Symposium Paper: The Future of Private International Law in Australia
Bell, Andrew, Australian International Law Journal
This is an edited transcript of observations made by Andrew Bell SC in the course of a seminar on 16 May 2011 on 'The Future of Private International Law in Australia'.
When launching the 8th edition of Nygh's Conflict of Laws in Australia, Chief Justice Spigelman drew attention to the fact that this edition began with the sentence: 'The majority of cases that are litigated in our courts are domestic in character.' He pointed out that every previous edition began with the sentence: The overwhelming majority of cases that are litigated in our courts are domestic in character.' (1)
This was an amendment introduced by Professor Martin Davies who took responsibility for chapter one, and he was absolutely correct to do so. It is an important point, and in a sense the premise for anything I say academically or practically about this subject; namely that it follows, as night follows day, and as the world becomes more and more integrated--through technology; through electronic payment systems; through improved and vastly cheaper travel; through the liberalisation of trade barriers--that there will be more international movement and more international trade and, of course, as there is more international movement and more international trade, there will be more and more disputes of an international character. It is inevitable.
Since the 8th edition of Nygh was published, there have been well over 50 decided cases by Australian superior courts dealing with the subject of this text. (2) These have been either pure conflict of law cases or other international cases concerning, for example, the taking of evidence on commission and claims for sovereign or state immunity. That is quite a rate of emerging case law--50 cases in just over 12 months.
In that same period, there have also been extensive amendments to the International Arbitration Act, (3) the introduction of the Cross-Border Insolvency Act, (4) important private international law provisions added to the personal property securities legislation, (5) the passage of the Trans-Tasman Proceedings Act 2010 (Cth), and there is the possibility of accession to the Hague Choice of Court Couvention. (6) All these developments will spawn more case law. This is understandably a growth area, with growth at an exponential rate.
II The Contribution of Chief Justice Spigelman
I echo Brereton J's observation about the contribution Spigelman CJ has made to this area of the law. He has given at least a dozen significant speeches on globalisation dealing with, among other things, private international law issues--the practice and the theory. He has also participated in at least seven very significant appellate decisions in the area. I list some of them here, noting their content, as it will lead me into my next point.
An early decision was James Hardie Ltd v Grigor. (7) This dealt with a forum non conveniens issue arising as a result of the export by Australian companies of asbestos products. Two countries, Australia and New Zealand, were involved in the case. New Zealand has its Accident Compensation Act (8) regime, fundamentally different to the Australian system of common law compensation for tortious acts and omissions, and generally perceived to be far less generous, thereby providing an inducement to litigators to come to Australia because of the existence of a different way of dealing with this major social problem.
Other cases in Which Spigelman CJ gave leading judgments include British American Tobacco Australian Services v Eubanks, (9) which was the very important 'letter of request' case--the leading Australian authority on the Hague Convention on Taking Evidence Abroad, (10) adopting very important principles for its interpretation and implementation. That case, apart from anything else, reflects the mobility of executives. The United States Department of Justice wished to lead evidence from the former company secretary of British American Tobacco because he had effectively retired to Australia, and was not prepared to travel to the United States and subject himself personally to the risk of 'tag' jurisdiction . …