Cross-border disputes: a practical way forward?

Can we make more use of alternative dispute resolution in cross border cases? What role can e-justice play in problem solving when traditional methods may be too costly and unwieldy? How can small claims procedures work across jurisdictions? These and other issues will be discussed when delegates from across the European Union come to Edinburgh from 24-25 October this year to discuss how EU measures and practices can better serve the needs of ordinary people for accessible and affordable justice. (The conference website is www.eventsforce.net/civiljustice2005.)

The organisers in the Scottish Executive Justice Department and the Department for Constitutional Affairs hope that this focus on practical solutions will help create a new impetus to simplify the way EU citizens who may live, work, study, buy and sell, and do business across European borders can protect their legal rights.

Honourable tradition

Scotland has always played a role in the development of private international law. Scots judges, academics and practitioners have contributed to the development of the Hague Conference on Private International Law (www.hcch.net/index_en.php) since it began its painstaking work in the late 19th century on developing international conventions to regulate disputes across jurisdictional boundaries. Today over 60 countries participate in the Hague Conference, and Hague Conventions now cover issues as diverse as the protection of family, children and property relations, the enforcement of judgments and international legal co-operation, and international commerce and finance law. In recent years the prominent Scottish international lawyers Professor Paul Beaumont from Aberdeen University and Peter Beaton, late of the Scottish Executive Justice Department have been active members of the UK delegation to the conference and have helped shape the overall development of the Hague Convention process, as well as ensuring that the interests of Scots law are given full weight in the deliberations.

The Hague Conference approach has a number of important advantages. It has wide, if not universal geographic coverage and thus offers a solid, widely recognised base on which cross-border legal issues can be tackled. It has sought from the start to provide a bridge between civil law and common law traditions, with the US and Commonwealth countries as well as European countries and Japan playing an important role in its development. Russia and China are now participating, as are countries from Latin America. Representation of the Islamic world is limited, but the Hague Conference secretariat is currently working with a range of Mediterranean countries to seek to create a framework which reconciles Islamic and Western legal traditions to help deal with family and child relations.

Common denominator

Nevertheless the Hague Conference also has its limitations. As an international organisation based on consensus decision making, it only goes at the pace of the slowest party. The Hague Conventions are an impressive collection of international rules, but they often represent a lowest common denominator that does not provide a solution which is fast or easy to implement. For that reason, in order to pursue more efficient and effective solutions, other universal and regional bodies have developed their own conventions. The Council of Europe has worked to develop common rules not only in its human rights work but also in parallel work on criminal and civil judicial co-operation.

In 1993, on the passing of the Treaty of Maastricht and its provisions on justice and home affairs, civil judicial co-operation became part of the European Union’s remit. The recent so called “Hague programme” (http://europa.eu.int/comm/justice_home/news/information_dossiers/ the_hague_priorities/index_en.htm), agreed by EU heads of state and government in The Hague in November 2004 (note that this is named after the city the programme was agreed in and has no connection with the Hague Conference), envisages developing a European area of justice.

Aspects of access

According to the Commission, which has responsibility for proposing and monitoring the implementation of legislation, this area should be more than just an area where judgments obtained in one member state are recognised and enforced in other member states, but rather an area where effective access to justice is guaranteed in order to obtain and enforce judicial decisions. To this end, the Union must envisage not only rules on jurisdiction, recognition and conflict of laws, but also measures which build confidence and mutual trust among member states, creating minimum procedural standards and ensuring high standards of quality in justice systems, in particular as regards fairness and respect for the rights of defence.

On the civil side EU common rules now apply in areas such as jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation); a new Brussels II Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters, and parental responsibility; a regulation relating to insolvency proceedings; and a regulation creating a European enforcement order for uncontested claims. There are also a regulation relating to the service of documents in cross-border cases and a regulation concerning the taking of evidence in civil and commercial matters; and a directive on legal aid for cross-border litigants. The Commission has made a series of proposals to extend these rules into other areas such as conflicts of laws regarding non-contractual obligations (Rome II) and a draft regulation establishing a European small claims procedure, which are currently being discussed by member states and the European Parliament.

Certainty versus flexibility

The EU Hague Programme also envisages that the European Union (as Community) should accede to the Hague Conference on Private International Law, a process that is now well underway. At first sight this is a sensible step which should allow the work in the EU to proceed in step with wider developments. There can however be some difficulties of substance to overcome – for example when the new Brussels II Regulation on parental responsibility was being negotiated, there were real concerns that the establishment of greater certainty concerning jurisdiction within the EU might undermine the flexibility of valuable Hague Convention provisions, such as the provision for a non-return order where the court in the requested jurisdiction considered that the child would be under significant threat if returned to the requesting state. A major concern for the UK has always been to protect the attractiveness of London courts in particular to international commercial litigants, and there is also potential for conflict here with harmonisation plans in Brussels. So far practical compromises have been found to meet the various concerns, but as the EU’s plans proceed and new areas of law are covered we can expect such problems to become more rather than less prevalent.

In any case there is a lot of work to do to build the necessary experience and confidence among practitioners and clients in the different jurisdictions that pursuing cross-border legal claims is worth the candle. To date only where serious issues such as the rights of a child and parents have been at stake have a substantial number of cases been pursued – and even here only a small number of Scottish practitioners have practical experience of such cases. It is for this reason that the focus of the conference on developing awareness and understanding of practical solutions is to be welcomed. Scotland has always had a long tradition of being at the cutting edge of legal debate and of seeking practical solutions, drawing from both our civil and common law heritage as well as a wide range of international experience. Europe benefits strongly from the input that Scots judges and other practitioners make, and the conference offers the opportunity to reinforce this tradition to meet the new challenges of the 21st century.

Colin Imrie is a former diplomat and Commission official and is now Director of Eurosolution.com Ltd, an Edinburgh-based consultancy services firm working on EU matters