New technologies bring new problems as well as benefits. New technologies also involve unknown dangers and fears. So it is with biotechnology and living modified organisms (LMOs).

Social jargon of the day embraces the philosophy that the world is now a global village. The use of this expression surprises no one, as in almost every aspect of our lives, we are somehow connected to someone or something which transcends territorial borders. It is in fact the order of the day and the proliferation of transnational issues coming before the courts bears testimony to this. The way in which business is conducted links the local tradesman, company or conglomerate to elements not within his or its jurisdictional purview; the way in which we live our private lives through employment, travel, marriage, or place of birth of our children may make for us connections with a host of other countries not previously contemplated. It is therefore no wonder that at times, serious issues affecting a person's personal rights may fall to be determined by one or another of several courts of law of one or another of several countries which may or may not be the ideal adjudicator of justice. The question obviously raised for determination is what is ideal? Throughout the passage of time, English law, which the Commonwealth Caribbean mainly inherited, has adopted a number of tests through which this ideal adjudicator may be identified. In recent times however, there has been a tendency to reject the established approach and to strike out independently in protest of the constraints imposed by judicial precedent. In Dominica, in relation to transnational causes of action, this was recently done in the form of statutory enactment entitled the Transnational Causes of Action (Product Liability) Act. It is the aim of this paper to examine whether, and if so, to what extent the Act has abolished the doctrine of forum non conveniens as a resource in private international law through which an ideal adjudicator may be located for the determination of transnational disputes, as well as to assess the effectiveness of the Act in dealing with these types of matters.

This article considers the basis on which the English courts exercise their discretion to refuse to recognise foreign marriages1 whose formal validity2 is beyond question and whose essential validity3 is probably also satisfied.4 It has been widely stated that this discretionary veto is to be wielded in accordance with the dictates of “public policy”. As far back as 1945, Lord Greene MR said that such matters were to be resolved “with due regard to common sense and some attention to reasonable policy”.5 Nearly 40 years later, Lord Simon, similarly minded and speaking in the House of Lords, was a good deal more emphatic. He said: “[t]here is abundant authority that an English court will decline to recognise or apply what would otherwise be the appropriate foreign rule of law when to do so would be against English public policy”.6 Perhaps surprisingly, this policy-based discretionary veto has commanded virtually no academic attention.7 It is my intention to address that anomaly. It is wholly inadequate, as is sometimes done, both by the courts (as we have seen) and academics, simply to refer glibly to “public policy” as though its contents were somehow self-evident and its meaning plain.8 It is also signally unenlightening merely to state, as Jaffey has done, that “[t]he premise should be that an invalidating rule of a domestic system, whether English or foreign, should only be applied to a given international marriage if there is a good reason for its application”.9 So doing merely recasts one nebulous term, “public policy”, as another, “a good reason”. Judicial synonyms have been scarcely any more illuminating. Take for example Lord Simon's famous enjoinder to have recourse to “common sense, good manners and a reasonable degree of tolerance”.10 A number of familiar criticisms can be made of the opacity of such broad terms as “common sense”, “good manners” and “a reasonable degree of tolerance”: they deny the common law the clarity, consistency and objectivity that are frequently (and correctly, in my view) thought to be necessary in order to legitimate and constrain the adjudicative function.11 But beyond these objections, two further, more particular criticisms can be made in respect of the invocation of “public policy” to deny recognition to “offensive” foreign marriages.

Economic co-operation within ASEAN1 can be said to have seriously begun only at the beginning of the nineties. Prior to that, it was well known that, ASEAN as a co-operative grouping, had existed mainly with a political and strategic focus. It is with this focus that ASEAN managed to establish and maintain cohesiveness through the years despite the shaky beginnings of what has been described as a “brittle alliance” borne of a common fear of communism.2 And it is with this focus that ASEAN, as a regional grouping, has generally been hailed as a success.

In the post-World War II international economy, with its enormous growth in transnational trade and investment, multinational legal practice has become a functional reality.1 Within the last two decades, the volume of trans-border legal practice has grown enormously in fields such as trade law, international banking and finance, international arbitration and litigation, international contractual and joint venture arrangements, transborder acquisitions and mergers, international antitrust, international tax planning, and foreign investment counselling. Domestic law firms within the leading commercial nations have not only grown substantially in size, often by merger, they have also increasingly created networks of foreign branch offices, or entered into international association or joint venture relationships with firms in other countries.2

On 13 December 1999, the Conseil d'Etat celebrated 200 years since its creation in the Constitution of An VIII. Much has been written over the year on the judicial functions of the Conseil, but far less has been written on its consultative functions or on its influence on the administrative law of other jurisdictions. In one sense, this is not surprising. Since 1818, the case law of the Conseil has been published regularly and commented upon by French lawyers, as well as by those from abroad. But the consultative functions of the Conseil are not a matter of public record in the same way. The advice given to the government on draft legislation and on other matters is private. We know that the government has received advice on certain matters, but the content of the advice or opinion is not made public, except on the rare occasions in which the government chooses to make it public. (In very recent years, this is becoming more frequent.) As to the influence of the Conseil, while certain obvious influences have occurred, many of the mechanisms are not recorded and rely on actions by individual conseillers d'Etat. The following four papers try to reflect on these areas of the Conseil's activity.

On 1 July 1997 Hong Kong entered a new era when it was transformed from a British colony into a Special Administrative Region (SAR) of the People's Republic of China (PRC). The impact of the handover of Hong Kong cannot be overstated but, for the time being perhaps, may lie more in the sphere of ideology than in institutions.

Three Korean women won $75,000 in damages in a libel action against the American-owned Newsweek, Inc. in Seoul for publication of a defamatory photo and a caption in the Pacific edition of Newsweek. A Singapore judge awarded former Prime Minister Lee Kuan Yew of Singapore and two others a §678,000 damage award against the International Herald Tribune, owned by the New York Times Co. and the Washington Post Co., for libel relating to an editorial-page column about the “dynastic politics” in the island nation.

The Supreme Court of Canada's advisory opinion in Reference re Secession of Quebec, 1998 (also known, more simply, as the “Quebec reference case”) has been the subject of much interpretation and comment, because of its obvious implications for the future of Canada.1 However, it offers an arguably wider opportunity to consider the role of the judiciary within a liberal democracy. The professional nature of the legal process and its practitioners often has made legal and judicial institutions, to most of the public, distant and alien components of the political system. The technical aspects of many areas of law (such as contracts, torts, and civil procedure) may, in fact, make this area of public concern seem unapproachable to the average citizen; indeed, some legal practitioners may prefer that the law remain that way. That mystique often is transferred to the realm of constitutional law, where the use of technical terms (including Latin words and phrases) may serve, intentionally or not, to insulate legal arguments and proceedings from public scrutiny.2

Consideration of the Conseil d'Etat and its role in the preparation of legislation helps us in Britain to appreciate how our own legislative process might be improved. The Hansard Society Report1 suggested in 1992 that Britain needed to look beyond just improving the drafting of legislation and needed to reform the legislative process, both before a bill is presented to Parliament and in its passage through Parliament. My reflection on the French process is to suggest that this offers us a further focus of attention—the questions which should be asked during the scrutiny process. There are two areas where we need to ask questions—on fundamental rights and practical effectiveness. I think that the British trust too much to the political process to ensure that questions concerning respect for fundamental values and also administrative workability are addressed before a bill is passed by Parliament. This paper is influenced by observations made in 1986 of the Interior Section of the Conseil d'Etat in its scrutiny of a number of government bills at the beginning of the Chirac premiership.

A fundamental clash of values, which could affect the very foundations of the Brussels Convention, was revealed in the recent judgment of the Court of Appeal in Turner v. Grovit.

Following NATO's intervention in Kosovo in 1999, the United Kingdom House of Commons Foreign Affairs Committee commenced an inquiry with the following terms of reference: “To inquire into the foreign policy lessons of the Kosovo crisis and how the Foreign and Commonwealth Office might best promote peace and stability in the region.” The Committee heard oral evidence from government ministers, diplomats, FCO staff, journalists, academics, and lawyers. It also received written memoranda. The President of Montenegro and the Foreign Minister of Albania were interviewed in private, and the Committee visited Kosovo, Macedonia and Montenegro. The Committee's Report was published on 7 June 2000 as the 4th Report of The House of Commons Foreign Affairs Committee (HC28-II, ISBN 010 2331006) together with the evidence and appendices (HC28-II, ISBN 010 2333009).

Within the field of competition law the question of jurisdiction is able to ignite an extremely heated debate. For example, when the American company Boeing decided to acquire the American company McDonnel Douglas both the US and the EU competition authorities engaged in an investigation of the transaction. The fact that the Community commenced an investigation, and even appeared to consider a prohibition, of the merger caused an uproar amongst some American politicians. These politicians claimed that the merger was a purely American matter and that the Community's competition authorities had no jurisdiction over the merging parties.

1. This Memorandum has been prepared in accordance with the request of the Foreign Affairs Committee (letter dated 28 July 1999), which request referred to a written memorandum “on the area of international law“.1 In the course of his career as a member of the English Bar, specialising in international disputes, the writer has worked as legal adviser and/or advocate for at least 35 States. In this context it is necessary to point to the fact that, as a part of his professional involvements, he has acted as Counsel and Advocate in the recent proceedings before the International Court of Justice on behalf of Yugoslavia. It is also necessary to stress that the Memorandum represents his own views and that there has been no input from any Government or Government-related organisation.

My title for this article reflects a very proper question for a foreign audience which has become more familiar than in the past with the dual (consultative and judicial) role of the French Conseil d'etat. For many years, interest in Britain focused on the judicial function of the Conseil. More recently, attention has shifted to the activities of the “sections administratives”, which involve the screening and the drafting of all the proposed legislation and the essential part of subordinate regulations prepared by government. I have the feeling this interest is probably fuelled by the recent constitutional changes in the United Kingdom, and the need to prevent legal difficulties cropping up between different and new political bodies.

The extent to which it is appropriate to interpret constitutional provisions and in particular fundamental rights in accordance with the law and understanding current at the time of their promulgation, is a fundamental issue in any legal regime into which a Bill of Rights is introduced. This is well illustrated in a recent decision by the Judicial Committee of the Privy Council.

On 1 July 1999, the International Tribunal for the Law of the Sea rendered its first judgment on the merits in the M/V “Saiga” (No.2) case (St. Vincent and the Grenadines v. Guinea)1, thereby completing the settlement of a dispute which began with the M/V “Saiga” case (hereinafter the Saiga No.1)2 in the form of an application for prompt release under Article 292 of the 1982 United Nations Convention on the Law of the Sea (the Convention). Unlike the decision in the Saiga No.1, which evidenced a deeply split Tribunal, the judgment on the merits was by an overwhelming majority of 18 to 2 on all but two paragraphs of the dispositif.3

In both the Ottoman Empire and the Turkish Republic, legal reform efforts have invariably relied on Western models and in administrative law this model has been the French. The first such effort was with the Tanzimat (The Charter of Reformation) in 1839, though these reforms did not have deep effect until the 1860s when the bases of the main administrative institutions such as the Turkish Conseil d'Etat were laid down.1 However, the Conseil d'Etat was not the only institutional model taken from France. The French layer of Turkish administrative law includes other institutions such as the Cour des Comptes, the Tribunal des Conflits, some financial organisations, the system of autonomous provincial and local administration and administrative tutelage.2

With China's resumption of sovereignty over Macau on 20th December 1999, another step was taken towards the reunification of Greater China. The reunification of Macau as of Hong Kong is based on the principle of “one country, two systems’, under which the socialist systems of the People's Republic of China are not applied in these territories. Instead most constituents of their previous economic, legal and social systems are preserved. In either case China negotiated what are called Joint Declarations for the resumption of sovereignty with the colonial power, under which the terms of “one country, two systems’ were spelled out. China undertook to give effect to the Declarations in Basic Laws, passed by its National People's Congress. Except for defence and foreign affairs, most matters are vested in the new entities, called Special Administrative Regions. The Basic Laws describe the constitutional system established for the regions as being characterised by a “high degree of autonomy’. As such they are an interesting addition to autonomy systems which are increasingly being applied as solutions to problems of divided societies. But the institutional support for the autonomy is particularly weak, and a closer examination of the articulation of the regions with the central authorities suggests that the primary concern in establishing the special administrative regions is less the automony for the people of Hong Kong or Macau as finding a framework for managing different economic systems from those on the mainland (I have developed these arguments in Ghai 1999).

1. In his letter dated 16 February 2000 Mr Silk, on behalf of the Committee, invited me to prepare an additional memorandum on any of the issues raised during the taking of evidence on 8 February. I have also been supplied with the transcript and the additional written questions.