THE ANTWERP CONFERENCE OF THE INTERNATIONAL LAW ASSOCIATION, 1903.

[Contributed by MR. JUSTICE KENNEDY.]

Success of the Meeting.-The twenty-first Conference of the International Law Association, which was held at Antwerp at the end of September last, under the presidency of M. Auguste Beernaert, Minister of State and President of the Belgian Association for the Unification of Maritime Law, proved, in some respects at any rate, a worthy successor of its latest forerunners at Buffalo, Rouen, and Glasgow. Nothing could be better in point of dignity and genial courtesy than the reception which was given on the opening day by the Burgomaster and aldermen of the city to the numerous members of the Association who had assembled to attend the Conference. The duties of the hon. secretaries, Mr. Alexander and Mr. George Phillimore, were much lightened by the excellent discharge of the duties of chairman on the part of the distinguished President of the Conference, and by the zeal and tact of the local members of the Association, and especially, amongst them, of M. Charles Lejeune, M. Louis Franck, and M. Charles Bauss, "Batonnier de l'Ordre des Avocats" at Antwerp. The entertainment of the visitors by the municipal authorities on board their steam-yacht on the opening day, and by the Belgian Association of Maritime Law at the banquet with which the Conference ended, and the hospitality of private citizens during its continuance, gave great pleasure to all. But it is upon the work done that the real value of such a gathering depends; and if the Antwerp Conference be so tested, there will be found, I think, no just ground for dissatisfaction with the results. To some of the principal topics of discussion I shall refer presently.

Tone and Attitude of the Speakers. But in two points the general character of the proceedings deserves notice. One was the absence in the attitude of the speakers-and they represented many nationalities--of any trace of national prejudice. The tone throughout was genuinely international. No one appeared to try to insist upon the adoption of a view merely because it was the established or the prevalent view in the legal or the commercial world of his own country. The law of Germany in regard to limited

companies received sharp criticism from a Berlin lawyer. It is, indeed, not the least of the merits of conferences of this kind, wherever jurists and men of business from many lands meet to discuss matters of common interest with the useful purpose of bringing into greater harmony, if not to unification, the diverse institutions of law and commerce which help race and language to divide civilised nations, that by the friendly interchange of serious thought they tend continually to lessen national prejudices, and to widen the area of faith in the practicability of settling even grave international disputes satisfactorily without war by frank and rational discussion.

The other point of a general character was one which is gratifying to an English lawyer. Throughout the discussions there was apparent in the speeches of the continental members something more than a willingnessalmost a desire-on questions touching commercial law, to be persuaded of the correctness of the English view, and to give special weight to its pronouncements. This tone appears the more remarkable when one remembers that the system of law and of legal procedure in the countries which form Western and Southern Europe is, broadly speaking, homogeneous and different from ours. The same feeling found indirect expression in the sympathetic reception which was given by the Conference to Mr. Justice Phillimore's paper (which will be referred to later), as to the desirability of the British Government taking an active part in the Legal Conference at The Hague on Private International Law and in a conference for securing unity of Maritime Law, and to the motion which followed the reading of that paper.

On topics bearing upon the unification of law, and also on subjects involving a comparison of existing laws, several papers were read or presented to the Conference. An interesting paper read by Mr. Elmslie, which raised or suggested more than one rather abstruse and intricate question of principle and practice in the Law of General Average, was referred to a committee for consideration; and so were also papers read by Mr. W. F. Hamilton K.C., Dr. Schirrmeister, and others, as to the laws relating to limited companies in England, Germany, France, Italy, and Belgium. It would, therefore, appear to be of little advantage, in regard to the work of the Conference, to refer to them further here, and I shall confine my few remarks to three other subjects which were before the Conference, and which may be of interest to some of the readers of this Journal.

Execution of Foreign Judgments.-The first of these three is the question of the execution of foreign judgments. On this topic, which had been brought under discussion at previous Conferences of the Association, a very interesting Report was presented by M. Gaston de Laval, of Brussels, Counsel to the British Legation. It was a Report which that gentleman had drawn up on behalf of the Belgian section of the committee appointed by the Association to consider this important matter. It contained an elaborate Projet de Convention" between Great Britain and Belgium. The "Projet "

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is prefaced by an explanatory statement which sets out clearly but, as I venture to think, in a too pessimistic spirit, the obstacles to a convention, and the limitations which are created by the differences in the legal systems of the two countries, and from which the framers of the FrancoBelgian Convention of 1899 were free. One difficulty, which the Report treats as especially serious, appears to arise from our practice in Chambers under Order XIV. In M. de Laval's judgment, a "Tribunal d'exequatur would violate the Belgian Constitution if it gave effect to a judgment which had not been pronounced in open Court. A similar constitutional difficulty is stated to arise as to giving effect to any judgment which does not set forth in writing the grounds upon which it is based. According to Art. 97 of the Belgian Constitution, "Tout jugement est motivé. Il est prononcé en audience publique."

If such are really samples of the gravest hindrances to the scheme of an Anglo-Belgian Convention, the way to its accomplishment does not appear necessarily to be hard. I am not aware of anything which would prevent any English Judge, if a successful plaintiff intimated that he wished to enforce a judgment in Belgium, from directing that the judgment, if given in Chambers, should afterwards be formally pronounced in open Court, or from ordering that a short statement of the grounds of his judgment, whether given in Chambers or in open Court, should appear upon the face of it; as, for example, in the case of an action on a bill of exchange, that it was proved that the plaintiff was a holder for value, and that the defendant was the acceptor and had failed to pay it after it had matured. If there be any difficulty as to either of these things under our Rules of Court as they stand, the necessary addition could easily be made by the Rule Committee.

A further, but, in the opinion of M. de Laval, less formidable, difficulty might arise from a difference between the rules of English and Belgian procedure in regard to the service of the initial proceedings in an actionthe writ or citation to appear. He comments in an amusing way on the stringency of our requirements in regard to personal service :

"Au delà de la Manche il faut sauf quelques rarissimes exceptions le 'personal service'; le défendeur doit sous peine de nullité recevoir en personne sa citation et il y a même sur la façon d' empècher cette 'remise' à personne toute une littérature qui oblige les porteurs de citation à des ruses d'Apaches. Chez nous comme en France il en est tout autrement. . . ."

M. de Laval next proceeds to refer to differences which would require adjustment if a convention was intended to embrace judgments other than judgments for the recovery of money and costs; as, however, the convention proposed in the Report is framed only to embrace such judgments, it would serve no useful purpose to refer to them. The "Projet de Convention' which follows this preface appears to be skilfully drawn, and to afford an excellent basis for an agreement; but, no doubt, some clauses would require

careful consideration before they were definitely accepted; such, e.g., as the provision in Art. 2, which makes the competence of the "Tribunal de Jugement" conditional upon the defendant having, at the commencement of the action an effective or elected domicil or an habitual residence within the jurisdiction of that tribunal. The framers of the "Projet" are not prepared to allow the competence of a tribunal of the country "où le défendeur n'aurait été que momentanément présent." And it is noteworthy that, as is made plain by some remarks by M. de Laval which follow the text of the "Projet," they did not intend to allow the "Tribunal d'exequatur to admit a defence that the foreign judgment was obtained by fraud. It is now settled law with us that the defendant in an action on a foreign judgment may show that the judgment was obtained by fraud, and, if it be necessary for that purpose, may have questions re-tried which were adjudicated upon by the foreign Court. I venture to think that if the two Governments should officially consider the terms of an Anglo-Belgian Convention as to the execution in one country of judgments pronounced in the other, it may be worth while to consider whether a concession might not properly be made to the Belgian view on this point. There is, in my opinion, something at all events to be said in support of M. de Laval's preference for leaving the defendant to apply to the tribunal which pronounced the judgment against him for an annulment or reversal of it, on the ground that it has been obtained by fraud; provided always that the laws of the country of that tribunal make this method of redress available to the defendant upon the discovery by him of the fraud by means of which the tribunal has been led astray.

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Looking at this Report as a whole, one is led to judge, on the one hand, that a workable convention between England and Belgium is by no means unattainable, and, on the other hand, that it could not be concluded without considerable care and skill, and a real willingness on both sides to make reasonable concessions. Certainly it ought to be concluded. seems a matter of just reproach to modern civilisation that the attempt to enforce in one country of Western Europe a judgment obtained in another, which possesses a system of law that is justly and regularly administered, should be attended by the uncertainties and risks which at present exist. Moreover, the conclusion of a convention between England and Belgium would mean a greater gain to us than its direct and immediate consequences. For such a convention would serve as a very useful model for a convention of the same character with France, whose legislation is derived from the same source as that of Belgium and which has the same judicial organisation, and also, though not, perhaps, to an equal extent, for conventions with other Continental States. But no real progress can be hoped for in this matter unless the Governments of the two countries heartily co-operate.

Great Britain's Attitude towards International Conferences.-This brings me to the notice of the paper read at the Antwerp Conference by Mr.

Justice Phillimore, the title of which has been already given. For a long time past, we, as a nation, have shown no disposition to further the unification of the law. Considering the greatness of its interest for us, one finds it hard to say why. Mr. Justice Phillimore fully and clearly described our lost opportunities. He dwelt strongly upon the desirability of a different course of national action. Three important international conferences have been held at The Hague in recent years-in 1893, 1894, and 1900. In none of these was Great Britain represented. These conferences, Mr. Justice Phillimore pointed out, have borne fruit in a series of conventions between the nations represented, which dealt with the reciprocal execution of foreign judgments, and which, whilst recognising the diversity of national laws as to marriage (both in respect of capacity to contract, and in respect of necessary forms in divorce and separation), and as to the guardianship of minors, comprised a series of international rules determining which national law was to be applied in any case. And he added, "I know of no matter of agreement between the different nations which have been parties to The Hague Conferences to which there would be any real difficulty in getting the consent of Great Britain. In most matters, both those of substantial law and those of procedure, the conventions have agreed to that which has already been established in Great Britain. Where there is apparent disagreement I believe it is more of language or of form than in substance. . For these reasons it seems much to be regretted that Great Britain has not been a party to those conferences, and shows no intention of attending future ones."

The latest instance of our aloofness upon which Mr. Justice Phillimore commented is in regard to matters which affect mercantile and shipping interests in an important way. In 1902 the Comité Maritime International met at Hamburg. The result of its meeting was that draft treaties (a) as to a uniform law of collisions at sea, (b) as to a uniform law of salvage, were agreed to, almost with unanimity, by the distinguished jurists, practical shipowners, and men of business who were present or who were represented at the meeting. The Bureau of the Comité brought these draft treaties to the knowledge of the Ministers of the King of the Belgians, who took them into consideration, and were good enough to correspond thereon with the Governments of other nations. "It is understood," said Mr. Justice Phillimore, "that Great Britain has hitherto declined to enter upon any consideration of these treaties." When one calls to mind the success which attended the diplomatic conference at Washington which passed the Regulations for preventing collisions at sea, one may not unreasonably be permitted to hope that the consideration may yet be given to these draft treaties. It is interesting to learn, on such high authority on maritime law as that of the author of the paper, that "the draft treaty on salvage embodies the English law without substantial, I believe even without formal, modification; while there are only three modifications of English law in the