Adrian Briggs QC (Hon)

Four decades of Private International Law

In this short piece Adrian Briggs QC (Hon), Professor of Private International Law, reflects on his career at Oxford over the last four decades. 

At the end of the 1970s, common law rules of jurisdiction were rather like the British constitution was said to be: inherent, unwritten, naturally superior, and benevolently supervised by judicial discretion. How different from the scheme, which we could see coming together across the Channel, where rules were being devised to work as a comprehensive statute which directed the judges from above and would banish, to the extent possible, any vestige of judicial discretion. When these rules crossed the Channel and took up residence in England, it was as though a jigsaw puzzle of 144 well-worn pieces now had an extra 500 sharp-edged pieces; and it all had to be fitted together.

So far as the new material was concerned, the immediate task was to understand: not only what it said, but also what it meant. The longer project exposed not only the hidden hierarchy within the Brussels/Lugano jurisdictional scheme but also those rules, written in invisible ink, which really explained how it all worked. Only then would one really understand what one was dealing with.

So far as the fusion was concerned, the task was to build this entire system of private international law in England in a way that was coherent, and which respected and did not denature, the separate legal traditions now required to pull together. It took decades: four editions of the Clarendon series Conflict of Laws, and seven of Civil Jurisdiction and Judgments serve as external evidence of the work which was and is still being done: though the latter is the authoritative work, it is oddly cheering when extracts from the Clarendon book are mentioned in a court. But in some ways, it was the annual surveys written for the British Yearbook of International Law, submitted every Christmas Eve for the exacting editorial scrutiny of James Crawford, which were the most rewarding. They required one to turn from commercial law to span the entire range and breadth of English private international law. How else does one avoid the peril of the unknown unknowns? How else can one understand the subject about which one writes?

All this allowed me to reflect on how the study of the European rules could lead one to think more deeply about the true nature of the common law. The examples were endless, but to take one, it was possible:

• to observe how the idea of agreement works as a European rule of jurisdiction and works alongside the common law rules for jurisdiction, and to show how unalike these ‘agreements’ are;
• to explain how a simple jurisdiction agreement can define (in the European context) or affect (in the common law scheme) the jurisdiction of courts while at the same time creating bilateral obligations by which the parties bind themselves in the resolution of disputes, these leading a full and vibrant life in terms of private law right, private law duty, and private law remedy;
• to propose how a simple agreement as to the law to be applied in dispute resolution law may determine (in the European context) or affect (in the common law scheme) the choice of law by courts while at the same time creating bilateral obligations by which the parties bind themselves in the resolution of disputes, these also functioning as a matter of private law right, duty, and remedy (albeit that this is a work whose time has yet to come);
• to show how the recognition of foreign judgments at common law is almost entirely based on facts and matters which evidence an agreement to abide by the adjudication of a foreign court; and
• to wonder how much of the common law rules of private international law are based on the agreement of (or absence of agreement between) the parties to the issue in question: the thinking which first saw the light of day in Agreements on Jurisdiction and Choice of Law is now in urgent need being upgraded, salva rerum substantia.

For most of four decades, it was necessary to analyse and write about the Brussels/Lugano scheme of jurisdiction and judgments, as well as the wider subject, in a way that would show colleagues in European jurisdictions that common lawyers had something valuable to contribute to the common task, and which would show English lawyers, in the academy, the Temple and the courts, that our new system of private international law was greater than the sum of its parts. It culminated in a comprehensive survey, published as Private International Law in English Courts, in 2015. And now I know how the author whose magnum opus was the first comprehensive guide to the City and Region of Pompeii, and which was published just in time for the summer season in AD 79, must have felt.

The method was simply to read, and to teach, and to doubt, and to think, and to talk to conflicts lawyers wherever they could be found. I will be forever grateful for the patience and plain speaking of those with whom I have shared the privilege of expounding the conflict of laws in Oxford; but also, and daily, for a kind word from a great judge who, in 1986, encouraged me to think that if I just kept at it, I might make progress.