Blocking and Clawing Back in the Name of Public Policy: The United Kingdom's Protection of Private Economic Interests against Adverse Foreign Adjudications
Blocking and Clawing Back
Michael L. Novicoff 0
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Blocking and Clawing Back in the Name
of Public Policy: The United Kingdom's
Protection of Private Economic
Interests Against Adverse Foreign
Michael L. Novicoff*t
Like their common law cousins, the courts of the UnitedKingdom have
long claimed the authority to decline recognition to foreign sovereign acts
which pose a threat to their nation'spublic policy. This Article surveys the
British cases in which such discretionhas been or might have been exercised,
and it concludes that the doctrine is no longer applied in the very instances
for which it was developed. Instead, it appearsthat the doctrineis, in its old
age, used merely as a pretextfor the advancement ofBritish economic
inter* A.B., University of California, Los Angeles; J.D., Harvard University. Member, State Bar of
California. Mr. Novicoff is associated with the law firm of Sidley & Austin, and is resident in the
firm's Los Angeles offices.
I One small but important matter of terminology should be addressed at the outset. The United
Kingdom is not, of course, a federal nation, but it does contain three distinct legal systems, each of
which maintains its own jurisprudence and controls its own bar. One of those systems, the subject of
this Article, governs England and Wales and is the basis for all other common law systems in force
in the world today. Another system, also one of common law, governs Northern Ireland, and a third
regime based upon the civil law prevails in Scotland. No offense is intended to my Welsh, Irish, or
Scottish friends when I use the terms "English," "British," and "United Kingdom" interchangeably
to refer to the cases and courts that are the subject of my work.
ests at the expense of internationalcomity. A new modelfor the application
of the old publicpolicy doctrine is suggested,in which courts must take care
to establish a nexus between their own authority, the refugee from foreign
power, and the subject matterof the controversy, before interfering with the
otherwise lawful activity of aforeign sovereign.
The story of modem commerce is, increasingly, the story of national
frontiers opening to admit the goods and servicepeople of other allied
lands. Each member of the international community now expects to find
its citizens, both natural and corporate, doing business beyond its
borders. Yet states also continue to expect their citizens to remain subject to
the jurisdiction and authority of their sovereign, just as they expect their
guests from other states to fall equally under their control. Obviously,
neither a citizen's host nor his homeland can exercise exclusive control
over his actions, for a sovereign might then legally command the
commission in a foreign territory of an act proscribed by the law of that
The relative bounds of one sovereign's authority to order acts
contrary to the law or policy of another sovereign with a legitimate claim to
the exercise of governmental powers is a subject of some contention. The
dispute arises in the exercise of both legislative and judicial
jurisdictionthe former being the power of one state to apply its law to situations
implicating a foreign element, and the latter being the power of a state's
courts to adjudicate cases containing such an element.1 The
promulgation of law cannot be distinguished from its application using these
categories if both of those sovereign acts aim to regulate conduct which is
also properly the business of another sovereign authority; not all such
acts, of course, areperse unreasonable as a matter of international law or
comity,2 but a principled balance must be struck. This Article will argue
I Akehurst, Jurisdictionin InternationalLaw, 46 BRrr. Y.B. INT'L L. 145 (1975).
2 The term "comity" is used in this Article in its most basic sense, to refer to "the principle in
accordance with which the courts ofone jurisdiction will give effect to the laws and judicial decisions
of another jurisdiction, not as a matter of obligation but out of deference and respect." Doescher v.
Estelle, 454 F. Supp. 943, 948 (N.D. Tex. 1978).
Of late, some courts have undertaken to catalogue the considerations which they feel should be
taken into account in deciding whether the American judiciary should act or decline to act on
grounds of international comity in specific situations. See, eg., Mannington Mills, Inc. v.
Congoleum Corp., 595 F.2d 1287, 1294-98 (3rd Cir. 1979) and Timberlane Lumber Co. v. Bank of
America, 549 F.2d 597, 614 (9th Cir. 1976). See also Note, The Inconvenient Forum and
International Comity in PrivateAntitrust Actions, 52 FORDHAM L. REv. 399, 402 n.20 (1983). These
that that balance is often ignored or capriciously disrupted by both
legislators and judges, with ultimately unfortunate consequences for both the
citizens and the sovereigns concerned.
The questions implicated by these problems present themselves in
any number of guises. Some conflicts arise when the validity of a foreign
decree of divorce or other judgment of personal status is challenged
outside the territory of the jurisdiction rendering the judgment, while
others are found when, for example, one sovereign's regulation of its
corporate citizens' commercial dealings abroad results in the imposition of
an alien economic policy upon a foreign government. Both commercial
and non-commercial cases will be examined in the material which
follows, but particular attention will be paid to instances of international
commercial regulation, which often bear directly on the integrity of
sovereign interests through efforts or effects which control the domestic
affairs of a foreign government. These problems, in particular, will be
examined in light of the current conflict between two old friends and
close relatives: the governments of the United States and of the United
Kingdom. Both nations share a common legal foundation and the judges
of each are generally familiar with the mechanisms of adjudication used
by their brethren across the Atlantic. Modern political differences and
modern economic alliances, however, have driven the brothers apart and
led them to words and deeds that have given considerable offense-and
which have created much confusion on the part of their respective
This problem is perhaps best seen in light of the current
AngloAmerican dispute concerning the application of United States antitrust
law to the conduct of British commercial entities. Two weapons are
being used by the British with particular frequency in the current battle,
and whether they are to be characterized as offensive or defensive
depends upon one's point of view. The first weapon, familiar to lawyers in
both countries, is the injunction-now being used by judges on both sides
of the Atlantic in an attempt to stay their litigant's recourse to one
another's courts.' The second weapon is a creature of statute and is
peculiar to the British forces.4 Popularly known as the "clawback," 5 the
posed tests should not be misunderstood as new definitions of the comity principle. They are simply
guides which assist judges in deciding whether this settled principle should be given effect in
3 See infra text accompanying notes 58-104. The British, however, were the first to put this
familiar tool to such a novel use. Id.
4 See infra text accompanying notes 119-41.
5 Like the idea behind it, this colorful term is of British invention. See House of Commons
Standing Comm. F, Official Report, Dec. 6, 1979, at 62, 65; 404 PARL. DEB.,H.L. (5th ser.) 554, 567
Protection of Trading Interests Act, (PTIA)6 creates, among other
things, a private cause of action in any British citizen or corporation, or
person or corporation doing business in Great Britain,7 against whom a
judgment for treble or other multiple damages has been entered by a
nonBritish court. Such an unsuccessful former defendant may sue as a
plaintiff in the British courts and recover from the overseas adversary a
judgment equal to the noncompensatory portion of the foreign award. The
resulting British judgment, like any other, is then enforceable against any
property that might be found in the United Kingdom or elsewhere in the
European Economic Community.'
At the heart of the battle is heard the rallying cry of "public policy,"
each country insisting that the effectuation of its legitimate national
interests requires that its opinions on the appropriate scope of economic
regulation be recognized by the other. "Public policy" is used here in its
broadest sense, to refer to the justifications underlying any sovereign act
directed at preserving a nation's moral, economic, or political integrity
against diminution by another state or private actor.9 This Article will
argue that the concept of public policy, as used by the United Kingdom,
has itself lost much of its own internal integrity and is now being used
merely to further private British economic interests at the expense of
The first part of this Article explores the evolution of the doctrine of
public policy in the cases most likely to implicate it, namely those dealing
with foreign adjudications of personal status. It concludes that, although
talk of the doctrine goes on in that area, the legal concept itself may be
on its deathbed and indeed was never very much alive to begin with. The
second part of this Article considers the instances when that doctrine
has, explicitly or implicitly, been used to frustrate foreign adjudications
dealing a blow to private English economic interests, and concludes that
in that area of law the doctrine is very much alive and poses a substantial
threat to international comity. The final section, in turn, suggests a brief
model for future application that is both supportive of legitimate English
concerns and facilitative of international cooperation and harmony.
By their own domestic law, certainly, sovereigns may adjudicate the
status of persons who come before them voluntarily, or who are brought
before them by means consonant with their established procedural rules,
but a decree of status must ultimately be measured by its finality and its
durability. In the most geopolitically interesting cases involving
especially peripatetic or unusually wealthy parties, the acid test of a decree of
marriage or divorce is its ability to command recognition by sovereign
authorities which had nothing to do with shaping it. At first blush, this
is a question of judicial jurisdiction, concerning the extent of recognition
to be accorded in the international community to the judgment of a
foreign court. The inquiry, however, also involves questions of legislative
jurisdiction whenever the rendering tribunal acts pursuant to a legislative
grant of authority.
The United States 0 and the United Kingdom" generally agree that
the formal validity of a marriage is to be governed by the lex loci
celebrationis, or law of the place where the ceremony of marriage was
performed.12 Even so, the courts of both nations assert the authority to
refuse recognition to foreign marriages or foreign decrees of nullity or
divorce if the challenged proceedings are considered offensive to local
visions of proper public policy.13
Anglo-American law generally forbids a re-examination of the
its of the foreign judgments submitted to its courts for recognition.1
However, the public policy doctrine has often been used to mask just
such inquiries, particularly when the forum court wishes to object to the
choice-of-law rules applied by its foreign brethren. The selection of the
governing law is ordinarily part of the merits of any adjudication, but
many judges in both countries have used the public policy doctrine to
deny recognition to foreign judgments whose only real affront was found
in an unwelcome choice-of-law rule. 15
ous to the fabric of society, so that it is strongly against the public policy of the jurisdiction, it
will not be recognized there, even though it is valid where it was solemnized.
But see RESTATEMENT (SECOND) OF CoNFLIcT OF LAWS § 283(2) (1971), which would
restrain the automatic consideration of the forum state's public policy by instead providing that:
A marriage which satisfies the requirements of the state where the marriage was contracted will
everywhere be recognized as valid unless it violates the strong public policy of another state
which had the most significant relationship to the spouses and the marriage at the time of the
For the United Kingdom's position, see generally Vervaeke v. Smith,  1 A.C. 145, 153
(1982); Lepre v. Lepre, 1965 P. 52, 57 (1962); Formosa v. Formosa, 1963 P. 259, 270 (C.A. 1962);
and the purely discretionary power to withhold recognition of foreign divorces conferred by the
Recognition of Divorces and Legal Separations Act, 1971, § 8(2)(b), discussed in greater detail infra.
14 In the United States, the rule was laid down in Hilton v. Guyot, 159 U.S. 113, 202-03 (1895):
[Where there has been opportunity for a full and fair trial abroad before a court of competent
jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary
appearance of the defendant, and under a system of jurisprudence likely to secure an impartial
administration of justice between the citizens of its own country and those of other countries,
and there is nothing to show either prejudice in the court, or in the system of laws under which
it was sitting, or fraud in procuring thejudgment, or any other special reason why the comity of
this nation should not allow it full effect, the merits of the case should not, in an action brought
in this country upon thejudgment, be tried afresh, as on a new trial or an appeal, upon the mere
assertion of the party that the judgment was erroneous in law or in fact.
In the United Kingdom, the rule is much the same. The doctrine seems to have first been set
out in Henderson v. Henderson,  6 Q.B. 288, 298, 115 Eng. Rep. 111, 115, where the court
announced that it would steer "clear of an inquiry into the merits of [a foreign adjudication] upon
the facts found: for whatever constituted a defence in [the foreign] Court ought to have been pleaded
there .... " The principle was extended to foreign findings of law in Godard v. Gray,  6
L.R.Q.B. 139, 147-53.
15 Clarke v. Clarke, 178 U.S. 186 (1900), demonstrates the phenomenon in the United States.
There, the Supreme Court held that the full faith and credit clause of the United States Constitution
did not require the courts of Connecticut to recognize a South Carolina judgment concerning title to
land in Connecticut. Most states would have chosen to apply the law of the land's situs to the
dispute; South Carolina did not and its decree was denied recognition. The Supreme Court did not
directly admit to basing its decision on an objection to South Carolina's choice-of-law rules, but it
did note the effect of those rules on national public policy. "Of what efficacy," it asked, "would be
the power of one State to control the administration, through its own courts, of real estate within the
State... if all such real estate could be disposed of and the administration thereof be controlled by
the decree of the court of another State[?]" Id. at 194.
For an example of the same judicial tactic in the United Kingdom, see, e.g., Formosa, 1963 P.
259. There, a Maltese court had annulled an English marriage because the ceremony itself had not
been performed by a Roman Catholic priest. Such a ceremony was deficient under Maltese, but not
English, law. The English Court of Appeals refused to recognize the foreign judgment, but not, it
Since the public policy exception to the recognition of foreign
sovereign acts seems to have had its genesis in matrimonial law,16 it is worth
exploring how that doctrine is being applied by the British courts today
in that private context, before moving on to a consideration of its
application in modem commercial cases. The very existence of separate and
equal sovereigns in the world implies that there may be sovereign decrees
which are considered dissolved or void ab initio in one territory and yet
which continue to command (often unwanted) respect in another. The
British reaction to this problem has been mixed, but in the sphere of
private matrimonial affairs the British position has been generally
facilitative of international comity. The United Kingdom is a signatory
to the 1970 Hague Convention on the Recognition of Divorces and Legal
Separations,17 and has given that treaty effect through legislation, The
Recognition of Divorces and Legal Separations Act (RDLSA),1 which
provides that the validity of an overseas divorce" will not be questioned
by British courts if, at the date of the institution of the foreign
proceedings, either spouse was habitually resident in the foreign country or was a
national of that country.2 °
The RDLSA does, however, exempt from automatic recognition
divorces granted at a time when, according to British domestic law, there
was no subsisting marriage between the parties2 1 but, of course, the
validity of a marriage under British law is generally governed by the lex loci
celebrationis2.2 Also exempted from automatic recognition are divorces
granted solely at the behest of one party without notice to the other
spouse. 3 Lastly, the Act exempts divorces the recognition of which
said, because it disagreed with Malta's choice of governing law. Instead, recognition was denied on
undefined grounds of public policy. Id. at 273. See also infra note 28.
16 See generally A. DIcEY & J. MORRIS, THE CONFLICT OF LAws 70-75 (9th ed. 1973).
17 Hague Conference on Private International Law, COLLECTION OF CONVENTIONS 128 (1970).
18 The Recognition of Divorces and Legal Separations Act, 1971, as amended by the Domicile
and Matrimonial Proceedings Act, 1973 [hereinafter cited as the RDLSA]. For a comparison of the
Convention and the RDLSA, see Graveson, La Nouvelle Loi Anglaise sur la Reconnaissance des
Divorces et des Separationsde Corps, 61 REVUE CRITIQUE DE DROIT INT'L PRIVE 543 (1972).
19 The RDLSA speaks of foreign "proceedings," RDLSA §§ 2, 6, and that language has been
taken to require some affirmative individual judgment by the rendering sovereign; certain non-curial
divorces arising wholly by operation of law have been held to be outside the statute entirely. See
Viswalingham v. Viswalingham,  1 F.L.R. 15 (C.A. 1980) (available on LEXIS, ENGGEN
library, Cases file). But see Quazi v. Quazi, 1980 A.C. 744, 800 (1979) [hereinafter cited as Quazi
III], finding that the modern Islamic ritual of "talaq," by which a divorce is unilaterally pronounced
by the husband but registered with the state before taking effect, satisfied the statutory requirements.
See also infra notes 39-46 and accompanying text.
20 RDLSA, supra note 18, at § 3(1).
21 Id. § 8(1).
22 See supra note 11 and accompanying text.
23 RDLSA, supra note 18, at § 8(2)(a).
"would manifestly be contrary to public policy."' 24
This last category is distinct from the others and is the most
interesting for the purposes of this inquiry, for it at least in theory allows the
United Kingdom to abandon its facilitative practices at will and resort to
the sort of international intransigence observed in litigation of a more
public and commercial nature. The public policy ground for
nonrecognition is wholly discretionary2 5 and appears to preserve intact a rule of long
standing at common law.2 6 The arguments advanced in connection with
the application of this residual power, then, are equally relevant to cases
falling wholly outside the ambit of family law, and should be used to
define the general scope of authority to refuse recognition to any foreign
Generally, British courts have been reluctant to openly invoke
considerations of public policy when considering the extent of recognition to
be accorded a foreign divorce.2 7 Recognition has never been denied
because of sovereign disagreement about the proper scope of marital
regulation; that is, British courts continue to routinely recognize foreign
decrees grounded in allegations insufficient to support a divorce petition
under British law.2 8 Similarly, British courts generally do not concern
themselves with the jurisdictional basis assumed by the divorcing court,
once the requisite foreign nationality or domicile of a single spouse has
been established.2 9
There are, indeed, very few cases in which recognition of a foreign
divorce has been denied for reasons of British public policy.30 Many of
the cases which might have been decided on those grounds appear
instead to be based on jurisdictional failings in the rendering court,31 as
when recognition is denied because of fraud allegedly perpetrated against
the foreign tribunal.32 In cases in which no fraud was charged, only two
British decisions have invoked this apparently dormant authority
outright since its resurrection was encouraged by the RDLSA. Even in
these two cases, the courts took pains to first establish grounds for
nonrecognition independent of the public policy concerns.
Joyce v. Joyce and O'Hare33 involved a British wedding of two
British citizens; the marriage had deteriorated over time and ultimately the
wife found herself deserted by her husband. She sought and was granted
a maintenance order by a British court and received regular payments
from her absent spouse. Subsequently, her husband emigrated to
Canada, where he fell into arrears on his support obligations and eventually
filed a divorce petition with the courts of the province of Quebec.
Although Mrs. Joyce contested that action by mail, her objections were
ignored completely, for Quebec law required a personal appearance by all
parties wishing to be heard, and Mrs. Joyce could neither afford to retain
Canadian counsel nor travel to Canada herself. A decree of divorce was
entered by the Quebec court, which also refused to recognize the British
maintenance order and declined to issue any such order of its own. Mrs.
Joyce filed for divorce and maintenance in the United Kingdom, where
her husband predictably answered that there was no marriage left to
dissolve, that job having already been done in Canada.
Judge Lane of the High Court's Family Division considered the
foreign divorce in light of the RDLSA and found it wanting under section
8(2)(a)(ii), which authorizes the denial of recognition to foreign divorces
obtained by one spouse without "reasonable" efforts having been taken to
notify the other.34 Judge Lane also saw fit to invoke her discretion under
section 8(2)(b) of the RDLSA, holding that, in any event, the Canadian
proceedings were so offensive to British public policy that they were not
entitled to recognition under any circumstances.35 Judge Lane did not
"seek to define or describe"3 6 that concept further, but merely set out her
opinion in a single conclusory sentence37 relying for authority on dicta
found in her Family Division colleague's opinion in the then-pending
case of Quazi v. Quazi.38
Judge Lane's reasoning in Joyce now seems questionable in light of
the House of Lords' ultimate disposition of Quazi v. Quazi,39 which
reversed the lower court rulings' denying recognition to a Pakistani
"talaq" divorce. The talaq is a procedure under ancient Islamic law
which, in its classical form, allowed a husband to divorce his wife simply
by pronouncing the words "I divorce thee" a specified number of times
before witnesses. No notice to the wife was required at all, and the
ceremony could be conducted in her absence.4 1 Many modem Islamic states,
including most of Pakistan, have amended the historic law to require in
addition that the talaq be recorded with the public authorities and that
the wife be told that her marriage is about to be dissolved.4 2 The House
of Lords found that the modem procedure was not objectionable under
British law.43 The issue on appeal did not directly involve the general
jurisdiction to refuse recognition on public policy grounds, for the trial
judge had not based his decision in that power,' but Lords Salmon4 5 and
Scarman4 nevertheless volunteered that they believed that no such
discretion to refuse recognition existed at all under the facts as presented.
Chaudhary v. Chaudhary4,7 like Quazi, involved a talaq divorce, but
with important distinctions. The talaq ritual followed in Chaudharywas
performed pursuant to the territorial law of Kashmir, which adhered
strictly to the ancient Islamic doctrine, and so no notice of the divorce
was required to be given to either the state or the wife.4 Further,
although both spouses were Pakistani nationals and had been married in
that country, they had each separately become British domiciliaries
before the marriage came before the British courts.49 Judge Wood of the
Family Division found that the "bare" talaq did not qualify as a foreign
"proceeding" within the meaning of the RDLSA and Quazi v. Quazi,5 °
and so was not entitled to recognition."' The Court of Appeals, in a
lengthy opinion, affirmed that decision.52 Each judge hearing the case
also, however, voiced his view that even if the "bare" talaq could be
understood as a "proceeding," it should nevertheless be refused recognition
in the United Kingdom on the grounds that it constituted a manifest
affront to British public policy. Judge Wood, at trial, attempted to base
his decision in the common law:
The doctrine of public policy is a creature of the common law and prior to
the commencement of the Recognition of Divorces and Legal Separations
Act 1971 (1 January 1972) English courts have always reserved to
themselves a residual discretion whether or not to recognise foreign decrees or
orders. I have no doubt that the principles of the common law as they
affect the residual discretion of English judges to refuse the recognition of
foreign decrees or orders, continues and is unaffected by the provisions of
the Act of 1971. I do not think that it is helpful for me to refer to a number
of cases at length....
The combination of circumstances which a court in this country may
pneoelidcytoarceolnimsi ditelersswhaennd Iexwerocuislidngnoittssedeiksctroetidoenfinuenadneyr ltihmeithse.5a3d of public
Although the Court of Appeals' agreement that the "bare" talaq
was not a "proceeding" within the meaning of the RDLSA mooted the
issue of public policy, each judge there discussed the question
nonetheless. Lord Justice Cumming-Bruce noted that for the purposes of that
inquiry "the significant feature of the instant case which distinguishes it
from the facts in earlier cases such as Quazi v. Quazi is that by the date of
the... divorce both parties were domiciled in England. ' '5 4 Lord Justice
Oliver 55 and Judge Balcombe 56 agreed, arguing that the affront to public
policy arose because one English domiciliary was evading English law so
as to deny another domiciliary of her rights under that law-namely, the
49 Id. at 359 (Fain.);  2 W.L.R. 350, 374-75 (C.A. 1984)
50 See supra note 19.
51 Chaudhary,  2 W.L.R. at 358 (Fam.).
52 Id. at 367, 369, 374 (Affirmances by Cumming-Bruce, L.J.; Oliver, L.J.; and Balcombe, J.).
53 Id. at 359-60 (Fam.).
54 Id. at 366 (C.A.).
55 Id. at 371.
56 Id. at 374-75.
right to seek relief ancillary to her divorce petition. By implication, the
Court suggested that such evasion would not have constituted a violation
of local public policy if both the perpetrator and his victim had not each
acquired a domicile in Great Britain before the institution of judicial
LITIGATION WITH ECONOMIC CONSEQUENCES
It is an axiom of British law that, in the absence of a governing
statute or convention, the British courts will generally recognize lawfully
obtained foreign adjudications as a matter of comity and obligation but
will reserve the right to decline recognition when that course better
serves internal public policy." The materials just examined, however,
show that foreign judgments implicating purely private interests are
rarely, if ever, denied recognition in Britain for reasons of public policy.
Indeed, British courts dealing with family law matters-perhaps the area
of law most intuitively likely, because of its natural connection with
religion and public morality, to evoke public policy objections between
sovereigns-have gone to great lengths to avoid characterizing foreign
adjudications as offensive to British policy. At the same time, however,
the British courts have been careful to establish in each case their
residual discretion to decline recognition on this ground. That exercise is
not mere futility nor fidelity to history, but neither is it primarily
intended to preserve that residual discretion for cases involving practices
even more repugnant than those in the case at bar. It is instead designed
to save that dormant discretion so that it can be used to further British
economic and commercial interests when those important concerns are
diminished through foreign adjudication. Those economic interests are
far less likely to be implicated by the actions of the Third World nations
that make up much of the British Commonwealth and from which so
many of the parties to British matrimonial disputes hail; the adjudicatory
threat to British economic policy comes largely from Britain's most
developed former colony, the United States.
The clash of economic policy interests between the British and
American judiciary began to be defined in 1952, when British Nylon
Spinners Ltd. v. Imperial Chemical Industries Ltd.5 8 was decided by the
Court of Appeals. That case concerned the enforceability in Britain of an
American antitrust decree obtained by the United States Government. 9
The United States District Court had ordered Imperial Chemical
Industries (ICI), a British corporation, to divest itself of certain British patents
it had obtained years before pursuant to an agreement with the Du Pont
Chemical Company. The United States court had found the original
agreement invalid as an unlawful division of markets, and so it ordered
that the patents be returned to Du Pont for compulsory licensing to all
parties seeking to use them in the sale of American goods in Great
Britain. The patents had, however, already been assigned by ICI to another
British company, British Nylon Spinners (BNS), and that entity,
realizing the threat to its interests posed by the American decree, filed suit in
England for an injunction prohibiting ICI from carrying out the
The English High Court held, and the Court of Appeals agreed, that
such an injunction was proper under the circumstances. "It is plain," the
appellate court said,
that there is here a question of the comity which subsists between civilized
nations. In other words, [this case] involves the extent to which the courts
of one country will pay regard and give effect to the decisions and orders of
the courts of another country. I certainly should be the last to indicate any
lack of respect for any decision of the district courts of the United States.
But I think that in this case there is raised a somewhat serious question,
whether the order, in the form that it takes, does not assert an
extraterritorsitaalnjduirnigsdiacntyiosnucwhhiccohmthitey.c6o°urts"of this country cannot recognize,
The court grounded its blockage of the American decree in a narrow
exercise of characterization that considered only the second contract at
issue, whereby ICI assigned its patent rights to BNS. That agreement,
the court said, was between English nationals and called for performance
in England, and so was "an English contract"6 1 which created a "species
of property... which is English in character and is subject to the
jurisdiction of the English courts."6 2 Therefore, the court reasoned, the
American order voiding that contract along with the original
"American" agreement in which it was rooted was an interference with English
rights "the observance of which by our courts would require that our
courts should not exercise the jurisdiction which they have and which it
is their duty to exercise in regard to those rights." 63
59 United States v. Imperial Chem. Indus., 100 F. Supp. 504 (S.D.N.Y. 1951).
60 British Nylon Spinners, 1953 Ch. at 24.
61 Id. at 26.
The matter came before the English courts once again on a motion
to make the original injunction permanent,' and there the respective
public policy interests of both the United States and the United Kingdom
were apparently briefed quite thoroughly. ICI, attempting to overturn
the injunction, argued that it violated the spirit of international comity
by ordering "the deliberate violation of the laws of a friendly country., 65
However, the court refused to investigate American antitrust law on its
own and similarly refused to consider the American decision as a valid
application of United States law to BNS's situation, since BNS was
unrepresented in the American proceeding.6 6 The comity argument was
thus passed over for want of supporting evidence and the injunction was
allowed to stand.' Somewhat disingenuously in light of the court's
admission two years earlier,6 8 the court added that, because it had no
American law to consider, "neither [the American judgment] nor any
judgment of mine which the law of England requires me to give, will
disturb the comity which the courts of the United States and the courts
of England are so anxious and careful to observe.",69 International
comity as well as local policy, then, were both deemed to have been served,
despite the obvious result that the private interests of English nationals
prevailed only at the expense of substantial American sovereign
The Current Laker Litigation
The English judiciary's willingness to serve local and often private
economic interests, even at the expense of otherwise proper foreign
adjudications, has become more evident over the years and is now the subject
of protracted litigation in both the United States and the United
Kingdom. The story of this latest judicial skirmish begins in February of
1982, when the inexpensive trans-Atlantic "Skytrain" service pioneered
by Sir Freddie Laker was forced to ground its planes in order to avert
financial collapse. Nine months later, Laker Airways filed suit in the
United States District Court for the District of Columbia, alleging that it
had been driven out of business by a conspiracy of other air carriers
determined to monopolize the market for air travel between the United
States and Western Europe.7 1 The complaint alleged predatory pricing
and other acts in violation of the American antitrust laws72 and the
common law of tort, and sought a grand total of 2.1 billion dollars in
compensatory, treble, and punitive damages.7 3
Discovery proceeded along the usual course until January 21, 1983,
when four of the defendant foreign airlines suddenly fied separate
declaratory judgment actions against Laker in the English High Court of
Justice.74 The writs sought both declarations of non-liability to Laker
and permanent injunctions forbidding Laker from proceeding with its
claims in the United States. In each case, the requested injunction was
granted immediately, pending trial in England on the substantive
claims.75 Judge Parker, who heard the cases in the High Court, took
care to note that the injunctions he granted did "not represent an
interference by one court with the proceedings of another,"76 although he
named Laker's particular American civil action by number and directed
that no further papers of any kind be filed with the District Court.7 7 The
District Court, as might be expected, did not find Judge Parker's
disclaimer convincing.7 8
One week later, Judge Parker granted a similar injunction to
Midland Bank, one of Laker's British financiers.7 9 Midland, although not yet
a party to the suit pending in the United States, feared that it would soon
be added as a defendant and so sought a "first strike" to protect itself
from liability.8 ° In granting the injunction, Judge Parker observed that
[t]he disadvantages to Midland if Laker is permitted to proceed against
them in America are... very considerable. They will become embroiled in
a conspiracy action covering a period of some eight years but in which it is
common ground that they were not involved at all until the last ten days;
they will be exposed to discovery processes regarded in this country as
oppressive; they will be forced to defend a case in respect of acts allegedly
done here and when their witnesses and documents are all here; they will
obtain no order for costs if they win; they will be subject to damages
regarded here as contrary to public policy in respect of acts done, if at all,
only here; and they will have litigation hanging over their heads for a much
longer period than will be the case if Laker is left to pursue its claim, if
there really is one, in this country ... .81
Back in the United States, Laker sought to protect what was left of
its lawsuit by seeking a defensive version of the English injunction from
the District Court in Washington: Laker asked Judge Greene there for
an order restraining the two remaining foreign defendants and the four
United States defendants from going to England in search of yet another
blocking injunction. Judge Greene found both Laker's request and the
story it told quite troubling, noting that "[e]xcept in unusual, very
narrow circumstances, there is no basis-at least not in a free country-for
precluding a citizen by an injunction-type order from suing in the courts
of another nation." 2 The Judge reviewed the rare occasions in which
that step had been taken by American courts in the past and concluded
that no situation analagous to the present case could be found.8 3
Still, however, Judge Greene was unwilling to conclude that the
pedestrian nature of the claims before him should preclude the
extraordinary interlocutory relief requested, for the suit was just as mundane
when his English counterpart had decided that it was ripe for such
unusual treatment. 84 The arguments that might have been relied upon to
justify the English action-primarily that Laker and most of its
defend78 Id. at 1128 n.14.
79 Midland Bank v. Laker Airways, THE TIMEs (London), Feb. 8, 1983, at 22, col. 2.
82 Laker 1, 559 F. Supp. at 1129.
83 Id. at 1130-31.
84 Id. at 1131-32.
ants were British corporations whose sovereign could properly limit their
legal rights and remedies-were canvassed but were ultimately
discarded. The court reasoned that all the parties to the litigation were
unquestionably within its personal jurisdiction and that much of the alleged
injury was in fact felt by American citizens, in the form of higher
transAtlantic air fares. 5 The injunction was granted,86 and the defendants'
predictable response, a collective motion to dismiss the entire action on
the ground of forum non conveniens, was impatiently dealt with in the
same manner.8 7 "Justice is blind," the court said of that motion, "but
courts nevertheless do see what there is clearly to be seen."88
What was clearly to be seen, of course, was the real reason for the
British intervention in the first place. British law does not regard
predatory pricing or any of the other alleged acts of monopolization as
particularly odious; indeed, they form no basis for a cause of action in the
United Kingdom at all and are seen as economically desirable in both the
long and short terms.89 English public policy, then, favored dismissal of
Laker's claims just as strongly as American policy favored compensation
and punishment for them. The policy positions taken by the British
courts were validated shortly after Judge Greene made his decision on
theforum non conveniens motion, when the United Kingdom's Secretary
of State for Trade and Industry used his authority under Section One of
the Protection of Trading Interests Act of 198090 to issue an order 91
declaring outright that the application of the United States' antitrust laws
to "any act done by a United Kingdom... airline"92 would be, in the
words of the PTIA, "damaging or [would] threaten to damage the
trading interests of the United Kingdom." 93
To implement that declaration, the Secretary issued General
Directions referring specifically to the Laker litigation and to the possibility of
an American grand jury investigation, and providing that
[e]xcept with the consent of the Secretary of State no person or persons in
the United Kingdom shall comply, or cause or permit compliance, whether
by themselves, their officers, servants or agents, with any requirement to
produce or furnish to the United States' Department of Justice, the grand
jury or the District Court any commercial document in the United
Kingdoof mJusotircaeniynvceosmtimgaetricoinaloirntfhoermgartainodn jwurhyicohrrDelaistetrsicttoCthoeurstapidroDceeepdairntgms.e9n4t
This declaration of public policy by the executive branch led the
English Court of Appeals to continue the injunctions indefinitely.9 5 As
before, however, the court conspicuously disavowed any assault on the
principles of international comity:
[L]et it be said ... loudly and clearly that neither the English courts nor the
English judges entertain any feelings of hostility towards the American
anti-trust laws or would ever wish to denigrate that or any other American
law. Judicial comity is shorthand for good neighbourliness, common
courtesy and mutual respect between those who labour in adjoining judicial
vineyards. In the context of the United
this comes naturally and, so far as we areKcinogncdeormneda,ndeftfhoertlUesnsliyte. d96 States,
Still, local public policy triumphed. This time, the court divided the
doctrine into two catagories and asserted that while English courts act
largely independently of the government of the day in divining and
enforcing matters of domestic policy, they cannot and do not do so in the
conduct of international affairs. 7 There, the court said, the United
Kingdom must speak with one voice, and that must be the voice of the
After making these points, however, the opinion grew confusing:
the court abandoned earlier criticisms of both the system of American
justice in general99 and the character of the antitrust laws in
particular,"c° and instead attacked what it called the "subject matter
jurisdiction" of the American courts. 1 The executive branch had intervened in
the case at the invitation of the court and had reported that Her
Majesty's Government believed that substantive jurisdiction in antitrust
matters should only be permitted on the basis of territoriality or
nationality,10 2 and not under the "effects doctrine" applied by American
courts. 10 3 The defect alleged, however, could not properly be called
"jurisdictional," as that term is understood in English law;104 it instead was
grounded in rawer concerns of national policy and conceptions about the
appropriate business of a foreign sovereign. Still, the objection needed to
be couched in jurisdictional language to adhere to traditional views about
foreign adjudications, so as to justify blocking the entire American
proceeding, rather than merely the frustration of whatever punitive or
multiple damages might ultimately be assessed.
The Attorney General's report to the court accurately reflected a
long-standing British concern. As the United States and the United
Kingdom grew ever closer economically, virtually all major British
economic actors could rationally expect that the consequences of their
business planning might be felt in American markets. If American law could
regulate British meetings and agreements with such consequences, it was
feared, British law itself would be completely displaced whenever a
disgruntled consumer or partner chose to take his grievance across the
Atlantic. It seemed as if the only solution for the British corporation
seeking to govern its domestic affairs according to the law of its
homeland would be to avoid completely any submission to the personal
jurisdiction of the American courts, but of course the very economic
interdependence that created the problem made that course
The American and British positions are, then, diametrically
103 See generally United States v. Aluminum Company of America, 148 F.2d 416, 444 (2d Cir.
1945) (L. Hand, J.). The evolution of the "effects doctrine" is presented from a critical American
perspective in Comment, DefiningJurisdictionalLimits in InternationalAntitrust: Should the EEC
Adopt the Timberlane Approach? 5 FORDHAM INT'L L.J. 469, 475-83 (1982). For a British
discussion of the same subject, see Akehurst, supra note 1, at 190-212.
104 See A. Dicey & J. Morris, supra note 16, at 1016-18.
105 In a prophetic message, the British Ambassador to the United States warned in 1978 that:
the enormous expansion of international trade since the Second World War and the increasingly
close economic and commercial links between different countries have added further complexity
to the pursuit of particular national antitrust policies at a time when there is no internationally
accepted body of law with regard to competition policies. This is perhaps most evident in areas
of particular interest and importance to individual governments... [including] such areas of
important economic activity as natural resources and transportation.
HM Government adhere to the principle that the nationals and companies of one country
who trade or operate overseas should, in the countries in which they carry on business activities,
conform with the laws applying there, and should take fully into account the policy objectives
established there. However, in the absence of international agreement as to the substance of
competition policy and law, HM Government do not believe it to be justified in law, or
conduposed. American courts do not see the "effects doctrine" as an
extraterritorial assertion of jurisdiction at all," 6 but merely as a routine exercise
of the United States' concurrent jurisdiction to regulate conduct which
is, because of the divergence between the physical location of the actor
and the intended consequences of his acts, properly the business of more
than one sovereign. 107 As the American courts see the situation,
international comity does not require one state to enforce the other's interest in
the transnational conduct, but neither does it permit the deliberate
frustration of concurrent sovereign authority.10,
Eventually the Laker litigation reached the House of Lords, where
the theoretical foundations for the use of injunctive authority solely as a
bar to foreign adjudications were tested and, ultimately, pronounced
sound.10 9 The Lords ruled, however, that such action was to be taken
only when the foreign proceedings themselves threatened to produce a
result "'unconscionable' in the eye of English law." 110 The arguments
made to the Lords apparently included a much deeper investigation of
the underlying facts than had been undertaken in any of the lower
English courts, and on the basis of the evidence uncovered, it was held that
the defendants' previous conduct in both the United States and the
United Kingdom estopped them from claiming that the application of
American law to their situation would be unconscionable. 1 1 The
injunctions directed at Laker by the lower courts were, accordingly, dissolved,
with much being made of the attendant normalization of judicial
relations between the two countries. 112
There remained, however, the matter of the Secretary of State's
General Direction forbidding cooperation with the United States District
cive to international trade, if one country unilaterally attempts to impose its national policies
outside its proper and undisputed jurisdiction.
Court." 3 The Lords considered that order, which had the same effect as
the injunction just dissolved, according to the very strict standard
provided in English administrative law for the review of decisions of the
executive branch," 4 and found that they could not find the Secretary's
action "wholly unreasonable.""' 5 It therefore was allowed to stand,11 6
and so the American litigation remained frozen. 7 It thus appears that
for some time to come the American courts will continue to have their
jurisdiction blocked and their dockets managed by foreign actions taken
in the name of local public policy.118
The Ultimate Weapon: Britain's Clawback Statute
The British injunction, as an offensive weapon against American
litigation grounded in economic regulation, is apparently available only to
British defendants and even then is of no use once a final judgment has
been entered by the American courts. As mentioned earlier,11 9 however,
there is another far more potent and considerably more offensive-in
every sense of the word-weapon offered by the British courts. The
"clawback" provisions of the PTIA 120 allow any British citizen or
corporation,12 1 or any person or corporation doing business in Great
Britain, 122 to recover in a British court whatever amount might be levied
against them by a non-British court in the form of treble or other
multiple damages. 123 The language dealing with those "carrying on business in
the United Kingdom"1'24 is apparently meant to be construed quite
broadly, so as to make the clawback option widely available. During
debate on the Act in Parliament, it was observed that the statutory
language meant to convey
a very extraordinary gift to somebody who is not, in fact, a British subject,
not a British trading company, not somebody who is permanently carrying
113 Id at 91. See also Laker IV,577 F. Supp. at 352 and supra note 94 and accompanying text.
114 British Airways II, 1985 A.C. at 92.
116 Id. at 95-96.
117 But see supra note 95. The conclusions of the amicus curiae have yet to be reported.
118 For a recently published, enlightening debate between an English solicitor in the Department
of Trade and Industry and the author of the D.C. Circuit's opinion in Laker II, see The Symposium
on TransnationalLitigation-PartII" PerspectivesFrom the United States and Abroad, 18 INT'L
LAW. 773-78, 779-84 (1984) (contributions by W. Beckett and the Hon. M. Wilkey). See also
Lindrup, Laker The Issues of Jurisdictionand PublicPolicy, 135 NEw L.J. 50, 90 (1985).
119 See supra notes 4-8, and accompanying text.
120 See supra note 6, at § 6.
121 Id. § 6(l)(a)-(b).
122 Id. § 6(l)(c).
123 Id. § 6(1).
124 Id. § 6(l)(c).
out business in this country, if he happens to be a foreigner. 125
[Slurely the clause as drawn ...would by implication cover anybody
who decided, having a small amount of business over here-be it as a
commercial traveller embarking on some business three times a year-to claim
the benefit of this right by merely travell1i2n6g over here and saying: "It is
perfectly true, I carry on business here."
Like the injunctions and government orders issued during the Laker
litigation, the PTIA was motivated by an abiding British conviction that
the nation's public policy was being steadily undercut by judicial activity
in the United States. 2 7 The clawback provision itself was recognized as
"contentious"' 12 and likely to "incur... odium in the United States,"' 2 9
and was acknowledged to be "unprecedented not only in our own law
but throughout the world."' 13 0 It permits British courts to enter
clawback judgments "notwithstanding that the person against whom the
proceedings are brought is not within the jurisdiction of the court,"''
and, even more remarkably, notwithstanding the lack of any British
connection with the subject matter of the action. 132
By way of example, one might imagine a Japanese corporation
engaged in the manufacture of electronic goods exclusively for sale to
Americans who maintain absolutely no contacts with the United
Kingdom. Further imagine that the Japanese company conspires with its
competitors to fix the price of its goods in violation of the American
antitrust laws. 133 So long as the Japanese corporation carries on some
slight business in the United Kingdom-involving, for example, the
purchase of business cards for its Tokyo executives-it can turn to the
English courts to undo any treble damage judgment that might be
en125 404 ParL.Deb., H.L. (5th ser.) 554, 590 (1980).
126 Id at 592.
127 One Lord went so far as to admit to Parliament that "the Bill is really the culmination of
bitterness about the policy of the United States-often referred to as the 'judicial imperialism of the
United States of America.'" Id at 569-70 (Lord Lloyd of Kilgerran). Another observed that "it
gives further evidence of our refusal as a country to be clobbered by friend or foe, great or small."
Id at 576 (Lord Renton). See also the remarks of the Earl of Inchcape, Id at 580-83.
128 Id at 567 (Lord Elwyn-Jones).
129 Id at 569.
130 House of Commons Standing Comm. F, supra note 5, at 67. See also 404 Parl. Deb., H.L.
(5th ser.) 554, 567 (1980), where Lord Elwyn-Jones said: "e are plunging into deep waters here
and taking a road which has not been taken before.".
131 PTIA, supra note 6, at § 6(5).
132 See 976 Parl. Deb., H.C. (5th ser.) 1023, 1046 (1979), where Mr. Ogden said: "The trade that
we are protecting has nothing to do with British trade in the true sense." See also Note, Power to
Reverse Foreign Judgments The British Clawback Statute UnderInternationalLaw, 81 COLUM. L.
REv. 1097, 1111 n.88 [hereinafter cited as Note, Power to Reverse].
133 See Sherman Antitrust Act, supra note 72, at § 1.
tered against it in the United States in connection with its electronics
sales. 134 The same course, however, would not be open to an American
company, for American citizens and corporations are specifically barred
from challenging the judgments of their own courts by bringing clawback
actions themselves. 135
No British court has yet entered a clawback judgment against a
successful American antitrust plaintiff, largely because British law tends to
respect the corporate fiction to a very great extent and generally forbids
the attachment of one company's assets in satisfaction of a debt incurred
by a parent or subsidiary.136 Thus a corporation in fear of having its
American antitrust award reversed through British clawback
proceedings need only make certain that its British assets are held by separate,
albeit closely related, legal entities. 37 Apparently, the Parliament
intended the clawback as it now stands to be simply a warning shot fired
across the American judicial bow, 138 but it has reserved the right to add
whatever force is necessary to the statute if the American courts continue
to enforce their "effects doctrine" against foreign defendants. 139 The
clawback thus looms large and ominously in the future of
Anglo-American judicial and trade relations. The British courts already claim the
right both to enjoin" 4 and to overrule unwelcome decisions of their
counterparts in the United States, and the day when they decide to more
boldly extend that self-proclaimed authority-even to cases with no
ostensible British interest' 4 '-may not be far off.
134 This example is based on one proposed in Note, Power to Reverse, supra note 132, at I I 11.
That example was, in turn, rooted in a hypothetical case posed first on the floor of Parliament during
consideration of the PTIA. See 976 Pad. Deb., H.C. (5th ser.) 1023, 10
135 PTIA, supra note 6, at § 6(3).
136 Commission of the EEC, "1969 British Aide-Memoire", reprintedin 1967 BRIT. PRAC. INT'L
L. 58 (1971).
137 See Note, Power to Reverse, supra note 132, at 1112.
138 See generally 405 Parl. Deb., H.L. (5th ser.) 926, 934 (1980) (Lord Hacking) ("[N]obody
really expects the provisions of the bill to be used."); Id. at 943 (Lord Lloyd of Kilgerran) ("[I]n so
far as British industry is concerned, [the clawback] has no effect whatsoever from the view of
realistic commercial sense.").
139 The Lord Advocate, Lord Makey of Clashfern, reported that "Her Majesty's Government
will be paying very close attention to how the situation develops and will consider bringing forward
in future further legislation in this field, if it should prove to be necessary." Id. at 942. See also the
Lord Advocate's promise that the Government would specifically consider "drawing aside the
corporate veil in the case of groups of companies, and possibly enabling the person against whom a
multiple damages award had been made to go against the property of a subsidiary or associated
company directly." 404 Parl. Deb., H.L. (5th ser.) 554, 593-94 (1980).
140 See supra note 109 and accompanying text for a discussion of the Laker litigation.
141 See supra note 132 and accompanying text.
THE FUTURE OF THE PUBLIC POLICY DOCTRINE
The United Kingdom is surely entitled to give effect to its own
internal public policy through its courts, and it should not, as a general
principle, be required to give effect to foreign adjudications which it finds
patently offensive. This principle, however, has its limits. It must be
exercised in an intellectually honest fashion and must in any event be
reconciled with the reality of an interdependent world. When the
doctrine of public policy is articulated alongside an outright denial of its
implications for the international order,14 2 or when it is reserved in one
area of the law only to be used exclusively in another, 4 3 its integrity is
diminished and the principle itself becomes unprincipled.
Indeed, the United Kingdom itself would confine the exercise of
foreign courts' subject matter jurisdiction to cases grounded in either the
nationality or territorial presence of the parties."4 In making the
clawback14 5 and the blocking injunction1 46 available to foreign parties,
however, it contravenes that very limitation. The British, of course,
would argue that those measures are purely defensive maneuvers against
American juridical aggression,14 7 but even in war there must be rules.
At a minimum, then, it seems reasonable to insist that whatever
jurisdiction the United Kingdom has to refuse recognition to foreign
adjudications be exercised only in support of British nationals. This would
comport with the doctrine of public policy as announced in the arena of
family law,' 4 8 but would restrict the threatened extension of that
authority to non-British concerns injured by economic regulation abroad.' 4 9
Care must be taken, as well, to insure that the beneficiary of the
blocking jurisdiction deserves rescue under that jurisdiction's own
internal law. Considerations of international comity cannot sanction
interference with the concededly proper jurisdiction of a foreign sovereign
except, perhaps, as a last resort for the protection of basic human
rights, 5 0 and that ground for intervention is not implicated in matters of
international corporate affairs and, in any event, appears to have been all
142 See supra notes 64-70, 77-82, 96-105 and accompanying text.
143 See supra notes 27-32, 53 and accompanying text.
144 See supra note 102 and accompanying text.
145 See supra notes 119-41 and accompanying text.
146 See supra notes 57-118 and accompanying text.
147 See, e.g., 404 Pan. Deb., H.L. (5th ser.) 554, 583 (1980) (The Earl of Incheape).
148 See the Court of Appeals' discussion of the issue in Chaudhary,supra notes 55-56 and
149 See supra notes 131-35 and accompanying text.
150 See, eg., the Universal Declaration of Human Rights, G.A. Res. 217A(III), U.N. Doc. A/
810, at 71-77 (1948).
but abandoned in the United Kingdom today.' There is no basis for
sanctioning the deliberate violation of foreign economic laws by persons
or corporations squarely within their accepted sphere of operation, and
English courts should make certain that English plaintiffs seeking relief
from such laws have not fallen within the jurisdiction of foreign
sovereigns according to principles, such as territorial operations, which would
have given the foreign courts jurisdiction over the challenged activity
according to English notions of civil procedure. 5
Lastly and most importantly, a court intent on blocking or reversing
another's decisions should firmly establish that it has a closer
relationship to the underlying controversy than does the foreign power whose
adjudicatory activity would be curtailed. This means, for example, that a
suit should not be blocked or frustrated if no alternative forum for its
adjudication or enforcement is available and if the blocking jurisdiction's
own affairs are not substantially implicated by the litigation. The
aspirational goal of the international order should be a system in which each
controversy is judged according to the law most closely related to it, and
one sovereign's abstract preference for a particular outcome in a foreign
forum should not overcome that forum's own, more intimate, sovereign
interest in the matter.
151 See supra notes 16-56 and accompanying text for a discussion ofmarital judgments and other
private, non-commercial litigation.
152 The fear that the English courts often impose a double standard is legitimate. In the Laker
litigation, for example, it was alleged that the foreign defendants had conspired to ruin Laker's
business while their executives were attending a 1982 meeting of the International Air Transport
Association in Florida. See Laker 1, 559 F. Supp. at 1126-27. Such conduct would implicate the
"territorial principle," supra note 101 and accompanying text, and would have bestowed upon the
American courts a jurisdiction recognized in England. See supra note 102 and accompanying text.
The English courts ignored that argument, however, and blocked the American proceedings
10 See Patterson v. Gaines , 47 U.S. ( 6 How.) 550 , 587 ( 1848 ). See also, eg ., Estate of Levie, 50 Cal. App. 3d 572 , 576 , 123 Cal. Rptr. 445 , 446 - 47 ( 1975 ); In Re May's Estate, 305 N.Y. 486 , 490 , 114 N.E.2d 4 , 8 ( 1953 ) ; see also 52 AM . JUR. 2D Marriage§ 80 n.9 ( 1970 ).
11 See Starkowski v. Attorney Gen., 1954 A.C. 155 , 170 ( 1953 ); Berthiaume v . Dastous , 1930 A.C. 79 , 83 (P.C. ) . See also the cases collected at 8 HALSBURY'S LAWS Conflict of Laws 331 n.2 ( 1973 ).
12 But see RESTATEMENT (SECOND) OF CONFLICT OF LAWs § 283(1) (1971), which provides instead that "The validity of a marriage will be determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the spouses and the marriage .. Id.
13 For the United States' position, see , e.g., K. v. K., 393 N.Y.S.2d 534 , 535 ( 1977 ) and In Re Chace, 26 R.I. 351 , 356 , 58 A. 978 , 980 ( 1904 ), which held that: [i]f a marriage is odious by the common consent of nations, or ifits influence is thought danger-
24 Id. § 8 ( 2 )(b).
25 Newmarch v. Newmarch , 1978 Fam. 79 , 95 ( 1977 ), citing Hack v. Hack , 6 FAM. L. 177 ( 1976 ).
26 G. CHESHIRE & P. NORTH, CHESHIRE'S PRIVATE INTERNATIONAL LAw 389- 90 (9th ed. 1974 ).
27 See Qureshi v. Qureshi , 1972 Fain. 173 , 200 ( 1970 ); Varanand v . Varanand, [ 1964 ] 108 Sol . J. 693 (P.). See generally G. CHESHIRE & P. NORTH, supra note 26, at 389-90; R. GRAVESON , CONI'LIcT OF LAWS 304 (7th ed. 1974 ).
28 G. CHESHIRE & P. NORTH, supra note 26, at 373 , 379; R. GRAVESON, supra note 27, at 304. Foreign judgments of annulment, however, are subject to closer scrutiny on this ground. See, eg ., Formosa , 1963 P. 259 , and Lepre, 1965 P. 52. In both of these cases, the British courts refused to recognize a Maltese decree annulling a marriage validly celebrated in England, when the foreign judgment was based solely on the ground that the English ceremony had not been performed by a Roman Catholic priest . But see Merker v. Merker , 1963 P. 283 ( 1962 ), recognizing a German annulment of a Polish marriage valid under British law, despite a technical failure to satisfy the lex loccielebrationis .
The extra scrutiny applied to decrees of annulment may reflect judicial concern with the social and proprietary interests of children . Prior to 1973 , a decree of nullity granted in respect of a voidable marriage rendered any children of the marriage illegitimate . See Matrimonial Causes Act , 1973 , § 16 . Before 1959 , the same was true of void marriages . See Legitimacy Act , 1959 , § 2 .
29 G. CHESHIRE & P. NORTH, supra note 26, at 373 , 379 - 80 ; RDLSA, supra note 18, at § 3 ( 1 ).
30 As recently as 1973, it was reported that no such cases could be found in British law . A. DICEY & J. MORRIS, supra note 16 , at 326.
31 G. CHESHIRE & P. NORTH, supra note 26, at 387-88.
32 See, eg., Kendall v. Kendall , 1977 Fam. 208; Macalpine v. Macalpine , 1958 P. 35 ( 1957 ); Rudd v . Rudd , 1924 P. 72 ( 1923 ); Bonaparte v . Bonaparte , 1892 P. 402 .
33 1979 Fain. 93 ( 1978 ), noted in 43 MOD. L. REV. 81 ( 1980 ).
34 Joyce, 1979 Fan. at 113-14.
64 British Nylon Spinners v . Imperial Chem . Indus., 1955 Ch. 37 ( 1954 ).
65 Id. at 52.
66 Id. at 54. Although the point is not addressed in the published opinions, one cannot help but suspect that BNS deliberately declined to submit itself to the jurisdiction of the American court .
67 The argument advanced by ICI has, in fact, much support in English law, although, as the court's opinion illustrates, it is easily overborne when the judiciary would prefer to favor private English economic interests. For a statement of the general rule, albeit in dicta, see Attorney-General of New Zealand v . Ortiz , 1984 A.C. 1 , 20 (C.A . 1982 ) (Lord Denning , M.R. ). For a more recent example of the English courts' evasion of the rule, again through a selective evaluation of the evidence of foreign law in order to support a finding that no genuine conflict exists, see CIA Maritima Zorroza S.A. v. Sesostris S.A.E. (The "Marquesde Bolarque" ), [ 1984 ] 1 Lloyd's L .R. 652 , 658 -59 (Q.B.) ( 1983 ).
68 See supra text accompanying note 60.
69 British Nylon Spinners , 1953 Ch. at 93.
70 The English court could have reached the same result without denying the existence of American policy interests, had it only suggested that the sovereign concerns were of equal magnitude and, in the abstract, entitled to equal deference. The court could then have relied upon the earlier characterization of the INS-BNS contract as "English in nature," see supratext accompanying note 61, and found that the United Kingdom's greater connections with the controversy tipped the balance in favor of the application of English law at the expense of the American adjudication. This would be the analysis, although perhaps not the result, advocated by Professor Trautman . See, eg., Trautman , A Study of the InternationalEnvironment The InternationalReach ofAmerican Regulatory Legislation Other Than The Sherman Act, in K. BREWSTER, ANTITRUST AND AMERICAN BusmNwss ABROAD 346 n. 124 ( 1958 ).
71 See the factual background presented in Laker Airways v . Pan American World Airways, 559 F. Supp . 1124 , 1126 -27 (D.D .C. 1983 ) [hereinafter cited as LakerI], afJ'dsub noma . Laker Airways Ltd . v. Sabena, Belgian World Airlines, 731 F. 2d 909 (D.C. Cir . 1984 ) [hereinafter cited as Laker III] .
72 The Sherman Antitrust Act, 15 U.S.C. §§ 1 - 7 , and the Clayton Act, 15 U.S.C. §§ 12 - 27 ( 1976 ).
73 Laker's complaint is reproduced in its entirety as an appendix to a later English decision, British Airways Board v . Laker Airways Ltd., 1984 Q.B. 142 , 203 - 09 ( 1983 ) [hereinafter cited as BritishAirways I] .
74 Laker I , 559 F. Supp . at 1127.
76 Id. at 1128 n.14, quoting a transcript of the English proceedings on file with the District Court .
77 Id. at 1128.
85 Id.at 1133 , 1135 .
86 Id. at 1139.
87 Laker Airways v. Pan American World Airways, 568 F. Supp . 811 (D.D .C. 1983 ) [LakerII].
88 Id. at 816.
89 See Lonrho v. Shell Petroleum Co., 1982 A.C. 173 , 189 and Mogul Steamship Co. v. McGregor, Gow & Co.,  A.C. 25 , 35 - 36 , 40 ( 1891 ), both cited in Laker 1 ,559 F. Supp . at 1137.
90 See supra note 6.
91 1983 Stat . Inst. 900 .
93 PTIA, supra note 6 , at § l( 1)(b ).
94 General Directions of 1 July 1983 , quoted in Laker Airways v . Pan American World Airways, 577 F. Supp . 348 , 352 (D.D .C. 1983 ) [hereinafter cited as Laker IV] .
95 While waiting for the House of Lords to review that decision, Judge Greene in the United States decided that his docket could remain frozen no longer. Accordingly, he appointed an amicus curiae to explore, inter alia, the possibility of appointing a trustee or receiver to prosecute Laker's claims while that party could not do so itself . LakerIV , 577 F. Supp . at 355-56.
96 British Airways I , 1984 Q.B. at 185-86 (Sir John Donaldson , M.R.).
97 Id. at 193-94.
99 "Mhe days are long past," the court said: when the English courts and judges thought that there was only one way of administering justice and that was the English way . Each nation must decide for itself which way is appropriate to its needs and there is nothing strange in two nations which enjoy a common legal heritage and could be described as 'cousins-in-law' rightly deciding that different procedures suited them best . Id at 185 . For British criticisms of United States civil procedure, however, see British Airways Board v . Laker Airways Ltd., 1985 A.C. 58 , 78 ( 1984 ) (Diplock , H.L. ) [hereinafter cited as British Airways II] .
100 British Airways I , 1984 Q.B. at 185.
101 Id.at 194.