The Commonwealth Perspective

Professor David McClean (University of Sheffield)

A Commonwealth Perspective

The background

Two preliminary points. First, as I think we shall discover today, there are not that many ways in which one can say ‘It all depends’. I can actually promise a more definite statement. And second, there may be some here who are unfamiliar with the Commonwealth’s system of private international law. The truth of the matter is that there is no such system and for that I am partly responsible. I will explain why in a few moments.

It is of course possible to speak of a Commonwealth tradition in private international law; I can hardly deny that as I gave some lectures under that very title in the Hague Academy some 20 years ago.[1] We have got so used to working with the EU Regulations that it is difficult to remember that until relatively recent times the English rules of private international law were almost all judge-made rather than statutory. They were common law rules and as such they were exported to the ‘settled colonies’ and that was reinforced by constitutional provisions providing for the reception of English law. This can be a live issue: as recently as 2006 the Privy Council found itself examining a provision in the Judicature Ordinance 1970 of Pitcairn (population 47) that ‘the common law, the rules of equity and the statutes of general application as in force in and for England at the commencement of this Ordinance shall be in force in the Islands’.[2] If the colony did not fall into the ‘settled’ category and had an established system of law, that was allowed to continue (which is why Roman-Dutch law survived in Southern Africa and Sri Lanka); in other cases English law was applied by an ‘Imperial’ statute. So the former penal settlements in Australia were the subject of an Act to Provide for the Administration of Justice in New South Wales and Van Diemen’s Land in 1928, section 24 of which applied to those colonies ‘all Laws and Statutes in force within the realm of England so far as the same can be applied within the said Colonies’.[3]

So many of the English conflicts rules were loyally followed by the courts in Commonwealth countries and what was then Dicey and Morris was their Bible. Despite the independce of former colonies and in some cases the end of the Privy Council’s jurisdiction, many Commonwealth countries have continued to follow English Rules, especially on choice of law.

The influence of English law did not disappear when Empire gave way to Commonwealth. More recent judge-made rules and practices formulated in England have also been exported across the Commonwealth as they have found favour with judges in other Commonwealth countries; the freezing injunction originating in the Mareva case[4] is one clear example.[5]

Equally important for our purposes are what I will refer to as Commonwealth ‘arrangements’. These are based not on treaties or conventions but on similar legislation enacted in each country, in former times in response to a circular from the Colonial Office and more recently in response to recommendations of Commonwealth Law Ministers’ Meetings and the encouragement of the Commonwealth Secretariat.

The study in the 1970s

In 1973 Commonwealth Ministers, who meet every two or three years, called for a review of the enforcement of judgments and orders within the Commonwealth. Eventually I was asked, with my late colleague Keith Patchett to produce a report. We were only able to provide an interim report for Law Ministers in 1975 (in those pre-Internet days we had to correspond with officers in each country’s Law Ministry). In response, we were asked to look at a wider range of issues, and produces a very full report in 1977.[6]

The early 1970s were of course the years in which the UK joined the then European Economic Community but that was quite coincidental. The idea of our study came from the Minister of Law of Bangladesh and was originally prompted by a wish to improve legal arrangements especially in relation to maintenance orders. Few people foresaw then that what was always referred to as ‘the Common Market’ would acquire such extensive legislative competencies.

Our survey dealt with the existing intra-Commonwealth arrangements. A number of things became very clear. The arrangements were all concerned with the recognition and enforcement of judgments and orders, or with the administrative or judicial co-operation in various subject areas. There was nothing on choice of law, where the English rules seemed to provide all that was needed.

There was nothing on jurisdiction, though our remit as extended in 1975 did cover service of process which does have jurisdictional implications in the common law. Many Commonwealth countries have, for example, rules as to the service of a writ outside the jurisdiction based on the former Rules of the Supreme Court here in England. Those English Rules remained wholly unchanged between 1922 and 1962 so many local sets of rules drew on that common text. In our report, we did actually float the idea of an agreed set of rules, Commonwealth-wide, on jurisdiction. The Hague Conference should, perhaps, have reflected on our conclusion that the attempt to negotiate such rules was likely to be too ambitious.[7]

A depressing feature of our findings was that where legal arrangements did exist, their coverage was very patchy. Most depended on reciprocity’. If a judgement of one Commonwealth State was to be recognised in another, the recognising State had to have in place a statutory instrument of some sort designating the other State and certifying that it would reciprocate. Relatively few such designating orders were made, so that even in a region like the Caribbean or West Africa there could be adjacent Commonwealth States between which no reciprocal arrangements existed. We found examples of ‘unilateral reciprocity’ in which State A designated State B as a reciprocating State but State B had not designated State A (and so could not in fact reciprocate). The legislation in each Commonwealth State was usually drafted so that it applied in respect of the United Kingdom without specific designation, so officials in the old Colonial Office had no awareness of the inadequacies of the system.

Keith Patchett and I made a number of recommendations: much of the legislation needed updating, and we thought it could be made to apply in respect of all Commonwealth jurisdictions, so removing the need to designate specific States as reciprocating. Not in our report but in a covering paper I wrote for Law Ministers was the recommendation that no attempt should be made the Commonwealth to develop a comprehensive system of private international law. Rather the Commonwealth should work with and through the Hague Conference, which not only had the necessary expertise but was also best placed to deal with issues likely to arise between Commonwealth countries (largely in the common law tradition) and their civil law neighbours. That was acted on and for the next twenty years or so I attended the Sessions and Special Commissions of the Hague Conference as a spokesman for the Commonwealth.

I do not for a moment regret that recommendation. The co-operation which the Hague Conference has been fruitful: 13 Commonwealth countries are now Members of the Conference and another 30 are parties to one or more of the Hague Conventions. As I feared, progress on updating the earlier intra-Commonwealth arrangements had been minimal. Law Ministers did agree in the 1980’s an improved text on the recognition and enforcement of maintenance orders but very few States have legislated to give effect to it. Last year Law Ministers finally agreed, after some 15 years, a new Model Law on Foreign Judgments; although it was largely my work, I rather hope the recent Hague Convention will be preferred by many States.

We have to recognise that it is very difficult for the smaller Commonwealth States to enact legislation on private international law. There has for decades been a chronic shortage of parliamentary drafters and there is very little political will: there was not votes in private international law. And, leaving aside the large countries like Canada, Australia and New Zealand, there is little academic expertise out there; Richard Oppong, the Ghanaian scholar has written on private international law in Commonwealth Africa, but he is almost alone (and I think he still teaches in Canada rather than in his home country).

So, against that background let me look at the existing elements in intra-Commonwealth legal arrangements with developments in our relationship to the EU in mind.

Probate and succession

I start with what is in a sense an extreme case. The Colonial Probates Act of 1982 provides for the resealing of grants of probate. It applies to designated reciprocating jurisdictions and there is an impressive list of 71, including the Hong King Special Administrative Region. But the list has not been fully revised for over 50 years,[8] and includes Aden (to which it plainly does not apply, and I doubt if many grants of probate are sealed there these days) and there are some other puzzles. There is an entry referring to the Gilbert and Ellice Islands, now divided between three independent States: would it work for them? I said this was an extreme case: as you know the European Succession Regulation[9] does not apply to the UK, so leaving the EU can have no effect on current practice.


I do not know how many of you remember teleprinters. They were typewriters controlled electronically from a distance, long ago replaced by fax, email and such. In the 1970s they were at the cutting edge and my University had a Teleprinter Operator with a room in the Library building. One day in early 1977 she rand me up in some distress. She had a message for me which I might find upsetting; should she read it out? The message was ‘Bankruptcy posted this morning’, which fortunately referred to a chapter in our report which Keith had drafted.

The EU Insolvency Regulation[10] with its provisions as to jurisdiction, choice of law and recognition and enforcement does of course apply to the UK. It cannot be considered alone. There is also the UNCITRAL Model Law on Cross-Border Insolvency to which 15 other Commonwealth States are parties, and section 426 of the Insolvency Act 1986, sub-section (4) of which provides that ‘The courts having jurisdiction in relation to insolvency law in any part of the United Kingdom shall assist the courts having the corresponding jurisdiction in any other part of the United Kingdom or any relevant country or territory’.

A series of statutory instruments designate the ‘relevant countries’;[11] there are 23 Commonwealth jurisdictions on the list as well as Hong Kong and Ireland. I should also mention the Cambridge Gas case[12] in which the Privy Council held that the court had a common law power to assist foreign winding up proceedings so far as it properly could. Some aspects of Cambridge Gas were held incorrect by the House of Lords in Rubin v Eurofinance SA[13] where Lord Collins of Mapesbury in effect rejected any further judgments development of the law relating to international insolvency, but the more recent Privy Council decision in Singularis Holdings Ltd v PricewaterhouseCoopers[14] approved of the basic principle as well- established in the common law.

So, I think my conclusion on this strand of intra-Commonwealth co-operation is again that the existing intra-Commonwealth arrangements will not be affected by the UK’s withdrawal from the EU.

Maintenance obligations

This year marks the centenary of intra-Commonwealth co-operation in respect of maintenance obligations, in the form of the Maintenance Orders (Facilities for Enforcement) Act 1920. It was a New Zealand initiative that placed the matter on the agenda of the Imperial Conference in 1911. The United Kingdom was reluctant to act, but that changes when it was reported that in a single year 122 men in Glasgow alone had deserted their wives and families, and travelled to overseas parts of the Empire, leaving their families chargeable to the Poor Law authorities. Money talks. The 1920 Act has been supplements in the United Kingdom by the Maintenance Orders (Reciprocal Enforcements) Act 1972; some other Commonwealth jurisdictions have chosen to copy it, but especially in Australia and Canada, there are local improved versions of the 1920 model.[15]

The Commonwealth arrangement is commonly known as the REMO system, for the Reciprocal Enforcement of Maintenance Orders. There are the usual problems about reciprocity and designations using expressions like ‘British possession’, ‘England and Ireland’, and such. One of the reasons Bangladesh saw the need to improve matters in this area was that it had never designated any reciprocating States. So far as the United Kingdom is concerned many Commonwealth jurisdictions were specified as those to which the 1920 Act extends[16] but that list is gradually being shorted as a jurisdiction moves to the list under the 1972 Act.[17]

The REMO system deals with the two types of case. In the first, a claimant for maintenance (the maintenance creditor’) has obtained an order for periodical payments from the maintenance debtor while both are living in one country say England. The maintenance-debtor has now moved abroad, say to Jamaica. This type of case is dealt with quite simply. The maintenance creditor asked the court which made the original maintenance order to send a certified copy of the order via the relevant Government office (which acts rather as a ‘Central Authority’ under more recent conventions) to the local court for the debtor’s place of residence. It is registered in that court and can be enforced as if it had been made by that court. Because registration is a wholly administrative act, there can be no appeal from it, though there are elaborate provisions about the remission of arrears, variation and discharge.

The second type of case is one which the potential maintenance -debtor has left the country in which he (or sometimes she) lived with the claimant before the claimant can apply for and obtain an order. Here we have the most distinctive feature of the system. The legislation in the claimant’s country of residence confers power upon its courts to make a provisional order of maintenance, despite the absence from the jurisdiction of the person required to pay maintenance and the lack of any service of process, so long as the debtor is resident in a country to which the scheme applies.

The provisional order is of ‘no effect unless and until confirmed’ by a competent court abroad. Once a provisional order is made, it is transmitted through official channels to the relevant country. It is accompanies by a deposition setting out the evidence of any witness heard by the first court, and another document: ‘a stamen of the [legal] grounds on which the making of the order might have been opposed if the person against whom the order is make had been duly served with a summons and had appeared at the hearing’.

The court asked to confirm the order summons the respondent, to show cause why the order should not be confirmed. The claimant is neither present not represented. The court, in decising whether to confirm the order, ay well be faced with conflicting evidence, neither party’s evidence having been tested by cross-examination. In some cases, the difficulty can be eased by the use of the ‘shuttlecock’ or remission procedure which is another characteristic feature of the 1920 model legislation. The Act provides that if the respondent appears and satisfies the confirming court for further evidence to be taken, the court may do so. The end-result of the process is an enforceable order.

There are other international attempts to deal with the maintenance obligations. The New York Convention on the Recovery Abroad of Maintenance 1956 has some 64 States Parties. It is rather loosely drafted and only 8 Commonwealth countries are parties. I am always surprised to find that the Holy See is a party.

A much better instrument is the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance agreed in 2007, and negotiated at the same time as the EU Regulation,[18] with which it shares many features (though the Regulation has much more to say about jurisdiction). It is rather disappointing that no Commonwealth countries have yet become parties (though Cyprus, Malta and the UK are bound by it through the EU), Canada and New Zealand have signed but not yet ratifies it. This is the more disappointing to me personally as I secured the inclusion of Article 31 of the Convention which deals with ‘Decisions produced by the combined effect of provisional and confirmation orders’, in other words by the REMO system. It provides, amongst other things, that ‘Where a decision is produced by the combined effect of a provisional order each of those States shall be deemed for the purposes of this Chapter to be a State of origin’ and so on.

The United Kingdom has already acceded to the Hague Convention in its own right, to come into effect at the end of the transitional period, and there would be much value in Commonwealth States also becoming parties. The existing Commonwealth REMO system can continue, with or without the Convention, so again nothing need change.

Judgments in civil and commercial matters

There is a similar history in the area of judgments in civil and commercial matters. In this context too we celebrate a centenary, that of the Administration of Justice Act 1920. That Act and legislation based upon it still provides the basis for the statutory enforcement of foreign judgments in some Commonwealth countries. The UK’s Foreign Judgments (Reciprocal Enforcement) Act 1933 applies to rather more Commonwealth countries. Some  have legislation on both the 1920 and 1933 models. Canada and Australia are amongst those with theirown versions. I have already mentioned the new Commonwealth Model Law on Foreign Judgments which seeks to reflect modern thinking and so, unsurprisingly, has many features in common with the Hague Convention agree a few months later. And there is always the possibility of enforcement at common law, by means of an action on the judgment-debt. The existence of that possibility, unfortunately, makes modernisation of the statutory schemes seem less of a priority.

There is one slight overlap between EU and Commonwealth action. Article 59 of the Brussels Convention allowed a Contracting State to enter into a binding agreement with a non-Contracting State that it would not recognise judgments given in other Contracting States on exorbitant grounds against defendants domiciles or habitually resident on that non-Contracting State. The UK took advantage of this provision to make agreements with Canada[19] and Australia.[20] The effect of those agreements is preserved under the current EU Regulation,[21] but no new agreements may be made.

There is much talk these days about ‘the Canada model’. I should mention article 18(2) of the Strategic Partnership Agreement between the EU and Canada.[22]

2. The Parties shall develop, as appropriate, judicial cooperation in civil and commercial matters, to the extent of their respective competences, in particular, as regards the negotiation, ratification and implementation of multilateral conventions on civil and judicial cooperation, including the Conventions of the Hague Conference on Private International Law in the field of legal cooperation and litigation as well at the protection of children.

But none of this seems to affect the existing intra-Commonwealth practice in any way.

Arbitral awards

A brief word about arbitral awards. They are obviously of growing importance but there is relatively little new to say about their cross-border enforcement. In some circumstances the Commonwealth foreign judgments arrangements (especially on the 1920 model) can be used to enforce arbitral awards but this is an area in which an international convention, in this case the New York Arbitration Convention of 1958, is the dominant instrument. It applies in 36 Commonwealth member States, plus some of their dependent or associated territories (eg Gibraltar, the Isle of Man and the Cook Islands).

Some conclusions

  1. Within the Commonwealth there continues to be a recognisably common approach to issues of private international law, based on the shared common law and on similarly drafted legislation.
  2. There is a discernible move to reliance on international conventions, especially those of the Hague Conference.
  3. In too many Commonwealth jurisdictions, the rules are old-fashioned but (even in countries a good deal larger than Pitcairn) political priorities and limited resources make modernisation unlikely.
  4. Finally, and perhaps to answer in a sentence the question I have had to address, the EU and the Commonwealth are (with due respect to Cyprus and Malta) two separate associations. There is no obvious reason for the United Kingdom’s departure from one to affect its private international law relationships in the other.

[1] A Common inheritance? An Examination of the Private International Law Tradition of the Commonwealth (1996) 260 Recueil des cours 13.

[2] Judicial Ordinance 1970, s14(1); see Christian v R [2006] UKPC 47.

[3] See generally A C Castles, ‘The Reception and Status of English Law in Australia’ (1963) 2 Adelaide Law Review 1.

[4] Mareva Companis Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd’s Rep 509 (C.A.).

[5] See (1996) 260 Recueil des cours 22-30.

[6] The Recognition and Enforcement of Judgments and Orders and the Srevie of Process within the Commonwealth (London: Commonwealth Secretariat, 1977). (hereinafter ‘Report). The research on which the report was based was treated more fully in J. D. McClean, Recognition of Family Judgments in the Commonwealth (London: Butterworths, 1983) and K.W. Patchett, Recognition of Commercial Judgments and Awards in the Commonwealth (London: Butterworths, 1984).

[7] Report, para.2.253.

[8] See the Colonial Probates Act Application Order 1965, SI 1965/1530.

[9] Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, OJ L 201/107, 27.7.2012.

[10] Regulation (EU) No 2015/848.

[11] Co-operation of Insolvency Courts (Designation of Relevant Countries and Territories) Order 1986, SI 1986/2133; Co-operation of Insolvency Courts (Designation of Relevant Countries) Order 1996, SI 1996/253; Co-operation of Insolvency Courts (Designation of Relevant Country) Order 1998, SI 1998/2766.

[12] Cambridge Gas Transportation Corpn v Official Committee of Unsecured Creditors of Navigator Holdings plc [2007] 1 A.C.508, especially at [18] ff.

[13] [2013] 1 A.C.236.

[14] [2014] UKPC 36, [2015] A.C. 1675.

[15] Some further technical amendments were made in the UK by the Maintenance Orders (Reciprocal Enforcement) Act 1972.

[16] Maintenance Orders (Facilities for Enforcement) Order 1959, SI 1959/377, now much amended.

[17] See Reciprocal Enforcement of Maintenance Orders (Designation of Reciprocating Countries) Order 1975, SI 1975/2187 and later Orders dealing with additional countries.

[18] Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decision and cooperation in matters relating to maintenance obligations, OJ L 7/1, 10.1.2009.

[19] By an exchange of Notes of 7 November 1994 and 17 February 1995, published in the UK as Cmnd. 2894. For UK Legislative provision, see Reciprocal Enforcement of Foreign Judgments (Canada) Order 1987/468, as amended by SI 1995/2708.

[20] See Reciprocal Enforcement of Foreign Judgments (Australia) Order 1994, SI 1994/1901 and New Cap Reinsurance Corp Ltd (In Liquidation) v Grant [2011] EWCA Civ 971.

[21] Brussels I bis, article 72.

[22] For text, see OJ L 329/45, 3.12.2016.                  

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