Adjudicatory Authority in Private International Law THE HAGUE ACADEMY OF INTERNATIONAL LAW MONOGRAPHS Volume The titles in this series are listed at the end of this volume THE HAGUE ACADEMY OF INTERNATIONAL LAW Adjudicatory Authority in Private International Law A Comparative Study by Arthur T von Mehren Late Story Professor of Law, Emeritus, Harvard Law School Completed with the assistance of Dr Eckart Gottschalk MARTINUS NIJHOFF PUBLISHERS LEIDEN • BOSTON A c.i.p record for this book is available from the Library of Congress Printed on acid-free paper isbn: 978 9004 15881 Copyright 2007 The Hague Academy of International Law, The Netherlands Koninklijke Brill nv incorporates the imprints Brill, Hotei Publishers, idc Publishers, Martinus Nijhoff Publishers and vsp http://www.brill.nl All rights reserved No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers ma 01923, usa Fees are subject to change Typeset by jules guldenmund layout & text, The Hague Printed and bound in The Netherlands Table of Contents Preface xv Acknowledgements to the First Edition xvii Table of Cases Australia Canada European Union Courts France Germany United Kingdom United States Federal Courts State Courts xix xix xix xix xx xx xxi xxii xxii xxv Prologue A Introductory B The Province of Private International Law and of Conflict of Laws C The Contemporary Scene Introductory 1 3 The Juridical Character of Rules and Principles of Law Applicable to Extramural Controversies and Situations The European Union The Foundations and Emergence of Jurisdictional Theory 11 PART Chapter I A Adjudicatory authority: Reasons for Its Existence and Its Principal Types General Introduction The Structural Differences of the German and American Federal Systems 13 13 14 vi Table of Contents B C D The early history of private international law and conflict of laws (a) Introduction (b) The decline and fall of the Roman Empire in the West General Theories Regarding Governmental Authority (a) The principal theoretical accounts (b) The relevance of these accounts for claims of adjudicatory authority over multistate transactions and controversies Appropriate Terminology for Comparative Analysis: Basic Categories of Adjudicatory Authority The Insularity of Traditional Terminologies The Inadequacies of Traditional Terminologies for Comparative and Theoretical Discourses Terminology and Concepts for Comparative and Theoretical Purposes: Herein of General Jurisdiction, Category-Specific Jurisdiction, and Specific Jurisdiction The Appropriate Link of Jurisdiction and Choice-of-Law Introductory (a) In general (b) Qualifications of the separateness principle (i) Divorce (ii) Workers’ compensation (iii) Where serious choice-of-law difficulties, not normally encountered, arise Recognition of Judgments Abroad Further Considerations Affecting the Assertion of Adjudicatory Authority An Inherent Right and Duty to Dispense Justice A Legal Order’s Interest in Development of Certain Areas of Law Economic Considerations Chapter II The Design of Jurisdictional Provisions A Basic Policies and Tensions B Connecting Factors: Their Design and Systemic Importance The Paradigms: Administrability and Predictability; Litigational Convenience, Fairness, and Justice The Tensions between the Paradigms C The Designers of Jurisdictional Provisions In General In the United States In Germany D Designing Jurisdictional Rules and Norms The United States (a) Introductory: the influence of federalism (b) Legislative reactions to the International Shoe decision (i) State legislation 15 15 15 17 18 19 21 21 24 24 28 28 28 30 30 37 41 42 46 46 47 48 51 51 52 52 53 55 55 55 56 57 57 57 57 57 Table of Contents (ii) Treaties and federal legislation a In general b The role of international conventions and federal legislation Germany (a) Introductory (b) The German Code of Civil Procedure (1877): Executive and legislative design (i) The original design (ii) The gradual increase in the importance of the courts The Brussels and Lugano Conventions and the Brussels Regulation (a) Introductory: The influence of European integration (b) The emergence of a European legal regime for jurisdiction and the recognition and enforcement of foreign judgments (i) The Brussels and Lugano Conventions (ii) “Communitarization” of the conflict of laws: The Brussels Regulation (c) The philosophy of European integration 60 64 64 65 65 67 68 68 70 70 72 74 Chapter III A The Emergence of Jurisdictional Theory in the United States and Germany The United States The Constitutional Bases for Judicial Control over Exercises of Adjudicatory Authority (a) The full faith and credit clause (b) The due process clause (i) The background (ii) The first steps towards constitutional control of statecourt exercises of adjudicatory authority: Pennoyer v Neff (1877) The Reign of the Power Theory: 1877-1945 (a) The theory in operation (b) Power-theory “metaphysics” (i) The “presence” of intangibles (ii) The “presence” of legal persons The Passage from a Power to a Litigational-Justice Theory of Adjudicatory Authority The Litigational-Justice Theory: International Shoe (1945) and Beyond (a) The tension between power and litigational-justice theories (b) Confrontation?: Shaffer v Heitner (1977) Can Claims of General and Category-Specific Jurisdiction Pass Constitutional Muster in Terms of Their Typical Effects? 59 59 79 79 79 80 83 83 85 86 86 92 92 93 95 97 100 102 105 vii viii Table of Contents B Co-existence: Burnham v Superior Court of California (1990) Ambiguities and Uncertainties in American Jurisdictional Theory and Practice as the Twenty-First Century Begins (a) The contemporary role and scope of power and litigationalfairness theories (b) The respective importance of state and party concerns (c) The complex, diverse, elusive, and changing nature of connecting factors resting on convenience, fairness, and justice Germany The Code of Civil Procedure (Zivilprozeßordnung) (1877) The Emergence of General Theory (a) The first efforts (b) Pioneering works (c) Neuhaus The Contemporary Scene (a) Heldrich (b) Schröder (c) Kropholler (d) Geimer Constitutional Control and the Emergence of Comprehensive Theory: Pfeiffer’s Contribution (1995) (a) Pfeiffer’s system (b) The appropriate treatment for jurisdictional purposes of plaintiffs and defendants (c) The relevance of (minimum) contacts (d) Application of Pfeiffer’s theory The Contribution of the German Courts (a) The principal decisions (i) Uncoupling adjudicatory jurisdiction and venue: BGH 14 June 1965 (ii) Restricting the scope of ZPO §23: BGH July 1991 (iii) Dictum of the Constitutional Court respecting ZPO §23: BVerfG 12 April 1983 (iv) Unconstitutionality of ZPO §606b, No 1: BVerfG December 1985 (b) The significance of the case law PART Basic Themes and Pervasive Issues 112 112 113 115 117 118 119 119 123 124 128 128 129 130 131 133 133 135 137 139 142 142 142 145 147 148 149 151 Chapter IV A B The Actor Sequitur Forum Rei Principle: Are Defendants Jurisdictionally Preferred? Should They Be? Introductory The Principle’s Standing in Practice 107 153 153 154 Table of Contents C Do Contemporary Legal Systems Claim to Practise the Principle? Is the Actor Sequitur Principle Consistent with the Principal Theories of Adjudicatory Authority? (a) Relational theories (b) Power theories (c) Convenience, fairness, and justice theories Do Plaintiffs’ or Defendants’ Forums Predominate in Contemporary Practice? The Allocation of Litigational Risks and Opportunities between Plaintiffs and Defendants What Makes a Forum More Attractive to One Party than to the Other? Should Plaintiffs or Defendants Be Preferred for Jurisdictional Purposes? (a) Preferring plaintiffs on grounds of corrective justice and to ensure procedural economy and simplicity (b) Preferring plaintiffs in order to equalize litigational capacity 158 158 161 162 163 165 166 167 168 171 Chapter V A B C Consent and Adjudicatory Authority: Consequences of Splitting Causes of Action, Participating as a Litigant, and Choice of Forum Agreements Introductory General Remarks The Two Paradigmatic Situations The Extent of Party Control over the Preclusive Effects of Litigating: Herein of “Splitting” Introductory The Maximum Preclusive Effect of an Adjudication (a) American law (i) At common law and under Field’s Code (ii) Under the Federal Rules of Civil Procedure and comparable State systems (b) German law Contemporary Practice (a) American law (b) German law Adjudicatory Authority Grounded on Participation in Court Proceedings as a Litigant In General Participation without Objection as a Defendant (a) Introductory (b) American theory and practice (c) German theory and practice (d) The Brussels Convention and Regulation 154 175 175 175 176 177 177 178 178 178 179 180 182 182 185 187 187 188 188 188 190 192 ix 372 Chapter VII The list of excluded matters is vast and mirrors the difficult and tenacious negotiations in The Hague: according to Article (1) the Convention does not apply to consumer contracts and employment contracts.31 Article (2) further exempts the following matters from the scope of application: (a) the status and legal capacity of natural person; (b) maintenance obligations; (c) other family law matters, including matrimonial property regimes and other rights or obligations arising out of marriage or similar relationships; (d) wills and succession; (e) insolvency, composition and analogous matters (f ) the carriage of passengers and goods; (g) marine pollution, limitation of liability for maritime claims, general average and emergency towage and salvage; (h) anti-trust (competition) matters; (i) liability for nuclear damage; (j) claims for personal injury brought by or on behalf of natural persons; (k) tort or delict claims for damage to tangible property that not arise from a contractual relationship; (l) rights in rem in immovable property, and tenancies of immovable property; (m) the validity, nullity, or dissolution of legal persons, and the validity of decisions of their organs; (n) the validity of intellectual property rights other than copyright or related rights; (o) infringements of intellectual property rights other than copyright or related rights, except where infringement proceedings are brought for breach of a contract between the parties relating to such rights, or could have been brought for breach of that contract; (p) the validity of entries in public registers.32 The fact that the Convention excludes many important matters from its scope of application can be deplored Certainly, it will reduce the impact of the Convention and its role in international civil litigation However, it seems that no more meaningful compromise was possible (iii) Forum non conveniens and lis pendens The doctrines of forum non conveniens and lis pendens were two of the few matters on which the negotiators reached consensus at the Nineteenth Diplomatic Conference in 2001 Articles 22 and 23 of the Interim Text allowed limited recourse to both doctrines under certain circumstances However, it banned their application if jurisdiction of the court seized was founded on an exclusive choice 31 32 Article (1) (a) and (b) Article (2) (a) to (p) Article 21 of the Convention additionally allows Contracting States to declare that it will not apply the Convention to other specific matters Convergence and Compromise in Private International Law of court agreement.33 The new Convention –being limited to exclusive choice of court agreements – follows this latter approach: it provides in Article (2) that a court having jurisdiction under the Convention shall not decline to exercise jurisdiction on the ground that the dispute should be decided in a court of another State The Convention, therefore, precludes – in principle – resort to both the doctrine of forum non conveniens and the doctrine of lis pendens.34 However, at least forum non conveniens considerations are not completely banned from the Convention: Article 19 of the Convention allows Contracting States to declare that its courts may refuse to determine disputes to which an exclusive choice of court agreement applies, if except for the location of the chosen court, there is no connection between that State and the parties or the dispute The Convention, therefore, allows Contracting States to decline adjudication in wholly foreign cases and, thus, leaves the door ajar for some considerations typically made under the doctrine of forum non conveniens.35 (iv) Recognition and enforcement Recognition and enforcement of foreign judgments is covered by the new Convention only insofar as a judgment is based on an exclusive choice of court agreement as defined by the Convention.36 According to Article (1) a judgment given by a court of a Contracting State designated in an exclusive choice of court agreement shall be recognized and enforced in other Contracting States However, recognition and enforcement may be refused if the Convention provides for specific grounds of refusal.37 Additionally, recognition and enforcement of damage awards 33 34 35 36 37 See Articles 22 and 23 of the Interim Text of 2001 For a detailed discussion see supra pp 361 et seq See Buxbaum, supra footnote 26, at 209; Dogauchi and Hartley, supra footnote 26, Art 5, para 98-100; Rühl, supra footnote 26, at 412 See Buxbaum, supra footnote 26, at 209; Rühl, supra footnote 26, at 412 According to Article (a) an “exclusive choice of court agreement” means an agreement concluded by two or more parties that meets the requirements of paragraph c) and designates for the purpose of deciding disputes which have arisen or may arise in connection with a particular legal relationship, the courts of one contracting State or one or more specific courts in one Contrating State to the exclusion of the jurisdiction of any other courts According to Article (c) an exclusive choice of courts agreement must be concluded or documented (i) in writing; or (ii) by any other means of communication, which renders information accessible so as to be usable for subsequent reference According to Article (a) to (g) a court may refuse recognition and enforcement if (a) the agreement was null and void under the law of the State of the chosen court, unless the chosen court has determined that the agreement is valid; (b) a party lacked the capacity to conclude the agreement under the law of the requested State; (c) the document which instituted the proceedings or an equivalent document, including the essential elements of the claim, was not notified to the defendant in sufficient time or in the appropriate manner; 373 374 Chapter VII may be limited to a certain amount if, and to the extent that, the judgment awards damages, including exemplary or punitive damages that not compensate a party for actual loss or harm suffered.38 However, in contrast to Article 33 of the Interim Text 200139 and an earlier version of 200440 Article 11 does not explicitly require application of a functional comparative analysis and the common-denominator principle Instead, it allows courts to refuse recognition and enforcement of non-compensatory damage awards regardless of whether such damages are recoverable in the forum Whether this approach will prove to be successful in practice remains to be seen However, it is to be welcomed that Article 11 – just like Article 33 of the Interim Text of 2001 – declines to apply the all-or-nothing principle and strives for justice on a case-by-base basis Universal Conventions in Matters of Private International Law: Twentyfirst Century Prospects In the first half of the twentieth century, international instruments dealing with private international law, including jurisdiction and recognition and enforcement of judgments, were either bilateral or universal in character Harmonization on a bilateral basis was, by and large, compatible with efforts to achieve harmonization on a worldwide basis The former prepared the ground for – and supplemented – the latter The second half of the century witnessed the rise of a third type of international instrument, one multilateral in nature but regional rather than universal in scope In 1968, the Brussels Convention changed fundamentally the role of international instruments in the area of jurisdiction and enforcement of foreign judgments by harmonizing the law respecting these matters on a regional basis To the bilateral and the universal approaches to harmonization, a regional approach was thus added The regional and universal approaches have, at least so far, proved to be incompatible where harmonization of the general law of jurisdiction to adjudicate and recognition and enforcement of foreign judgments is concerned Put (d) (e) 38 39 40 the judgment was obtained by fraud in connection with a matter of procedure; recognition and enforcement would be manifestly incompatible with the public policy of the requested State, including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State (f ) the judgment is inconsistent with a judgment given in the requested State in a dispute between the same parties; or (g) the judgment is inconsistent with an earlier judgment given in another State between the same parties and involving the same cause of action, provided that the earlier judgment fulfils the conditions necessary for its recognition in the requested State See Article 33 of the Interim Text of 2001 See supra pp 364 et seq See Article 15 of the Draft Convention on Exclusive Choice of Courts Agreement available at http://www.hcch.net Convergence and Compromise in Private International Law another way, once a regional harmonization of these matters is in place, the parties to the regional instrument have a greatly reduced incentive to harmonize the same area of law on a universal basis.41 If this analysis is correct, universal instruments cannot hope to harmonize effectively the general areas of private international law once effective regional harmonizations, dealing broadly with the subject matter, are in place The most that can then be accomplished is to provide a general convention to fill the space not yet occupied by existing regional harmonizations Such a general harmonization will, however, find it difficult to attract support Universal instruments harmonizing broad areas of the law of jurisdiction and enforcement of judgments not have a bright future Efforts to harmonize the law respecting topics for which a consensus is attainable can well be fruitful, however This approach would seek universal harmonizations compatible with the regional harmonizations in force The required degree of compatibility may exist with respect to jurisdiction and enforcement in several areas of considerable importance These include exclusive choice-of-forum clauses in business-to-business contracts,42 place-of-injury jurisdiction for physical injury in products liability cases, and jurisdiction in the defendant’s home-forum for most claims More problematic specific provisions that deserve consideration include, for litigation between businesses or professionals, jurisdiction based on the place of performance of a contract or on activity respecting its conclusion and performance To the extent that consensus was reached on discrete solutions, a universal international instrument could displace regional harmonizations for controversies that were not entirely intraregional 41 42 The existence of regional instruments, alongside bilateral and universal conventions, also complicates markedly the problem of which instrument governs relationships that are potentially regulated by more than one instrument Difficulties are encountered in reaching agreement on the weight to be given to various policy considerations and in drafting implementing texts The annotated Interim Text, prepared by the Permanent Bureau of the Hague Conference and the Co-reporters on the basis of the discussions of the jurisdiction and judgments project in June 2001 sets out four proposals in Annex See idem 31-33 These are briefly discussed by the Co-reporters, Peter Nygh and Fausto Pocar, in their Report on the General Commission’s work See idem 117-118 The proposals are both highly complex and various The Co-reporters close their analysis by observing that “the provision or provisions adopted must regulate the relationship between the Convention and other international instruments from the viewpoint both of direct international jurisdiction and of the recognition and enforcement of judgments” Idem 118 It is thought that, were such a jurisdictional basis available, in many situations parties would prefer litigation in a pre-determined judicial forum to arbitration under the New York Convention For a general discussion of the choice-of-forum proposal and related matters, see R Brand, “Forum Selection and Forum Rejection in US Courts: One Rationale for a Global Choice of Court Convention”, in J Fawcett, Reform and Development of Private International Law – Essays in Honour of Sir Peter North 51-87 (Oxford, Oxford University Press, 2002) 375 376 Chapter VII There are also areas of the law for which world-wide regulation is preferable to regional regulation because the controversies that arise are widely and randomly dispersed For such matters, a universal convention has advantages that regional conventions lack The most striking example of such a convention is the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 Because under the New York Convention arbitration has become a “movable feast”, the universal convention has largely displaced regional conventions addressing the same subject matters Two recent Hague Conventions, the Convention of October 1980 on the Civil Aspects of International Child Abduction and that of 22 May 1993 on Protection of Children and Co-Operation in Respect of Intercountry Adoption, illustrate another context in which a universal convention offers advantages that regional conventions cannot In the nature of things, abductors will seek out safe havens; regional conventions will, in practice, be evaded Most abductions from a member State of the European Union would, were the Union to have only a Brussels abduction convention, be to States not party to the regional convention Furthermore, in areas such as child abduction and adoption, where national agencies are charged with supervising responsibilities, the attraction of a universal convention is clear D The Future As of 2005, the myriad of forces – inter alia, historical, economic, political, intellectual, and cultural – that have affected the Hague experiment have become more complex and less stable What was thought to be the playing field when the project was undertaken has changed dramatically The vast river of history is now swifter and more turbulent than it was when the work began In particular, the struggle of uniformity versus diversity has become more intense Will efficiency and administrability concerns result in legal orders generally according less weight to concerns for justice in specific cases? Striking a proper balance between proportionality and subsidiarity, on the one hand, and efficiency and administrability, on the other, become ever more difficult and contentious These issues will be played out on many stages and over many years What the Hague Conference can accomplish in the future will depend on broader developments What transpires will tell us much about how thinking and practice are likely to develop in the twenty-first century respecting adjudicatory authority and recognition and enforcement of foreign judgments Index actor sequitor forum rei 153-171, 262, 277 Adjudicatory authority Basic categories 24-28 Economic considerations 48-49 German general theory 117-149 Link to choice of law 28-42 Link to recognition 42-46 Theories in the United States 79-117 Traditional terminology 21-24 See also jurisdiction and other specific topics Advocate General 301 Allgemeine Gerichtsordnung für die Preußischen Staaten 231 Allocation of litigational risks and opportunities 165-173 American Law Institute International Jurisdiction and Judgments Project 62-64 Antisuit injunctions 6-7, 279-291, 291, 294 Australian law 282 Brussels I Regulation 341-348 Canadian law 282 English law 281-286 French law 279-280 German law 280-281 Scottish law 281 US law 286-291 Arbitration agreements 229-256, 346-347 English law 237-239 French law 229-231 German law 231-236 US law 240-256 Austin, John 19 Australia Antisuit injunctions 282 B Bartolus 16 Beale, Joseph Bentham, Jeremy 18 Brussels Convention 6, 54, 68-72, 352, 355 as a double convention 356 History 70-72 Jenard report 70 raison de être 324-325 Schlosser report 71 See also Brussels I Regulation and specific topics Brussels I Regulation actor sequitor forum rei 155, 157-158, 164 Antisuit injunctions 341-348; and arbitration agreements 346-347; and exclusive jurisdiction 346; and forum-selection clauses 347; and lis pendens 347 Autonomous interpretation 69, 357 Category specific jurisdiction (contracts, torts) 54, 164 Consumer contracts 171-172 Counterclaims 204-206 Forum non conveniens 329-340 Forum-selection clauses 225-229; and consumer contracts 226, 229; and employment contracts 228-229; and insurance contracts 225 n 208, 229; and merchant letters 104-105 History 7, 72-74, 320 Insurance contracts 173 Jurisdiction based on appearance 192-193 Lis pendens 298-303, 360; and exclusive forum selection clauses 301-302; and negative declaratory judgments 310314; and protracted proceedings 303 Multiple defendants 164, 368 378 Index Offset 205-206 Participation in court proceedings (based on appearance) 192-193; (counterclaims) 204-207 Recognition, denial of 324-325 Brussels II Regulation 7, 36, 76, 327 Brussels IIa Regulation 7, 36-37, 76, 327 Forum non conveniens 327-328 Amendment n 18, 36 n 68, 76 n 120 C California Code of Civil Procedure 42, 59 Canada Antisuit injunctions 282 Communitarization of the conflict of laws 7-10, 72-78 Comparative law Conflict of laws History 15-17 Topics Contingent-fee arrangements 167, 283, 340 Conventions Double 355-357; see also Brussels Convention and United Nations (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards Mixed 356-357; see also Hague Convention on International Jurisdiction and Foreign Judgments in Civil and Commercial Matters (Draft) Single 355-356 Corpus juris civilis 16, 200 Cross-examination 167 D Damage awards 364-365 Decisional harmony 266-267 Declaratory judgments 304-307; negative 311-316 Derogation See exclusive forum-selection clauses Discovery 167, 245-246, 264, 340 Divorce German law (jurisdiction) 33-34, 37, 4546, 148-149; (choice of law) 34-35 Link of jurisdiction and choice of law 30-37 US law (jurisdiction) 30-33 Domicile 52, 53 Double Conventions see Conventions, Brussels Convention and United Nations (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards Due process clause 83-85 E England Antisuit injunctions 281-286 Arbitration Act 1996 238-239, 243 Arbitration Agreements 237-239 Declaratory judgments 309-310; negative 310 Forum non conveniens 274-276; and Rules of the Supreme Court 274 Lis pendens 295-296 Magna Charta 83 See also specific topics Erie doctrine 61, 216 n 169, 250-251 and federalization of arbitration law 251-256 European Atomic Energy Community 319 European Coal and Steel Community 319 European Constitution n 21, 73 n 100, 321-322 European Court of First Instance 322, 328 European Court of Justice 322-324, 328 Adjudicatory authority 322-324 Preliminary ruling 323-324 European Economic Community 319 European Enforcement Order 8, 77 European Evidence Regulation 78 European Regulation on Insolvency Proceedings 76 European Regulation on the Creation of a European Enforcement Order for Uncontested Claims 8, 77 European Service Regulation 78 European Union 5-10 Evolution 319-322 Philosophy of integration 74-78 See also specific topics F Federal Arbitration Act 62, 211, 241-242 Federal Rules of Civil Procedure (1938) 179, 196 Index Federal Rules of Civil Procedure (2000) 179-180 Field’s Code 178-179, 194 Forum non conveniens 269-279, 294-297, 326, 329 Brussels I Regulation 329-340 Brussels IIa Regulation 327-328 English law 274-276 French law 269 German law 269-270 Hague Convention on Choice of Court Agreements 372-373 Hague Convention on International Jurisdiction and Foreign Judgments in Civil and Commercial Matters (Draft) 361-363 Quebec’s law 269 Scottish law 269, 270, 360 US law 272-274 Forum shopping 264-265 Forum-selection clauses 210-229, 347 and contract law 211-212 and lis pendens 301-302 Brussels I Regulation 225-229 exclusive 213-229 German law 220-224 non exclusive 212-213 Restatement First of Conflict of Laws 214-215 Restatement Second of Conflict of Laws 215, 216-218 Uniform Foreign Money-Judgments Recognition Act 219 US law 214-220 France Antisuit injunctions 279-280 Arbitration agreements 229-231 Civil Code 159-161 Code of Civil Procedure 230, 231, 293 Declaratory judgments 306; negative 308-309 Forum non conveniens 269 Lis pendens 293, 294 Ordinaries 22 Supplementaires 22 See also other specific topics Full faith and credit clause 80-83, 286, 287, 288, 289 G Germanic law 199, 201-202 Germany Act on Model Proceedings in Capital Market Disputes 141 n 299 actor sequitor forum rei 155-157 Adjudicatory authority and venue 68, 142-145 Amendment of pleadings 181 Antisuit injunctions 280-281 Arbitration agreements 231-236 Basic Law 56, 142 Bundesverfassungsgericht 56, 147-149 Code of Civil Procedure 65-67, 118-119; and the 1974 Reform Act 222-224; and the 1998 Reform Act 234-236; and the 2001 Reform Act 144 Counterclaims 202-203 Declaratory judgments 306-307; negative 308-309, 311-312 Default proceedings 222 District Courts 191 Divorce (jurisdiction) 34-35, 45, 148-149; (choice of law) 34-35 Federal system 14 Forum non conveniens 269-270 Forum selection clauses 220-224; in standard-form contracts 221, 224 n 206; and consumers 221-222, 224; and the 1974 Reform Act 222-224 General jurisdiction 27, 66, 145-147 General theory of adjudicatory authority 119-141 Gerichtsstand 22-24, 43-44, 66-68 Joining of actions 181 Jurisdiction based on appearance 190192 Jurisdiction based on property 23-24, 43, 52 n 4, 118, 120-121, 132-133, 139, 142, 145-148, 149, 270 Jurisdiction for claims based on environmental damage 139-141 Jurisdiction, category specific 27-28 Lis pendens 181, 294; and negative declaratory judgments 308-309, 311-312 Local Courts 191 Object of controversy 181 Oral hearing 191 379 380 Index Participation in court proceedings (based on appearance) 190-192; (counterclaims) 199-204 Party disposition 181, 185, 209 Party presentation 181 res judicata effect of judgments 181-182 Splitting of a cause of action 180-182, 185-186 Venue 66, 192; distinction of adjudicatory jurisdiction 142-145 See also specific topics Governmental authority, general theories 17-19 H Habitual residence 52 Hague Conference on Private International Law 4, 60, 354 Hague Convention on Choice of Court Agreements Excluded matters 371-372 Forum non conveniens 372-373 History 370-371 Lis pendens 372-373 Prohibited jurisdiction 371 Recognition and enforcement 373-374 Required jurisdiction 371 See also specific topics Hague Convention on International Jurisdiction and Foreign Judgments in Civil and Commercial Matters (Draft) 62, 188, 214, 354-355 as a double convention 359-360 as a mixed convention 358-359 Damage awards 364-365 E-commerce industry 366 Forum non conveniens 362-363 Lis pendens 363-364 Multiple defendants 368-369 Prohibited jurisdiction 369-370 Third party claims 368-369 See also specific topics Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption 62, 376 Hague Convention on the Civil Aspects of International Child Abduction 62, 376 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters 128 Hobbes, Thomas 18-19 I Inter-American Convention on International Arbitration 246 Italy Lis pendens and negative declaratory judgments 311 n 233 J Judicial fine tuning 348-349 Jurisdiction and consumer contracts (Brussels I Regulation) 171-172 and counterclaims (US law) 194-199; (German law) 199-203; (Brussels I Regulation) 204-207 and employment contracts (Brussels I Regulation) 228-229 and insurance contracts (Brussels I Regulation) 173; (US Law) 172-173 based on appearance (Brussels I Regulation) 192-193; (German law) 190-192; (US law) 188-190 Basic policies 51-52 Category specific 24-28, 262 Coexistence of power and litigationaljustice theories 107-112 General 24-28, 88 Limited general – 88 Litigational-justice theory 97-104, 113, 162-163 Power theory 86-95, 108, 113, 161-162, 175 Presence of intangibles 92-93 Presence of legal persons 93-94 Prohibited 356, 369-370, 371 Required 356, 371 Restatement Second of Conflict of Laws 101-102 Specific 24-28, 116, 262 Tension between power and litigationaljustice theories 100-102 Unregulated 3564 Jurisdictional theory in Germany Geimer 131-133 Heldrich 128-129 Kropholler 130-131 Neuhaus 124-128 Pfeiffer 133-141 Index Schröder 129-130 Jury trial 167, 340 L lex mercatoria 354 Lis pendens 213, 292-318, 360 and antisuit injunctions 293-294 and forum non conveniens 293-294 and negative declaratory judgments 311316 Brussels I Regulation 298-303, 312-316 Comparative remarks 317-318 English law 295-296, 309-311 French law 293, 294-295, 308-309 German law 294, 308-309, 311-312 Hague Convention on Choice of Court Agreements 372-373 US law 296-297, 309-311 Hague Convention on International Jurisdiction and Foreign Judgments in Civil and Commercial Matters (Draft) 363-364 Scottish law 295 Swiss law 294 US law 296-297 Litigation fees 187, 360 Locke, John 18-19 Loi sur l’organisation des tribuneaux 229230 London/Leuven Principles on Declining and Referring Jurisdiction in Civil and Commercial Litigation 292 n 145, 350 n 391 Lugano Convention 68-68, 71-72, 309, 367 History 71 Interpretation 72 Jenard/Möller report 71 Revision 74 M Minimum contacts 53, 98, 100, 114, 167 Mixed Conventions see Conventions and Hague Convention on International Jurisdiction and Foreign Judgments in Civil and Commercial Matters (Draft) N National Conference of Commissioners on Uniform State Laws 58 Netherlands Code of Civil Procedure 159, 270 New Jersey 306 New York Arbitration Act of 1920 241, 246 Civil Practice Law and Rules 278 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards see United Nations (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards P Participation in court proceedings 187-207 Brussels I Regulation (based on appearance) 192-193; (counterclaims) 204-207 German law (based on appearance) 190192; (counterclaims) 199-203 US law (based on appearance) 188-190; (counterclaims) 194-199 Private autonomy Planning process 207-210 Private international law History 15-17 Topics Proportionality principle 340 Prorogation See non exclusive forum-selection clauses Punitive damages 63, 140, 167, 283, 364365, 374 Purposeful availment 53, 167 Q Quebec Forum non conveniens 269 R Reichskammergerichtsordnung 200 Restatement First of Conflict of Laws 4, 194, 214-215 Restatement First of Contracts 240 Restatement Second of Conflict of Laws 38-39, 101-102, 189, 195-199, 215-220 Restatement Second of Contracts 240 Restatement Second of Judgments 182-185, 195-199 Restatement Third of Foreign Relations 46-47 Roman law 15-17, 153, 199-201 381 382 Index Rome Convention 5-6, 266 Interpretation Transformation into a Regulation n 23, 76 n 115 Rome I Regulation (proposed) n 23, 76 n 115, 266 n 17 Rome II Regulation (proposed) n 23, 76 n 116 Rome III Regulation (proposed) n 23, 76 n 116 Rome IV (Green Paper) n 23, 76 n 116 S Sachsenspiegel 201 Savingy, Friedrich Carl von 4, 182 Scotland Antisuit injunctions 281 Forum non conveniens 269 Lis pendens 295 Single Conventions see Conventions Single European Act 319 Soft law Splitting of a cause of action 177-186 German law 180-182, 185-186 US law 178-180, 182-185 Story, Joseph 4, 119 Subsidiarity principle 340 Switzerland Act on Private International Law 165, 236, 294 n 151 and actor sequitor principle 165 Lis pendens 294 n 151; and negative declaratory judgments 309 T Trautman, Donald 24 Treaty of Amsterdam 7, 8, 73, 76, 320 Treaty of Maastricht 73, 319-320 Treaty of Nice Treaty of Rome 319 True internal market 324-325 U UNCITRAL Model Law on International Arbitration 235, 236, 242-243 Uniform Arbitration Act 1955 241-242 Uniform Arbitration Act 2000 243-246 Uniform Declaratory Judgment Act 306 Uniform Foreign Country Money-Judgments Act 61-62, 63, 219 Uniform Interstate and International Procedure Act 58-59 Union Carbide Corp Gas Plant Disaster at Bhopal 166 United Nations (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards 59, 246, 256259, 353, 354, 376 and double Convention 355 United States Adjudicatory authority 22 and the design of jurisdictional rules 57 Antisuit injunctions 284-289; and recognition of sister state injunctions 286287; and retaliatory antisuit injunctions 289-291 Arbitration agreements 240-256; and Restatement First of Contracts 240; and Restatement Second of Contracts 240; and federalization 246-256 Constitution 79, 296 Counterclaims 194-199 Declaratory judgments 309-310; negative 311 Divorce (jurisdiction) 30-33; (jurisdiction by consent) 31-32 Federal System 14-15 Forum non conveniens 272-274; and New York Civil Practice Law and Rules 278 Forum-selection clauses 214-220 General appearance 188 Hague Conference on Private International Law 59 International conventions and federal legislation 60-64 Lis pendens 296-297 Participation in court proceedings (based on appearance) 188-190; (counterclaims) 194-199 Splitting of a cause of action 178-180, 182-185 Workers’ compensation 37-41; and Restatement Second of Conflict of Laws 38-39 See also specific topics Witnesses 129, 131, 233-234, 242, 245, 273, 283, 362 THE HAGUE ACADEMY OF INTERNATIONAL LAW MONOGRAPHS Ian Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations, 1998 isbn 90 411 1068 2 Shabtai Rosenne, The Perplexities of Modern International Law, 2004 isbn 90 04 13692 Theodor Meron, The Humanization of International Law, 2006 isbn 90 04 15060 Symeon C Symeonides, The American Choice-of-Law Revolution: Past, Present and Future, 2006 isbn 90 04 15219 Arthur T von Mehren, Adjudicatory Authority in Private International Law: A Comparative Study, 2007 isbn 978 9004 15881