Mr. Secretary of State: Although the relations of
commerce and transactions of all kinds are constantly becoming more and more
multiplied and intimate among nations, and furnish every reason for the
belief that their subsequent development will be uninterrupted, their growth
is, nevertheless, retarded by the circumstance that, in consequence of the
exclusive autonomy of the dliferent countries, the decisions of the courts
of one country are generally null and void in another. Notwithstanding the
rapidity of communication, and the reciprocity of interests, a state of
insecurity, of moral isolation, is the consequence. Various measures have
been projected for the purpose of obviating these difficulties, and a
convention was even concluded, in 1869, between France and Switzerland,
providing for the execution, in certain cases, of the decisions of the
respective courts in the two countries reciprocally. This attempt, however,
has thus far remained an isolated one.
The government of the Netherlands, being convinced of the utility, as well as
of the necessity, of measures of this nature, which are required not only by
the relations of neighborhood, but by the general interest, and desiring to
contribute towards rendering them effective, has deemed it its duty to take
the initiative in inviting other governments to come to an understanding
upon a basis of common action, for the adoption of [Page 790] measures which might be taken for the purpose of
attaining desired results.
The government has, therefore, first addressed me a dispatch to this effect,
a copy of which I am instructed to send to your excellency, and to which I
add a memorandum which accompanied it.
In transmitting them herewith, I take the liberty of specially commending the
propositions therein contained to the enlightened judgment of your
excellency.
I flatter myself that the American Government, which, in view of the extended
relations of the United States and of their peculiar situation, which
renders them, so to speak, neighbors of the whole world, has as great if not
a greater interest than any other nation in coming to an understanding with
regard to measures of such essential and general utility, will appreciate
this step of the government of the Netherlands, and that I shall, in
consequence, be honored with a reply on this subject, which I shall transmit
to the government of the King.
I avail myself of this occasion to renew to you, Mr. Secretary of State, the
assurances of my very high consideration.
[Inclosure.—Translation.]
Mr. Gericlce to Mr.
Westenberg.
The
Hague, February 20,
1874.
Mr. Minister: I have the honor herewith to send
you a memorandum in which I have endeavored to show how desirable it
would be for the conclusion of arrangements relative to the reciprocal
execution of judicial decisions pronounced in civil and commercial cases
to be rendered possible, or at least facilitated, by the adoption, on
the part of the governments interested, of uniform rules in regard to
judicial competence, ratione personœ. An
examination of the competence of the judge who rendered the decision is
the first and most essential condition for which each government will
desire to stipulate in declaring executory such decisions as have been
pronounced outside of the limits of its territory by virtue of laws
different from those by which it has endeavored to secure a proper
administration of justice.
The difficulties which result from the diversity of laws existing on the
subject of competence, ratione personœ, present
the same obstacles to all governments, which, like that of the
Netherlands, recognize the necessity—daily becoming more apparent—of
abandoning the system of exclusion, which interdicts, or at least
surrounds with impediments resembling an interdiction, the execution of
judicial decisions rendered in a foreign country, and which desire to
conclude treaties designed to remedy these evils. The advantages that
would result from the adoption of uniform international rules concerning
judicial competence, ratione personœ, would be
the same for all. In order to attain this end, which consists in
rendering possible, by this adoption, the conclusion of conventions
regulating the reciprocal execution of decisions pronounced in civil and
commercial eases, the government of the King thinks that the best way
would be to confide this important and difficult matter to an
international commission, whose duty it should be to draw up a body of
rules which the governments interested should pledge themselves to
introduce into their legislation or to follow in their treaties. As to
the composition of this commission the government of the Netherlands has
thought proper to address in the first place the neighboring states,
with which it has a direct interest in concluding treaties on this
subject; secondly, those whose laws are sufficiently similar to those of
the Kingdom to enable it to hope that it will not be very difficult to
come to an understanding with them; and, finally, those by which
negotiations on the subject have already been proposed. It has,
therefore, addressed direct proposals to the governments of Germany,
England, Austria, Belgium, France, and Italy.
I need not add, Mr. Minister, that the government of the King would be
very glad to see those principles which, through the labors of the
conference might be sanctioned by conventions, become the basis of a
more general understanding, and obtain, in like manner, the approval of
other governments. As a matter of course, also, in case those
governments should desire to be represented at the conference in
question, the government of the Netherlands would gladly welcome the
delegates whom they might be pleased to select.
You will be pleased, Mr. Minister, in handing the inclosed memorandum to
his excellency, to read this dispatch to him, and to leave a copy of it
in his hands. You will [Page 791] also
endeavor to set forth in a clear light the circumstances, above referred
to, which have guided the government of the King in its determination to
invoke, in the first place, in the interest of the result to he
ohtained, the co-operation of the above-named governments, without,
however, in any wise intending to exclude a wider participation in the
labors of the conference. If, therefore, the American Government desires
to be represented in the commission which is to be appointed for the
purpose of adopting a basis of future international legislation in
regard to judicial decisions rendered in foreign countries, I shall be
most happy to be informed, as soon as possible, of the name of the
delegate whom it may select.
The government of the Netherlands, in taking the initiative in a step
which it deems eminently useful in the interest of the demands created
by the constant progress of international relations, hopes that its
proposal will be favorably received by the governments interested, and
would be glad to have the commission hold, at the Hague, or at some
other city of the Netherlands, a preparatory meeting for the purpose of
securing a beneficial result of such other meetings as may subsequently
be deemed necessary.
Be pleased, &c,
[Subinclosure.—Translation.]
memorandum.
The effect and authority of judicial decisions rendered in civil and
commeercial eases are, as a general rule, confined within the limits of
the country in which they were pronounced; so that in every other
country they are null and void. In countries in which an exception is
made to this rule, that is to say, in which the laws recognize judgments
rendered in a foreign country as possessing more or less authority,
their execution is made subordinate to such restrictive conditions and
to so complicated a procedure, that the advantage which the laws of such
countries present above those of other countries is, in reality, more
apparent than real, and almost always null in practice.
The necessity of replacing this restrictive system by the adoption of
rules better suited to the needs of the present day, is daily becoming
more evident.
The extension of international relations of all kinds, the improvement
and the multiplication of the means of transportation and communication,
have, by facilitating the removal of individuals and of fortunes, and by
giving a truly cosmopolitan character to commercial and industrial
relations, rendered most desirable the adoption of a reform based upon
the solidarity of the interests of all civilized nations.
The rapidity with which it is now possible to travel from one end of the
world to the other is by no means in harmony with the tardy movements of
judicial decisions, which, in principle, do not go beyond the frontier
of the country in which they were rendered.*
The question has been the subject of extended discussions in
international congresses which have met for the promotion of the social
sciences, as well as of careful consideration in the writings of jurists
and publicists.
The result of these labors has been to show that there is a unanimity of
sentiment on the part of those who are competent to recognize the urgent
necessity of securing the execution of decisions rendered in foreign
countries, while surrounding such execution with reliable guarantees,
designed to take the place of those resulting from the system now in
force.
The objection has been made that jurisdiction emanating directly ffom the
right of sovereignty has essentially for its limits those by which this
right is confined, and that, consequently, it would be an offense to the
right of sovereignty and to the independence of a state to authorize the
execution of a decision in it, which was pronounced by a foreign
tribunal. This objection, which would be a serious one if it were sought
to enforce, against the will of the sovereign, the execution of a
decision pronounced in another country, loses all its force if we
consider that the proposed reform would be introduced not only with the
consent and concurrence of the sovereign whose rights, it is claimed,
would suffer detriment, but by a direct act of his will. One country
would not decree: “Decisions pronounced by my tribunals shall be binding
in such another country” but each state, being convinced of the
necessity of the reform, would inscribe in its laws or its treaties the
principle that decisions pronounced by the courts of such another state
shall be executory within its own territory, as well as in the country
in which they were rendered. The concession, moreover, by its very
nature, would imply reciprocity. Finally, as to the form, the exequatur or the pareatis
[Page 792] with which each state may
decree that decisions rendered in a foreign country shall he furnished,
would serve to show that, in each case, the execution of the decision is
agreed to and authorized by the sovereign of the territory, and the
employment of the executory formula in use in the country would have the
effect of nationalizing it to a certain extent.
Independently of the direct advantages presented by the new system, it
would render possible the abolishment of various restrictive measures
affecting foreigners, which are but a consequence of the principles now
in force in relation to the execution of judicial decisions. Thus, the
security called judicatum solvi, the right to
remove a foreigner from the jurisdiction of his natural judge, occupatio bonorum alienigenœ, the exceptional
deprivation of personal liberty, are still sanctioned by the laws of
countries in which an effort has been made to assimilate the position of
the foreigner, in other respects, to that of the native. An attempt has
been made, in this manner, to obviate the evils resulting from the
principle that judicial decisions are not executory beyond the frontiers
of the country in which they were rendered. The conclusion of
international arrangements would render it possible for each of the
contracting parties to adopt a basis of perfect equality in matters of
civil procedure between their own citizens and those of another state.
It would likewise become possible for them to grant, in an effective
manner, the benefit of the Pro Deo, or the right
of gratuitous judicial assistance, to indigent natives of another
country. If this right is conferred under the present system, and if
indigent persons are, at the same time, released from the obligation of
furnishing the security called judicatum solvi,
an act of inconsistency is committed prejudicial to the interests of the
other party, which is thus, in case decision is pronounced in its favor,
deprived of all means of action to secure re-iinbursement for the costs
of the suit, even if the party allowed to plead gratis should
subsequently be placed in a better pecuniary situation. Moreover, if
gratuitous judicial assistance is made subordinate to the obligation of
furnishing the security called judicatum solvi,
the benefit of the Pro Deo becomes completely
illusory.
It is seen that the indirect consequences of the
adoption of the principle of the international execution of judicial
decisions would not be the least important. The proposed reform, while
permitting the native citizen to exercise his right against a foreigner
more promptly, more securely, and at less expense, can cause the
abolition of various exceptional measures against foreigners, and will
thus greatly tend to facilitate international transactions of all
kinds.
The question how and to what extent the execution of judicial decisions
pronounced in a foreign country is to be secured by legislative
enactments, or rendered binding by treaty, is attended, it is true, with
serious difficulties. To introduce, absolutely, in the laws of the
various countries a principle Which should assimilate, unreservedly,
judicial decisions pronounced in foreign countries to those of the
territorial courts, would not be hitting, but shooting beyond, the mark.
The reform can be introduced only on certain conditions, and by
surrounding it with reliable guarantees.
These guarantees are of two kinds: those which are purely of a moral
order, and those which are of a legal order, and, therefore, susceptible
of being sanctioned by formal measures, such as the adoption of uniform
rules concerning competence ratione personœ, and
as regards the conflict of laws. As to competence ratione persanœ, it is absolutely necessary, in countries in
which the decisions of the courts of the one are to be executed in the
other, that it be governed by the same rules. If the laws of these
countries contained contradictory provisions in relation to this matter,
the assimilation of the decisions would give rise, in practice, to
insurmountable difficulties.
In the first place, by what law would competence have to be determined!
That of the country in which the decision was pronounced could not serve
as a basis for such determination, for the state in which the decision
is to be executed cannot set aside the rules in regard to competence
which are established by its own laws. If the person condemned is a
citizen of the state in which the execution is to take place, he cannot
be removed from the jurisdiction of his natural judge by virtue of an
act of his own government. In-a word, if the decision emanates from a
court that is incompetent, according to the laws of the country in which
it is to produce its effect, the government of that country cannot
recognize it as possessing any value. For that government it is as
destitute of all binding force as would be a decision rendered by an
incompetent court in its own country.
If, on the contrary, the competence of the judge is to be determined ratione personœ, according to the laws of the
country in which the decision is to be executed, it is evident that the
execution cannot be enforced, unless the judge who rendered the decision
be competent in both countries.
In both cases serious difficulties present themselves, and it follows
that any treaty becomes impossible, as regards the execution of judicial
decisions, between two governments by whose laws different systems are
established in relation to competence.
A government may, without doubt, come to an understanding with another
government concerning certain rules determining competence, (the
couvention of June, 15, [Page 793] 1869,
between France and the Swiss Confederation furnishes an example of
this,) but the difficulties are then rather set aside than settled, for
these rules will necessarily vary in the different countries with which
treaties are made, and thus there will finally be as many laws governing
competence as there are treaties.
The difficulties which would arise from such a diversity of laws are
perfectly obvious. It is sufficient to imagine a case in which parties
of different nationalities should be concerned, in regard to each of
whom it would be necessary to keep in view a separate law concerning
competence.
The best, if not the only way, to prevent these difficulties would be the
adoption by the powers interested of uniform rules, which should be the
expression of the principles which are generally adopted in modern
legislation as regards judicial competence ratione
personœ.
A draught of a treaty between France and Belgium, annexed to the report
presented by Mr. Lelievre to the International Congress for the
Promotion of the Social Sciences, which was held at Amsterdam in 1884,
contains a body of rules in its second article which might be consulted
with profit.
It would not be sufficient, however, to put an end to conflicts of
competence; it would also be necessary to endeavor to prevent those
which might arise on other points, from the diversity of existing
laws.
The same reasons which prevent a government from declaring executory the
decisions rendered by a judge who, according to its own laws, is
incompetent, stand in the way of the execution of decisions pronounced
in a foreign country, and calling for the enforcement of a law which
cannot be enforced according to the principles in force in the country
in which the execution is to take place.
Thus, it may happen that a state does not recognize the statutum personale of foreigners, and that the laws which
regulate this matter in that state as regards native citizens differ
from those of another state whose laws uphold the principle that the
condition and the capacity of persons are governed, even in a foreign
country, by the laws of the country to which they belong; for instance,
as to their majority, the age which they must have reached before being
allowed to marry, to make contracts., &c: It may, in like manner,
happen that, according to the positive law of a state, the personal
property owned by a foreigner is subject to the regime of the statat réel, while the laws of the other state
render the law of the foreigner’s domicile applicable to such property.
It is, therefore, important to come to an understanding also with regard
to rules designed to remove conflicts of this nature.
Here, however, one of the most difficult and complicated questions of
private international law is involved. The government of the Netherlands
does not deem itself authorized to draw up and propose rules designed to
form a kind of European code on this subject. It thinks that the subject
has not been sufficiently examined, and that the conviction of
publicists and jurists is not sufficiently well established to enable it
make a proposal of this kind with any prospect of securing the adhesion
thereto of the governments interested in the settlement of the important
question of the execution of judicial decisions rendered in a foreign
country.
Instead of carrying on isolated negotiations with these powers, without
being able to hope to obtain the uniform results which are indispensable
to a practical settlement of the matter, the government of the
Netherlands desires to invoke the co-operation of other governments for
the assembling of a conference, to be composed of competent men,
designated by each of them. It would be the duty of such a conference to
examine the legal conditions necessary to regulate the reciprocal
execution of judicial decisions rendered in otjier countries, and to
prepare a body of rules, the object of which should be the prevention of
any conflict of laws, whether civil or commercial, both as regards
judicial competence and in other respects. It might, at the same time,
determine the functions to be performed by the court authorized to grant
the pareatis or the exequatur.
The rules adopted by the conference would then be submitted to the
approval of the governments, and would form the basis of a uniform
codification of the matter in the various countries, either by obtaining
in each one of them the sanction of the legislative branch, or by
becoming the subject of treaty stipulations. In both ways the object
would be attained, and the obstacles which lie in the way of the
execution of judicial decisions beyond the frontiers of the country in
which they were pronounced would be removed.
These obstacles, which have been already referred to, exist for all
governments, as they do for that of the Netherlands. All are equally
Interested in their removal, the circumstances in which all are placed
in this matter being the same.
The consideration that no private interest is here concerned, but that
the point in question is the realization of a common wish, and of a
reform whose importance and utility are generally recognized, leads the
government of the Netherlands to regard this matter as being essentially
of a nature to be discussed by an international conference, and induces
it to hope that the means which it proposes for the attainment of the
end may meet with the approval of the powers interested.