ways.

The first talk in the panel was given by Alexander Layton KC (Twenty Essex and KCL), focusing on the reflexive effect of EU private international law. While the topic is now primarily of historical interest in England, Layton explained that it still serves as a good example of the tension between the common law and civil law traditions. He criticised the CJEU for failing to consider the role of comity in the context of the potential reflexive effect of the Brussels regime toward third States in three relevant areas: foreign lis pendens, exclusive jurisdiction, and dispute resolution clauses in favour of the courts of third States. While lis pendens is now resolved by Articles 33 and 34 of Brussels I bis, the other two issues remain contentious. National courts have three options: interpreting the Brussels/Lugano regime as incorporating an implied yet mandatory reflexive effect (“strict reflexivity”); prohibiting such reflexive effect based on the mandatory application of the rules on jurisdiction of the Brussels/Lugano regime in favour of EU courts, regardless of the interests of the third State (“prohibited reflexivity”); permitting EU courts to decide the matter based on national law given the absence of express solution in the Brussels/Lugano regime (“flexible reflexivity”). While all three options present challenges, English courts appear to have adopted the flexible reflexivity approach (Ferrexpo v AG v Gilson Investments Ltd). Layton opined that brief passages in previous European case law suggest that the CJEU could support the “strict reflexivity” model. This uncertainty might be resolved by the forthcoming decision in BSH Hausgeräte v Aktiebolaget Electrolux concerning the validity of a Turkish validation of a European patent.

This talk was followed by Professor Richard Fentiman (Cambridge), who spoke about the relationship between international arbitration and the Brussels/Lugano regime. He identified two reasons why the English legal community was profoundly unpersuaded by the case law of the CJEU that curtailed contractual remedies to enforce arbitration agreements in the form of antisuit injunctions and damages awards. The first was that those EU decisions were not about the hierarchy between arbitration and EU law but about a more profound clash between the integrity of the Brussels rules and the remedies available under national law to enforce arbitration agreements. The second reason concerned the Court’s frustrating technique, which refused to recognise the conceptual distinction between the allocation of jurisdiction, on the one hand, and the enforcement of contractual rights and controlling personal conduct, on the other. The use of open-textured concepts such as mutual trust and effet utile did not inspire confidence and, in fact, was used by the Court to make policy decisions in the guise of legal reasoning. In the second part of his presentation, Professor Fentiman argued that these contractual remedies should become available and effective again after Brexit even vis-à-vis EU Member States (as evidenced by French case law). Also he pointed out that the doctrine laid by the CJEU in Case Charles Taylor Adjusting no longer applies to English decisions and, therefore, their European effectiveness will depend on the national law of each EU Member State and their notions of public policy. The relief brought by Brexit, he concluded, is that the decision whether to request those remedies from English courts in each case will depend on the parties’ litigation strategies, and not on a general prohibition imposed by EU law. Equally, he celebrated the fact that English courts will be free to address outstanding questions such as the compatibility of these contractual remedies with Article 6 of the European Convention of Human Rights squarely and without the restrictions imposed by the often tendentious unpersuasive reasoning of the CJEU.

The third presentation in this panel was delivered by Jan Kleinheisterkamp (LSE), who spoke about arbitration and EU mandatory rules. He explained that at the root of the problem lies the fact that, unlike national courts with article 9 of the Rome I Regulation, arbitrators do not have a clear choice of law regime for mandatory rules. As a result of Eco Swiss and Ingmar, some European courts have refused the enforcement of arbitration agreements when the use of international arbitration, coupled with the choice of law made by the parties, would lead to the disapplication of EU mandatory law. An option to avoid this radical effect would be to allow court proceedings seeking an undertaking by both parties to apply the relevant mandatory rule as a condition to enforce the arbitration agreement, linked to the possibility of court review at the post-arbitration stage (just like in the SCOTUS decision in Mitsubishi v. Soler Chrysler-Plymouth). Dr Kleinheisterkamp argued that the growing tendency of English courts to issue antisuit injunctions should not impede the operation of this proposal post-Brexit, when a party commenced court proceedings before EU courts to obtain such undertaking from its counterparty to the arbitration agreement. To do this, English courts should reconsider the possible application of Ralli Bros v Compania Naviera Sota y Aznar (1921) 8 Ll L Rep 139 to arbitration agreements and avoid turning England into a safe haven for arbitrations of any colour and shape. A more measured approach was preferable to avoid backlashes against arbitration, and recent decisions by English courts preventing illegality in arbitration (The Federal Republic of Nigeria v Process & Industrial Developments Limited) offered hope that some judges were receptive to that restrained approach.

Professor Linda Silberman (NYU, emerita) closed the panel. She discussed the potential adoption of the 2005 Hague Choice-of-Court Convention by the USA and the controversy raised by the reactions of some arbitration practitioners against the Convention compared to the 1958 New York Convention (see herehere, and here). While the prospects for the adoption of the 2005 Convention are positive, Professor Silberman signalled that one of the main areas of concern was that, unlike in Article V(1)(a) of the NYC, Article 9(a) of the 2005 Convention provides that that the determination by the chosen court in favour of the validity of the forum selection agreement is conclusive. A recent discussion on the subject in the NY Bar Committee concluded that Articles 6(c) and 9(e) of the 2005 Convention offered sufficient safeguards to alleviate the concern. Article 6(c) would allow a party to demonstrate that it never consented to a putative choice of court agreement and that holding a party to such a clause would create manifest injustice or would manifestly violate the public policy of the non-selected court. Article 9(e) would also prevent the recognition or enforcement of a judgment when it would be manifestly incompatible with the public policy of the requested State. Despite Article 9(a) of the 2005 Convention, the NY Bar Committee NY Bar was satisfied that Article 9(e) would allow the court to stop the effect of the finding by the allegedly selected court in favour of the validity of a bogus choice of court agreement. To strengthen this position, the NY Bar Committee recommended the introduction of federal legislation to reiterate the principles that voluntary consent to jurisdiction is an aspect of fundamental US public policy and an element of US constitutional due process, and also that US public policy requires a court to refuse to recognise or enforce a judgment obtained in a judicial system that does not afford impartial tribunal and judicial fairness. The Hartley and Dogauchi Explanatory Report was instrumental to reach this positive conclusion.

Ugljesa is an Associate Professor at the Faculty of Laws, University College London.

1 comment on “A Symposium for Trevor Hartley at LSE on 27 October 2023 – Report

  1. Matthias Lehmann

    Dear Ugljesa, Thanks for this very informative summary! It greatly helps lawyers on the continent to keep track of the developments in the UK. Many of the speakers seem to have been criticising the CJEU, but so are many commentators in the EU. This must have been a great event, and I regret not having been able to come to London. Best wishes, Matthias

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