In the aftermath of the various unsuccessful attempts by the Hague Conference to devise an international convention on jurisdiction and recognition and enforcement of judgments, this work examines what the common law and civil law delegations to the Conference considered irreconcilable differences between their respective jurisdictional laws. This Article studies the historical and functional evolution of these allegedly irreconcilable jurisdictional categories, examines their underlying ideas (for example, “minimum contacts” and due process analysis, forum non conveniens, and tag jurisdiction), and suggests a new method of analysis, which generates a unified approach to jurisdictional law and choice of law rules.
The analysis unearths the original symmetries between jurisdictional law and choice of law rules in common law and civil law systems that existed in the past, as well as the various similarities still existing today despite the different labels sometimes used, and it exposes some preconceptions that make some of these categories and principles falsely appear to be irreconcilable. In fact, by solving some representative problem situations under both of the allegedly different regimes, this Article shows that the solutions these systems offer are, most of the time, similar. This is because there is a strong interaction between jurisdictional law and choice of law rules within each individual system and across legal systems, and because the existing differences are not irreconcilable but merely the product of recent developments.
This Article posits that conflict of laws rules governing civil and commercial matters should be harmonized and that such harmonization is feasible and worth pursuing. Therefore, rather than once more suggesting to adopt an international convention only on jurisdiction and recognition and enforcement of judgments, this work suggests the adoption of an international convention on conflict of laws rules. The proposed convention could adopt similar criteria or “connecting factors” to identify the judge with jurisdiction over a controversy and the law to govern it. This will eventually make the judgment rendered at the end of the proceeding suitable for recognition and enforcement in the countries that ratify the convention. Such a convention would only apply to litigation on civil and commercial matters. The identification of the judge and of the governing law would significantly enhance the efficiency and fairness of these types of litigation.