Hot air ballooning is a dangerous activity, and not only for the balloonist. In Guille v. Swan, 1 a balloonist crash-landed in a New York vegetable garden. When a crowd rushed to his assistance damage was caused to the vegetables. He was held to be strictly liable for the damage caused. Across the Atlantic balloonists were more glamorous although not more successful. In Scott's Trs. v. Moss, 2 the defender, an Edinburgh impresario, arranged a balloon flight by the “world-renowned scientific aeronaut”, Professor Baldwin. The advertisement promised that the Professor would descend by parachute, landing on ground rented by the defender. In the event, he missed and landed in a turnip field owned by the pursuers. Fences and a large number of turnips were trampled by the crowd rushing to the scene. The Court of Session decided that the defender could be liable only on the basis of fault. Foreseeability was of the essence: the pursuer was entitled to damages if and only if the crowd's actions were the “natural and probable consequence” of the defender's activities. Counsel's research had uncovered Guille v. Swan, but the Court of Session declined to follow it into strict liability.

Liability of public authorities is limited in all European countries. In Osman v. UK1 the European Court of Human Rights (“the Court”) has reviewed the scope of English negligence law in a case concerning the liability of the police. On a first reading the judgment may appear to be confined to the facts of the case at hand, but further reflection suggests that the Court has attacked the orthodox approach to negligence liability for public authorities in English law.

Can a person who has agreed to an out-of-court settlement for a certain offence in country A still be prosecuted for the same offence in country B? What if a person is found guilty of theft in country C and is subsequently prosecuted in respect of the same facts, but under the charge of swindling in country D? Suppose two persons are suspected of having set up a money-laundering scheme, which involves financial transactions in several countries. Can the offenders still be prosecuted in one country concerned, after they have been acquitted for moneylaundering in one of the other countries?

It is a common observation that the theory and practice of international law are far apart. Richard Falk, for example, begins his 1970 book by chastising international legal theorists for failing to “provide adequate guidelines for evaluating particular decisions”.2 Likewise, Louis Henkin asserts that, “Lawyer and diplomat are engaged in a dialogue de sourds. Indeed, they are not even attempting to talk to each other, turning away in silent disregard.”3

During the last few months of 1997, vast areas of South-east Asia were choked by air pollution caused by smoke arising from massive forest fires in Indonesia. Thick smoke blanketed not only Indonesian territory, but significant transboundary pollution was also caused to several neighbouring States, primarily Malaysia, Brunei and Singapore.1 The problem was caused largely by the indiscriminate use of fire in the clearing of land by large-scale plantation owners and timber concessionaires on Indonesian territory. Land-clearing by government-sponsored transmigration programmes also involved significant burning. To lesser extents, small-scale “slash-and-burn” agricultural practices were implicated as well.2 The problem was exacerbated by the onset of severe droughts associated with the El Nino climatic phenomenon and the presence of combustible peat bogs in several parts of the sprawling Indonesian archipelago.

An impressive corpus of legal literature has accumulated in the last few years on the question whether it is possible or desirable to have an arbitral award enforced under the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards1 despite the award's having been annulled in the State where it was made. The issue is important not only in the context of the New York Convention, which itself is the most widely used vehicle of recognition and enforcement of foreign arbitral awards,2 but also in the context of other international documents3 or national law provisions modelled on the Convention4 and bilateral treaties that incorporate it by reference.5 The debate has largely centred on two well-known cases, Hilmarton and Chromalloy. It is the purpose of this article to analyse those cases and other relevant case law and offer a comprehensive analysis of the relevance of judicial decisions of the State of origin for purposes of enforcement under the New York Convention. In doing so this article proposes to discuss both the technical aspects of the relevant provisions of the Convention, and in particular their interrelationship, and the issues of legal policy that arise. Though the discussion will touch upon the wider doctrinal question of the degree of independence of arbitral proceedings from the law of the arbitral situs.

When the Statute of the Permanent Court of International Justice was drafted by an Advisory Committee of Jurists in 1920, a paramount question was, should a judge of the nationality of a State party to the case sit?

The sensitivity of the issue was encapsulated by a report of a committee of the Court in 1927 on the occasion of a revision of the Rules of Court. It observed that: “In the attempt to establish international courts of justice, the fundamental problem always has been, and probably always will be, that of the representation of the litigants in the constitution of the tribunal. Of all influences to which men are subject, none is more powerful, more pervasive, or more subtle, than the tie of allegiance that binds them to the land of their homes and kindred and to the great sources of the honours and preferments for which they are so ready to spend their fortunes and to risk their lives. This fact, known to all the world, the [Court's] Statute frankly recognises and deals with.”1

My starting point for this discussion of the relationship between treaties and soft law is the observation that the subtlety of the processes by which contemporary international law can be created is no longer adequately captured by reference to the orthodox categories of custom and treaty. The role of soft law as an element in international law-making is now widely appreciated, and its influence throughout international law is evident. Within that law-making process the relationships between treaty and custom, or between soft law and custom are also well understood. The relationship between treaties and soft law is less often explored, but it is no less important, and has great practical relevance to the work of international organisations.

Against a background of increasingly intense legal harmonisation and with the prospects of Central European accession to the EU drawing ever closer, a recent decision of the Hungarian Constitutional Court, Dec.30/1998 (VI.25) AB1 has highlighted the constitutional implications of applying EC law in the domestic system of an associate state. The judgment itself concerned the constitutionality of the competition provisions of the EC-Hungary Europe Agreement (“EA”) together with Decision 2/96 of the Association Council on the relevant Implementing Rules (“IR”). While the Hungarian court is not the first of its type in an associate state to deal with the effect internally of an Association Agreement,2 nevertheless its decision offers certain insights into the judicial response to the integration process in Central Europe.

It is generally accepted that, in actions in personam, the foundation of the court's jurisdiction at common law is the service of process.1 To this extent the rules as to service define the limits of the court's jurisdiction. So, for a claimant to establish the jurisdiction of the English court over an overseas company2 he must be able to serve process on the company in accordance with the rules of service. The general rule is that an overseas company, like an individual, may be served with process in England if present within the jurisdiction.3 However, since a company is only a legal (not natural) person, it cannot be present in the same way as an individual. It has therefore been necessary for special rules to be laid down by which it can be determined whether or not an overseas company is present in England and therefore may be served with process here. Before 1992 those rules were contained in sections 691 and 695 of the Companies Act 19854 (the pre-1992 regime). However, in 1992 the law was amended and a separate provision was laid down in section 694A of the Companies Act 1985 to regulate the service of process on any overseas company with a branch in Great Britain (the 1992 regime).

While lacking the raw excitement of the live “penalty shoot-out” that was the announcement of the decision of the House of Lords in Reg. v. Bow Street Magistrate, ex parte Pinochet,1 the initial impression of the decision in Reg. v. Bow Street Magistrate, ex parte Pinochet (No. 3)2 was of a solid majority support for the position that Pinochet was not entitled to immunity in the United Kingdom in respect of the criminal acts he is alleged to have committed. Even as Lord Browne-Wilkinson attempted to explain the intricacies of the decision, the matter of immunity appeared settled and of secondary consideration to the “new” requirement of double criminality which alone, it seemed, had resulted in the considerable reduction in the list of crimes for which Pinochet could be extradited to Spain. Closer examination of the reasoning of their Lordships, however, quickly dispels that impression and reveals a range of opinions across a wide spectrum. What agreement there was between their Lordships on the matter of Pinochet's immunity from jurisdiction is diverse and often contradictory. In particular, the Lordships who formed the majority were equally divided on the question as to whether Pinochet was acting within his official capacity when carrying out the acts of which he is accused. Given that immunity rationae materiae appears to be available only in respect of official acts, it is difficult to see how the six could have agreed on the fact that Pinochet was not entitled to such immunity. Indeed, given the fact that Lord Goff (dissenting) was of the opinion that the alleged acts were performed in the course of Pinochet's functions as head of state, there was in fact a majority in favour of the prima facie existence of immunity rationae materiae.

The Lords were not lost in admiration of section 20 of the State Immunity Act 1978. Lord Browne-Wilkinson described it as “strange” and “baffling”. It is certainly true that (as Lord Browne-Wilkinson continued) “Parliament cannot have intended to give heads of state and former heads of state greater rights than they already enjoyed under international law”.1 Nor was it intended that their rights should be inadvertently curtailed. The State Immunity Bill originally introduced into the House of Lords in 1977 would, by reflecting in UK statute law the European Convention on State Immunity2 make huge inroads into absolute sovereign immunity—tottering but not yet demolished through the repeated onslaughts of Lord Denning. The European Convention was however “essentially concerned with ‘private law’ disputes between individuals and States”.3 It was not intended to have any application to criminal proceedings—in so far as lawyers in 1977 even contemplated criminal proceedings in domestic courts against foreign States in their public capacity. It did not deal with the personal privileges or immunities of heads of state. There were no ready-made treaty rules on heads of state and no clear customary rules either.4

The prominence of the immunity issue in Pinochet 12 rather obscured the fact that the proceedings were ultimately about extradition. Perhaps that was how it should have been because immunity questions are recognised as preliminary matters, going to the very competence of a court to hear and determine the substantive claim. However, there can be questions which are, as it were, even more preliminary than ones about immunity. One example is where a party argues that there is no substance whatever to the right a State claims and which it is seeking to protect from adjudication by relying on one version or another of immunity.3 When the extradition aspects of the case resurfaced in Pinochet 3, the opposite, pre-preliminary situation was presented: did the extradition crimes specified in the warrants from Spain require any answer from Pinochet, such that could he avoid being handed over, without it being necessary for him to raise any claim of immunity?

The well established rule that an overseas company that establishes a place of business in Great Britain and does not provide an address for service can be served with process at that place of business1 was thrown into confusion by the insertion into the 1985 Companies Act of several new provisions including a new section 694A(2) which provides that process may only be served on a branch “in respect of the carrying on of the business of the branch”.2 The new rules did not purport to change the situation in relation to a place of business falling short of a branch, and thus created the anomaly that it was apparently easier to serve a place of business than a branch. The proper interpretation of these rules arose in Saab v. Saudi American Bank (Court of Appeal, 2 July 1999).3 Before the case was heard by the Court of Appeal, the new Civil Procedure Rules entered into force on 26 April 1999. Under Part 62(2):

A company may be served by any method permitted under this Part as an alternative to the methods of service set out in—

(a) section 725 of the Companies Act 1985 (service by leaving a document at or posting it to an authorised place);

(b) section 695 of that Act (service on overseas companies); and

(c) section 694A of that Act (service of documents on companies incorporated outside the UK and Gibraltar and having a branch in Great Britain).

Under Part 6.5(6) where a party has not given an address for service, a document may be served on a company not registered in England and Wales at “any place of business of the company within the jurisdiction.”

The judgment of the Court of Appeal in Turner v. Grovit13 is of particular interest to all those struggling to identify the precise relationship between Community law and English law in the field of jurisdiction, and the extent to which the English court retains a discretionary control over its procedure. The Court was asked to grant an anti-suit injunction to restrain proceedings in Spain. The claimant was employed as a Group solicitor for the Chequepoint Group of companies. He was employed by English companies within the Group, but was relocated to Spain to work at the premises of a Spanish member of the group (CSA). The ultimate owner of these companies was the first defendant, Mr Grovit. The claimant resigned because he felt that he was being asked to undertake activities that were unethical. He brought unfair dismissal and wrongful dismissal claims before the Employment Tribunal in London. Shortly thereafter he was sent a letter on CSA paper purporting to terminate his contract. A month after the Employment Tribunal had determined that it had jurisdiction to hear the case, CSA brought proceedings in Spain claiming that it was the claimant's employer and seeking damages for breach of contract. There was evidence that the defendants had not provided full information to the Spanish court about the English proceedings.

The definition of provisional and protective measures and the scope of Article 24 of the 1968 Brussels Convention were matters addressed by the European Court in Case C–391/95, Van Uden Maritime BV v. KG in Firma-Decoline. The plaintiff was seeking interim payment under a contract even though the dispute over payment had been referred to arbitration. As an initial issue the European Court noted that the existence of arbitral proceedings on the merits did not take the dispute over provisional measures out of the scope of the Convention. The subject-matter of the dispute, which was determinative in establishing the applicability of the Convention, was payment under a contract for the provision of services. The existence of an arbitration agreement was, nevertheless, found relevant by the Court. The Court noted that normally a national court with jurisdiction to hear the merits of a case would also have jurisdiction to hear any application for provisional or protective measures. Where the proceedings had validly been referred to arbitration, however, no national court would have jurisdiction to hear the merits of the case under the Convention. Article 24 was then the only basis on which a court might assume jurisdiction to grant provisional measures.

That question remains open following Case C–99/96 Mietz v. Intership Yachting Sneek BV16 a more recent decision that raises some similar issues but continues to confine its attention to interim payments. The applicant was appealing against a German order for enforcement of a Dutch judgment ordering interim payment in kort geding proceedings. The applicant argued that the underlying contract was covered by the special provisions on consumer contracts in Articles 13 et seq. of the Brussels Convention. Therefore failure to observe the rules of jurisdiction in Articles 13 et seq. was a ground for non-recognition of the Dutch judgment. The contract was for the sale of a luxury yacht, to be paid for in five instalments during its period of construction and trial. A written contract was signed in the Netherlands, but the applicant alleged for the first time in the German proceedings that the contract was negotiated at a boat show in Germany and an oral contract was made there.

A number of issues relating to the finality of arbitration awards in the face of arguments based on public and fraud were addressed by the Court of Appeal in Westacre Investments Inc. v. Jugoimport—SDRP Holding Co. Ltd.20 The claimant had obtained an arbitration award in its favour in Switzerland which it was seeking to enforce in England. The dispute referred to arbitration concerned a claim for payment of commission. The commission was due under a contract through which the claimant assisted the defendant to obtain a contract for the supply of military equipment to Kuwait. It was alleged in the English proceedings that this contract was invalid since the commission payment in fact amounted to a bribe to a member of the Kuwaiti government. The issue of bribery had been raised before the Swiss arbitral tribunal, but the majority of the tribunal found that they were not required to investigate this issue if the parties led no evidence to prove that it had taken place. The contract between the parties was therefore found valid and binding. An appeal to the Swiss Federal Tribunal was lodged by the defendant for an annulment of the arbitral award. The Federal Tribunal concluded that the nature of its competence to review arbitral proceedings required it to base its decision on the facts found by the Tribunal. It therefore confirmed the award. The defendants then tried to raise the same bribery issue in the enforcement proceedings in England.

The Treaty of Amsterdam entered into force on 1 May 1999. In the exercise of its new competences under Title IV of the EC Treaty as amended, the Commission has transformed the Convention on Service of Documents into a draft Directive, and the Brussels II Convention into a draft Regulation, both of which are currently going through the Community legislative procedure. The renegotiated text of Brussels I has also been transformed into a draft Regulation, but the possibility of further amendment is mooted.