chapter 1 of anderson book

Nature of Private International Law 1

1

Nature of PrivateInternational Law

INTRODUCTION

Most branches of law describe specific areas of local law applicable to theresolution of entirely local disputes. By way of contrast, private internationallaw (or ‘conflict of laws’) is that body of the local laws of a country thatprovides the rules for resolving private disputes connected with at least twodifferent countries. The subject is therefore unique. It is local in content inthat it is part of local law but it is, simultaneously, oriented towards thesolving of international problems.

Private international law arises from the fact that the world is populatedby a number of separate domestic systems of law that differ significantlyfrom each other in the rules used to govern various legal relationships betweenindividuals. Were there to be no difference between the laws of the variouscountries there would be virtually no necessity for the subject. Conflict oflaws, then, is a creature of the discrepancy of the law; in this sense it is anartificiality produced by the inability of the law to speak with one universalvoice.

Unfortunately, this seems not always to be borne in mind by courtswhen deciding disputes that affect the way people actually live their dailylives. At the turn of the twentieth century, an English court held that amarriage celebrated in England between a young Frenchman and anEnglishwoman was valid and subsisting under English law notwithstandingthat 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 remarriedthere after the French decree. Under the English rules prevailing at thetime, his return to France meant that the Englishwoman was unable toobtain a divorce in England. For that matter neither could she in France,under whose law the marriage was deemed never to have existed. Nor couldshe receive maintenance from the courts of either country for roughly thesame reasons. Her subsequent marriage in England to an Englishman wasdeemed by the English court to be bigamous and void.1

It is not now a question of whether it was the French or English courtthat was correct on merits of the substantive dispute; still less of any priorityto be assigned to the judgment of the court first seised of the matter. Theplight of the Englishwoman is a poignant advertisement of a more profoundpoint, namely, the regard by both courts of the concept of law as an objectiveand unchangeable reality. This is itself akin to the consciousness achievedby the Medes and Persians.

In truth, the law is far from being static. The judicial function is firstand foremost the reconciliation of the societal demands for predictabilityand certainty with the requirement of doing justice in individual cases.These objectives are not mutually antagonistic. Far from necessarily makingbad law, hard cases present an opportunity for the exercise of genuinejudicial decision-making. And by its very nature as a creature of thecacophony of the world’s legal systems, private international law provides apremier 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 ofa territory under a separate sovereign having a distinct legal and judicialsystem. It stands in contradistinction to a ‘state’ that has legal personalityin public international law.3 Thus, each dependent Caribbean territory is acountry but not, of course, a state. On the other hand, there is often anoverlap between the two notions. Unitary states, where the law is the samethroughout the territory, such as the fifteen members of the CaribbeanCommunity (CARICOM)4 are both ‘countries’ and ‘states’ at the sametime. Similarly, each independent member of the Organisation of EasternCaribbean States (OECS)5 is a separate state; the organisation has a unifiedcourt system that facilitates harmonisation of conflict rules but member-


states remain separate countries because each is, at least theoretically, subjectto a separate sovereign.

Federal states present particular problems in defining the basic unit ofstudy for private international law. The ‘state’ for purposes of publicinternational law is the federal entity whereas the individual componentparts of the federal entity that administer their own distinct laws arecountries in the private international law sense. Each American ‘state’ andeach Canadian province is a ‘country’, as is each of the territorial componentsof the United Kingdom and of Australia. A private international lawrequirement in relation to a country is not necessarily fulfilled by satisfactionof that requirement in relation to the federal state. Belle v Belle6 involvedthe question of whether the Barbados High Court should recognise a divorcedecree of the courts in New York purporting to dissolve a marriage betweentwo Barbadians. Under the laws of Barbados the divorce could only berecognised if at least one of the parties had intended to reside indefinitelyin the ‘country’ where the divorce was granted. Williams CJ rejected asinsufficient evidence of an intention ‘to reside indefinitely in the UnitedStates of America’. The requirement was that of indefinite residence in thecountry granting the divorce, namely, New York.7

Exceptionally, the federal state may be regarded as the territorialjurisdiction for purposes of private international law. Australia is one countryfor the purposes of the law of marriage, Canada is one country for thepurposes of the law of divorce, and the United Kingdom is one country formost purposes of the law of companies. The Federation of Saint Kitts andNevis is one jurisdiction for virtually all purposes. Caribbean legislationmay also indicate that the federal system is to be taken to mean the systemof law for conflict purposes in specific cases, normally in the field of familylaw and succession.8

Types of Legal Disputes

There are for all intents and purposes, at least three streams of Caribbeanconflict problems.

First, given that each Commonwealth Caribbean state is by definitiona country, it follows under the traditional Anglo-Caribbean ‘jurisdiction-selecting’ approach for identifying the law to govern a conflict case, that aCaribbean court may be compelled to apply the laws of a sister Caribbeanjurisdiction. This is so even though the substantive laws in the twojurisdictions 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 whichleads in turn to a balancing of the respective ‘interest’ possessed by eachrule in being applied to the case. The great merit of the American approachis that it avoids ‘false conflicts’ between the laws of countries where therespective laws are identical or where, correctly evaluated, only the laws ofone country were intended to apply (have any interest in being applied) tothe case in hand.

But genuine private international law disputes can and do developbetween Caribbean countries, principally as a consequence of law reformundertaken in one country and not reproduced in the other, or becauselocal procedural requirements regarding recognition of foreign legal actionshave not been fulfilled. Defoe v Braithwaite9 is a classic example of theformer. Williams CJ was asked to decide upon rights and obligations underthe ‘union other than marriage’ concept in circumstances where theapplicant had come to Barbados from the neighbouring island of theCommonwealth of Dominica. A ‘union other than marriage’ is a creatureof Barbadian legislation that gives recognition to what in common parlanceis known as a common law marriage, but this important piece of socialengineering had no equivalent under the laws of Dominica. Maycock vInternational Seafoods10 furnishes an example of failure to satisfy theprocedural requirements of the local court. In this case, application for anorder to have a judgment by the High Court of Guyana registered inBarbados was denied. It was found that the Barbados rules for the possessionof jurisdiction by the Guyana court had not been satisfied.

The courts try not to magnify the differences between the Caribbeanlaws. An apparent divergence may be smoothed over often by the court ofultimate appeal, traditionally the Privy Council, now being replaced bythe Caribbean Court of Justice.11 The harmonising role played by the PrivyCouncil in the reluctance to investigate every minute discrepancy was evidentin Motor & General Insurance Company Limited v Gobin.12 Proceedingsbefore the Supreme Court and Court of Appeal of Jamaica, assumed thatthe Insurance Act in Trinidad and Tobago was to the same effect as theCompanies Act of Jamaica on the issue in dispute. On the hearing beforethe Privy Council the plaintiff sought leave to adduce expert evidence as tothe precise provisions of the Trinidad Act. This was refused. Their Lordshipswere 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 taintedby illegality. There was ‘no need for present purposes for any greaterspecificity’.


This reluctance might even extend to the special case of St. Lucia,which has a mixed system comprising elements of both civil and commonlaw. In Lascelles de Mercado & Co Ltd of Kingston, Jamaica v Wallace Sanchezof Castries, Saint Lucia13 the High Court of St. Lucia brushed asidesuggestions that the Commercial Code of St. Lucia imposed a different lawof subrogation from the common or statutory law prevailing in Jamaica.Contrary to the allegations of the defendant, under neither system couldthe wrongdoer rely upon the rights of subrogation of the insurance companyto limit liability for the wrongdoing.

Secondly, transnational disputes often arise between Caribbean andNorth American as well as European countries. These tend to followtraditional and existing patterns of trade and financial dealings, as well asthe garden-variety family law type disputes. Associates CommercialCorporation v Central Fire and General Insurance Company Limited,14 is aninstance where the Jamaica Supreme Court awarded damages in UnitedStates currency to an American corporation as the assignee of two insurancepolicies. The defendant Jamaican insurers had underwritten the policiesthrough an agency in Texas. Owens Bank Ltd., v Etoile Commerciale SA15

involved a claim in the Commercial Court of Paris by a French financehouse 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 Frenchcustoms. It was held that the French judgment for 10 million French francsin favour of the respondent could be enforced in St. Vincent and theGrenadines.

In Chrysler (UK) Ltd., v Robinson & Company16 the appellant companywas registered in England and manufactured and distributed motor vehiclesand parts throughout the world. It entered into an exclusive distributorshipagreement with the respondent under which the respondent was appointedexclusive distributor of the appellant’s vehicles in Jamaica and non-exclusivedistributor of the parts for the appellant’s vehicles. Rejecting a claim fordamages for breach of the distributorship agreement, the Court of Appealof Jamaica decided that the agreement had been validly terminated eventhough the Power of Attorney under which the termination notice hadbeen issued had not been recorded in the Record Office of Jamaica.

In Princess Nina Aga Khan17 the Jamaica Supreme Court expresslyrecognised the Swiss decree that a deceased intestate was the legitimatedaughter of the applicant. By virtue of this recognition, the applicant wasentitled to the deceased’s property in Jamaica.


Thirdly, conflict problems can arise between Caribbean and foreigncountries that, from a comparative law standpoint, follow different legalsystems. Such problems are likely to be among the most intractable. InCallwood v Callwood18 the respondent’s allegation that she was entitled toGreat Thatch Island in the British Virgin Islands by virtue of the Danishregime of community of property was in stark contrast to Anglo-Caribbeanlaw that knows no such concept. She succeeded before the Supreme Courtof the Windward Islands and Leeward Islands, and before the FederalSupreme Court of the West Indies but lost on the appellant’s appeal to thePrivy Council, albeit on a technicality.

The law of contract provides further examples. Under Caribbeancontract law, a contract made through the post is generally complete assoon as the letter of acceptance is posted.19 Under Swiss law, on the otherhand, such a contract is only completed when the letter of acceptance isreceived. A conflict problem will therefore arise if the letter of acceptanceposted by say, a Trinidad and Tobago businessman in Port of Spain to hisSwiss counterpart in Geneva, is lost in the post. Under Trinidad and Tobagolaw the contract would have been concluded whereas Swiss law would viewthe agreement as non-existent. Similar problems may arise as a result ofconflicting laws adopted in the differing legal systems in relation tomatrimonial causes, succession, and torts, to name a few.

Connecting factors

It bears emphasising that a conflict problem arises when a dispute has alegally significant connection with more than one jurisdiction.20 Theelements linking the dispute to particular countries are known as ‘connectingfactors’. The country where the litigation is heard (the forum) is alwayslegally significant and its law is referred to as the lex fori.

For particular issues the country where a litigant has, for want of moreprecise words, his home (domicile), may also be significant. So too theplace where a marriage is celebrated (locus celebrationis), property is located(situs), an agreement is made (locus contractus) or is to be performed (locussolutionis), or where a tort is committed (locus delicti). Speaking generally,the forum uses its private international law rules to select the law (whetherits own or that of a foreign country) that will decide the merits of thedispute. 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 sameconnecting factor is defined differently in the forum as contrasted withhow it is defined in the foreign country whose law, for example, suppliesthe lex causae. As a rule, the forum’s definition prevails. In the English caseof Re Annesley22 it was clearly stated that the question whether a person isor is not domiciled in a foreign country was to be determined in accordancewith the requirements of English law as to domicile. This was ‘irrespectiveof the question whether the person has or has not acquired a domicile inthe 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 beencreated between the parties. In so doing Staughton J approved the followingpassage from Dicey & Morris, referring to all connecting factors:

A fundamental problem in the conflict of laws is whether the connecting factorshould be determined by the lex fori or by the lex causae... it is no longer controversialamong learned writers that the connecting factor should be determined by the lexfori. Although the reported cases are all concerned with domicile, it may be assumedthat English law has adopted this prevailing opinion, and that, for the purpose ofan English conflict rule, the connecting factor will be determined by English law asthe lex fori.25

Dicey & Morris assert that the lex fori definition is necessarily requiredbecause ‘the determination of the lex causae depends on the determinationof the connecting factor’.26 This rationale is open to doubt. Legislationprovides significant exceptions thus tending to undermine the notion ofinherent necessity. Statutory rules regarding recognition of divorces andlegal separations frequently compel the forum to recognise a foreign decreeif that decree was granted by a foreign country using its own definition ofdomicile, even though by the forum’s definition, the parties were domiciledin some other place.27 Similarly, under legislation governing succession,the determination of whether or not a testator had his domicile in a particularplace is to be determined by the law of that place.28

It may therefore be suggested that the forum adopts its own definitionof connecting factors but may provide for exceptions to this rule where it isthought appropriate to do so.

In addition to differences in definition, countries may actually adoptdifferent connecting factors to govern the same type of dispute, a scenariomost likely between countries with different legal systems from a comparativelaw standpoint. Caribbean law uses the law of the last domicile of thedeceased to decide questions of succession to that person’s 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 andthe incidental question. The matters are considered in detail elsewhere.29

Private disputes

By ‘private’ disputes is meant disputes entirely between individuals orbetween individuals and the state when the latter acts in its non-governmental capacity. In general, the subject does not cover public lawlitigation in the sense of disputes between individuals and the state wherethe latter acts in its governmental capacity or as parens patriae.

Accordingly, this book is not concerned with the jurisdiction ofCaribbean criminal courts to try crimes committed abroad or with suchother topics as extradition, immigration or deportation. Existing conflictrules prevent Caribbean courts from enforcing public laws of foreigncountries. Litigation between states is governed by public internationallaw. The relationship between private and public international law isconsidered below.

FUNCTIONS OF PRIVATE INTERNATIONAL LAW

Private international law provides the procedural means of resolvinginternational legal disputes as distinct from providing the substantivesolution to those disputes. The rules are therefore overwhelminglyprocedural in character. Where a conflict problem arises, the functions ofconflict of laws are threefold. These are:

• To determine whether the Caribbean court in which the litigationis raised (the forum) has jurisdiction to hear the case, despite theinternational element in the facts;

• Assuming that the court has jurisdiction, to determine the lawwhich it will apply to govern the merits of the dispute (lex causae);and

• To determine the circumstances in which the relevant Caribbeancourt will recognise and enforce foreign judgments and foreigndecrees.

The two essential concepts relating to these functions are jurisdictionand governing law. Governing law is the Cinderella of private internationallaw and comes up for decision in a decreasing number of cases. The nature


and content of both notions are examined in detail in subsequent chaptersbut for the moment it becomes necessary to consider some matters of ageneral 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 orterritorial in nature. They describe the law followed in the local Caribbeancourt and do not at all determine the conflict rules of foreign courts. Thisis probably related to the widely accepted maxim that a sovereign is supremewithin his own country but has no authority in the country of a foreignsovereign. In Companhia de Mocambique v British South Africa Co30 LordEshmer MR said the following:

With regard, then, to acts done within the territory of a nation, all are agreed thatsuch nation has without more jurisdiction to determine the resulting rights growingout of those acts. But, with regard to acts done outside of its territory it has nojurisdiction to determine the resulting rights growing out of those acts, unless suchjurisdiction has been allowed it by the comity of nations.

However, in some circumstances, the local court may act in such a wayas to prescribe the manner in which a foreign country applies its own laws.For example, Caribbean courts may issue an injunction restraining a personfrom commencing or continuing with foreign proceedings.31 The injunctionis said to operate on the person to whom it is issued and not upon theforeign court per se, but the fact of its issuance is evidence of the intention,frequently successful, of determining the manner in which a foreign courtexercises jurisdiction.

Where a foreign law is to be applied or a foreign judgment or decree isto be enforced or recognised, there may be threshold requirements that theforeign law must fulfill. For example, the forum may prescribe thecircumstance in which a foreign court is competent to grant a judgment ordecree in circumstances where the forum is being asked to recognise andenforce that judgment or decree. Unless the forum is satisfied that theforeign court had jurisdiction in the international sense it will refuse torecognise or enforce the judgment of that court, even if the foreign courthas jurisdiction under its own rules.32 Similarly, rights acquired under aforeign law will not be recognised in the forum, if, for example, such rightsare deemed to be contrary to local public policy.33


These considerations may be important from a jurisprudentialviewpoint. Introduction of the international dimension immediately exposesthe vulnerability of the concept of territorial sovereignty. The forum isinevitably drawn into influencing what goes on abroad, thereby illustratingthat even sovereignty is not beyond the scope of the judicial function inensuring practical justice.

Temporality

Another point of general import concerns the temporal nature of privateinternational law rules. The rules prescribing jurisdictional competencemay vary between the time when the incident occurred or the cause ofaction arose, and the date of litigation. So, too, substantive laws governingthe dispute may be modified in the interim. For example, it is well establishedthat the law of their domicile governs the rights of spouses to matrimonialproperty. But the parties may change their domicile between marriage anddivorce. If the same domicile is maintained the substantive law in thedomicile may be modified by legislative intervention.

As a general common law rule, the forum applies the law as it stands atthe time of litigation. The case law has been mainly concerned with changesin the substantive law applicable to the dispute. In one case, a foreignmarriage was invalid at the date of its celebration because only a religiousceremony had been conducted whereas a civil ceremony was required.Subsequently the law was changed to validate all religious marriages thatfulfilled certain conditions. The wife underwent another ceremony ofmarriage in England to another man but by this time the foreign marriagehad fulfilled the conditions and the House of Lords held that it had therebybecome retrospectively validated.34 The English ‘marriage’ was thereforenull and void. Had the English ceremony preceded the validation of theforeign marriage the court would have had to consider the more difficultissue of whether retrospective changes in a foreign law would be applied toadversely affect individual status acquired under the lex fori, provoking alikely negative response.35

A peculiar problem arises where government is party to the conflictproblem. In virtue of its law-making power government can secure changesin the applicable law to its advantage and thus place in issue considerationsof fairness and propriety in the forum’s enforcement of such changes.Nevertheless, the forum has applied the changed law to government’smodification and elimination of its liability in tort36 and the unilateralincrease of its contractual benefits.37


Attempts by foreign multinational corporations to eliminate the riskof unfavourable legislative changes by inserting ‘stabilisation clauses’ intheir developmental contracts with governments have had only limitedsuccess. Where the forum is the country of the legislating government, thecourt must, according to basic constitutional law principles of parliamentarysovereignty, apply the changed law.38 A foreign tribunal could apply thestabilisation clause, and is likely to do so if it deems that part of the contractis to be governed by public international law.39

Jurisprudential Basis

An explanation must be offered as to why a Caribbean court, faced with atransnational case, does not simply refuse to adjudicate upon it. Or, if itchooses to adjudicate does not simply apply its domestic law but rather, tothe extent it considers appropriate, takes cognisance of foreign law.Recognition and enforcement of foreign judgments and decrees similarlyrequire a rationale.

Suggestions that the court acts from notion of comity are to be foundin a number of judgments, ancient and modern, but Caribbean courtsapply foreign law without requiring that the foreign court should applyCaribbean law in equivalent cases. Application of foreign law has neverbeen based simply on the desire to show courtesy to the foreign countryand foreign laws have been applied in circumstances of diplomatic andmilitary hostility with the foreign state.40 The monist doctrine of regardingall law as one seamless web could be useful in this regard, but the commonlaw has seldom if ever based application of foreign law on this ground.

Another idea offered in the cases is that the parties somehow acquire orenjoy 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 responsibilitiesof Caribbean courts to enforce local law and rights cognizable in local law.The extent to which such conflict rules allow the intrusion of rights andobligations created in foreign countries is ultimately regulated and indeedvalidated by the constitution.

It must therefore be closer to the mark to suggest that the local courtreally adapts local law to give a remedy that follows as close as possible theremedy available for a foreign cause of action. But whilst this ‘local law’theory is probably true41 it does not explain why the court seeks to do this.

Perhaps the most elegant explanation is the simplest. Morris suggeststhat foreign law is applied ‘in order to do justice between the parties’.42


Machado v Fontes43 illustrates the injustice that may result from a xenophobicdisregard for the provisions of relevant foreign law. The English Court ofAppeal upheld an action for libel in respect of allegations written inPortuguese and published in Brazil, although no civil liability existed underBrazilian law. Damages were assessed for the plaintiff by reference solely toEnglish law.

Condemnation of this decision has been virtually universal. At thesame time the notion of justice does not sit comfortably with many decisionsbased upon the bare technicality of the rules without regard to the realsocial and economic circumstances.44

SOURCES

Constitution

Caribbean private international law derives from the same hierarchy ofsources as other branches of local law. The Constitution provides thefundamental law of Caribbean states and whilst containing no expressprovisions on the subject, is relevant in both general and specific terms.Under the supreme law clause the Constitution is declared to be ‘the supremelaw’ 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 theinconsistency, be void.’45 This reference to ‘any law’ necessarily includesthe common law and statutory rules of private international law.

Many potential constitutional constraints on transnational law maybe identified. The Constitution establishes a Supreme Court in eachjurisdiction as a superior court of resort,46 and a Court of Appeal,47 andprovides freedom of access to these courts for the adjudication of civildisputes.48 Parties may be free to stipulate arbitration as the means ofresolving any dispute, but to go further and attempt to place litigationbeyond the reach of the courts is probably inconsistent with theconstitution.49 Constitutional obligations to grant access to the courts mayalso have a determinative effect upon questions of the exercise by localcourts of jurisdiction over foreign litigation50 as well as the recognition offoreign judgments and decrees.51 Constitutional considerations have alsodetermined local adjudication of international litigation; for instancegovernment might be held to be restricted in international commercialcontracting from fettering the law-making powers of parliament.52


Sovereign immunity, as an adjunct of constitutional sovereignty, alsohas applicability in the present context. Under the classical doctrine ofsovereign immunity, a sovereign state could not be forced, as a defendantto recognise the jurisdiction of a foreign court. Modern law acknowledgesthe ‘restrictive’ doctrine of immunity whereby states retain immunity fromsuits for governmental acts, that is, acts performed in exercise of sovereignauthority, acta jure imperii, but give up that immunity in respect of acts ofa commercial nature, acta jure gestionis.53 Specific constitutional powersgranted to the territorial sovereign in respect of civil rights andresponsibilities have been held not to be applicable to foreign sovereigns.54

Legislation

Legislation is becoming an increasingly important source of privateinternational law. Statutory reform of the law of domicile55 is particularlypopular. There have also been legislative attempts to facilitate the reciprocalenforcement of Commonwealth judgments as well as judgments by suchother foreign states as are prepared to offer reciprocal enforcement.56

Legislation has been enacted to provide for the assistance of the forum inthe garnering of evidence found locally for use in its foreign proceedings.57

Statutory provisions unique to the Caribbean exist in relation totransnational causes of action in mass torts.58

There are, however, unresolved questions concerning whether particularpieces of legislation were intended to govern conflict of laws cases. In thisway decisions concerning the dimension of space over which the legislationextends is increasingly problematic. Changes in the legislation can alsolead to problems in the temporal dimension of the law of the type metearlier.

Common Law

In most respects the subject is dominated by the common law. Thepiecemeal nature of legislative intervention in the Caribbean has, unlikethe situation in some other jurisdictions, left large areas of commercial andfamily law relatively untouched.59 Even where the Legislature hasintervened, the trend has been for the legislation to explicitly adopt orclearly draw upon common law concepts.60 Commonwealth precedentsenjoy very high persuasive value. In this regard, the continued retention ofthe Judicial Committee of the Privy Council as the final appellate court for


most of the Commonwealth Caribbean countries61 consolidates the pre-eminence of English decisions.

Given that its decisions are binding on jurisdictions from which theappeal arises and, probably, all territories it serves, the Privy Council alsoserves as a means of harmonising conflict rules; a role not altogetherdissimilar to that performed by a final supreme court in a federation.62 TheCaribbean Court of Justice (CCJ),63 which will eventually replace the PrivyCouncil for all Commonwealth Caribbean countries, is likely to perform asimilar harmonising function.

TRADITION OF PRIVATE INTERNATIONAL LAW

The English Influence

The General Position

There is an umbilical connection between the early development of privateinternational law in the Caribbean and the status of Caribbean countriesas appendages to the Crown of England. Consequent upon settlement orconquest in the seventeenth century,64 English law was generallyincorporated to constitute the substratum of the colonies’ legal systems.65

The earliest accounts of transnational decisions debated the extent to whichEnglish law should govern Caribbean suits.

For example, in the 1839 case of Stulz v Wallace66 the Supreme Courtof Jamaica was asked to decide whether the English Statute of Limitationshad the effect of barring, in Jamaica, an action in respect of a contractmade and executed in London. The Court found that the settlers hadbrought with them ‘all such laws of England as would be necessary to theirnew condition, which laws would confer on them the same rights andattach to them the same liabilities, as if they had remained in the mothercountry.’ Amongst the laws thus conferred upon the inhabitants of theIsland were the Statutes of Limitation of James and Anne. It would thereforebe a ‘strange anomaly to hold that the plaintiff ’s remedy, clearly barred inthe mother country by reason of the application of those statutes, shall berevived and kept alive for ever here if the defendant happens to come thisIsland.’

Caribbean conflict rules have now achieved a measure of maturity buttraces of the old approach remain compliments, not least, of currentCaribbean legislation incorporating and making English law applicable.


Thus in Mills v Mills67 the Chief Justice of The Bahamas came to thefollowing ‘startling’ conclusion. The Bahamian Legislature had deliberatelyset forth a policy of adopting referentially legislative changes in privateinternational law rules brought about by the English Parliament. The judgeadmitted 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 consideredincorporated wholesale is more problematic. The eighteenth century casesof Scrimshire v Scrimshire69 and Robinson v Bland,70 often credited as markingthe genesis of the development of private international law into a properlegal discipline, probably post-dated reception in the vast majority of cases.71

In any event, the tradition of deference to English law has meant thatCaribbean judges have naturally followed, without inhibition, developmentof conflict principles in the ‘mother country’.72 The fact that the PrivyCouncil is geographically English, staffed overwhelmingly by English judgesand 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 thetransnational rules prevailing in England. Simpson v McCallum,73 decideda mere 30 years after the landmark decision in Stulz v Wallace rejected theargument 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 thelaws of England are not in force here unless declared to be so by some statutes, orare re-enacted here, still less can the custom of any place be in force. A foreignattachment owes its origin to, and must, we think, be governed entirely andexclusively by our Island Act.74

In this vein, Caribbean courts have occasionally anticipated the Englishjudicial mind. It is remarkable that the rule requiring participation by anepiscopally ordained priest or deacon in order to validate a common lawmarriage has been associated exclusively with the notorious House of Lordsdecision in R. v Millis.75 A full two years earlier, Samuel v Hare,76 decidedby the Supreme Court of Jamaica, had clearly ruled that the interventionof a priest in holy orders was necessary for the validity of the marriage.


Similarly, the Trinidad and Tobago Supreme Court decided in Henry vHenry,77 that a party to a potentially polygamous union was not entitled toremedies, adjudication, or relief of its matrimonial laws. This decision wasgiven a full two years before a similar ruling was made in the Englishdecision of Sowa v Sowa.78

Secondly, some conflict doctrines appear to have been developed inEngland for exclusive application by English courts. The quintessentialexample is the doctrine of double or total renvoi. A well-known weakness ofthe doctrine is that it does not travel well. Application may have beenintended to be uniquely English because it becomes entirely unworkable ifadopted by another legal system in any dealings with English conflictrules. The same may be said about its adoption by Caribbean courts interse. As Dicey & Morris put it:

… the effect of applying the doctrine of total renvoi is to make the decision turn onwhether the foreign court rejects the renvoi doctrine or adopts a theory of single orpartial renvoi. But if the foreign court also adopts the doctrine of total renvoi, thenlogically no solution is possible at all unless either the English or the foreign courtabandons its theory, for otherwise a perpetual circulus inextricabilis would beconstituted.79

Finally, the modern phenomenon of the United Kingdom’s integrationinto the European Union poses serious challenges to continued unwaveringadherence to English case law. For example, England has had to makelegislative changes in the common law rules on enforcement of foreignjudgments in order to conform to the new European arrangements.80 Radicalchanges have been effected in relation to rules on jurisdiction and choice oflaw in contract and torts for the same reason. One of the reasons given inthe Australian case of Oceanic Sun Line Special Shipping Co. Inc. v Fay81 forrejecting developments in English law on jurisdiction was explained byGaudron J in terms of the European influence:

Our legal heritage is the gift of the common law of England, and our legal systemnecessarily has much in common with that of England. Where, however,developments in the common law of England reflect underlying changes whichmay not be matched in Australian law or society, care must be exercised indetermining the extent to which changes in the English common law should bereflected in the common law of this country. [These developments] are readilyunderstandable when it is borne in mind that England is a member of the EuropeanCommunity, which is not merely an alliance of similarly minded sovereign nationstates, 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 disputesmay be traced back to antiquity, and has shown some indications ofindependent thinking, the truth of the matter is that in terms of volume,there is no great tradition of private international law litigation. The WestIndian Reports in over 50 volumes have recorded only a handful of relevantcases. Although there are significantly more unreported judgments83 thecumulative presentation of cases does not fulfill the potential for conflictsituations.

Certainly, Caribbean economic, familial, cultural and environmentalcharacteristics suggest a profusion of situations in which conflict principlesare likely to arise. CARICOM and the OECS consist of several island stateswith intensive inter-regional trading relations.84 The region has a historyof reliance upon international trade in traditional crops such as sugar andbananas.85 Tourism is the major foreign exchange earner and several well-known mishaps involving visitors to Caribbean shores clearly involve privateinternational law principles.86

Serious and successful efforts have been made to develop the offshorefinancial sector. The Cayman Islands and The Bahamas are well-knowninternational banking centers and thriving shipping registers and offshorefinancial services have been established in Saint Vincent and the Grenadines,The Bahamas, and Barbados. Transnational Caribbean marriages arecommon place87 and the region is a popular destination for “tourist”marriages.88 The friendliness of the climate had led many non-Caribbeannationals to purchase property in exclusive residential developments.

Whilst the reasons for the relative dearth of cases are not immediatelyobvious, some may be suggested. The volume of reported decisions mightbe significantly higher than appears at first sight. Many private internationallaw cases do not appear under that rubric and instead are indexed underrather obscure headings, thus placing a premium on research skills. Thereis also, for the academic lawyer, the usual irritating phenomenon of a highincidence of out of court settlements.89

There may also a scarcity of legal expertise. The Supreme Court ofJamaica has admitted to ignorance in relation to principles of privateinternational law.90 Legal advisers may deliberately, in the interest of their


clients refuse to allege and prove foreign law; in the absence of suchallegation and proof, the presumption is that domestic law applies.91 Wherejudges make an error in the application of private international law theymay be corrected on appeal; however where legal practitioners, ignorant ofthe subject, fail to utilise its principles in the interest of their clients, anissue of liability in tort to clients could possibly arise.92

Again, potential conflict situations may, in some circumstances, belocalised within one jurisdiction, thus eliminating the transnationalelements. Conflict avoidance may be achieved through the internationalbanking system as where an international bank opens lines of credit throughits local branch to contracting businessmen in separate countries in respectof a transnational contract. The conflict issues relating to time, date andcurrency of payment and the like are dealt with within the banking systemand do not thereby raise conflict of laws points.93 The parties themselvesmay also attempt avoidance by inserting jurisdictional and choice of lawclauses, which localise a contract within a particular country.94 Governmentmay legislate that all transactions of a certain type are to be heard withinthe local jurisdiction and that local law must be applied to the dispute.95

Finally, transnational cases may present alternative dispute resolutionpossibilities beyond private international law. In some circumstances, victimsmay be entitled and may prefer resort to the diplomatic and legal possibilitiesavailable in public international law.

PRIVATE AND PUBLIC INTERNATIONAL LAW

Private and public international laws represent different legal methodologiesfor dealing with transnational disputes. Legal injury or damage to a nationalof one state may give rise to an international claim by that state against theforeign state or other international legal personality legally responsible forthe injury.96 The claim is on behalf of the injured individual but is legallyvested in the claimant state, hence the notion of inter-state claims.97

Public international law therefore regulates the conduct of sovereignstates and the settlement of disputes at the international level throughdiplomatic negotiation, arbitration or adjudication.98 By way of contrast,private international law establishes rules for the governance of privatelitigation initiated in municipal courts and controlled by the private parties.Given the acephalous nature of public international law, privateinternational law will frequently constitute a more efficient means ofsettlement of transnational disputes.


Another important difference relates to their respective sources. Privateinternational law derives from the constitution, statutes and common law.It therefore varies from place to place depending upon the precise contentof local law; the subject is, in every country, a legal discipline within thesystem of municipal law. Public international law is largely made up ofinternational conventions, custom and general principles of law to whichnations of the world subscribe99 and is therefore intended to beinternational in its scope and sources of law.

These differences notwithstanding, there is more that unites thanseparates the two. Overlap of substantive law probably accounts for thefact that some topics receive approximately similar treatment in bothsubjects; these include nationality,100 sovereign and diplomatic immunityfrom suit,101 and governmental seizure of private property.102

‘Country’ and ‘State’

We have seen the fundamental continuity and frequent identity betweenthe notions of ‘country’ and ‘state’ as the object of study in conflict laws. Itis also the case that recognition of the state in international relations isoften a pre-requisite to application of the laws of that country in a conflictscase, as was held by the Bahamian courts in Re Tolbert.103 In that case aforeign government not recognised by The Bahamas, had, ‘no locus standiin The Bahamian courts - it cannot institute an action in these courts, theBahamian courts will not give effect to any of its acts, and its laws anddecrees will be disregarded.’104

Similarly, a country that fails to satisfy the criteria for statehood asoutlined in the Montevideo Convention on the Rights and Duties of States1933,105 but which by definition is a jurisdiction for purposes of privateinternational law, may, even if not recognised as a state, nonetheless be theobject of concern for public international law. In this regard, witness, forexample, the adoption of the principles of self-determination anddecolonisation by the United Nations.106 There is also Caribbean publicinternational regulation of agreements to which non-states are parties.107

Harmonisation of conflict rules

International conventions are increasingly a source of private internationallaw 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 isundertaken with a view to ensuring uniformity among state parties to the


conventions. The agreements fall into several categories. First, they mayconcern matters of evidence and procedure, as in the case of the Evidence(Proceedings in Other Jurisdictions) Act 1981 of Barbados,109 which wasenacted to give effect to the Hague Convention on the Taking of EvidenceAbroad in Civil and Commercial Matters 1970.110

Many conventions regulate conflict rules in the area of family law. Forexample, the Hague Convention on Jurisdiction, Applicable Law andRecognition of Decrees Relating to Adoptions 1965111 sets out rulesregarding the states which have jurisdiction to grant or revoke adoptionsand when they must apply the laws of other states. The United Kingdombecame a party to the convention in 1978 and Antigua acceeded to thismembership on May 1, 1985; the Adoption of Children Act of Antiguaand Barbuda112 contains the relevant provisions. The 1965 Convention issupplemented by the Convention on Civil Aspects of International ChildAbduction113 and is implemented in participating Caribbean countries bythe Adoption of Children Act.114 The Inter-American Convention onConflict of laws Concerning the Adoption of Minors115 establishes theapplicable law that governs capacity to be an adopter, and the relationsbetween adopter and adoptee including rights of succession, but has notyet been adopted by any Commonwealth Caribbean state.

Also in this category are several conventions on the status of parties toa marriage. The Hague Convention on the Recognition of Divorces andLegal Separations 1970116 whilst yet to receive ratification by even a singleCaribbean state, has nonetheless profoundly shaped the content ofCaribbean legislation in this area. Many of the Recognition of Divorcesand Legal Separations Acts and similar legislation found throughout theregion contain important provisions in this regard.117 This might havebeen influenced by the lead role of the United Kingdom in developing theconvention; an activity driven by the need to clarify the common law onthe recognition of foreign divorces following the decision of the House ofLords in Indyka v Indyka.118

Conventions on matters of succession cover a related area. TheConvention on the Conflict of laws Relating to the Form of TestamentaryDispositions, done at The Hague in 1961119 is transformed into local lawby succession statutes.120 The Agreement has also influenced the shape oflegislation elsewhere in the region, notably in Jamaica,121 Barbados,122 andTrinidad and Tobago.123

Conventions on the law of obligations include the UN Convention onContracts For the International Sale of Goods 1980124 which represents


the work of UNCITRAL. This agreement supersedes previous HagueConventions on the subject, such as the Convention Relating to A Uniformlaw on the International Sale of Goods 1964.125 The UN Conventionestablishes rules for formation of the contract and for the rights andobligations of parties arising under it. The Inter-American Convention onPersonality and Capacity of Juridical Persons in Private International Law1984126 sets out the applicable law which governs the operation ofcompanies. The Hague Convention on the Law Applicable to Trusts andTheir Recognition 1986127 provides for the determination of the lawapplicable to certain aspects of contracts of sale of goods. There are noCaribbean parties to these conventions.

On the other hand, some agreements on the recognition andenforcement of judgments in personam have attracted support from theregion. Inspired by UK precedents, provisions for reciprocal enforcementby registration of judgments of superior courts in the Commonwealth existin legislation, virtually in all Caribbean states. The New York Conventionon the Recognition and Enforcement of Foreign Arbitral Awards adoptedby the United Nations Conference on International Commercial Arbitrationhas been adopted in some Caribbean countries.128 The Hague Conventionon the Taking of Evidence Abroad in Civil and Commercial Matters hasbeen widely adopted.129

Unification of substantive law

Conventions may unify substantive domestic law thereby reducingopportunities for conflicting results in transnational cases. This is not aneasy matter given the fundamental differences that distinguish one legalsystem from another. Even within the same legal family significantdiscrepancies 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 harmonisationin specific areas. The Hague Rules on the Unification of Certain RulesRelating to Bills of Lading, settled by an International Conference onMaritime Law held at Brussels in 1922 and 1923,130 express rules for thegovernance, inter alia, of the carriage of goods by sea. These rules werelitigated in the leading Privy Council decision of Vita Foods Inc v UnusShipping Co. Ltd.,131 and are normally given effect in local law by the Carriageof Goods by Sea Act.132 The UN Convention on the Carriage of Goods bySea 1978133 is yet to be accepted in the Caribbean.


The rules on the international carriage of persons or goods by aircraftfor reward have been unified for contracting parties by the 1929 WarsawConvention as amended at The Hague in 1955 and as supplemented bythe Guadalajara Convention 1961.134 In British West Indian Airways, Ltd. vBart135 the Warsaw Convention was applicable to limit the liability of BWIAin contract and tort for not transferring a winning football pool accordingto schedule thus causing the coupon to be disqualified upon arrival inLondon. Similarly, rules on substantive obligation towards protection ofthe marine environment and civil liability for marine pollution have beenagreed in a number of conventions, notably MARPOL 73/78 and 1992Civil Liability and Fund Conventions to which several Caribbean states areparties.136

There are a number of conventions concerning unification of substantivelaw on intellectual property rights. A notable agreement here is theConvention on the Unification of Certain Points of Substantive Law onPatents for Invention 1963.137 Provisions in the CARICOM and OECSTreaties require that member-states implement obligations under theconventions relating to trade and other matters. Caribbean participationin TRIPS may also be an example of unification under conventionalobligations, 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 questionsin private international law and even fewer have enacted the relevantlegislative provisions to incorporate the treaty into national law. In theevent, therefore, the global movement for the harmonisation of conflictrules has had little direct impact on Caribbean private international law.

Public international law as a ‘system’of law for privateinternational law

Public international law issues frequently appear before national courtsand these judicial decisions as well as any relevant legislation may formrules in public international law whether under the rubric of custom orgeneral principles of law. In issue here is the converse problem; that is theextent to which national law adjudication and enforcement institutionsmay be used to enforce public international law principles. Were publicinternational law to be regarded as a ‘system’ of law that could governappropriate transnational cases, the well-known weaknesses inherent inthe lack of strong central governance of international relations and the


related absence of a binding system of adjudication and enforcement ofjudgments would be neatly by-passed.

Choice of public international law as the lex causae appears to havebeen conceptualised as predicated upon satisfaction of the dualisticrequirements of incorporation and transformation.139 Many of the recentcases concern the possible effect of unincorporated treaties establishinginternational organisations.140 There are also instances where the jurisdictionof the forum was held to be contingent upon ratification by foreign statesof an international convention.141 Certainly, several decisions in domesticproceedings as well as by arbitration tribunals have held that aspects oftransnational agreements are governed directly by public international law.But these are generally in the realm of long term economic developmentagreements between governments and foreign private investors and are betterexamined in that context.142 There is one decision by the Privy Councilappearing to apply the international concept of delict to the tort law butthis was not in a conflict of law context.143

Institutions

Institutions created by treaties or memoranda of understanding can playan important role in unification and harmonisation of private internationallaw. At the global level, the best illustration is provided by the EuropeanUnion, which has been a major source for unification of conflict of lawsrules among Member States. In addition to the creation of conventionalobligations the EU has also generated directives and regulations containingprivate international law provisions, some of which have direct effect withinMember States.144

For the Caribbean, the Treaties of 1973 (as revised in 2001) and 1981establishing CARICOM and the OECS, respectively, both anticipated andrequired that measures would be taken leading to greater commonality ofrules between the member states especially regarding trade. This isparticularly evident in the provision relating to state undertakings toimplement obligations under the conventions. Article 4 of the OECS Treatyspecifically requires each member state to take all steps to secure theenactment of such legislation as is necessary to give effect to the Treaty anddecisions taken thereunder. The efficient functioning of the Caribbean SingleMarket and Economy (CSME) is likely to make significant requirementsfor harmonisation of laws affecting trade. The role of the CCJ and theOECS Supreme Court in this connection has already been noted.


Other potentially relevant developments exist in the context of theOrganisation of American States (OAS) framework.145 Whilst theagreements make clear that they are open to participation by all memberstates of the OAS no Commonwealth Caribbean state is at present a partyto any of these conventions. The Commonwealth Secretariat has sought tofacilitate harmonisation of conflict rules action within member states,especially in the field of recognition of foreign judgments and custody ofchildren and some Caribbean states have enacted legislation giving effectto such agreements and understandings. Finally, the Hague Conference onPrivate International Law, undoubtedly the most significant internationalbody in the general field of harmonisation of conflict rules, has no membersfrom the Commonwealth Caribbean at present although some of the HagueConventions 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 MarineGmbh (Privy Council Appeal No. 13 of 2002) which examined the substance ratherthan the form of the legal question before it in order to decide the true nature of theissue before it.

3. For a description of the legal criteria for statehood see Ian Brownlie, Principles ofPublic 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 (StonePublications, 1994), at 243-253. See now Revised Treaty of Chaguaramas Establishingthe 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). Theparties are Antigua and Barbuda, The Bahamas, Barbados, Belize, Dominica, Grenada,Guyana, Haiti, Jamaica, Montserrat, St. Kitts & Nevis, St. Lucia, St. Vincent andthe Grenadines, Suriname, and Trinidad and Tobago.

5. Treaty Establishing the Organisation of Eastern Caribbean States (OECS). Done atBasseterre, St. Kitts and Nevis, June 18, 1981. Entered into force on July 2, 1981.Text in Winston Anderson, Caribbean Instruments on International Law (StonePublications, 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, datedMarch 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 andBarbuda), 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 ofDivorces and Legal Separations Act 1983, (Act No. 19 of 1983), (cap. 178), St.Vincent and the Grenadines, sect. 4 (1) (b); Matrimonial Proceedings and PropertyAct (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. Seealso Hutson v Poleon, Unreported, High Court, Barbados, No. 93 of 1982, datedFebruary 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 Guyanajoined 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 - HighCourt of St. Lucia, No. 41/62, dated December 16, 1968. Appeal dismissed andvaried 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 ofAppeal 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 hassome slight connection with a foreign country may not be sufficient to bring it withinthe realms of private international law. See e.g. Coney Island Caribbean AmusementsIncorporated 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 Lloyd’s Law Reports 356.

25. Ibid., at 358. See also, Oceanic Sun Line Special Shipping Co. Inc. v Fay, (1988) 79ALR 9 at 29 per Brennan J:

The question whether a contract has been made depends on whether there hasbeen a consensus ad idem and the terms of the contract, if made, are the subjectof that consensus. At all events, those are the issues which an Australian courtnecessarily addresses when it seeks to determine the existence of what the municipallaw of this country classifies as a contract. Classification is, of course, a matter forthe law of the forum. In deciding whether a contract has been made, the court hasregard to all the circumstances of the case including any foreign system of lawwhich the parties have incorporated into their communications, but it refers tothe municipal law to determine whether, in those circumstances, the partiesreached a consensus ad idem and what the consensus was: cf Mackender v FeldiaAG [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); MatrimonialCauses Act 1989, (2/1989), Jamaica, s. 24 (1) (c); Recognition of Divorces and LegalSeparations 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); Recognitionof 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 ER510.

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. IIIOECS Law Reports 573.


41. Dynamit Actien Gesellschaft v Rio Tinto Co. Ltd., [1918] A.C. 260 per Lord Parkerspeaking in the context of a contractual dispute between an English company and aGerman company during World War I:

Every legal decision of our own courts consists of the application of our own lawto the facts of the case as ascertained by appropriate evidence. One of these factsmay be the state of some foreign law, but it is not the foreign law but our own lawto which effect is given … As has often been said private international law is reallya branch of municipal law and obviously there can be no branch of municipallaw in which the general policy of such law can properly be ignored.

42. J.D. McClean, Morris: The Conflict of Laws, (5th 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 ofTrinidad 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 ofarbitrator 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 proceedingsstayed 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 Transnat’l L & Pol’y 51at 58-84.

51. Winston Anderson, ‘Enforcement of Foreign Judgments Founded Upon A cause ofAction Unknown in the Forum’ (1993) ICLQ 697, at 704.

52. Revere Copper v OPIC 74 ILR 219 (1977); contrast Revere Copper v Overseas PrivateInvestment 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 July26, 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 transnationalactions in contract or tort as obtains in England.

60. This is very noticeable in the legislative reform of domicile and of the conditionsgoverning 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 ofTrinidad and Tobago, 1976, ss. 54 (3) (b). For many years, the lone discordant notewas sounded by the Republic of Guyana which abolished appeals to the PrivyCouncil 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, orthe 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 Guyanajoined St. Lucia and Barbados in depositing its instrument of ratification.

64. The first English landing took place in Saint Christopher (now equally commonlyknown 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 lawtaken 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 Englishrules 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. 1Barb. 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 alwaysbeen 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, “DoubleRenvoi and the Circulus Inextricabilis” in Kodilinye & Menon, CommonwealthCaribbean 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 onJurisdiction and the Enforcement of Judgments in Civil and Commercial Matters1978.

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 theseregional economic blocs. The Caribbean Court of Justice has original jurisdictionover interpretation of the treaty, thus facilitating more effective implementationleading to greater regional trade.

85. See generally, Norman P. Girvan & David A. Simmons, (eds.), Caribbean Ecology andEconomics, (Caribbean Conservation Association, 1991). It should be noted that themost important recent developments in the banana industry relate to aspects ofpublic international law and fact that preferential Caribbean trade in bananas toEurope was found to be in breach of WTO rules: GATT Panel Decision on CaribbeanBananas, Vol. 34 ILM 160 (1995).

86. The following incidents all have been reported extensively in the Press and some havegone through the judicial process and are discussed elsewhere in this book: the sharkattack on american tourists in The Bahamas (2001); death of passenger during a JollyRoger sea cruise in Barbados territorial waters (1998); the fatal crash of CardinalAirlines in Dominica (1998); and the crash Bajan Helicopters Tours during aerialtour of island killing tourists and the local pilot (circa 1994).

87. The popular Barbadian calypso All dem wives, No Bajan describes the situation whereprominent 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, datedFebruary 14, 1975. There have been recent newspaper reports of European ladiesmarrying Barbadian men to get citizenship and then getting in their former foreignpartners.


89. One of the largest conflict case in modern history would undoubtedly have beenDelgado v Shell Oil (1995) (“DBCP”) litigation involving some 26,000 plaintiffsworld-wide and hundreds in the Caribbean. Action had commenced in Caribbeancourts in St. Lucia, Dominica and St. Vincent and the Grenadines but were ultimatelysettled 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 thisdoctrine of ‘remission and transmission’ of certain facts to a foreign court whena case comes up before them with a touch of private international law. I may beone of them. To ask a judge to worship at the shrine of renvoi may be as tricky aninvitation as when Socrates was asked by a friend to worship at the temple of thesea-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 immunityof barristers was held not to extend to a barrister’s negligent advice and settling ofpleadings which prevented a case coming to court. Lord Diplock expressed regretthat no argument was presented that Rondel v Worsley was wrong. In his view the ratioof that case was that the barrister’s immunity covered ‘his conduct and managementof a cause in court and the preliminary work connected therewith such as the drawing ofpleadings.’ Lord Diplock felt that in the face of the trend to hold persons liable fornegligence in the performance of their professional duties, that it would be hard tojustify an uncritical acceptance of this ratio. He understood the special characteristicof a barrister’s work on which most stress had been laid in Rondel v Worsley, namelythat that barrister owed a duty not only to his client but also to the court. When thatduty was exercised in the court room there might not be opportunity for calmreflection as the trial inexorably proceeded. But this argument ‘loses much of itscogency when the scene of the exercise of the barrister’s judgment as to where thebalance lies between these duties is shifted from the hurly-burly of the trial to therelative tranquility of the barrister’s chambers’.

93. See National Commercial Bank Jamaica Ltd., v Guyana Refrigerators Ltd. (1998) 53WIR 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 of1971), (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 (ActNo. 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 Materialson 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 traditionallyaccepted 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 SouthwestAfrica, ICJ Reports, (1950) ICJ Rep. at 132-133.

107. Such as, for example, the 1981 Agreement Establishing the Organisation of EasternCaribbean States, (OECS), Text in Winston Anderson, Caribbean Instruments onInternational Law (Stone Publications, 1994), at 394-409, to which Montserrat (adependency of the United Kingdom) is a party. Similar problems exist in relation tothe participation by the University of the West Indies (UWI) and the University ofGuyana (UG) in the Agreement Establishing the Council of Legal Education, Text inWinston 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 producedwell over 30 conventions the majority of which have been concerned withharmonisation of conflict of laws rules.

109. Cap. 121A. Barbados became a party in 1981 by accession. The Cayman Islands, theBritish Virgin Islands and Anguilla are parties by virtue of ratification by the UnitedKingdom; 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 recognitionof foreign divorces but introduced a great degree of uncertainty into the law byproviding that a foreign divorce could be recognised in England if at least one spousehad a ‘real and substantial connection’ with the country where the divorce wasobtained. 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) ofGrenada.

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; Carriageof 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) areparties to several of these agreements.

135. (1966) 11 WIR 378.

136. See Winston Anderson, The Law of Caribbean Marine Pollution, (Kluwer LawInternational, 1997).

137. The UK became a party in 1977 but the agreement is yet to be extended to aCaribbean territory.


138. Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Tradein Counterfeit Goods, (1994) 33 ILM 81.

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). ArabMonetary Fund v Hashim (No. 3) [1991] 1 All ER 871 (House of Lords); WestlandHelicopters 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 North’s Private International Law (13th edn., PM North, and JJFawcett, 1999) at 12-13.

145. See Inter-American Convention on Conflict of Laws Concerning the Adoption ofMinors 24 ILM 460 (1984); Inter-American Convention on Personality and Capacityof Juridical Persons in Private International Law: 24 ILM 465 (1984); and theConvention on Jurisdiction in the International Sphere For the ExtraterritorialValidity of Foreign Judgments: 24 ILM 468 (1984).

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