Chapter 1 of Anderson Book

Nature of Private International Law 1
1
Nature of Private
International Law
INTRODUCTION
Most branches of law describe specific areas of local law applicable to the
resolution of entirely local disputes. By way of contrast, private international
law (or conflict of laws) is that body of the local laws of a country that
provides the rules for resolving private disputes connected with at least two
different countries. The subject is therefore unique. It is local in content in
that it is part of local law but it is, simultaneously, oriented towards the
solving of international problems.
Private international law arises from the fact that the world is populated
by a number of separate domestic systems of law that differ significantly
from each other in the rules used to govern various legal relationships between
individuals. Were there to be no difference between the laws of the various
countries there would be virtually no necessity for the subject. Conflict of
laws, then, is a creature of the discrepancy of the law; in this sense it is an
artificiality produced by the inability of the law to speak with one universal
voice.
Unfortunately, this seems not always to be borne in mind by courts
when deciding disputes that affect the way people actually live their daily
lives. At the turn of the twentieth century, an English court held that a
marriage celebrated in England between a young Frenchman and an
Englishwoman was valid and subsisting under English law notwithstanding
that the marriage had earlier been declared null and void by a French court
2 ELEMENTS OF PRIVATE INTERNATIONAL LAW
applying French law. The Frenchman had returned to France and remarried
there after the French decree. Under the English rules prevailing at the
time, his return to France meant that the Englishwoman was unable to
obtain a divorce in England. For that matter neither could she in France,
under whose law the marriage was deemed never to have existed. Nor could
she receive maintenance from the courts of either country for roughly the
same reasons. Her subsequent marriage in England to an Englishman was
deemed by the English court to be bigamous and void.
1
It is not now a question of whether it was the French or English court
that was correct on merits of the substantive dispute; still less of any priority
to be assigned to the judgment of the court first seised of the matter. The
plight of the Englishwoman is a poignant advertisement of a more profound
point, namely, the regard by both courts of the concept of law as an objective
and unchangeable reality. This is itself akin to the consciousness achieved
by the Medes and Persians.
In truth, the law is far from being static. The judicial function is first
and foremost the reconciliation of the societal demands for predictability
and certainty with the requirement of doing justice in individual cases.
These objectives are not mutually antagonistic. Far from necessarily making
bad law, hard cases present an opportunity for the exercise of genuine
judicial decision-making. And by its very nature as a creature of the
cacophony of the worlds legal systems, private international law provides a
premier forum for the undertaking of that exercise.
2
Country
Given that private international law problems arise when a dispute crosses
the boundary separating different countries, it follows that the notion of
country is central to the subject. Country refers to a territory or part of
a territory under a separate sovereign having a distinct legal and judicial
system. It stands in contradistinction to a state that has legal personality
in public international law.
3
Thus, each dependent Caribbean territory is a
country but not, of course, a state. On the other hand, there is often an
overlap between the two notions. Unitary states, where the law is the same
throughout the territory, such as the fifteen members of the Caribbean
Community (CARICOM)
4
are both countries and states at the same
time. Similarly, each independent member of the Organisation of Eastern
Caribbean States (OECS)
5
is a separate state; the organisation has a unified
court system that facilitates harmonisation of conflict rules but member-
states remain separate countries because each is, at least theoretically, subject
to a separate sovereign.
Federal states present particular problems in defining the basic unit of
study for private international law. The state for purposes of public
international law is the federal entity whereas the individual component
parts of the federal entity that administer their own distinct laws are
countries in the private international law sense. Each American state and
each Canadian province is a country, as is each of the territorial components
of the United Kingdom and of Australia. A private international law
requirement in relation to a country is not necessarily fulfilled by satisfaction
of that requirement in relation to the federal state. Belle v Belle
6
involved
the question of whether the Barbados High Court should recognise a divorce
decree of the courts in New York purporting to dissolve a marriage between
two Barbadians. Under the laws of Barbados the divorce could only be
recognised if at least one of the parties had intended to reside indefinitely
in the country where the divorce was granted. Williams CJ rejected as
insufficient evidence of an intention to reside indefinitely in the United
States of America. The requirement was that of indefinite residence in the
country granting the divorce, namely, New York.
7
Exceptionally, the federal state may be regarded as the territorial
jurisdiction for purposes of private international law. Australia is one country
for the purposes of the law of marriage, Canada is one country for the
purposes of the law of divorce, and the United Kingdom is one country for
most purposes of the law of companies. The Federation of Saint Kitts and
Nevis is one jurisdiction for virtually all purposes. Caribbean legislation
may also indicate that the federal system is to be taken to mean the system
of law for conflict purposes in specific cases, normally in the field of family
law and succession.
8
Types of Legal Disputes
There are for all intents and purposes, at least three streams of Caribbean
conflict problems.
First, given that each Commonwealth Caribbean state is by definition
a country, it follows under the traditional Anglo-Caribbean jurisdiction-
selecting approach for identifying the law to govern a conflict case, that a
Caribbean court may be compelled to apply the laws of a sister Caribbean
jurisdiction. This is so even though the substantive laws in the two
jurisdictions are identical. To be contrasted with this country-selecting
approach is the American rule-selecting technique which stresses the choice
between the competing rules (rather than between the countries) and which
leads in turn to a balancing of the respective interest possessed by each
rule in being applied to the case. The great merit of the American approach
is that it avoids false conflicts between the laws of countries where the
respective laws are identical or where, correctly evaluated, only the laws of
one country were intended to apply (have any interest in being applied) to
the case in hand.
But genuine private international law disputes can and do develop
between Caribbean countries, principally as a consequence of law reform
undertaken in one country and not reproduced in the other, or because
local procedural requirements regarding recognition of foreign legal actions
have not been fulfilled. Defoe v Braithwaite
9
is a classic example of the
former. Williams CJ was asked to decide upon rights and obligations under
the union other than marriage concept in circumstances where the
applicant had come to Barbados from the neighbouring island of the
Commonwealth of Dominica. A union other than marriage is a creature
of Barbadian legislation that gives recognition to what in common parlance
is known as a common law marriage, but this important piece of social
engineering had no equivalent under the laws of Dominica. Maycock v
International Seafoods
10
furnishes an example of failure to satisfy the
procedural requirements of the local court. In this case, application for an
order to have a judgment by the High Court of Guyana registered in
Barbados was denied. It was found that the Barbados rules for the possession
of jurisdiction by the Guyana court had not been satisfied.
The courts try not to magnify the differences between the Caribbean
laws. An apparent divergence may be smoothed over often by the court of
ultimate appeal, traditionally the Privy Council, now being replaced by
the Caribbean Court of Justice.
11
The harmonising role played by the Privy
Council in the reluctance to investigate every minute discrepancy was evident
in Motor & General Insurance Company Limited v Gobin.
12
Proceedings
before the Supreme Court and Court of Appeal of Jamaica, assumed that
the Insurance Act in Trinidad and Tobago was to the same effect as the
Companies Act of Jamaica on the issue in dispute. On the hearing before
the Privy Council the plaintiff sought leave to adduce expert evidence as to
the precise provisions of the Trinidad Act. This was refused. Their Lordships
were content to assume that under the relevant law applying to the dispute,
an agreement for the purchase by a company of its own shares was tainted
by illegality. There was no need for present purposes for any greater
specificity.
This reluctance might even extend to the special case of St. Lucia,
which has a mixed system comprising elements of both civil and common
law. In Lascelles de Mercado & Co Ltd of Kingston, Jamaica v Wallace Sanchez
of Castries, Saint Lucia
13
the High Court of St. Lucia brushed aside
suggestions that the Commercial Code of St. Lucia imposed a different law
of subrogation from the common or statutory law prevailing in Jamaica.
Contrary to the allegations of the defendant, under neither system could
the wrongdoer rely upon the rights of subrogation of the insurance company
to limit liability for the wrongdoing.
Secondly, transnational disputes often arise between Caribbean and
North American as well as European countries. These tend to follow
traditional and existing patterns of trade and financial dealings, as well as
the garden-variety family law type disputes. Associates Commercial
Corporation v Central Fire and General Insurance Company Limited,
14
is an
instance where the Jamaica Supreme Court awarded damages in United
States currency to an American corporation as the assignee of two insurance
policies. The defendant Jamaican insurers had underwritten the policies
through an agency in Texas. Owens Bank Ltd., v Etoile Commerciale SA
15
involved a claim in the Commercial Court of Paris by a French finance
house to enforce a written guarantee. Under the guarantee the appellants,
incorporated and carrying on business in St. Vincent and the Grenadines,
had agreed to reimburse the respondents in respect of debts owed to French
customs. It was held that the French judgment for 10 million French francs
in favour of the respondent could be enforced in St. Vincent and the
Grenadines.
In Chrysler (UK) Ltd., v Robinson & Company
16
the appellant company
was registered in England and manufactured and distributed motor vehicles
and parts throughout the world. It entered into an exclusive distributorship
agreement with the respondent under which the respondent was appointed
exclusive distributor of the appellants vehicles in Jamaica and non-exclusive
distributor of the parts for the appellants vehicles. Rejecting a claim for
damages for breach of the distributorship agreement, the Court of Appeal
of Jamaica decided that the agreement had been validly terminated even
though the Power of Attorney under which the termination notice had
been issued had not been recorded in the Record Office of Jamaica.
In Princess Nina Aga Khan
17
the Jamaica Supreme Court expressly
recognised the Swiss decree that a deceased intestate was the legitimate
daughter of the applicant. By virtue of this recognition, the applicant was
entitled to the deceaseds property in Jamaica.
Thirdly, conflict problems can arise between Caribbean and foreign
countries that, from a comparative law standpoint, follow different legal
systems. Such problems are likely to be among the most intractable. In
Callwood v Callwood
18
the respondents allegation that she was entitled to
Great Thatch Island in the British Virgin Islands by virtue of the Danish
regime of community of property was in stark contrast to Anglo-Caribbean
law that knows no such concept. She succeeded before the Supreme Court
of the Windward Islands and Leeward Islands, and before the Federal
Supreme Court of the West Indies but lost on the appellants appeal to the
Privy Council, albeit on a technicality.
The law of contract provides further examples. Under Caribbean
contract law, a contract made through the post is generally complete as
soon as the letter of acceptance is posted.
19
Under Swiss law, on the other
hand, such a contract is only completed when the letter of acceptance is
received. A conflict problem will therefore arise if the letter of acceptance
posted by say, a Trinidad and Tobago businessman in Port of Spain to his
Swiss counterpart in Geneva, is lost in the post. Under Trinidad and Tobago
law the contract would have been concluded whereas Swiss law would view
the agreement as non-existent. Similar problems may arise as a result of
conflicting laws adopted in the differing legal systems in relation to
matrimonial causes, succession, and torts, to name a few.
Connecting factors
It bears emphasising that a conflict problem arises when a dispute has a
legally significant connection with more than one jurisdiction.
20
The
elements linking the dispute to particular countries are known as connecting
factors. The country where the litigation is heard (the forum) is always
legally significant and its law is referred to as the lex fori.
For particular issues the country where a litigant has, for want of more
precise words, his home (domicile), may also be significant. So too the
place where a marriage is celebrated (locus celebrationis), property is located
(situs), an agreement is made (locus contractus) or is to be performed (locus
solutionis), or where a tort is committed (locus delicti). Speaking generally,
the forum uses its private international law rules to select the law (whether
its own or that of a foreign country) that will decide the merits of the
dispute. This law is known as the lex causae.
Connecting factors can raise difficult definitional problems. Domicile,
in particular, has attracted extensive and conflicting judicial interpretation
and is the subject of on-going legislative reform.
21
Sometimes the same
connecting factor is defined differently in the forum as contrasted with
how it is defined in the foreign country whose law, for example, supplies
the lex causae. As a rule, the forums definition prevails. In the English case
of Re Annesley
22
it was clearly stated that the question whether a person is
or is not domiciled in a foreign country was to be determined in accordance
with the requirements of English law as to domicile. This was irrespective
of the question whether the person has or has not acquired a domicile in
the foreign country in the eyes of the law of that country.
23
Chevron International Oil Co. Ltd., v A/S Sea Team (The TS Havprins)
24
applied this rule for the purpose of deciding whether a contract had been
created between the parties. In so doing Staughton J approved the following
passage from Dicey & Morris, referring to all connecting factors:
A fundamental problem in the conflict of laws is whether the connecting factor
should be determined by the lex fori or by the lex causae... it is no longer controversial
among learned writers that the connecting factor should be determined by the lex
fori. Although the reported cases are all concerned with domicile, it may be assumed
that English law has adopted this prevailing opinion, and that, for the purpose of
an English conflict rule, the connecting factor will be determined by English law as
the lex fori.
25
Dicey & Morris assert that the lex fori definition is necessarily required
because the determination of the lex causae depends on the determination
of the connecting factor.
26
This rationale is open to doubt. Legislation
provides significant exceptions thus tending to undermine the notion of
inherent necessity. Statutory rules regarding recognition of divorces and
legal separations frequently compel the forum to recognise a foreign decree
if that decree was granted by a foreign country using its own definition of
domicile, even though by the forums definition, the parties were domiciled
in some other place.
27
Similarly, under legislation governing succession,
the determination of whether or not a testator had his domicile in a particular
place is to be determined by the law of that place.
28
It may therefore be suggested that the forum adopts its own definition
of connecting factors but may provide for exceptions to this rule where it is
thought appropriate to do so.
In addition to differences in definition, countries may actually adopt
different connecting factors to govern the same type of dispute, a scenario
most likely between countries with different legal systems from a comparative
law standpoint. Caribbean law uses the law of the last domicile of the
deceased to decide questions of succession to that persons movable property;
civil law countries generally employ the law of the country of nationality.
Conflict of connecting factors can lead to difficult problems of renvoi and
the incidental question. The matters are considered in detail elsewhere.
29
Private disputes
By private disputes is meant disputes entirely between individuals or
between individuals and the state when the latter acts in its non-
governmental capacity. In general, the subject does not cover public law
litigation in the sense of disputes between individuals and the state where
the latter acts in its governmental capacity or as parens patriae.
Accordingly, this book is not concerned with the jurisdiction of
Caribbean criminal courts to try crimes committed abroad or with such
other topics as extradition, immigration or deportation. Existing conflict
rules prevent Caribbean courts from enforcing public laws of foreign
countries. Litigation between states is governed by public international
law. The relationship between private and public international law is
considered below.
FUNCTIONS OF PRIVATE INTERNATIONAL LAW
Private international law provides the procedural means of resolving
international legal disputes as distinct from providing the substantive
solution to those disputes. The rules are therefore overwhelmingly
procedural in character. Where a conflict problem arises, the functions of
conflict of laws are threefold. These are:
To determine whether the Caribbean court in which the litigation
is raised (the forum) has jurisdiction to hear the case, despite the
international element in the facts;
Assuming that the court has jurisdiction, to determine the law
which it will apply to govern the merits of the dispute (lex causae);
and
To determine the circumstances in which the relevant Caribbean
court will recognise and enforce foreign judgments and foreign
decrees.
The two essential concepts relating to these functions are jurisdiction
and governing law. Governing law is the Cinderella of private international
law and comes up for decision in a decreasing number of cases. The nature
and content of both notions are examined in detail in subsequent chapters
but for the moment it becomes necessary to consider some matters of a
general nature.
Territoriality
The rules of private international law, whether relating to jurisdiction,
choice of law, or foreign judgments and decrees, are said to be local or
territorial in nature. They describe the law followed in the local Caribbean
court and do not at all determine the conflict rules of foreign courts. This
is probably related to the widely accepted maxim that a sovereign is supreme
within his own country but has no authority in the country of a foreign
sovereign. In Companhia de Mocambique v British South Africa Co
30
Lord
Eshmer MR said the following:
With regard, then, to acts done within the territory of a nation, all are agreed that
such nation has without more jurisdiction to determine the resulting rights growing
out of those acts. But, with regard to acts done outside of its territory it has no
jurisdiction to determine the resulting rights growing out of those acts, unless such
jurisdiction has been allowed it by the comity of nations.
However, in some circumstances, the local court may act in such a way
as to prescribe the manner in which a foreign country applies its own laws.
For example, Caribbean courts may issue an injunction restraining a person
from commencing or continuing with foreign proceedings.
31
The injunction
is said to operate on the person to whom it is issued and not upon the
foreign court per se, but the fact of its issuance is evidence of the intention,
frequently successful, of determining the manner in which a foreign court
exercises jurisdiction.
Where a foreign law is to be applied or a foreign judgment or decree is
to be enforced or recognised, there may be threshold requirements that the
foreign law must fulfill. For example, the forum may prescribe the
circumstance in which a foreign court is competent to grant a judgment or
decree in circumstances where the forum is being asked to recognise and
enforce that judgment or decree. Unless the forum is satisfied that the
foreign court had jurisdiction in the international sense it will refuse to
recognise or enforce the judgment of that court, even if the foreign court
has jurisdiction under its own rules.
32
Similarly, rights acquired under a
foreign law will not be recognised in the forum, if, for example, such rights
are deemed to be contrary to local public policy.
33
These considerations may be important from a jurisprudential
viewpoint. Introduction of the international dimension immediately exposes
the vulnerability of the concept of territorial sovereignty. The forum is
inevitably drawn into influencing what goes on abroad, thereby illustrating
that even sovereignty is not beyond the scope of the judicial function in
ensuring practical justice.
Temporality
Another point of general import concerns the temporal nature of private
international law rules. The rules prescribing jurisdictional competence
may vary between the time when the incident occurred or the cause of
action arose, and the date of litigation. So, too, substantive laws governing
the dispute may be modified in the interim. For example, it is well established
that the law of their domicile governs the rights of spouses to matrimonial
property. But the parties may change their domicile between marriage and
divorce. If the same domicile is maintained the substantive law in the
domicile may be modified by legislative intervention.
As a general common law rule, the forum applies the law as it stands at
the time of litigation. The case law has been mainly concerned with changes
in the substantive law applicable to the dispute. In one case, a foreign
marriage was invalid at the date of its celebration because only a religious
ceremony had been conducted whereas a civil ceremony was required.
Subsequently the law was changed to validate all religious marriages that
fulfilled certain conditions. The wife underwent another ceremony of
marriage in England to another man but by this time the foreign marriage
had fulfilled the conditions and the House of Lords held that it had thereby
become retrospectively validated.
34
The English marriage was therefore
null and void. Had the English ceremony preceded the validation of the
foreign marriage the court would have had to consider the more difficult
issue of whether retrospective changes in a foreign law would be applied to
adversely affect individual status acquired under the lex fori, provoking a
likely negative response.
35
A peculiar problem arises where government is party to the conflict
problem. In virtue of its law-making power government can secure changes
in the applicable law to its advantage and thus place in issue considerations
of fairness and propriety in the forums enforcement of such changes.
Nevertheless, the forum has applied the changed law to governments
modification and elimination of its liability in tort
36
and the unilateral
increase of its contractual benefits.
37
Attempts by foreign multinational corporations to eliminate the risk
of unfavourable legislative changes by inserting stabilisation clauses in
their developmental contracts with governments have had only limited
success. Where the forum is the country of the legislating government, the
court must, according to basic constitutional law principles of parliamentary
sovereignty, apply the changed law.
38
A foreign tribunal could apply the
stabilisation clause, and is likely to do so if it deems that part of the contract
is to be governed by public international law.
39
Jurisprudential Basis
An explanation must be offered as to why a Caribbean court, faced with a
transnational case, does not simply refuse to adjudicate upon it. Or, if it
chooses to adjudicate does not simply apply its domestic law but rather, to
the extent it considers appropriate, takes cognisance of foreign law.
Recognition and enforcement of foreign judgments and decrees similarly
require a rationale.
Suggestions that the court acts from notion of comity are to be found
in a number of judgments, ancient and modern, but Caribbean courts
apply foreign law without requiring that the foreign court should apply
Caribbean law in equivalent cases. Application of foreign law has never
been based simply on the desire to show courtesy to the foreign country
and foreign laws have been applied in circumstances of diplomatic and
military hostility with the foreign state.
40
The monist doctrine of regarding
all law as one seamless web could be useful in this regard, but the common
law has seldom if ever based application of foreign law on this ground.
Another idea offered in the cases is that the parties somehow acquire or
enjoy obligations or rights that have become vested under the foreign law.
These vested rights, it has been argued, must be respected in the forum.
This appears difficult to reconcile with the constitutional responsibilities
of Caribbean courts to enforce local law and rights cognizable in local law.
The extent to which such conflict rules allow the intrusion of rights and
obligations created in foreign countries is ultimately regulated and indeed
validated by the constitution.
It must therefore be closer to the mark to suggest that the local court
really adapts local law to give a remedy that follows as close as possible the
remedy available for a foreign cause of action. But whilst this local law
theory is probably true
41
it does not explain why the court seeks to do this.
Perhaps the most elegant explanation is the simplest. Morris suggests
that foreign law is applied in order to do justice between the parties.
42
Machado v Fontes
43
illustrates the injustice that may result from a xenophobic
disregard for the provisions of relevant foreign law. The English Court of
Appeal upheld an action for libel in respect of allegations written in
Portuguese and published in Brazil, although no civil liability existed under
Brazilian law. Damages were assessed for the plaintiff by reference solely to
English law.
Condemnation of this decision has been virtually universal. At the
same time the notion of justice does not sit comfortably with many decisions
based upon the bare technicality of the rules without regard to the real
social and economic circumstances.
44
SOURCES
Constitution
Caribbean private international law derives from the same hierarchy of
sources as other branches of local law. The Constitution provides the
fundamental law of Caribbean states and whilst containing no express
provisions on the subject, is relevant in both general and specific terms.
Under the supreme law clause the Constitution is declared to be the supreme
law of the land, if any other law is inconsistent with this Constitution,
this Constitution shall prevail and the other law shall, to the extent of the
inconsistency, be void.
45
This reference to any law necessarily includes
the common law and statutory rules of private international law.
Many potential constitutional constraints on transnational law may
be identified. The Constitution establishes a Supreme Court in each
jurisdiction as a superior court of resort,
46
and a Court of Appeal,
47
and
provides freedom of access to these courts for the adjudication of civil
disputes.
48
Parties may be free to stipulate arbitration as the means of
resolving any dispute, but to go further and attempt to place litigation
beyond the reach of the courts is probably inconsistent with the
constitution.
49
Constitutional obligations to grant access to the courts may
also have a determinative effect upon questions of the exercise by local
courts of jurisdiction over foreign litigation
50
as well as the recognition of
foreign judgments and decrees.
51
Constitutional considerations have also
determined local adjudication of international litigation; for instance
government might be held to be restricted in international commercial
contracting from fettering the law-making powers of parliament.
52
Sovereign immunity, as an adjunct of constitutional sovereignty, also
has applicability in the present context. Under the classical doctrine of
sovereign immunity, a sovereign state could not be forced, as a defendant
to recognise the jurisdiction of a foreign court. Modern law acknowledges
the restrictive doctrine of immunity whereby states retain immunity from
suits for governmental acts, that is, acts performed in exercise of sovereign
authority, acta jure imperii, but give up that immunity in respect of acts of
a commercial nature, acta jure gestionis.
53
Specific constitutional powers
granted to the territorial sovereign in respect of civil rights and
responsibilities have been held not to be applicable to foreign sovereigns.
54
Legislation
Legislation is becoming an increasingly important source of private
international law. Statutory reform of the law of domicile
55
is particularly
popular. There have also been legislative attempts to facilitate the reciprocal
enforcement of Commonwealth judgments as well as judgments by such
other foreign states as are prepared to offer reciprocal enforcement.
56
Legislation has been enacted to provide for the assistance of the forum in
the garnering of evidence found locally for use in its foreign proceedings.
57
Statutory provisions unique to the Caribbean exist in relation to
transnational causes of action in mass torts.
58
There are, however, unresolved questions concerning whether particular
pieces of legislation were intended to govern conflict of laws cases. In this
way decisions concerning the dimension of space over which the legislation
extends is increasingly problematic. Changes in the legislation can also
lead to problems in the temporal dimension of the law of the type met
earlier.
Common Law
In most respects the subject is dominated by the common law. The
piecemeal nature of legislative intervention in the Caribbean has, unlike
the situation in some other jurisdictions, left large areas of commercial and
family law relatively untouched.
59
Even where the Legislature has
intervened, the trend has been for the legislation to explicitly adopt or
clearly draw upon common law concepts.
60
Commonwealth precedents
enjoy very high persuasive value. In this regard, the continued retention of
the Judicial Committee of the Privy Council as the final appellate court for
most of the Commonwealth Caribbean countries
61
consolidates the pre-
eminence of English decisions.
Given that its decisions are binding on jurisdictions from which the
appeal arises and, probably, all territories it serves, the Privy Council also
serves as a means of harmonising conflict rules; a role not altogether
dissimilar to that performed by a final supreme court in a federation.
62
The
Caribbean Court of Justice (CCJ),
63
which will eventually replace the Privy
Council for all Commonwealth Caribbean countries, is likely to perform a
similar harmonising function.
TRADITION OF PRIVATE INTERNATIONAL LAW
The English Influence
The General Position
There is an umbilical connection between the early development of private
international law in the Caribbean and the status of Caribbean countries
as appendages to the Crown of England. Consequent upon settlement or
conquest in the seventeenth century,
64
English law was generally
incorporated to constitute the substratum of the colonies legal systems.
65
The earliest accounts of transnational decisions debated the extent to which
English law should govern Caribbean suits.
For example, in the 1839 case of Stulz v Wallace
66
the Supreme Court
of Jamaica was asked to decide whether the English Statute of Limitations
had the effect of barring, in Jamaica, an action in respect of a contract
made and executed in London. The Court found that the settlers had
brought with them all such laws of England as would be necessary to their
new condition, which laws would confer on them the same rights and
attach to them the same liabilities, as if they had remained in the mother
country. Amongst the laws thus conferred upon the inhabitants of the
Island were the Statutes of Limitation of James and Anne. It would therefore
be a strange anomaly to hold that the plaintiff s remedy, clearly barred in
the mother country by reason of the application of those statutes, shall be
revived and kept alive for ever here if the defendant happens to come this
Island.
Caribbean conflict rules have now achieved a measure of maturity but
traces of the old approach remain compliments, not least, of current
Caribbean legislation incorporating and making English law applicable.
Thus in Mills v Mills
67
the Chief Justice of The Bahamas came to the
following startling conclusion. The Bahamian Legislature had deliberately
set forth a policy of adopting referentially legislative changes in private
international law rules brought about by the English Parliament. The judge
admitted to feelings of Alice in Wonderland in coming to that decision.
In several instances, English law from time to time in force in England,
forms part of Caribbean law.
68
Whether English conflict rules themselves may be considered
incorporated wholesale is more problematic. The eighteenth century cases
of Scrimshire v Scrimshire
69
and Robinson v Bland,
70
often credited as marking
the genesis of the development of private international law into a proper
legal discipline, probably post-dated reception in the vast majority of cases.
71
In any event, the tradition of deference to English law has meant that
Caribbean judges have naturally followed, without inhibition, development
of conflict principles in the mother country.
72
The fact that the Privy
Council is geographically English, staffed overwhelmingly by English judges
and adheres to English decisions with a marked degree of consistency,
further suggests continued subjugation of Caribbean to English decisions.
Exceptions
On the other hand, certain caveats may be entered. From the earliest times,
judges have been prepared to draw occasional sharp distinctions from the
transnational rules prevailing in England. Simpson v McCallum,
73
decided
a mere 30 years after the landmark decision in Stulz v Wallace rejected the
argument that the custom of London governed a foreign attachment order.
Bryan Edwards, CJ said:
We are decidedly of opinion that such custom is of no force in Jamaica, for if the
laws of England are not in force here unless declared to be so by some statutes, or
are re-enacted here, still less can the custom of any place be in force. A foreign
attachment owes its origin to, and must, we think, be governed entirely and
exclusively by our Island Act.
74
In this vein, Caribbean courts have occasionally anticipated the English
judicial mind. It is remarkable that the rule requiring participation by an
episcopally ordained priest or deacon in order to validate a common law
marriage has been associated exclusively with the notorious House of Lords
decision in R. v Millis.
75
A full two years earlier, Samuel v Hare,
76
decided
by the Supreme Court of Jamaica, had clearly ruled that the intervention
of a priest in holy orders was necessary for the validity of the marriage.
Similarly, the Trinidad and Tobago Supreme Court decided in Henry v
Henry,
77
that a party to a potentially polygamous union was not entitled to
remedies, adjudication, or relief of its matrimonial laws. This decision was
given a full two years before a similar ruling was made in the English
decision of Sowa v Sowa.
78
Secondly, some conflict doctrines appear to have been developed in
England for exclusive application by English courts. The quintessential
example is the doctrine of double or total renvoi. A well-known weakness of
the doctrine is that it does not travel well. Application may have been
intended to be uniquely English because it becomes entirely unworkable if
adopted by another legal system in any dealings with English conflict
rules. The same may be said about its adoption by Caribbean courts inter
se. As Dicey & Morris put it:
the effect of applying the doctrine of total renvoi is to make the decision turn on
whether the foreign court rejects the renvoi doctrine or adopts a theory of single or
partial renvoi. But if the foreign court also adopts the doctrine of total renvoi, then
logically no solution is possible at all unless either the English or the foreign court
abandons its theory, for otherwise a perpetual circulus inextricabilis would be
constituted.
79
Finally, the modern phenomenon of the United Kingdoms integration
into the European Union poses serious challenges to continued unwavering
adherence to English case law. For example, England has had to make
legislative changes in the common law rules on enforcement of foreign
judgments in order to conform to the new European arrangements.
80
Radical
changes have been effected in relation to rules on jurisdiction and choice of
law in contract and torts for the same reason. One of the reasons given in
the Australian case of Oceanic Sun Line Special Shipping Co. Inc. v Fay
81
for
rejecting developments in English law on jurisdiction was explained by
Gaudron J in terms of the European influence:
Our legal heritage is the gift of the common law of England, and our legal system
necessarily has much in common with that of England. Where, however,
developments in the common law of England reflect underlying changes which
may not be matched in Australian law or society, care must be exercised in
determining the extent to which changes in the English common law should be
reflected in the common law of this country. [These developments] are readily
understandable when it is borne in mind that England is a member of the European
Community, which is not merely an alliance of similarly minded sovereign nation
states, but a community with it own Parliament, its own laws and its own court.
Indeed, the European court has said that member states have limited their sovereign
rights, albeit within limited fields: van Gend en Loos v Nederlandse Tariefcommissie
[1963] CMLR 105 at 129.
82
Paucity of Private International Law Cases
Although Caribbean judicial decision-making in transnational disputes
may be traced back to antiquity, and has shown some indications of
independent thinking, the truth of the matter is that in terms of volume,
there is no great tradition of private international law litigation. The West
Indian Reports in over 50 volumes have recorded only a handful of relevant
cases. Although there are significantly more unreported judgments
83
the
cumulative presentation of cases does not fulfill the potential for conflict
situations.
Certainly, Caribbean economic, familial, cultural and environmental
characteristics suggest a profusion of situations in which conflict principles
are likely to arise. CARICOM and the OECS consist of several island states
with intensive inter-regional trading relations.
84
The region has a history
of reliance upon international trade in traditional crops such as sugar and
bananas.
85
Tourism is the major foreign exchange earner and several well-
known mishaps involving visitors to Caribbean shores clearly involve private
international law principles.
86
Serious and successful efforts have been made to develop the offshore
financial sector. The Cayman Islands and The Bahamas are well-known
international banking centers and thriving shipping registers and offshore
financial services have been established in Saint Vincent and the Grenadines,
The Bahamas, and Barbados. Transnational Caribbean marriages are
common place
87
and the region is a popular destination for tourist
marriages.
88
The friendliness of the climate had led many non-Caribbean
nationals to purchase property in exclusive residential developments.
Whilst the reasons for the relative dearth of cases are not immediately
obvious, some may be suggested. The volume of reported decisions might
be significantly higher than appears at first sight. Many private international
law cases do not appear under that rubric and instead are indexed under
rather obscure headings, thus placing a premium on research skills. There
is also, for the academic lawyer, the usual irritating phenomenon of a high
incidence of out of court settlements.
89
There may also a scarcity of legal expertise. The Supreme Court of
Jamaica has admitted to ignorance in relation to principles of private
international law.
90
Legal advisers may deliberately, in the interest of their
clients refuse to allege and prove foreign law; in the absence of such
allegation and proof, the presumption is that domestic law applies.
91
Where
judges make an error in the application of private international law they
may be corrected on appeal; however where legal practitioners, ignorant of
the subject, fail to utilise its principles in the interest of their clients, an
issue of liability in tort to clients could possibly arise.
92
Again, potential conflict situations may, in some circumstances, be
localised within one jurisdiction, thus eliminating the transnational
elements. Conflict avoidance may be achieved through the international
banking system as where an international bank opens lines of credit through
its local branch to contracting businessmen in separate countries in respect
of a transnational contract. The conflict issues relating to time, date and
currency of payment and the like are dealt with within the banking system
and do not thereby raise conflict of laws points.
93
The parties themselves
may also attempt avoidance by inserting jurisdictional and choice of law
clauses, which localise a contract within a particular country.
94
Government
may legislate that all transactions of a certain type are to be heard within
the local jurisdiction and that local law must be applied to the dispute.
95
Finally, transnational cases may present alternative dispute resolution
possibilities beyond private international law. In some circumstances, victims
may be entitled and may prefer resort to the diplomatic and legal possibilities
available in public international law.
PRIVATE AND PUBLIC INTERNATIONAL LAW
Private and public international laws represent different legal methodologies
for dealing with transnational disputes. Legal injury or damage to a national
of one state may give rise to an international claim by that state against the
foreign state or other international legal personality legally responsible for
the injury.
96
The claim is on behalf of the injured individual but is legally
vested in the claimant state, hence the notion of inter-state claims.
97
Public international law therefore regulates the conduct of sovereign
states and the settlement of disputes at the international level through
diplomatic negotiation, arbitration or adjudication.
98
By way of contrast,
private international law establishes rules for the governance of private
litigation initiated in municipal courts and controlled by the private parties.
Given the acephalous nature of public international law, private
international law will frequently constitute a more efficient means of
settlement of transnational disputes.
Another important difference relates to their respective sources. Private
international law derives from the constitution, statutes and common law.
It therefore varies from place to place depending upon the precise content
of local law; the subject is, in every country, a legal discipline within the
system of municipal law. Public international law is largely made up of
international conventions, custom and general principles of law to which
nations of the world subscribe
99
and is therefore intended to be
international in its scope and sources of law.
These differences notwithstanding, there is more that unites than
separates the two. Overlap of substantive law probably accounts for the
fact that some topics receive approximately similar treatment in both
subjects; these include nationality,
100
sovereign and diplomatic immunity
from suit,
101
and governmental seizure of private property.
102
Country and State
We have seen the fundamental continuity and frequent identity between
the notions of country and state as the object of study in conflict laws. It
is also the case that recognition of the state in international relations is
often a pre-requisite to application of the laws of that country in a conflicts
case, as was held by the Bahamian courts in Re Tolbert.
103
In that case a
foreign government not recognised by The Bahamas, had, no locus standi
in The Bahamian courts - it cannot institute an action in these courts, the
Bahamian courts will not give effect to any of its acts, and its laws and
decrees will be disregarded.
104
Similarly, a country that fails to satisfy the criteria for statehood as
outlined in the Montevideo Convention on the Rights and Duties of States
1933,
105
but which by definition is a jurisdiction for purposes of private
international law, may, even if not recognised as a state, nonetheless be the
object of concern for public international law. In this regard, witness, for
example, the adoption of the principles of self-determination and
decolonisation by the United Nations.
106
There is also Caribbean public
international regulation of agreements to which non-states are parties.
107
Harmonisation of conflict rules
International conventions are increasingly a source of private international
law used to harmonise conflict rules whether for choice of jurisdiction,
choice of law, or recognition of foreign judgments and decrees.
108
Interpretation of legislation enacted to implement these treaties is
undertaken with a view to ensuring uniformity among state parties to the
conventions. The agreements fall into several categories. First, they may
concern matters of evidence and procedure, as in the case of the Evidence
(Proceedings in Other Jurisdictions) Act 1981 of Barbados,
109
which was
enacted to give effect to the Hague Convention on the Taking of Evidence
Abroad in Civil and Commercial Matters 1970.
110
Many conventions regulate conflict rules in the area of family law. For
example, the Hague Convention on Jurisdiction, Applicable Law and
Recognition of Decrees Relating to Adoptions 1965
111
sets out rules
regarding the states which have jurisdiction to grant or revoke adoptions
and when they must apply the laws of other states. The United Kingdom
became a party to the convention in 1978 and Antigua acceeded to this
membership on May 1, 1985; the Adoption of Children Act of Antigua
and Barbuda
112
contains the relevant provisions. The 1965 Convention is
supplemented by the Convention on Civil Aspects of International Child
Abduction
113
and is implemented in participating Caribbean countries by
the Adoption of Children Act.
114
The Inter-American Convention on
Conflict of laws Concerning the Adoption of Minors
115
establishes the
applicable law that governs capacity to be an adopter, and the relations
between adopter and adoptee including rights of succession, but has not
yet been adopted by any Commonwealth Caribbean state.
Also in this category are several conventions on the status of parties to
a marriage. The Hague Convention on the Recognition of Divorces and
Legal Separations 1970
116
whilst yet to receive ratification by even a single
Caribbean state, has nonetheless profoundly shaped the content of
Caribbean legislation in this area. Many of the Recognition of Divorces
and Legal Separations Acts and similar legislation found throughout the
region contain important provisions in this regard.
117
This might have
been influenced by the lead role of the United Kingdom in developing the
convention; an activity driven by the need to clarify the common law on
the recognition of foreign divorces following the decision of the House of
Lords in Indyka v Indyka.
118
Conventions on matters of succession cover a related area. The
Convention on the Conflict of laws Relating to the Form of Testamentary
Dispositions, done at The Hague in 1961
119
is transformed into local law
by succession statutes.
120
The Agreement has also influenced the shape of
legislation elsewhere in the region, notably in Jamaica,
121
Barbados,
122
and
Trinidad and Tobago.
123
Conventions on the law of obligations include the UN Convention on
Contracts For the International Sale of Goods 1980
124
which represents
the work of UNCITRAL. This agreement supersedes previous Hague
Conventions on the subject, such as the Convention Relating to A Uniform
law on the International Sale of Goods 1964.
125
The UN Convention
establishes rules for formation of the contract and for the rights and
obligations of parties arising under it. The Inter-American Convention on
Personality and Capacity of Juridical Persons in Private International Law
1984
126
sets out the applicable law which governs the operation of
companies. The Hague Convention on the Law Applicable to Trusts and
Their Recognition 1986
127
provides for the determination of the law
applicable to certain aspects of contracts of sale of goods. There are no
Caribbean parties to these conventions.
On the other hand, some agreements on the recognition and
enforcement of judgments in personam have attracted support from the
region. Inspired by UK precedents, provisions for reciprocal enforcement
by registration of judgments of superior courts in the Commonwealth exist
in legislation, virtually in all Caribbean states. The New York Convention
on the Recognition and Enforcement of Foreign Arbitral Awards adopted
by the United Nations Conference on International Commercial Arbitration
has been adopted in some Caribbean countries.
128
The Hague Convention
on the Taking of Evidence Abroad in Civil and Commercial Matters has
been widely adopted.
129
Unification of substantive law
Conventions may unify substantive domestic law thereby reducing
opportunities for conflicting results in transnational cases. This is not an
easy matter given the fundamental differences that distinguish one legal
system from another. Even within the same legal family significant
discrepancies often exist between one local statute and a roughly equivalent
foreign Act, each enacted to deal with peculiar domestic problems.
However, development of trade and travel has ensured harmonisation
in specific areas. The Hague Rules on the Unification of Certain Rules
Relating to Bills of Lading, settled by an International Conference on
Maritime Law held at Brussels in 1922 and 1923,
130
express rules for the
governance, inter alia, of the carriage of goods by sea. These rules were
litigated in the leading Privy Council decision of Vita Foods Inc v Unus
Shipping Co. Ltd.,
131
and are normally given effect in local law by the Carriage
of Goods by Sea Act.
132
The UN Convention on the Carriage of Goods by
Sea 1978
133
is yet to be accepted in the Caribbean.
The rules on the international carriage of persons or goods by aircraft
for reward have been unified for contracting parties by the 1929 Warsaw
Convention as amended at The Hague in 1955 and as supplemented by
the Guadalajara Convention 1961.
134
In British West Indian Airways, Ltd. v
Bart
135
the Warsaw Convention was applicable to limit the liability of BWIA
in contract and tort for not transferring a winning football pool according
to schedule thus causing the coupon to be disqualified upon arrival in
London. Similarly, rules on substantive obligation towards protection of
the marine environment and civil liability for marine pollution have been
agreed in a number of conventions, notably MARPOL 73/78 and 1992
Civil Liability and Fund Conventions to which several Caribbean states are
parties.
136
There are a number of conventions concerning unification of substantive
law on intellectual property rights. A notable agreement here is the
Convention on the Unification of Certain Points of Substantive Law on
Patents for Invention 1963.
137
Provisions in the CARICOM and OECS
Treaties require that member-states implement obligations under the
conventions relating to trade and other matters. Caribbean participation
in TRIPS may also be an example of unification under conventional
obligations, albeit by indirect processes.
138
Despite the possibilities offered by public international law, in general,
relatively few Caribbean states have accepted treaties on the central questions
in private international law and even fewer have enacted the relevant
legislative provisions to incorporate the treaty into national law. In the
event, therefore, the global movement for the harmonisation of conflict
rules has had little direct impact on Caribbean private international law.
Public international law as a systemof law for private
international law
Public international law issues frequently appear before national courts
and these judicial decisions as well as any relevant legislation may form
rules in public international law whether under the rubric of custom or
general principles of law. In issue here is the converse problem; that is the
extent to which national law adjudication and enforcement institutions
may be used to enforce public international law principles. Were public
international law to be regarded as a system of law that could govern
appropriate transnational cases, the well-known weaknesses inherent in
the lack of strong central governance of international relations and the
related absence of a binding system of adjudication and enforcement of
judgments would be neatly by-passed.
Choice of public international law as the lex causae appears to have
been conceptualised as predicated upon satisfaction of the dualistic
requirements of incorporation and transformation.
139
Many of the recent
cases concern the possible effect of unincorporated treaties establishing
international organisations.
140
There are also instances where the jurisdiction
of the forum was held to be contingent upon ratification by foreign states
of an international convention.
141
Certainly, several decisions in domestic
proceedings as well as by arbitration tribunals have held that aspects of
transnational agreements are governed directly by public international law.
But these are generally in the realm of long term economic development
agreements between governments and foreign private investors and are better
examined in that context.
142
There is one decision by the Privy Council
appearing to apply the international concept of delict to the tort law but
this was not in a conflict of law context.
143
Institutions
Institutions created by treaties or memoranda of understanding can play
an important role in unification and harmonisation of private international
law. At the global level, the best illustration is provided by the European
Union, which has been a major source for unification of conflict of laws
rules among Member States. In addition to the creation of conventional
obligations the EU has also generated directives and regulations containing
private international law provisions, some of which have direct effect within
Member States.
144
For the Caribbean, the Treaties of 1973 (as revised in 2001) and 1981
establishing CARICOM and the OECS, respectively, both anticipated and
required that measures would be taken leading to greater commonality of
rules between the member states especially regarding trade. This is
particularly evident in the provision relating to state undertakings to
implement obligations under the conventions. Article 4 of the OECS Treaty
specifically requires each member state to take all steps to secure the
enactment of such legislation as is necessary to give effect to the Treaty and
decisions taken thereunder. The efficient functioning of the Caribbean Single
Market and Economy (CSME) is likely to make significant requirements
for harmonisation of laws affecting trade. The role of the CCJ and the
OECS Supreme Court in this connection has already been noted.
Other potentially relevant developments exist in the context of the
Organisation of American States (OAS) framework.
145
Whilst the
agreements make clear that they are open to participation by all member
states of the OAS no Commonwealth Caribbean state is at present a party
to any of these conventions. The Commonwealth Secretariat has sought to
facilitate harmonisation of conflict rules action within member states,
especially in the field of recognition of foreign judgments and custody of
children and some Caribbean states have enacted legislation giving effect
to such agreements and understandings. Finally, the Hague Conference on
Private International Law, undoubtedly the most significant international
body in the general field of harmonisation of conflict rules, has no members
from the Commonwealth Caribbean at present although some of the Hague
Conventions have been accepted and implemented by some regional states.
NOTES
1. Ogden v Ogden [1908] P 46.
2. See in this regard the recent Privy Council decision in Wright v Eckhardt Marine
Gmbh (Privy Council Appeal No. 13 of 2002) which examined the substance rather
than the form of the legal question before it in order to decide the true nature of the
issue before it.
3. For a description of the legal criteria for statehood see Ian Brownlie, Principles of
Public International Law, (Clarendon Press, Oxford. 1998) at 70-77.
4. Treaty Establishing the Caribbean Community (CARICOM). Concluded on July 4,
1973 at Chaguaramas, Trinidad and Tobago. Entered into force on August 1, 1973.
Text in Winston Anderson, Caribbean Instruments on International Law (Stone
Publications, 1994), at 243-253. See now Revised Treaty of Chaguaramas Establishing
the Caribbean Community Including the CARICOM Single Market and Economy
( adopted by Heads of Government of the Caribbean Community at their Twenty-
Second Meeting of the Conference in Nassau, The Bahamas, July 5, 2001). The
parties are Antigua and Barbuda, The Bahamas, Barbados, Belize, Dominica, Grenada,
Guyana, Haiti, Jamaica, Montserrat, St. Kitts & Nevis, St. Lucia, St. Vincent and
the Grenadines, Suriname, and Trinidad and Tobago.
5. Treaty Establishing the Organisation of Eastern Caribbean States (OECS). Done at
Basseterre, St. Kitts and Nevis, June 18, 1981. Entered into force on July 2, 1981.
Text in Winston Anderson, Caribbean Instruments on International Law (Stone
Publications, 1994), at 394-409. The parties are Antigua and Barbuda, Dominica,
Grenada, Monsterrat, St. Lucia, St. Kitts and Nevis, St. Vincent and the Grenadines.
6. Unreported, Supreme Court, Barbados (Family Division) No. 345 of 1986, dated
March 20, 1987.
7. See further: Winston Anderson, Conflict of Laws Points Arising from Belle v Belle
(1991) CLB 1079 at 1081.
8. See e.g., Recognition of Divorces and Legal Separations Act (cap. 370), (Antigua and
Barbuda), sect. 6 (1) (b); Family Law Act 1981 (cap. 214), (Barbados), sect. 79 (2);
Matrimonial Causes Act 1989, (2/1989), (Jamaica), sect. 24 (1) (a); Recognition of
Divorces and Legal Separations Act 1983, (Act No. 19 of 1983), (cap. 178), St.
Vincent and the Grenadines, sect. 4 (1) (b); Matrimonial Proceedings and Property
Act (Chap. 45:51), (Trinidad and Tobago), sect. 62B (1). Succession Act 1975 (cap.
249), (Barbados), sect. 86 (3).
9. Unreported, High Court, Barbados, No. 30 of 1987, dated October 14, 1988. See
also Hutson v Poleon, Unreported, High Court, Barbados, No. 93 of 1982, dated
February 16, 1983.
10. Unreported, High Court, Barbados, No. 355 of 1982, dated January 19, 1984.
11. The Agreement Establishing the Caribbean Court of Justice, done on February 14,
2001, at Bridgetown, Barbados. Entered into force on July 23, 2002 when Guyana
joined St. Lucia and Barbados in depositing its instrument of ratification.
12. (1986) 23 JLR 496.
13. Unreported, Judgment, In the West Indies Associated States Supreme Court - High
Court of St. Lucia, No. 41/62, dated December 16, 1968. Appeal dismissed and
varied on points not affecting the comparative or private international law issues:
Wallace Sanchez of Castries, Saint Lucia v Lascelles de Mercado & Co Ltd of Kingston,
Jamaica, Unreported Judgment, In the West Indies Associated States - Court of
Appeal of St. Lucia, Civil Appeal No. 1 of 1969, dated March 26, 1969.
14. (1989) 26 JLR 316.
15. Court of Appeal of St. Vincent and the Grenadines, No. 7 of 1991. Dated April 6,
1992; April 5, 1993. See also [1995] WLR 44 PC.
16. (1977) 15 JLR 105.
17. (1972) 19 WIR 102.
18. [1960] AC 659.
19. Adams v Lindsell (1818) 1 B & Ald. 681; Brinkibon Ltd., v Stahl [1983] 2 AC 34.
20. The connections must be legally significant because the mere fact that a dispute has
some slight connection with a foreign country may not be sufficient to bring it within
the realms of private international law. See e.g. Coney Island Caribbean Amusements
Incorporated v Good Times Shows Incorporated, Unreported, Supreme Court, Barbados,
No. 202 of 1984, dated March 20, 1984 (Williams CJ (acting)).
21. See infra, Chap. 2.
22. [1926] ChD 692. See also Re Martin [1900] P 211.
23. Ibid, at 705.
24. [1983] 2 Lloyds Law Reports 356.
25. Ibid., at 358. See also, Oceanic Sun Line Special Shipping Co. Inc. v Fay, (1988) 79
ALR 9 at 29 per Brennan J:
The question whether a contract has been made depends on whether there has
been a consensus ad idem and the terms of the contract, if made, are the subject
of that consensus. At all events, those are the issues which an Australian court
necessarily addresses when it seeks to determine the existence of what the municipal
law of this country classifies as a contract. Classification is, of course, a matter for
the law of the forum. In deciding whether a contract has been made, the court has
regard to all the circumstances of the case including any foreign system of law
which the parties have incorporated into their communications, but it refers to
the municipal law to determine whether, in those circumstances, the parties
reached a consensus ad idem and what the consensus was: cf Mackender v Feldia
AG [1967] 2 QB 590, per Diplock LJ at 602-3.
26. Ibid.
27. Recognition of Divorces and Legal Separations Act (cap. 370), (Antigua and Barbuda),
s. 6 (1) (2); Family Law Act 1981 (cap. 214), (Barbados), s. 79 (2); Matrimonial
Causes Act 1989, (2/1989), Jamaica, s. 24 (1) (c); Recognition of Divorces and Legal
Separations Act 1983, Act No. 19 of 1983 (cap. 178), St. Vincent and the Grenadines,
s. 4 (2); Matrimonial Causes Act 1989, (2/1989), Jamaica, s. 24 (1) (c); Recognition
of Divorces and Legal Separations Act 1983, (Act No. 19 of 1983), (cap. 178), St.
Vincent and the Grenadines, s. 4 (1) (b); Matrimonial Proceedings and Property Act
(Chap. 45:51), (Trinidad and Tobago), s. 62B (1).
28. Succession Act 1975 (cap. 249), (Barbados), s. 86 (4).
29. Winston Anderson, Private International Family Law. Forthcoming.
30. [1892] 2 QB 358 at 395.
31. Societe Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871; [1987] 3 All ER
510.
32. Belle v Belle, (1987) 22 Barb.LR 46.
33. National Chemsearch Corp v Davidson (1966) 9 JLR 468.
34. Starkowski v Attorney-General [1954] AC 155; [1953] 2 All ER 1272.
35. Ambrose v Ambrose (1961) 25 DLR (2d) 1, 32 WWR 433.
36. Phillips v Eyre (1870) LR 6 QB 1; 22 L.T. 869.
37. Revere Jamaica Alumina, Ltd. v Attorney General (1977) 15 JLR 114.
38. Ibid. See also Vita Food Products Inc v Unus Shipping Co Ltd [1939] AC 277.
39. Revere Copper v Overseas Private Investment Corporation (OPIC) 56 ILR 258 (1978).
40. See Government of the Republic of Cuba v Attorney-General (No. 2) (1998) Vol. III
OECS Law Reports 573.
41. Dynamit Actien Gesellschaft v Rio Tinto Co. Ltd., [1918] A.C. 260 per Lord Parker
speaking in the context of a contractual dispute between an English company and a
German company during World War I:
Every legal decision of our own courts consists of the application of our own law
to the facts of the case as ascertained by appropriate evidence. One of these facts
may be the state of some foreign law, but it is not the foreign law but our own law
to which effect is given As has often been said private international law is really
a branch of municipal law and obviously there can be no branch of municipal
law in which the general policy of such law can properly be ignored.
42. J.D. McClean, Morris: The Conflict of Laws, (5
th
edn., 2000), at 7.
43. [1897] 2 QB 231.
44. Ogden v Ogden [1908] P 46.
45. See e.g., The Constitution of Barbados, s. 1; Constitution of Guyana (1966), art. 2;
Constitution of Jamaica, s. 2; Constitution of St. Lucia, s. 120; Constitution of
Trinidad and Tobago, s. 2.
46. See e.g., The Constitution of Barbados, s. 85; Constitution of Jamaica, s. 103;
Constitution of Trinidad and Tobago, s. 106.
47. See e.g., The Constitution of Barbados, s. 80; Constitution of Guyana, art. 123;
Constitution of Jamaica, s. 97; Constitution of Trinidad and Tobago, s. 99.
48. See e.g., The Constitution of Barbados, s. 18 (8); Constitution of Jamaica, s. 20 (3);
Constitution of Trinidad and Tobago, s. 4 (b).
49. See e.g., Lawler, Matusky & Skelly, Engineers v The Attorney-General of Barbados,
Unreported, Supreme Court, Barbados, dated September 1, 1982 (Williams CJ),
allowing for judicial review of the procedural as well as the substantive errors of law.
But compare Raymond International v The Government of Jamaica, Unreported,
Supreme Court, Jamaica, October 9, 1975 (Smith CJ), holding that decision of
arbitrator on certain questions was final. See also Citadelle Line S.A. v The Texana,
Unreported, Supreme Court, Jamaica, Suit No. A. 18 of 1976, dated January 26,
1977. Here the foreign arbitration clause was held valid and the Jamaican proceedings
stayed in order to allow the matter to go to arbitration.
50. Winston Anderson, Forum Non Conveniens and the Constitutional Right of Access:
A Commonwealth Caribbean Perspective (1993) Vol. 2 No. 1 Transnatl L & Poly 51
at 58-84.
51. Winston Anderson, Enforcement of Foreign Judgments Founded Upon A cause of
Action Unknown in the Forum (1993) ICLQ 697, at 704.
52. Revere Copper v OPIC 74 ILR 219 (1977); contrast Revere Copper v Overseas Private
Investment Corporation (OPIC) 56 ILR 258 (1978).
53. See The Phillippine Admiral [1977] AC 373 (PC)
54. Re Tolbert, Unreported, Supreme Court, The Bahamas, No. 27 of 1982, dated July
26, 1983.
55. Infra, Chap. 2.
56. See e.g. Family Law Act 1981 (1981-29), (Barbados); Matrimonial Causes Act 1989
(No. 2 of 1989), (Jamaica); Matrimonial Proceedings and Property Act (Chap.
45:51), (Trinidad and Tobago).
57. Infra, Chap. 3.
58. Transnational Causes of Action (Product Liability) Act 1997 (Act No. 16 of 1997),
Dominica.
59. There is, for example, no equivalent of general legislation governing transnational
actions in contract or tort as obtains in England.
60. This is very noticeable in the legislative reform of domicile and of the conditions
governing foreign judgements, both of which are discussed in this book.
61. See e.g. Barbados (Const.) Order in Council, 1966, ss. 49 (2) (e), 87, 88; Jamaica
(Const.) Order in Council, 1962, ss. 49 (4) (b) 110; Constitution of the Republic of
Trinidad and Tobago, 1976, ss. 54 (3) (b). For many years, the lone discordant note
was sounded by the Republic of Guyana which abolished appeals to the Privy
Council in 1973 by the Constitutional (Amd.) Act 1973 (Act No. 19 of 1973).
62. As, for example, the United States Supreme Court, the Supreme Court of Canada, or
the High Court of Australia.
63. The Agreement Establishing the Caribbean Court of Justice, done on February 14,
2001, at Bridgetown, Barbados. Entered into force on July 23, 2002 when Guyana
joined St. Lucia and Barbados in depositing its instrument of ratification.
64. The first English landing took place in Saint Christopher (now equally commonly
known as St. Kitts), in 1623: F.A. Augier, Making of the West Indies, (1960), at 31-32.
65. For the rules on reception of law into commonwealth countries (that is, the law
taken by early settlers from England to colonies overseas); see Campbell v Hall
(1774) 20 St. Tr. 239; Blankard v Galdy (1694) (1893) Vol. 1 Barb. LR 1. See also,
Keith Patchett, Reception of Law in the West Indies, (1972) JLJ 17.
66. Supreme Court Decisions of Jamaica, [1774-1923] (1839) SCD 1874.
67. Supreme Court of The Bahamas, Divorce and Matrimonial Side, No. 200 of 1975;
dated April 23, 1976 (Knowles, CJ).
68. See e.g., The Marriage Act (cap. 237), (Jamaica), sect. 3 (3) applying the English
rules regarding marriage within the prohibited degrees of consanguinity or affinity.
69. (1752) 2 Hag Con 395.
70. (1760) 1 Wm Bl 234, 2 Burr 1077.
71. See Campbell v Hall (1774) 20 St. Tr. 239; Blankard v Galdy (1694), (1893) Vol. 1
Barb. LR 1. See also Keith Patchett, Reception of Law in the West Indies, (1972)
JLJ 17. Guyana may be the exceptional case. Id.
72. A.D. Burgess, Judicial Percedent in the West Indies (1978) 7 Anglo-American L.R.
113, esp. at 126-135. On the other hand, the strict rules of reception have not always
been strictly enforced. See e.g., Simpson v McCallum (1869), SCJB, Vol. 1, p. 88;
[1774-1923] Supreme Court Decisions of Jamaica, 993.
73. Supreme Court Decisions of Jamaica, [1774-1923] (1869) Vol. 1, SCJB 88, 993.
74. Ibid, 993-994.
75. (1844) 10 Cl & Fin 534.
76. (1842) Supreme Court Decisions of Jamaica, [1774-1923] Vol 2, p. 1378.
77. (1959) 3 WIR 149.
78. [1961] P. 70.
79. The Conflict of Laws (11th edn., 1987), at 88. See also Winston Anderson, Double
Renvoi and the Circulus Inextricabilis in Kodilinye & Menon, Commonwealth
Caribbean Legal Studies (Butterworths on behalf of the University of the West Indies,
1992), 313 at 313-317.
80. The most important example being the Civil Jurisdiction and Judgments Act 1982
(11 Statutes 90) enacted to effectuate the provisions under the EEC Convention on
Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters
1978.
81. (1988) 79 ALR 9.
82. Ibid at 56-57.
83. Winston Anderson, Caribbean Materials on Private International Law. Forthcoming.
84. Encouragement of regional trade is the primary reason for the creation of these
regional economic blocs. The Caribbean Court of Justice has original jurisdiction
over interpretation of the treaty, thus facilitating more effective implementation
leading to greater regional trade.
85. See generally, Norman P. Girvan & David A. Simmons, (eds.), Caribbean Ecology and
Economics, (Caribbean Conservation Association, 1991). It should be noted that the
most important recent developments in the banana industry relate to aspects of
public international law and fact that preferential Caribbean trade in bananas to
Europe was found to be in breach of WTO rules: GATT Panel Decision on Caribbean
Bananas, Vol. 34 ILM 160 (1995).
86. The following incidents all have been reported extensively in the Press and some have
gone through the judicial process and are discussed elsewhere in this book: the shark
attack on american tourists in The Bahamas (2001); death of passenger during a Jolly
Roger sea cruise in Barbados territorial waters (1998); the fatal crash of Cardinal
Airlines in Dominica (1998); and the crash Bajan Helicopters Tours during aerial
tour of island killing tourists and the local pilot (circa 1994).
87. The popular Barbadian calypso All dem wives, No Bajan describes the situation where
prominent Barbadian men in public life have chosen to marry women of other
(mainly Caribbean) nationality.
88. See e.g., Kinneally v Zazula, High Court of Barbados, No. 380 of 1973, dated
February 14, 1975. There have been recent newspaper reports of European ladies
marrying Barbadian men to get citizenship and then getting in their former foreign
partners.
89. One of the largest conflict case in modern history would undoubtedly have been
Delgado v Shell Oil (1995) (DBCP) litigation involving some 26,000 plaintiffs
world-wide and hundreds in the Caribbean. Action had commenced in Caribbean
courts in St. Lucia, Dominica and St. Vincent and the Grenadines but were ultimately
settled out of court: Winston Anderson, Forum Non Conveniens Strikes Again:
American Court Closes its Door to Eastern Caribbean Litigants (1998) Vol. 23 No.
3, JECS, 77 at 87.
90. Re Estate of Princess Nina Aga Khan (1972) 19 WIR 102 at 110:
I believe to arrive at a satisfactory conclusion on the facts with the help of the law,
will require a feat of mental gymnastics. Some judges are not very sure about this
doctrine of remission and transmission of certain facts to a foreign court when
a case comes up before them with a touch of private international law. I may be
one of them. To ask a judge to worship at the shrine of renvoi may be as tricky an
invitation as when Socrates was asked by a friend to worship at the temple of the
sea-god. (per Parnell J.).
91. Infra, Chap 3.
92. Hedley Bryne & Co. v Heller & Partners Ltd. [1964] AC 465; Rondel v Worsley [1969]
1 AC 191; Saif Ali v Sydney Mitchell & Co [1980] AC 198. In the latter, the immunity
of barristers was held not to extend to a barristers negligent advice and settling of
pleadings which prevented a case coming to court. Lord Diplock expressed regret
that no argument was presented that Rondel v Worsley was wrong. In his view the ratio
of that case was that the barristers immunity covered his conduct and management
of a cause in court and the preliminary work connected therewith such as the drawing of
pleadings. Lord Diplock felt that in the face of the trend to hold persons liable for
negligence in the performance of their professional duties, that it would be hard to
justify an uncritical acceptance of this ratio. He understood the special characteristic
of a barristers work on which most stress had been laid in Rondel v Worsley, namely
that that barrister owed a duty not only to his client but also to the court. When that
duty was exercised in the court room there might not be opportunity for calm
reflection as the trial inexorably proceeded. But this argument loses much of its
cogency when the scene of the exercise of the barristers judgment as to where the
balance lies between these duties is shifted from the hurly-burly of the trial to the
relative tranquility of the barristers chambers.
93. See National Commercial Bank Jamaica Ltd., v Guyana Refrigerators Ltd. (1998) 53
WIR 229; Guyana Refrigerators Ltd v National Commercial Bank Jamaica Ltd., (1995)
51 WIR 186.
94. Cf. Bank of Montreal v Weston, Unreported Judgment of High Court of Barbados, No.
203 of 1981, September 1, 1982.
95. See e.g., Insurance Act 1996 (1996-32), (Barbados) s. 165; Insurance Act 1971 (8 of
1971), (1973 Rev) (Jamaica), s. 96; Insurance Act 1980 (No. 6 of 1980), (Chap.
84:01), (Trinidad and Tobago) s. 195. See also, Unfair Contract Terms Act 1985 (Act
No. 28 of 1985) of Trinidad and Tobago, s. 5-10, 17.
96. See generally, D.J. Harris, Cases and Materials on International Law (5th edn. 1998),
Chap 8.
97. Rustomjee v The Queen (1876) 1 QBD 487, esp. at 497; DJ Harris, Cases and Materials
on International Law (5th edn. 1998), at 522.
98. See Ian Brownlie, Principles of Public International Law, (Clarendon Press, Oxford.
1998) at 70-77.
99. Article 38 (1) of the Statute of the International Court of Justice (text in D.J. Harris,
Cases and Materials on International Law (5th edn. 1998), at 1075 is traditionally
accepted as containing a list of the sources of public international law.
100. Infra, Chap 2.
101. See generally, Ian Brownlie, Principles of Public International Law, (5th edn., 1998),
Chap XVI.
102. Infra, Chap 7.
103. Unreported, Supreme Court, The Bahamas, dated July 26, 1983. (Blake CJ).
104. Ibid.
105. 137 BFSP 282.
106. United Nations Charter 1945, Chap XI, Art 73. Cf. International Status of Southwest
Africa, ICJ Reports, (1950) ICJ Rep. at 132-133.
107. Such as, for example, the 1981 Agreement Establishing the Organisation of Eastern
Caribbean States, (OECS), Text in Winston Anderson, Caribbean Instruments on
International Law (Stone Publications, 1994), at 394-409, to which Montserrat (a
dependency of the United Kingdom) is a party. Similar problems exist in relation to
the participation by the University of the West Indies (UWI) and the University of
Guyana (UG) in the Agreement Establishing the Council of Legal Education, Text in
Winston Anderson, Caribbean Instruments on International Law (Stone Publications,
1994), at 183-190.
108. Khan-Fruend, General Problems of Private International Law, Rijan, Netherlands,
Sijhodd and Noordhoff, 1976, 1980 at 3-4. The Hague conference alone has produced
well over 30 conventions the majority of which have been concerned with
harmonisation of conflict of laws rules.
109. Cap. 121A. Barbados became a party in 1981 by accession. The Cayman Islands, the
British Virgin Islands and Anguilla are parties by virtue of ratification by the United
Kingdom; that ratification occurred in 1975.
110. (847 UNTS 231; (1977), Cmnd. 6727).
111. UKTS 94 (1978).
112. Chap 9, esp. s. 9.
113. 1980 (19 ILM 1501; 30 ICLQ 556). The parties to which include The Bahamas
(October 1, 1993) and Belize (June 22, 1989).
114. Chap 117 and Chap 135.
115. 24 ILM 460 (1984).
116. (UKTS 123 (1975).
117. See e.g., Cap 370 of Antigua and Barbuda.
118. [1969] 1 AC 33. This decision liberalised the jurisdictional bases for the recognition
of foreign divorces but introduced a great degree of uncertainty into the law by
providing that a foreign divorce could be recognised in England if at least one spouse
had a real and substantial connection with the country where the divorce was
obtained. The decision was widely applied in the Caribbean.
119. (510 UNTS 175).
120. See e.g., Wills Act (Cap 473) of Antigua and Barbuda; Wills Act (Cap 340) of
Grenada.
121. The Wills Act (1973 Rev) of Jamaica.
122. The Succession Act 1975 (Cap 249) of Barbados.
123. The Succession Act 1981 (27/1981) of Trinidad and Tobago.
124. 19 ILM 671 (1980).
125. 3 ILM 864 (1964).
126. 24 ILM 465 (1985).
127. 24 ILM 1575 (1985).
128. See e.g., Arbitration (Foreign Arbitral Awards) Act 1980 (Cap 110A), (Barbados).
129. See e.g., Chap 121A, Laws of Barbados; Evidence (Proceedings in Other Jurisdictions)
Act (Chap. 5:07), (1990 Rev, Dominica); Evidence (Proceedings in Other Jurisdictions)
Act (Cap 156), (Antigua and Barbuda); Evidence (Proceedings in Foreign Tribunals)
Act 1991 (Cmm. 1992), (Guyana); Evidence (Proceedings in Other Jurisdictions)
Act (Cap. 159), (St. Vincent and the Grenadines).
130. See 20 UNTS 155; UKTS 17 (1931).
131. [1939] AC 277; [1939] 1 All ER 513.
132. See e.g., Carriage of Goods by Sea Act 1980 (cap. 307; 27/1980), Barbados; Carriage
of Goods Act (1973 Rev), Jamaica; Carriage of Goods by Sea Act (chap. 50:02),
Trinidad and Tobago.
133. (17 ILM 606; 1978 UNJYB 122).
134. Jamaica (October 30, 1964), Barbados (January 29, 1970), The Bahamas (May 15,
1975), Trinidad and Tobago (May 10, 1983) Grenada (August 15 & 29, 1985) are
parties to several of these agreements.
135. (1966) 11 WIR 378.
136. See Winston Anderson, The Law of Caribbean Marine Pollution, (Kluwer Law
International, 1997).
137. The UK became a party in 1977 but the agreement is yet to be extended to a
Caribbean territory.
138. Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade
in Counterfeit Goods, (1994) 33 ILM81.
139. See Winston Anderson, Treaty Implementation in Caribbean Law and Practice,
(1998) 8 Carib. L.R. 185.
140. Maclaine Watson v Department of Trade [1989] 3 All ER 523; (House of Lords). Arab
Monetary Fund v Hashim (No. 3) [1991] 1 All ER 871 (House of Lords); Westland
Helicopters Ltd. v Arab Organisation for Industrialization [1995] 2 WLR 126.
141. Citadelle Line S.A. v The Texana, Unreported, Supreme Court, Jamaica, Suit No. A.
18 of 1976, dated January 1, 1977.
142. Winston Anderson, Private International Family Law. Forthcoming.
143. Stollmeyer v The Petroleum Co. Ltd., [1918] AC 485 at 496-497.
144. See Cheshire and Norths Private International Law (13th edn., PM North, and JJ
Fawcett, 1999) at 12-13.
145. See Inter-American Convention on Conflict of Laws Concerning the Adoption of
Minors 24 ILM460 (1984); Inter-American Convention on Personality and Capacity
of Juridical Persons in Private International Law: 24 ILM 465 (1984); and the
Convention on Jurisdiction in the International Sphere For the Extraterritorial
Validity of Foreign Judgments: 24 ILM468 (1984).
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