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Natural Justice in Recognition and Enforcement of Foreign Judgments
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Questions of the recognition and enforcement of foreign judgments are deserving of study in their own right, and not as an appendage to accounts of (adjudicatory) jurisdiction and choice of law. Nothing is more revealing of the spirit with which a given legal order approaches the wider subject area of the conflict of laws than the approach that it takes in its reception of exercises of adjudicatory authority by judges of other legal orders in their efforts to secure the just and peaceful resolution of disputes. From the 17th century onwards, influential works on the law of nature shaped the law on this subject. These accounts sought to identify and explain fundamental principles governing legal relations between human beings and the political societies formed for their protection and fulfilment. The influence of natural law thinking waned in the 19th century as ‘State-centred’ accounts of the subject and of international law more generally came to the fore. This study traces that historical path, and argues that the natural law toolbox remains valuable today, in understanding the rules that operate in this sphere and in refining (renaturalising) them as mechanisms to administer justice.
Andrew Dickinson is Professor of the Conflict of Laws at the University of Oxford and an Honorary Senior Fellow at the British Institute of International and Comparative Law. Formerly in practice as a solicitor (with Clifford Chance LLP), Andrew is one of the specialist editors of Dicey, Morris & Collins on the Conflict of Laws and a member of the Mance Committee, the UK Government’s standing advisory committee on private international law matters.
Chapter I. Foreign judgments in the conflict of laws
A. Introduction
B. Outline
Chapter II. A natural law toolbox
A. Natural law and natural justice
B. Setting the scene
C. Natural liberty
D. Equality and self-love in the natural order
E. Of (private) war and peace
F. Duties of humanity (mutual assistance)
G. Administering natural justice
H. The significance of the natural legal order
I. Political societies and the law of nature
1. The formation of political societies
2. The elasticity of consent as a guiding principle
3. Attachment to a political society
4. Territoriality and the scope of “sovereign” authority
J. Transforming natural law to the natural law of nations
1. Introduction
2. From the law of nature to the natural law of nations
K. Summary and conclusions
Chapter III. Natural law and the recognition and enforcement of judgments
A. Fundamental questions
B. Grotius (reprise)
C. Going Dutch – Paulus and Johannes Voet, and Ulrik Huber
1. Introduction
2. Paulus Voet
3. Johannes Voet
4. Ulrik Huber
5. The scope of adjudicatory jurisdiction: Huber’s first two axioms
6. Comity as a bridge between legal orders
D. Reception and development in the eighteenth century
1. Reception into the common law
2. European evolution
E. The nineteenth century: Revolution and evolution
1. Introduction
2. Natural law reasoning in early nineteenth century English case law
3. The incoming positivist tide
4. Wächter and Westlake
5. The legal positivist conundrum
6. Story and Savigny
F. The contours of State practice
1. Reciprocity (I) – Austria
2. Reciprocity (II) – Germany
3. Substantive review (I) – France
4. Substantive review (II) – Kingdom of the Netherlands
5. Evidentiary function – Sweden
6. The common law method – Great Britain and the United States
7. Reciprocity free reception – Italy
8. Emerging patterns
G. Formal co-operation: In search of perfection
H. Global governance and human rights
I. Summary and conclusions
Chapter IV. Natural law’s legacy: “Natural justice” as a ground of impeachment
A. Justice and injustice
B. Tools, techniques and terminology for addressing injustice in foreign judgments
1. Classifying the grounds of opposition
2. Breach of agreement and fraud: Perspective matters
3. “Natural justice”: The common law’s natural law artefact
4. “Natural justice”: By any other name?
C. Levelling up
D. Adjudicatory jurisdiction: A question of natural justice?
Chapter V. Renaturalisation?
A. Introduction
1. Mutual aid
2. Peaceful resolution of disputes by means other than adjudication
3. Citizens of the world
B. Exposition
1. The pursuit of natural justice
2. Multidimensional justice
3. Adjudicatory jurisdiction: Seeking a “common judge”
4. Equal justice
5. A common enterprise
C. Summing up
Annex (Chapter IV.). Grounds for opposing recognition and enforcement of judgments
Bibliography
About the Author
List of Principal Abbreviations
A. Introduction
B. Outline
Chapter II. A natural law toolbox
A. Natural law and natural justice
B. Setting the scene
C. Natural liberty
D. Equality and self-love in the natural order
E. Of (private) war and peace
F. Duties of humanity (mutual assistance)
G. Administering natural justice
H. The significance of the natural legal order
I. Political societies and the law of nature
1. The formation of political societies
2. The elasticity of consent as a guiding principle
3. Attachment to a political society
4. Territoriality and the scope of “sovereign” authority
J. Transforming natural law to the natural law of nations
1. Introduction
2. From the law of nature to the natural law of nations
K. Summary and conclusions
Chapter III. Natural law and the recognition and enforcement of judgments
A. Fundamental questions
B. Grotius (reprise)
C. Going Dutch – Paulus and Johannes Voet, and Ulrik Huber
1. Introduction
2. Paulus Voet
3. Johannes Voet
4. Ulrik Huber
5. The scope of adjudicatory jurisdiction: Huber’s first two axioms
6. Comity as a bridge between legal orders
D. Reception and development in the eighteenth century
1. Reception into the common law
2. European evolution
E. The nineteenth century: Revolution and evolution
1. Introduction
2. Natural law reasoning in early nineteenth century English case law
3. The incoming positivist tide
4. Wächter and Westlake
5. The legal positivist conundrum
6. Story and Savigny
F. The contours of State practice
1. Reciprocity (I) – Austria
2. Reciprocity (II) – Germany
3. Substantive review (I) – France
4. Substantive review (II) – Kingdom of the Netherlands
5. Evidentiary function – Sweden
6. The common law method – Great Britain and the United States
7. Reciprocity free reception – Italy
8. Emerging patterns
G. Formal co-operation: In search of perfection
H. Global governance and human rights
I. Summary and conclusions
Chapter IV. Natural law’s legacy: “Natural justice” as a ground of impeachment
A. Justice and injustice
B. Tools, techniques and terminology for addressing injustice in foreign judgments
1. Classifying the grounds of opposition
2. Breach of agreement and fraud: Perspective matters
3. “Natural justice”: The common law’s natural law artefact
4. “Natural justice”: By any other name?
C. Levelling up
D. Adjudicatory jurisdiction: A question of natural justice?
Chapter V. Renaturalisation?
A. Introduction
1. Mutual aid
2. Peaceful resolution of disputes by means other than adjudication
3. Citizens of the world
B. Exposition
1. The pursuit of natural justice
2. Multidimensional justice
3. Adjudicatory jurisdiction: Seeking a “common judge”
4. Equal justice
5. A common enterprise
C. Summing up
Annex (Chapter IV.). Grounds for opposing recognition and enforcement of judgments
Bibliography
About the Author
List of Principal Abbreviations