Braucher Swastikas and Hit Lists: a Study of the Public Policy Exception to the Draft Hague Convention on Jurisdiction and Enforcement of Foreign Judgments

• Publication year: 2001

Gonzaga Journal of International Law

Gonzaga University 721 N. Cincinnati St. Spokane, WA 99202 Phone 800 986 9585

Cite as: Anne Braucher, Swastikas and Hit Lists: A Study of the Public Policy Exception to the Draft Hague Convention on Jurisdiction and Enforcement of Foreign Judgments, 5 Gonz. J. Int'l L. (2001-02), available at http://www.across-borders.com. .

Swastikas and Hit Lists: A Study of the Public Policy Exception

to the Draft Hague Convention on Jurisdiction

and Enforcement of Foreign Judgments

By Anne Braucher

Anne Elizabeth Braucher is a 2003 JD candidate at American University Washington College of Law and a 2004 MBA candidate at American University Kogod School of Business. She received her BA in Women's Studies from Oberlin College in 1998. She would like to thank Jeffrey Sternberg for his constant support during the writing process, and Laurence Grayer for encouraging her to take a chance on publication.

Introduction

In June 2001, representatives of some fifty nations met to discuss the latest draft of a treaty meant to standardize the procedural rules applicable to private international litigation.[1] The fifty-one nations,[2] members of the Hague Conference on Private International Law ("Hague Conference" or "Conference"),[3] continued negotiation of the terms of a Draft Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters[4] ("Draft Convention") that began in 1993.[5] The negotiators intend for the Draft Convention to control any issues of jurisdiction and judgment enforcement or recognition that arise in civil or commercial disputes between parties located in the Hague Conference's Member States.[6] Through application of standard rules, the negotiators hope to make the outcomes of international litigation more equitable and predictable,[7] especially when they involve the borderless world of the Internet.[8]

Despite this commendable goal, however, the text of the Draft Convention includes an exception that undermines its very purpose.[9] The Draft Convention's public policy exception allows Member States to refuse to enforce or recognize foreign judgments that they deem repugnant to their countries' values.[10] Because the Draft Convention does not define the concept of public policy or the method for invoking the exception, Member States appear free to opt out of their obligations under the treaty at any time.[11] Allowing Member States such freedom prevents the Draft Convention's rules from becoming the standard for international litigation and ensures that a level of inconsistency will remain in the outcomes of such disputes.[12]

This Comment analyzes the implications of providing the public policy exception to the Draft Convention as written, specifically with respect to public policies regarding freedom of speech.[13] Part I describes the Draft Convention's international procedural rules and its public policy exception.[14] Part II outlines the widely divergent origins of freedom of speech policies in two Hague Conference Member States, the United States and France.[15] Part III discusses these conflicting public policies in the context of recent litigation. Specifically, it examines the freedom of speech policies presented by the United States and France in Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists[16] ("Planned Parenthood v. American Coalition") and Union des Etudiants Juifs de France and Ligue Contre le Racisme et L'Antisemitisme v. Yahoo! Inc. and Yahoo! France.[17] ("Union of Jewish Students v. Yahoo!"). Part IV provides recommendations on how the Hague Conference may improve the Draft Convention's public policy exception and thereby prevent its misuse by nations whose values are fundamentally at odds.[18] It recommends that the Draft Convention more clearly define valid public policy and create an international body to settle inevitable public policy disputes.[19]

I. Background: The draft Hague Convention on

Jurisdiction and Foreign Judgments in Civil and Commercial Matters

Upon implementation, the rules of legal procedure contained within the Draft Hague Convention on Jurisdiction and Foreign Judgments will undoubtedly have an impact on international civil and commercial litigation.[20] Members of the Hague Conference intend for their Draft Convention to standardize the application of procedural rules in the organization's Member States.[21] Various portions of the document establish international rules of jurisdiction,[22] international rules of enforcement and recognition of foreign judgments,[23] and exceptions to those rules.[24]

A. The Draft Convention's Rules of Jurisdiction

With a focus on rules rather than contacts with various fora,[25] Chapter II of the Draft Convention controls the establishment of jurisdiction in disputes between parties belonging to Member States.[26] The rules provide that a court may maintain jurisdiction over a defendant wherever the defendant is domiciled, habitually resides, or maintains a principal place of business.[27] An additional set of rules favoring consumers and employees establishes jurisdiction over disputes arising out of commercial and employment contracts.[28] The rules of Chapter II further empower parties to international disputes by giving substantial deference to their choices of courts.[29] Much debate surrounds the Draft Convention's listing of accepted, prohibited, and discretionary bases for jurisdiction.[30] The Draft Convention contains a "black list" of prohibited jurisdictional bases that includes:

(1) seizure of property unrelated to a dispute;[31] (2) the nationality of a plaintiff or a defendant;[32] (3) the residence or presence of a plaintiff or a defendant in a forum;[33] (4) a defendant's engagement in any activity within a forum and unrelated to a dispute;[34] (5) service of a writ by a defendant or a unilateral designation by a plaintiff;[35] (6) development of unrelated enforcement proceedings in a forum;[36] and (7) endorsement of a contract in the Member State where a dispute arises.[37] Likewise, the Draft Convention contains a "white list" of accepted bases for establishing jurisdiction over a dispute.[38] Some commentators recommend adding an additional "grey list" of jurisdictional bases neither promoted nor prohibited by the Draft Convention.[39] These commentators believe that such a list will strengthen the jurisdictional rules, making them more adaptable to circumstances unforeseen by their drafters.[40]

B. The Draft Convention's Rules of Judgment Enforcement and Recognition

Chapter III of the Draft Convention establishes the proper conditions and procedures for Member States' enforcement and recognition of foreign judgments.[41] Judgments that are recognizable and enforceable in their courts of origin are necessarily recognizable and enforceable in other Member States' courts.[42] The burden of proving that a judgment is recognized and enforced in its court of origin rests upon the party seeking recognition or enforcement of the judgment in a foreign court.[43] A foreign court may refuse an applicant's request for recognition or enforcement when: (1) the judgment lacks proper jurisdiction;[44] (2) a similar proceeding exists before a court of the Member State receiving the request;[45] (3) the judgment conflicts with another judgment rendered in any Member State;[46] (4) the judgment conflicts with the procedural doctrine of the Member State receiving the request;[47] (5) the defendant was not sufficiently notified of the proceedings;[48] or (6) the judgment was obtained by procedural fraud.[49]

One of the more contentious parts of the Draft Convention's judgment enforcement and recognition rules involves the awarding of damages.[50] Chapter III states that damages awards must be recognized by foreign courts only to the extent that those courts could make such damage awards under their own countries' rules.[51] Some critics of the Draft Convention find this approach to enforcement of damage awards objectionable because American and European perspectives in the area differ so widely.[52] They fear that American plaintiffs will frequently lose, for example, portions of American damage awards that in European countries would be paid to plaintiffs by the state rather than by defendants.[53]

C. The Draft Convention's Public Policy Exception

Contentious debate also centers on the public policy exception to the Draft Convention's rules of jurisdiction and judgment enforcement and recognition.[54] The exception concludes the list of grounds for refusing judgment enforcement or recognition found in Chapter III Article 28.[55] The Draft Convention states that "recognition or enforcement of a judgment may be refused if . . . f) recognition or enforcement would be manifestly incompatible with the public policy of the State addressed."[56] Like international treaties before it, the text of Draft Convention does not define the concept of public policy, but leaves the task of interpretation to courts[57] and drafters of implementing legislation.[58]

This public policy exception undermines the Draft Convention's goal of standardizing procedural rules and thereby improving the reliability of private international litigation.[59] The exception appears to grant Member States absolute power to refuse enforcement or recognition of any foreign judgment that they deem objectionable.[60] Tolerating an...