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Private International Law: Change Or Decay?*

  • Peter North (a1)

Extract

The aim of this article is to survey the private international law scene in a number of regards, tracing developments in this country over recent decades, offering some thoughts on how such changes have come about and on their impact, concluding with an element of crystal gazing for the future. The turn of the century, to say nothing of the millennium, is as good a time as any to reflect on these developments. How then has the subject changed since the end of the nineteenth century? A useful, though unsophisticated, yardstick with which to start is to look at the approaches of the two major English books on the subject and to see how their coverage of different aspects of the subject has changed over the decades.

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1. See Nott, (1984) 33 I.C.L.Q. 437.

2. Private International Law (1935), p.vii.

3. Ibid., pp.lvi–lviii.

4. Cheshire, and North's, Private International Law (13 edn, 1999), pp.xxi–xxvi.

5. Dicey, and Morris, , The Conflict of Laws (6 edn, 1949), pp.lv–lxii.

6. Dicey, and Morris, , The Conflict of Laws (13 edn, 2000), Vol.1, pp.xxiii–lxvi.

7. First Report of the Private International Law Committee (1954), Cmd 9068, p.3.

8. For a brief history, see Graveson, , Cohn, and Graveson, , Uniform Laws on International Sales Act 1967 (1968), pp.13.

9. Fifth Report of the Private International Law Committee (1961), Cmnd 1515, p.4.

10. First Report of the Private International Law Committee (1954), Cmnd 9068; Seventh Report of the Private International Law Committee (1963), Cmnd 1955.

11. See Law Commission Seventh Annual Report 1971–1972, Law Com No. 50 (1972), para. 54.

12. Private International Law: The Law of Domicile, Law Com No. 168 (1987).

13. See below, pp.483.

14. First Report of the Private International Law Committee (1954), Cmnd 9068, pp.9–10; Seventh Report of the Private International Law Committee (1963), Cmnd 1955, pp.12–20.

15. Fourth Report of the Private International Law Committee (1968), Cmnd 491.

16. Morris, (1964) 13 I.C.L.Q. 684, at p.685.

17. Sixth Report of the Private International Law Committee (1962), Cmnd 1648.

18. Ibid., at pp.7–19.

19. See below, pp.482, 485–496.

20. First Programme of the Law Commission, Law Com No. 1 (1965).

21. Second Programme of Law Reform, Law Com No. 14 (1968).

22. Report on Polygamous Marriages, Law Com No. 42 (1971).

23. Report on Jurisdiction in Matrimonial Causes, Law Com No. 48 (1972).

24. Report on Financial Relief After Foreign Divorce, Law Com No. 117 (1982).

25. Report on Declarations in Family Matters, Law Com No. 132 (1984).

26. Report on Hague Convention on Recognition of Divorces and Legal Separations, Law Com No. 34 (1970).

27. Though the Law Commission had earlier been asked to advise on the negotiations which led up to the conclusion of the Convention; see below, p.490.

28. Report on Custody of Children—Jurisdiction and Enforcement within the United Kingdom, Law Com No. 138 (1985).

29. Report on Recognition of Foreign Nullity Decrees and Related Matters, Law Com No. 137 (1984).

30. Report on Capacity to Contract a Polygamous Marriage and Related Issues, Law Com No. 146 (1985).

31. Report on Choice of Law Rules in Marriage, Law Com No. 165 (1987).

32. Item XXI: Private International Law; see Third Programme of Law Reform, Law Com No. 54 (1973).

33. See below, pp.483–484.

34. See the Recognition of Divorces and Legal Separations Act 1971 (now the Family Law Act 1986, Part II); Matrimonial Proceedings (Polygamous Marriages) Act 1972 (now the Matrimonial Causes Act 1973); Domicile and Matrimonial Proceedings Act 1973; Matrimonial and Family Proceedings Act 1984, Part III; Family Law Act 1986, Parts I, II and III; Private International Law (Miscellaneous Provisions) Act 1995, Part II. Although the Report on Choice of Law Rules in Marriage recommended leaving most future development to judicial activity, such minor legislative changes as were proposed were implemented in the Foreign Marriage (Amendment) Act 1988.

35. Report on Council of Europe Conventions on Foreign Money Liabilities (1967) and on the Place of Payment of Money Liabilities, Law Com No. 109 (1981).

36. Report on Foreign Money Liabilities, Law Com No. 124 (1983).

37. Private International Law (Miscellaneous Provisions) Act 1995, Part 1.

38. Report on the Choice of Law Rules in the Draft Non-Life Insurance Services Directive by a Joint Working Group of the Law Commission and the Scottish Law Commission, 11 April 1979.

39. Twenty-First Report of the Law Reform Committee (1977), Cmnd 6923, paras 2.93 and 2.96.

40. Report on Classification of Limitation in Private International Law, Law Com No. 114 (1982).

41. Foreign Limitation Periods Act 1984.

42. Law Com No. 54 (1973), p.1. This was repeated, in identical terms, as Item 7 of the Law Commission's Fourth Programme; see Law Com No. 185 (1989), p.5.

43. See above, pp.480–481.

44. Report on Private International Law: The Law of Domicile, Law Com No. 168 (1987).

45. See Law Commission Thirtieth Annual Report 1995, Law Com No. 239 (1996), p.10, n.24.

46. See above, p.479.

47. Law Com No. 193 (1990).

48. See below, pp.486–487.

49. Thirtieth Annual Report 1995, Law Com No. 239 (1996), para. 1.15.

50. Ibid., p.10, n.24.

51. Law Commission Sixth Programme of Law Reform, Law Com No. 234 (1995), p.17.

52. Law Com No. 259 (1999).

53. Law Com No. 165 (1987).

54. See, e.g., the views outlined in Cheshire, and North's, Private International Law (13th edn, 1999), p.616.

55. There was, in addition to the matters discussed more fully here, a very wide range of EEC legislation—proposed or concluded—on which for a time the advice of the Law Commission was sought. Some had private international law implications, others not so. This work included advice in the following areas:

(i) Commercial agents: see Law Commission Ninth Annual Report 1973–1974, Law Com No 64 (1974), para. 38; Tenth Annual Report 1974–1975, Law Com No. 71 (1975), para. 46. This work culminated in the Report on the Proposed EEC Directive on the Law Relating to Commercial Agents, Law Com No. 84 (1977); and see also Fourteenth Annual Report 1978–1979, Law Com No. 97 (1980), para. 2.58(b); Seventeenth Annual Report 1981–1982, Law Com No. 119 (1983), para. 2.104; Eighteenth Annual Report 1982–1983, Law Com No. 131 (1984), para. 2.95.

(ii) Misleading and Unfair Advertising: see Twelfth Annual Report 1976–1977, Law Com No. 85 (1977), para. 6(3).

(iii) Standard Terms in Consumer Contracts: see Twelfth Annual Report 1976–1977, Law Com No. 85 (1977), para. 6(4). (iv) Conflict of Laws on Employment Relationships within the EEC: see Twelfth Annual Report 1976–1977, Law Com No. 85 (1977), para. 40.

(v) Harmonisation of Insurance Contract Law: see Thirteenth Annual Report 1977–1978, Law Com No. 92 (1978), para. 1.5(i)(b); Fourteenth Annual Report 1978–1979, Law Com No. 97 (1980), para. 1.2; Fifteenth Annual Report 1979–1980, Law Com No. 107 (1981), paras 1.1(i), 2.2.

(vi) Provision of Insurance Services: see Thirteenth Annual Report 1977–1978, Law Com No. 92 (1978), para. 1.5(i)(c).

(vii) Guarantees and Indemnities: see Thirteenth Annual Report 1977–1978, Law Com No. 92 (1978), para. 1.5(i)(d); Fourteenth Annual Report 1978–1979, Law Com No. 97 (1980), para. 2.58(c); Fifteenth Annual Report 1979–1980, Law Com No. 107 (1981), para. 2.57(i).

(viii) Contracts Negotiated away from Business Premises: see Thirteenth Annual Report 1977–1978, Law Com No. 92 (1978), para. 1.5(i)(e).

(ix) Products Liability: see Fourteenth Annual Report 1978–1979, Law Com No. 97 (1980), para. 2.58(a).

(x) Winding Up of Direct Insurance Undertakings: see Fifteenth Annual Report 1979–1980, Law Com No. 107 (1981), para. 2.57(ii).

(xi) Bankruptcy, Winding Up Arrangements, Compositions and Similar Proceedings: see Sixteenth Annual Report 1980–1981, Law Com No. 113 (1982), para. 2.101.

(xii) European Economic Interest Grouping: see Nineteenth Annual Report 1983–1984, Law Com No. 140 (1985), para. 2.88(ii).

56. Law Com No. 58 (1973), para. 53.

57. See Law Commission Sixteenth Annual Report 1980–1981, Law Com No. 113 (1982), para. 2.67.

58. Art. 22.

59. Arts 7(1), 10(1)(e).

60. As well as the United Kingdom, three other States which negotiated the Rome Convention (Germany, Ireland and Luxembourg) entered similar reservations. The United Kingdom also entered a reservation in relation to Art. 10(1)(e).

61. There is a range of very detailed legislation emanating from Brussels in the contract field which contains private international law rules or impacts thereon. See, e.g., Dicey, and Morris, , Conflict of Laws (13th edn, 2000), paras 33038—33–043 (unfair terms in consumer contracts), para. 33–072 (employment contracts), paras 33–118—33–121, 33–138—33–196 (insurance contracts), 33–233—33–236 (timeshares), and 33–405—33–413 (commercial agents).

62. See Law Commission Twelfth Annual Report 1976–1977, Law Com No. 85 (1977), para. 39; Thirteenth Annual Report 1977–1978, Law Com No. 92 (1978), para. 2.37.

63. See Law Commission Report on Choice of Law in Tort and Delict, Law Com No. 193 (1990). The original initiative for the involvement of the Law Commission in such work is much earlier; see Law Commission Fourth Annual Report 1968–1969, Law Com No. 27 (1969), para. 67.

64. See Council Resolution of 14 Oct. 1996, (1996) OJ C 319, p.1.

65. In fact, the Regulation was adopted on 22 Dec. 2000; see OJ 2001, L 12, 16 Jan. 2001.

66. It is to come into force on 1 March 2002, see Art. 76.

67. Law Commission Eighth Annual Report 1972–1973, Law Com No. 58 (1973), para. 53; Ninth Annual Report 1973–1974, Law Com No. 64 (1974), para. 34; Tenth Annual Report 1974–1975, Law Com No. 71 (1975), para. 41.

68. OJ 1997, C261; and see Dicey, and Morris, , Conflict of Laws (13th edn, 2000), paras 8043—8–048.

69. Hague Convention on the service abroad of judicial and extra-judicial documents in civil and commercial matters, 1965, Cmnd 3986; see below, p.492, n.90.

70. OJ 1998, C221; and see Kennett, (1999) 48 I.C.L.Q. 467; and the Report of the House of Lords Select Committee on the European Communities on the Convention in draft: Session 1997–1998, 5th Report, HL Paper 19.

71. Council Regulation (EC) No. 1347/2000; OJ 2000, L160/19.

72. Preamble, para. (6).

73. Art. 46.

74. Chapters II and III.

75. See especially Arts 14 and 15.

76. See North, , Essays in Private International Law (1993), pp.236238.

77. Law Commission First Annual Report 1965–1966, Law Com No. 4 (1966), paras 90–91; Second Annual Report 1966–1967, Law Com No. 12 (1967), paras 86–88; Third Annual Report 1967–1968, Law Com No. 15 (1968), paras 56–57; Fourth Annual Report 1968–1969, Law Com No. 27 (1969), paras 53–54.

78. Work on assessing the value of this Convention was first undertaken by the Law Commission in 1972–1973 (see Seventh Annual Report 1971–1972 Law Com No. 50 (1972), para. 58). The Commission concluded that it was acceptable and should be implemented (see Eighth Annual Report 1972–1973), Law Com No. 58 (1973), para. 64). For a while, work proceeded with the preparation of advice on implementing legislation (see Ninth Annual Report 1973–1974, Law Com No. 64 (1974), para. 44; Tenth Annual Report 1974–1975, Law Com No. 71 (1975), para. 51; Eleventh Annual Report 1975–1976, Law Com No. 78 (1976), para. 44). The project then slipped down the list of priorities (see Twelfth Annual Report 1976–1977, Law Com No. 85 (1977), para. 46; Thirteenth Annual Report 1977–1978, Law Com No. 92 (1978), para. 2.40; Fourteenth Annual Report 1978–1979, Law Com No. 97 (1978), para. 2.47). Then, in the light of the fact that only two countries (Portugal and Czechoslovakia) had ratified the Convention, the decision was taken to suspend further work (Fifteenth Annual Report 1979–1980, Law Com No. 107 (1981), para. 2.45). Work on the project was then effectively abandoned (Seventeenth Annual Report 1981–1982, Law Com No. 119 (1983), paras 2.81–2.82).

79. The Law Commission sought to have this topic considered by the Hague Conference (Eighth Annual Report 1972–1973, Law Com No. 58 (1973), para. 49; Ninth Annual Report 1973–1974, Law Com No. 64 (1974), para. 35); provided advice during the negotiations (Tenth Annual Report 1974–1975, Law Com No. 71 (1975), para. 42; Eleventh Annual Report 1975–1976, Law Com No. 58 (1977), para. 35); but ultimately it was decided that the United Kingdom should not sign or ratify the Convention which was eventually concluded (Seventeenth Annual Report 1981–1982, Law Com No. 119 (1983), para. 2.80).

80. The Law Commission provided advice during the negotiation of this Convention (Ninth Annual Report 1973–1974, Law Com No. 64 (1974), para. 36; Tenth Annual Report 1974–975 Law Com No. 71 (1975), para. 43; Eleventh Annual Report 1975–1976, Law Com No. 78 (1977), para. 36).

81. The Law Commission provided advice during the negotiation of this Convention (Tenth Annual Report 1974–1975, Law Com No. 71 (1975), para. 44; Eleventh Annual Report 1975–1976, Law Com No. 78 (1977), para. 37).

82. The Law Commission provided advice during the negotiation of this Convention (Fourteenth Annual Report 1978–1979, Law Com No. 97 (1980), para. 2.29; Fifteenth Annual Report 1979–1980, Law Com No. 107 (1981), para. 2.27). The work that the Commission did on intra-U.K. conflicts in this field took account of the decision to sign and ratify this Convention (Seventeenth Annual Report 1981–1982, Law Com No. 119 (1983), para. 2.42; Eighteenth Annual Report 1982–1983, Law Com No. 131 (1984), para. 2.33; Custody of Children—Jurisdiction and Enforcement Within the United Kingdom, Law Com No. 138 (1984), para. 1.18).

83. The Law Commission provided advice during the negotiation of this Convention (Fourteenth Annual Report 1978–1979, Law Com No. 97 (1980), para. 2.58(d); Seventeenth Annual Report 1981–1982, Law Com No. 119 (1983), para. 2.101).

84. The Law Commission provided advice during the negotiation of this Convention (Sixteenth Annual Report 1980–1981, Law Com No. 113 (1982), para. 2.99; Seventeenth Annual Report 1981–1982, Law Com No. 119 (1983), para. 2.101).

85. The Law Commission provided limited advice (Twenty-Fifth Annual Report 1990, Law Com No. 195 (1991), para. 2.32; Twenty-Seventh Annual Report 1992, Law Com No. 210 (1993), para. 2.48).

86. See now Part II of the Family Law Act 1986.

87. Implementing the Convention on the Conflicts of Laws Relating to the Form of Testamentary Disposition, 1961; and on which the Private International Law Committee provided advice, above, pp.479–480.

88. Later consolidated in the Adoption Act 1976.

89. Austria and Switzerland.

90. The Hague Convention abolishing the requirement of legalisation for foreign public documents, 1961; see Dicey, and Morris, , Conflict of Laws (13th edn, 2000), para. 8079; the Hague Convention on the service abroad of judicial and extra-judicial documents in civil or commercial matters (1965); see Dicey and Morris, op cit, paras 8–40—8–042; and see North, , Essays in Private International Law (1993), p.246.

91. The Private International Law Committee, in fact, recommended acceptance of one of these, namely the Convention on conflicts between the law of nationality and the law of domicile (1955); see First Report of the Private International Law Committee (1954), Cmd 9068. The Law Commission provided advice in relation to those on the validity and recognition of marriages, on the law applicable to matrimonial property, on the law applicable to agency, and on the law applicable to contracts for the international sale of goods; see above, pp.483, 490–491.

92. Both of these are ones on which advice was provided by the Law Commission, i.e. those on the international administration of estates (see above, p.490) and on international co-operation and protection of children in respect of inter-country adoptions (see above, p.491).

93. It was formally agreed at the Eighteenth Session of the Hague Conference in 1996 to include this topic on the agenda of the Nineteenth Session; see Final Act of the Eighteenth Session, Part B, No. 1.

94. See, for example, the following Reports from Catherine Kessedjian, Deputy Secretary General: International jurisdiction and foreign judgments in civil and commercial matters (Preliminary Document No. 7, April 1997); Synthesis of the work of the Special Commission of June 1997 on international jurisdiction and the effects of foreign judgments in civil and commercial matters (Preliminary Document No. 8, Nov. 1997); Synthesis of the work of the Special Commission of March 1998 on international jurisdiction and the effects of foreign judgments in civil and commercial matters (Preliminary Document No. 9, July 1998); Note on provisional and protective measures in private international law and comparative law (Preliminary Document No. 10, Oct. 1998).

95. See the Preliminary Draft Convention on jurisdiction and foreign judgments in civil and commercial matters, adopted by the Special Commission on 30 Oct. 1999, and the Report thereon by Nygh and Pocar, Enforcement of Judgments (Preliminary Document No. 11, Aug. 2000).

96. North, , Essays in Private International Law (1993), pp.201223.

97. See above, pp.487–488.

98. See above, p.479.

99. Ss. 27–28, Sched 2. The Law Commission had an input into this work; see Sixth Annual Report 1970–1971, Law Com No. 47 (1971), para. 68.

100. See the request by the Lord Chancellor that the Law Commission advise on two draft agency Conventions: Second Annual Report 1966–1967, Law Com No. 12 (1967), para. 35. This advice was provided in 1968 in an unpublished report, the substance of which is not revealed in the Law Commission's Fourth Annual Report 1968–1969, Law Com No. 27 (1969), para. 70; but the Law Commission continued to be involved in discussions on these topics: Sixth Annual Report 1970–1971, Law Com No. 47 (1971), para. 67; Seventh Annual Report 1971–1972 Law Com No. 50 (1972), para. 57; Thirteenth Annual Report 1977–1978, Law Com No. 92 (1978), para. 1.5(iii). Doubts as to the acceptability of the Convention are expressed in the Fourteenth Annual Report 1978–1979, Law Com No. 97 (1980), para. 2.58(e), a view sustained in the Eighteenth Annual Report 1982–1983, Law Com No. 131 (1984), para. 2.96. See also the limited work done on the draft Convention on the Hotelkeeper's Contract: Law Commission Fourteenth Annual Report 1978–1979, Law Com No. 97 (1980), para. 2.58(f).

101. The work of UNCITRAL in developing a Model Law on Electronic Commerce and Uniform Rules on electronic signatures are considered below, p.502.

102. Despite the recommendation of the Departmental Advisory Committee on Arbitration Law, in 1989, that the Model Law should not be adopted; and see Dicey, and Morris, , Conflict of Laws (13th edn, 2000), paras 16.005—16.006.

103. See Law Commission Twelfth Annual Report 1976–1977, Law Com No. 85 (1977), para. 6(5); Thirteenth Annual Report 1977–1978, Law Com No. 92 (1978), p.5; Sixteenth Annual Report 1980–1981, Law Com No. 113 (1982), para. 2.100.

104. See Honnold, , Uniform Law for International Sales (3rd edn, 1999), esp. pp.110.

105. Though the Law Commission has, more recently, provided views on whether the Convention should be implemented in the United Kingdom; see Law Commission Thirty-Second Annual Report 1997, Law Com No. 250 (1998), para. 2.17.

106. Diplomatic and consular immunity are also governed by legislation emanating from international conventions; see, e.g., Diplomatic Privileges Act 1964 (giving effect to the Vienna Convention on Diplomatic Intercourse and Immunities 1961); Consular Relations Act 1968 (giving effect to the Vienna Convention on Consular Relations, 1963); and see also the Consular Conventions Act 1949; the Diplomatic and Consular Premises Act 1987.

107. European Convention on State Immmunity (1972), Cmnd 5081; and see Sinclair, (1973) 22 I.C.L.Q. 254.

108. This is another area where advice was provided by the Law Commission: see Law Commission Thirteenth Annual Report 1977–1978, Law Com No. 92 (1978), paras 1.5(ii)(c), 2.25; Fourteenth Annual Report 1978–1979, Law Com No. 97 (1980), para. 2.29; Fifteenth Annual Report 1979–1980, Law Com No. 107 (1981), para. 2.27; Sixteenth Annual Report 1980–1981, Law Com No. 113 (1982), para. 2.52; Seventeenth Annual Report 1981–1982, Law Com No. 119 (1982), para. 2.42. Advice was also provided on Common wealth initiatives in the same field: Thirteenth Annual Report 1977–1978, Law Com No. 92 (1978), paras 1.5(v), 2.25; Fifteenth Annual Report 1979–1980, Law Com No. 107 (1981), para. 2.27.

109. Sections 23–26.

110. See above, p.482.

111. Law Com No. 109 (1981).

112. Law Commission Seventeenth Annual Report 1981–1982, Law Com No. 119 (1983), para. 2.71. Advice was also provided by the Law Commission on work in the Council of Europe on Penalty Clauses: Twelfth Annual Report 1976–1977, Law Com No. 85 (1977), para. 6(6); Thirteenth Annual Report 1977–1978, Law Com No. 92 (1978), para. 1.5(ii)(b).

113. Replacing provisions of the Arbitration Act 1975.

114. It has been seen earlier, p.479, that the Private International Law Committee provided advice on this matter.

115. Administration of Justice Act 1920; Foreign Judgments (Reciprocal Enforcement) Act 1933.

116. Maintenance Orders (Facilities for Enforcement) Act 1920; Maintenance Orders (Reciprocal Enforcement) Act 1972 (also implementing the United Nations Convention on the Recovery of Maintenance Abroad, 1956); Maintenance Orders (Reciprocal Enforcement) Act 1992.

117. Cheshire, and North's, Private International Law (13th edn, 1999), p.10.

118. Dicey, and Morris, , Conflict of Laws (13th edn, 2000), Chapter 15.

119. See above, pp.477–478.

120. Examples that come to mind are De Nicols v. Curlier [1900] AC 21; Vita Food Products Inc v. Unus Shipping Co Ltd [1939] AC 277; Government of India v. Taylor [1955] AC 491; Boys v. Chaplin [1971] AC 356; Miliangos v. George Frank (Textiles) Ltd [1976] AC 443; Spiliada Maritime Corpn v. Cansulex Ltd [1987] AC 460.

121. E.g., Re X's Marriage (1983) 65 F.L.R. 132.

122. Merker v. Merker [1963] P 283, at 301.

123. See above, pp.480–481, 490.

124. [1983] 1 AC 145.

125. Messina v. Smith [1971] P 322.

126. Re Duke of Wellington [1948] Ch 118.

127. Re Cohn [1945] Ch 5.

128. De Nicols v. Curlier [1900] AC 21.

129. See above, pp.479–480, 491.

130. See Dicey, and Morris, , Conflict of Laws (13th edn, 2000), paras 30111—30–113.

131. See Cheshire, and North's, Private International Law (13th edn, 1999), pp.972973.

132. See above, p.483, 486–487.

133. See above, p.487.

134. See above, pp.487–488.

135. Private International Law (8th edn, 1970), pp.76119, 611–658.

136. Conflict of Laws (8th edn, 1967), pp.121221, 963–1088.

137. Private International Law (13th edn, 1999), pp.179530.

138. Conflict of Laws (13th edn, 2000), pp.235648.

139. Nua Ltd; www.nua.ie/surveys.

140. There appears to have been a 10% growth from Sept. to Nov. 2000; see www.nua.ie/surveys.

141. www.domainstats.com.

142. From the end of Oct 2000 to mid-Jan. 2001, that figure grew again by over 10%.

143. See Electronic Data Interchange, Internet and Electronic Commerce, Hague Conference on Private International Law, General Affairs, Preliminary Document No. 7, April 2000, pp.5–6.

144. Ibid., pp.6–7.

145. Directive 1999/93/EC, OJ 2000 L13, 19 Jan. 2000, p.12.

146. Ibid., Art. 1.

147. See n.143, above.

148. See Fawcett, and Torremans, , Intellectual Property and Private International Law (1998), pp.158161, 248–249.

149. E.g., Godfrey v. Demon Internet Ltd [2000] 3 W.L.R. 1020.

150. See above, p.487.

151. See n.5O5, above, pp.21–22.

152. Directive 2000/31/EC, OJ L178, 17 July 2000; and see below, p.143.

153. Art. 22(1).

154. These issues were considered by a group of experts meeting in Ottawa in Feb. 2000; see Hague Conference on Private International Law, General Affairs, Preliminary Document No. 7, April 2000, pp.33–35. That meeting was inconclusive and it is understood that there will be further such discussions early in 2001.

155. This was a hotly debated issue in the context of the preparation of the new EU Regulation on jurisdiction and enforcement (see above, p.488), as may be seen from Eaglesham, Financial Times, 7 Nov. 2000; European Report, No. 2549 2 Dec. 2000, p.3.

156. See above, p.488.

157. And now the Treaty of Nice, 2000.

158. This issue can be illustrated most strikingly in the context of the interrelation of the new EU Regulation on jurisdiction and recognition with the related negotiations at the Hague Conference; see above, pp.488, 492–493. Given that the Brussels Convention has been overtaken by the Regulation, the Member States have, in strict theory, lost the right to be represented and negotiate separately at The Hague. It has become a matter of external Community competence with the EU, in theory, negotiating on behalf of the whole Union. By agreement, and as the result of deep concerns in Member States, not least the United Kingdom, this strict position has been ameliorated, in a joint declaration agreed by the Council and the Commission, which allows Member States to continue to express views etc. in negotiations at The Hague on the draft Convention, provided such actions are not inconsistent with any common position agreed by the Council of Ministers and any written proposals are sent in advance to the Presidency and the Commission.

159. See above, pp.503–504.

160. Though see above, p.493 in the case of the draft U.K./U.S. convention on recognition and enforcement.

161. See above, p.503.

162. OJ 2000, L178, 17 July 2000, at L178/16.

163. See above, pp.492–493. A preliminary draft Convention was adopted in Oct. 1999; see the Report thereon by Nygh and Pocar, Enforcement of Judgments Preliminary Document No. 11, Aug. 2000. It was assumed that matters would then be concluded at a Diplomatic Conference in 2001. However, negotiations continue and a full Diplomatic Conference before 2002, if then, seems most unlikely.

164. The private international law problems of electronic share or money transfers are well illustrated by Macmillan Inc v. Bishopsgate Investment Trust plc (No. 3) [1996] 1 W.L.R. 387; Cheshire, and North's, , Private International Law (13th edn, 1999), pp.969973.

165. The inclusion in the Law Commission's Seventh Programme, Law Com No. 259 (1999) of Item 8: Electronic Commerce is certainly to be welcomed, as is the fact that the Law Commission is addressing some of these issues in the context of work on sale and carriage of goods, and on associated banking and insurance transactions: Law Commission's Thirty-Fourth Annual Report 1999, Law Com No. 265 (2000), paras 3.2—3.5. It is the case, however, that the issues to be addressed are far wider than those encompassed by the Law Commission's current programme of work.

* This is a somewhat expanded version of the 24th F. A. Mann Lecture, delivered in London on 14 November 2000.

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