The role and status of American law in the Hague Judgments Convention project.

• Author: Zekoll, Joachim
• Position: Symposium: Could a Treaty Trump Supreme Court Jurisdictional Doctrine?

1. INTRODUCTION

   The topic which I address differs somewhat from today's theme. I was invited to provide a European perspective on American jurisdictional rules, their compatibility with the project of a Hague Judgment Convention, and the impact that the convention might have on the recognition of American money judgments in Europe. As other contributions to the Symposium have indicated, this convention would provide rules for the exercise of jurisdiction in transnational litigation and for the recognition and enforcement of the resulting judgments in all contracting states.(1) I happily accepted the invitation, knowing then, however, that it would be a rather difficult endeavor to provide that perspective since there rarely is a single voice speaking for Europe on any issue, legal or non-legal. From what I know about the initial meetings in The Hague, the various representatives of European nations and, of course, other countries, expressed rather diverse views on many of the questions that this project raises. On the other hand, Europeans have experience with the workings of conventions that address the questions that the Hague negotiating teams are pondering. I am referring to the so-called Brussels Convention and to its companion, the Lugano Convention,(2) which control the transnational jurisdiction and enforcement rules of eighteen European nations.(3)

   In the course of my short contribution, I draw on these treaties to provide a European point of view and to contrast it with American positions in this area. After all, the rules at issue have traditionally set the United States apart from most of its trading partners. In what is to follow, I present what I believe are the most widespread concerns that Europeans, and others, share in regard to a treaty that would include the United States as a signatory. After briefly evaluating American approaches to other Hague Conventions from a European perspective in Part II of this Article,(4) I address, in Part III, those jurisdictional questions that likely will cause the greatest frictions between the United States negotiators and their international counterparts.(5) In Part IV, I look at public policy concerns that may pose obstacles to judgment recognition.(6)

2. EXPERIENCE WITH OTHER HAGUE CONVENTIONS

   The success of every international treaty seeking to reconcile legal differences depends on its binding character leading to uniform application throughout all signatory states. In the eyes of the foreign observer, the American track record is less than impressive in this respect. Even though the United States has signed and ratified such treaties in the past,(7) including several other Hague Conventions, American courts have largely disregarded them, applying domestic law instead. Consider, for example, the United States Supreme Court's decision in Societe Nationale Industrielle Aerospatiale v. United States District Court,(8) holding that the Hague Evidence Convention(9) is merely an optional instrument, thus not precluding parties who seek the discovery of evidence located abroad from employing the far-reaching Federal Rules of Civil Procedure.(10) The Supreme Court confirmed its position favoring the application of domestic law in a case involving the Hague Service Convention.(11) Even though the Court fully realized that its position was at odds with views prevailing elsewhere,(12) it held, in essence, that application of the Convention is mandatory when it applies,(13) and that domestic law, indeed, state and federal law, would be the sole standards for determining the outcome of this question.(14) This preference of local law is regrettable, as it undermines the basic purpose of the Conventions, which is to harmonize conflicting regimes of effecting service and gathering evidence in transnational litigation.(15) Given its reliance on domestic rules in these two areas, I would have to doubt the Court's willingness to recognize and abide by the international character of a jurisdiction and enforcement convention. These doubts are further compounded by uncertainties associated with the due process inquiry, in which American courts regularly engage when faced with the statutory authorization to exercise jurisdiction. It is this added constitutional dimension that leads us to the central question this panel is supposed to address: "Could a Treaty Trump Supreme Court Jurisdictional Doctrine?" As I mentioned at the outset of my remarks, it is not for me to discuss this question at length, but from the position of the non-American negotiators at the Hague, the answer had better be a resounding "yes." It is, moreover, imperative from the perspective of the international community that the convention be binding on all courts in this country, state and federal tribunals alike. A treaty which did not preempt the rights of states to adhere to their old rules in transnational litigation would generate little interest outside this country, where the view prevails that such a convention is obligatory in nature and requires uniform implementation throughout all Member States.(16)

3. JURISDICTIONAL QUESTIONS

   I am afraid, however, that even if new rules would be perceived in this country as theoretically creating a single standard, the due process test to which this country's courts regularly put the question of their jurisdictional reach is here to stay. "After all, it is the Constitution, stupid," I am told in response to my question why a statutorily (or treaty) prescribed list of permissible jurisdictional bases is not enough to settle this question. I usually react by claiming that such an exhaustive and binding list in which all relevant fairness considerations coalesce would provide greater predictability, and that greater predictability is of no small value, perhaps even for purposes of due process.(17) This response, however, has not been very successful with most of my American colleagues--not even when I mention that essentially every Western legal system espouses this view. Nor have I been particularly successful in pointing out to them that, in each of these systems, there is essentially no doubt as to whether a bank account in a given forum will give rise to general jurisdiction over its owner,(18) or whether the acts of an agent justify general jurisdiction over unrelated claims against the principal.(19)

   Legal certainty, I hear from my colleagues, is but one value among others, and I tend to agree with this proposition. Indeed, one has to wonder what is so valuable about knowing, for example, whether a German bank account with one mark in it may subject its owner to jurisdiction in disputes over wholly unrelated claims that far exceed the account value.(20) Further, where is the virtue of realizing that an American defendant with no contacts to France may nevertheless be sued in a French court if the plaintiff is a French citizen?(21) The lesson in in short, that jurisdictional rules should provide both fairness and predictability. In what is to follow, I look at international standards to ascertain whether these objectives are already met elsewhere. The Brussels and Lugano Conventions, which contain the rules governing transnational jurisdiction and enforcement in virtually all of Western Europe,(22) readily lend themselves to this endeavor.

   1. The Double-Convention Concept of Brussels and Lugano

      Both the Brussels and Lugano Conventions are so-called double conventions as they prescribe rules for the exercise of jurisdiction and for the recognition and enforcement of the resulting judgments.(23) The jurisdictional rules fall into either a white list or a black list. The provisions permitting the exercise of jurisdiction, the white list rules, are exhaustive. Accordingly, persons domiciled in a contracting state may be sued in the courts of another contracting state only by virtue of these rules,(24) which start from the principle that the defendant should generally be sued in his or her domicile.(25) Save for very limited exceptions,(26) judgments based on a white list rule must be enforced in another Member State. The enforcing court must not, as a rule, review the jurisdiction of the rendering court.(27) By and large the white list provides certainty that does not come at the expense of procedural fairness.(28) Jurisdiction based on unrelated assets,(29) nationality,(30) and other jurisdictional oddities, such as tag jurisdiction in the United Kingdom or Ireland,(31) cannot threaten those domiciled in one of the Conventions' Member States.(32) These and other rules form a non-exhaustive black list of jurisdictional bases which are considered unacceptable by the group of the Member States as a whole.(33)

      Within Europe the experience with this double convention scheme has been a positive one.(34) Lower domestic courts, uncertain about the application of a Brussels Convention provision, may stay the proceedings before them and refer the question to the European Court of Justice (ECJ).(35) The case law emanating from the ECJ has significantly improved the even-handed application of the Brussels Convention.(36) Not unlike the American Full Faith and Credit Clause in the United States Constitution,(37) this supranational regime has greatly facilitated the free movement of judgments throughout Europe.(38)

   2. The Mixed Convention Model

      The jurisdiction and enforcement practice evolving under the Brussels and Lugano Conventions is indeed one of the greater success stories for the harmonization of European law. The rules and their implementation have even bridged the gap between the idiosyncratic procedure in the English common law and the various systems of its European civil law neighbors.(39) Nevertheless, the Brussels and Lugano Convention rules may not be suitable for a worldwide convention in every respect. Not all of them could simply be transposed to the Hague Convention, which must also accommodate the different interests of other nations.(40) It...