Lord Mackay of Drumadoon:
1. The petitioners are a French corporation. Their petition, in terms of
the Civil Jurisdiction and Judgments Act 1982 (the "1982 Act"), seeks
registration, in Scotland, of a Judgement of the Cour d'Appel de Bordeaux
dated 29 January 2001. That Judgement was pronounced in the course
of legal proceedings in France, in which the petitioners are the plaintiff
and respondent and W. G. & Sons Limited and W. G. & Sons International
Limited, the respondents to the present petition, are the defenders
and appellants. To assist the reader of this Opinion, I intend to refer to
the petitioners as "Marie B." and to the two respondent companies as
"G.s". W. G. & Sons Limited are a holding company and W. G. & Sons
International are one of the subsidiaries of that holding company. Both
companies have their Registered Office in Scotland.
2. Marie B. seek to enforce in Scotland a Judgement of the Cour d'Appel
de Bordeaux dated 29 January 2001. In terms of that Judgement, G.s
have been ordered to pay Marie B. inter alia (i) FF110,101,000, together
with interest, at the legal rate, as from 30 December 1994, up to a limit
of FF100,000,000, and as from 21 January 2001 on the balance, (ii) a
further sum of FF100,000 and (iii) costs. Under French Law the legal rate
of interest is fixed by decree, for each calendar year. In the course of
these proceedings, the parties have already reached agreement that the
sums specified in the Judgement of the Cour d'Appel de Bordeaux, dated
29 January 2001, as being payable jointly and severally by W. G. & Sons
Limited and W. G.s & Sons International Limited to Marie B., and that
remain outstanding, amount to a total figure that will not exceed £10.5
million or 18 million EUROS by 19 September 2002.
Legal proceedings in France
3. In March 1958, Marie B. and G.s entered into a distribution agreement,
for the exclusive distribution of G.s' whiskies in France by Marie B.. On
17 March 1993, G.s informed Marie B. of their intention to terminate that
exclusive distribution agreement, with effect from 31 December 1993. On
30 December 1993, Marie B. commenced proceedings against G.s in the
Tribunal de Commerce de Bordeaux. Those proceedings were defended
by G.s. G.s argued, by way of preliminary pleas, (a) that the Tribunal
de Commerce de Bordeaux did not have jurisdiction to hear the case,
(b) that the sole jurisdiction of the Scottish Courts should be recognised
and (c) that Scots Law applied to the dispute between the parties. On 27
January 1995 Marie B. obtained a Judgement against G.s in the Tribunal
de Commerce de Bordeaux. That court assumed jurisdiction and held (i)
that G.s had terminated the distribution agreement between Marie B. and
W. G. & Sons International Limited without any legitimate reason, (ii) that
the period of nine months' notice given by W. G. & Sons International
Limited to Marie B., when the agreement was terminated, had been
insufficient and in bad faith, and (iii) that in the circumstances both W.
G. & Sons Limited and W. G.s & Sons International Limited were liable
in damages to Marie B.. According to a translation of their Judgement,
prepared for the purposes of the proceedings before this Court (No. 6/33
of Process), the Tribunal de Commerce de Bordeaux then ordered that G.s
pay Marie B. certain sums…
4. The Tribunal de Commerce de Bordeaux also ordered that Marie B. pay
G.s the sum of FF66,903,946, in respect of the purchase of G.s' products,
by a Swiss subsidiary of Marie B.. It also ordered provisional enforcement
of its awards in favour of Marie B., after set off of the amount found due
by Marie B. and on condition that Marie B. provide a bank guarantee in
the sum of FF101,000,000.
5. G.s marked an appeal to the Cour d'Appel de Bordeaux against the
Judgement of the Tribunal de Commerce de Bordeaux. Before that appeal
was dealt with, however, Marie B. sought to enforce the Judgement of the
Tribunal de Commerce de Bordeaux in Scotland. They did so by means
of a petition under the 1982 Act, in which, on 22 June 1995, the Lord
Ordinary granted warrant for registration of the Judgement of the Tribunal
de Commerce de Bordeaux dated 27 January 1995. G.s appealed against
that decision, in terms of Article 36 of the Convention on jurisdiction
and the enforcement of judgments in civil and commercial matters,
including the Protocol annexed to the Convention, signed at Brussels on
27 September 1968 ("the Brussels Convention"). Section 2 of the 1982
Act provides that the Brussels Convention shall have the force of law in
the United Kingdom.
6. During the course of that appeal, G.s enrolled a motion to stay the
appeal proceedings in terms of Article 38 of the Brussels Convention.
During a hearing on that motion, G.s invited Lord Clyde to refer certain
questions relating to the construction of the Brussels Convention to the
European Court of Justice. Lord Clyde agreed to do so. His reasons for
that decision are set out in his unreported Opinion, dated 8 March 1996.
A Reference was subsequently adjusted and registered with the European
Court of Justice on 18 April 1996. In the event, that Reference was
not pursued. That was because the reference arose out of proceedings
designed to enforce the Judgement of the Tribunal de Commerce de
Bordeaux dated 27 January 1995, rather than the Judgement of the Cour
d'Appel de Bordeaux, which Marie B. now seek to enforce. It is to be
noted, in passing, that in the appeal that came before Lord Clyde, G.s did
not raise any suggestion that either the constitution or the actings of the
Tribunal de Commerce de Bordeaux had been such as to have given rise
to any infringement of G.s' entitlement under Article 6 of the European
Convention on Human Rights.
7. The Judgement of the Cour d'Appel de Bordeaux, in G.s' appeal against
the Judgement of the Tribunal de Commerce de Bordeaux, was handed
down on 11 June 1996. …
8. It will noted from that excerpt from its Judgement that the Cour
d'Appel de Bordeaux "confirmed" the Judgement of the Tribunal de
Commerce de Bordeaux that the proceedings raised by Marie B. were
competent (i.e. that the French courts had jurisdiction), that Marie B.'s
claim against G.s was admissible and that an additional year's notice
should have been given by G.s, before they terminated the agreement
with Marie B.. It will also be noted that the Cour d'Appel de Bordeaux
quashed the order for G.s to pay Marie B. the sum of FF100,000,000
by way of additional damages and ordered (a) that the loss suffered
by Marie B. in respect of the failure to give sufficient notice should be
determined by a judicial expert, Mr. Amata, (b) that G.s pay Marie B.
(i) FF36,159,240 in respect of retained stock with interest to run from 1
January 1994, (ii) FF 13,003,326 for the promotional advertising costs
incurred by Marie B. in 1993, with interest to run from 22 June 1994, (iii)
FF120,000 under Article 700 of the New Code of Civil Procedure ("NCPC")
for the trial before the Tribunal de Commerce de Bordeauxof Bordeaux
and (iv) FF80,000 for the appeal trial, (c) that G.s pay FF25,000,000 by
way of advance payment, and (d) ordered that Marie B. pay G.s the sum
of FF66,903,946, in respect of purchases of G.s' products, by the Swiss
subsidiary of Marie B..
9. On 2 January 1998, the expert, Mr. Amata, filed his report with the
Cour d'Appel de Bordeaux. I need not refer to its terms. On 24 February
1998, Marie B. applied to have the findings of that report confirmed. Their
application was opposed by G.s, who in written submissions to the Cour
d'Appel de Bordeaux contended that the expert had make a serious error
in his calculations. After further procedure, involving written submissions
and a hearing, the Cour d'Appel de Bordeaux accepted that contention.
By Judgement dated 16 November 1998, the Cour d'Appel de Bordeaux
appointed a new expert, Mr. J.J. Dedouit, and ordered G.s to pay Marie B.
an additional interim payment of FF10,000,000.
10. In the meantime, G.s had appealed to the Cour de Cassation in Paris
against the Judgement of the Cour d'Appel de Bordeaux, dated 11 June
1996. That appeal was argued on four grounds, including grounds that
raised whether the French courts lacked the necessary jurisdiction to
deal with the dispute between Marie B. and G.s and whether the Cour
d'Appel de Bordeaux had erred in ruling that the period of notice given by
G.s, when they terminated the agreement with Marie B., was insufficient
by one year. G.s' appeal against the Judgement of the Cour d'Appel de
Bordeaux dated 11 June 1996 was dismissed by the Cour de Cassation on
8 February 2000.
11. Next we come to the Judgement of the Cour d'Appel de Bordeaux
dated 29 January 2001, which is the Judgement that Marie B. now seek
to enforce in Scotland. By 4 July 2000, the new expert, Mr. Dedouit, and
his assistant surveyor, had submitted their report to the Cour d'Appel
de Bordeaux. Thereafter, both Marie B. and G.s lodged further written
submissions with the Cour d'Appel de Bordeaux, whereupon the Cour
d'Appel de Bordeaux issued its further Judgement of 29 January 2001. As
I have already indicated, in terms of that Judgement, G.s were ordered
to pay Marie B. inter alia FF110,101,000, together interest on that sum,
and the further sum of FF 100,000, in compliance with Article 700 of
the Tribunal de Commerce de Bordeaux. English and French texts of the
various Judgements of the Tribunal de Commerce de Bordeaux, the Cour
d'Appel de Bordeaux and the Cour de Cassation have been lodged in
process as productions.
12. On 27 April 2001, G.s lodged a further appeal with the Cour de
Cassation, on this occasion directed against the Judgement of the Cour
d'Appel de Bordeaux dated 29 January 2001. An affidavit in the name of
Maître Eduard Marissens, a lawyer in Belgium, who acts for G.s, states
that appeal is liable to take two years, from the date of its filing on 27
April 2001. As a matter of French domestic law, the Judgement of the
Cour d'Appel de Bordeaux dated 29 January 2001 is enforceable, in
France, notwithstanding the appeal to the Cour de Cassation.
13. In terms of the Judgement of the Cour d'Appel de Bordeaux dated 11
June 1996 and an agreement between the parties dated 30 December
1996, G.s made a part payment to Marie B. of FF6,856,050. In terms
of the further Judgement of the Cour d'Appel de Bordeaux dated 16
November 1998 and an agreement between the parties dated 27 October
1999, G.s made a further part payment to Marie B. of FF10,000,000.
Application to the European Court of Human Rights
14. On 28 June 2000, G.s lodged an application to the European Court
of Human Rights in Strasbourg complaining that, during the course of
the legal proceedings brought against them in France by Marie B., their
rights under Article 6 of the European Convention on Human Rights have
been violated. This application is, of course, directed against the French
Government and Marie B. are not a party to the proceedings. A copy of
the application was lodged during the course of the hearing before me.
15. In their application, G.s claim that in their dispute with Marie B. they
have been denied their right to their "natural" judge. They claim that
they have been deprived of access to the Scottish Courts, in which the
law of Scotland would have been applied. That particular violation of
their Convention Rights under Article 6(1) is alleged to have occurred
by reason of the French courts having assumed jurisdiction in the
proceedings raised by Marie B.. Counsel for G.s explained that having
regard to the terms of the last paragraph of Article 28 of the Brussels
Convention, that particular allegation does not form part of the Grounds
of Appeal before me. …
17. Notwithstanding the terms of G.s' application to the European Court of
Human Rights, no allegation as to any lack of objective impartiality on the
part of the Tribunal de Commerce de Bordeaux has ever been advanced
by G.s before the Tribunal de Commerce de Bordeaux, the Cour d'Appel
de Bordeaux or the Cour de Cassation. The issue is, however, raised in the
present appeal. I shall return to the detail of that challenge in due course.
The application to the European Court of Human Rights in Strasbourg is
still before that Court. No definite information is available as to when the
application will be determined. The proceedings could take until the end of
2003 and might even last longer.
Statutory framework of the present appeal
18. The recognition and enforcement in Scotland of a foreign judgment,
such as the Judgement of the Cour d'Appel de Bordeaux dated 29 January
2001, is governed by the provisions of the 1982 Act. As I have indicated,
Section 2 of the 1982 Act provides that the Brussels Convention shall
have the force of law in the United Kingdom. Article 31 of the Brussels
Convention allows for the enforcement in Scotland of any judgment
given in another contracting state, provided that the judgment is
enforceable in that other contracting state and once the judgment has
been declared enforceable in Scotland. The Judgement of the Cour d'Appel
de Bordeaux dated 29 January 2001 is obviously a judgment given in
another contracting state, namely France. The Judgement is enforceable
in France.
19. In terms of the 1982 Act, an application for enforcement of a
judgment, such as that of the Cour d'Appel de Bordeaux, requires to
be made to the Court of Session. Article 33 of the Brussels Convention
permits the procedure for the making of such an application to be
governed by the law of Scotland. The relevant rules are to be found
in Part V of the Rules of Court. They provide for any application to be
made by petition. Article 34 of the Brussels Convention provides that the
party against whom enforcement is sought is not entitled to make any
submission on an application for recognition and enforcement, when the
application is first presented. Article 34 also provides that an application
may be refused only for one of the reasons specified in Articles 27 and 28
of the Convention, which are in these terms:-
" Article 27
A judgment shall not be recognised -
If such recognition is contrary to public policy in the State in which
recognition is sought.
Where it was given in default of appearance, if the defendant was not duly
served with the document which instituted the proceedings or with an
equivalent document in sufficient time to enable him to arrange for his
defence.
If the judgment is irreconcilable with a judgment given in a dispute
between the same parties in the State in which recognition is sought.
If the court of the State in which the judgment was given, in order to
arrive at its judgment, has decided a preliminary question concerning the
status or legal capacity of natural persons, rights in property arising out
of a matrimonial relationship, wills or succession in a way that conflicts
with a rule of the private international law of the State in which the
recognition is sought, unless the same result would have been reached by
the application of the rules of private international law of that State.
If the judgment is irreconcilable with an earlier judgment given in a non-
Contracting State involving the same cause of action and between the
same parties, provided that this latter judgment fulfils the conditions
necessary for its recognition in the State addressed.
Article 28
Moreover, a judgment shall not be recognised if it conflicts with the
provisions of Sections 3, 4 or 5 of Title II or in a case provided for in
Article 59.
A judgment may furthermore be refused recognition in any case provided
for in Article 54B(3) or 57(4)
In its examination of the grounds of jurisdiction referred to in the
foregoing paragraph, the court or authority applied to shall be bound by
the findings of fact on which the court of the State in which the judgment
was given based its jurisdiction.
Subject to the provisions of the first paragraph, the jurisdiction of the
court of the State in which the judgment was given may not be reviewed:
the test of public policy referred to in point 1 of Article 27 may not be
applied to the rules relating to the jurisdiction."
20. Article 29 states that under no circumstances may a foreign judgment
be reviewed as to its substance. Consistent with that approach, Rule
of Court 62.30(1) provides that on the Court being satisfied that a
petition complies with the requirements of the 1982 Act, the Court
shall pronounce an interlocutor granting warrant for registration of the
judgment, granting warrant for the execution of protective measures and,
where necessary, granting decree in accordance with Scots law. Such an
interlocutor also requires to specify the period within which an appeal
against the interlocutor may be made.
21. An appeal is competent in terms of Article 36 of the Brussels
Convention, which provides:
" Article 36
If enforcement is authorised, the party against whom enforcement is
sought may appeal against the decision within one month of service
thereof.
If that party is domiciled in a Contracting State other than that in which
the decision authorising enforcement was given, the time for appealing
shall be two months and shall run from the date of service, either on him
in person or at his residence. No extension of time may be granted on
account of distance."
By virtue of Article 37(1) of the Convention, an appeal against a decision
authorising enforcement requires to be lodged so far as the present
case is concerned with the Court of Session. Article 37(2) provides that
the judgment given on the appeal may be contested only by a single
further appeal on, so far as the United Kingdom is concerned, a point of
law. Rule of Court 62.34(1) provides that an appeal under Article 37 of
the Convention against the granting of warrant for registration is to be
made by motion to the Lord Ordinary and, so far as the present case is
concerned, within one month of service under Rule 62.33 of the warrant
of registration under the Act of 1982. …
Article 38
"The Court with which the appeal under Article 37(1) is lodged may, on
the application of the appellant, stay the proceedings if an ordinary appeal
has been lodged against the judgment in the State of origin or if the time
for such an appeal has not yet expired; in the latter case, the court may
specify the time within which such an appeal is to be lodged.
Where the judgment was given in Ireland or the United Kingdom, any
form of appeal available in the State of origin shall be treated as an
ordinary appeal for the purposes of the first paragraph.
The court may also make enforcement conditional on the provision of such
security as it shall determine".
Article 39
"During the time specified for an appeal pursuant to Article 36 and until
any such appeal has been determined, no measures of enforcement may
be taken against the property of the party against whom enforcement is
sought.
The decision authorising enforcement shall carry with it the power to
proceed to any such protective measures."
It is not disputed that an appeal in terms of Article 36, to the Court
designated in Article 37(1), is restricted to the matters detailed in Articles
27 and 28.
23. The present petition was raised on 1 May 2001, when Lord McEwan
pronounced an interlocutor, under Rule of Court 62.30(1), which inter
alia granted warrant for the Judgement of the Cour d'Appel de Bordeaux,
dated 29 January 2001, to be registered in the register of judgments,
authentic instruments and court settlements under the 1982 Act. By
virtue of the provisions of Rule of Court 62.26, that interlocutor implied
recognition of the Judgement of 29 January 2001. Lord McEwan's
interlocutor of 1 May 2001 also provided that an appeal against the
interlocutor might be made within one month of service of the interlocutor
on G.s and that Marie B. could not proceed to execution of the Judgement
of the Cour d'Appel de Bordeaux, until the expiry of the period for lodging
such an appeal or the disposal of any appeal taken.
24. In the event, both W. G. & Sons Limited and W. G.s & Sons
International Limited have appealed against enforcement of the
Judgement of the Cour d'Appel de Bordeaux dated 29 January 2001. The
Grounds of Appeal lodged (No. 11 of Process) are in these terms:
"1. That recognition of the judgement pronounced by the Bordeaux Court
of Appeal on 29th January 2001 is contrary to public policy in terms of
Article 27 of the Brussels Convention. W. G. International Ltd suffered
infringement of their right to a fair trial as guaranteed by Art.6(1) of
ECHR. The relationship between ECHR and the Brussels Convention is a
matter of both municipal and Community Law. W. G. International Ltd
argue that a judgement obtained through an infringement of Art 6(1)
should not be enforced on the ground of public policy. But if there is
doubt as to the effect of the relationship between ECHR and the Brussels
Convention, it may be necessary to refer the issue to the Court of Justice
of the European Communities. Pending the outcome of that reference,
these proceedings should be sisted.
2. That in any event, as W. G. International Ltd have filed a pourvoi de
cassation with the Cour de Cassation in Paris, which is an ordinary appeal
in terms of Article 38 of the Brussels Convention, these proceedings
should be stayed in terms of Art.38 to await the outcome of that appeal".
Although the backing of the Grounds of Appeal refer to both of the
respondent companies, the detailed grounds only mention W. G. & Sons
International Limited. However, as the hearing before me was conducted
on the understanding that both companies were appealing on identical
grounds, I proceed on that basis. During the hearing before me, I heard
submissions in respect of both of the grounds set out in the Grounds of
Appeal. …
Hearing on Grounds of Appeal
26. … I leave open at this stage the question as to whether any such
reference may be required, in relation to G.s' motion that the proceedings
for enforcement should be stayed in terms of Article 38 of the Brussels
Convention. I should also record that during the break, between junior
counsel's submissions and the final two days of the hearing, senior
counsel for Marie B. and G.s both lodged written outlines of argument.
These proved to have be of considerable assistance to the Court. I am
indebted to senior counsel for preparing those written outlines.
27. In the event, by the time senior counsel for G.s came to address me,
the motion made on behalf of G.s was that I should allow G.s' appeal
under Article 36 against Lord McEwan's interlocutor of 1 May 2001 or,
alternatively, stay these proceedings in terms of Article 38. Marie B., on
the other hand, invited me to refuse the appeal and then put the petition
out for a further hearing as to the exercise of the Court's powers under
Article 38.
Article 27(1) of the Brussels Convention
28. The first ground of appeal claims that recognition of the Judgement
of the Cour d'Appel de Bordeaux, dated 29 January 2001, is contrary to
public policy. It also asserts that G.s have suffered an infringement of
their right to a fair trial as guaranteed by Article 6(1) of the European
Convention on Human Rights and that a judgment obtained through an
infringement of Article 6(1) should not be enforced on the ground of
public policy. If those submissions are well founded, then having regard
to the terms of Article 27.1 of the Brussels Convention, G.s' appeal to
this Court would fall to be allowed. In considering those submissions a
number of separate, albeit, inter-related questions arise - (a) Whether,
in the civil proceedings raised in France by Marie B., G.s' Convention
rights were infringed by a failure of the French judicial process to meet
the requirements of Article 6(1)? ; (b) Whether, when addressing that
question, account should be taken of the whole proceedings in France,
including the proceedings before the appellate courts, or whether it is
only the proceedings before the Tribunal de Commerce de Bordeaux
that are of relevance? ; (c) Whether the Judgement of the Cour d'Appel
de Bordeaux of 21 January 2001 is vitiated by reason of any failure of
the French judicial process to meet the requirements of Article 6(1)? ;
(d) Whether it would be contrary to the public policy of the United
Kingdom for the Court of Session to enforce the decree of a foreign court,
granted in civil proceedings in which, when the proceedings are viewed
as a whole, the party against whom the decree has been pronounced
has suffered infringement of their Convention rights in terms of Article
6(1)? ; and (e) If the Judgement of the Cour d'Appel de Bordeaux of
21 January 2001 is vitiated by a failure of the French judicial process to
meet the requirements of Article 6(1), whether the Court of Session could
lawfully authorise the enforcement of that Judgement under the Brussels
Convention without itself acting in violation of G.s' rights under Article
6(1) and in breach of section 6(1) of the Human Rights Act 1998.
29. The parties were agreed that the last two of those questions fall to
be answered in the affirmative. Marie B. explicitly accepted that it would
be contrary to the public policy of the United Kingdom for the Court of
Session to recognise and to authorise the enforcement of a decree that
had been granted by a foreign court, in civil proceedings in which, when
the proceedings were looked at as a whole, the Article 6(1) Convention
rights of the party, against whom that decree had been pronounced,
had been infringed. Marie B. also accepted that the infringement of a
party's Article 6(1) Convention rights would constitute "a manifest breach
of a rule of law regarded as essential in the legal order of the [United
Kingdom]" (see Krombach v Bamberski, Case C-7/98, [2000] ECR I -
1935, paragraph 37). The parties were also agreed that the Court of
Session could not lawfully enforce such a decree, without itself acting in
violation of the requirements of Article 6(1) and the provisions of section
6(1) of the Human Rights Act 1998. Where the parties parted company
was in relation to the first three questions. In addressing them, I do
so on the basis that it is for G.s, as the party raising the issue of non-
compatibility with Article 6(1), to demonstrate to this Court's satisfaction
that Article 6(1) was breached in the course of the judicial proceedings
in France. If G.s fail to do so, this Court would require to proceed on the
basis that there has been no such breach. I did not understand there to
be any dispute between the parties on that issue.
30. The parties were, however, in serious dispute in relation to how
this Court should approach the issue as to whether G.s suffered an
infringement of their Convention rights under Article 6(1), during the
course of the proceedings in France. Should that contention be assessed
by looking solely at the constitution and actions of the Tribunal de
Commerce de Bordeaux or is the correct approach to consider the
proceedings as a whole, including what happened and could have
happened, when the action raised by Marie B. came before the Cour
d'Appel de Bordeaux and the Cour de Cassation? Focussing the issue in
more practical terms, do I require to limit myself to considering whether
the Tribunal de Commerce de Bordeaux, when looked at in isolation,
was Article 6 compliant or should I also examine the whole history of
the civil proceedings in France, between Marie B. and G.s, including the
constitution, jurisdiction and powers of the Cour d'Appel de Bordeaux
and the Cour de Cassation, before deciding whether G.s' entitlement in
terms of Article 6(1) was infringed? Counsel for G.s invited me to adopt
the former approach and counsel for Marie B. the latter. …
32. As one of the cornerstones of G.s' appeal under Article 36 of the
Brussels Convention is an alleged lack of objective impartiality of the
Tribunal de Commerce de Bordeaux, it is appropriate that I set out in
greater detail the factual basis upon which G.s sought to criticise that
Court. That factual basis was drawn from the contents of a number of
affidavits and other documentary productions that both parties had
lodged. These included an affidavit in the name of Maître Marc Pierre
Stehlin, one of G.s' French lawyers. In his affidavit, Maître Stehlin
deals with the composition and operation of what he refers to as the
Commerce Tribunals. That affidavit, in addition to containing factual
detail about the history, composition, organisation and procedures of the
Commercial Courts and Tribunals, such as the Tribunal de Commerce
de Bordeaux, also refers to a number of criticisms of the Commercial
Courts and Tribunals that have been publicly ventilated in recent years.
Those criticisms relate to a variety of matters. Judges of the Commercial
Courts and Tribunals do not require to hold any legal qualifications,
although some of them do. Those judges, who are legally qualified, are
not professional judges. They tend to be employed as legal executives
within commercial and industrial organisations in the area within which
a particular Commercial Court or Tribunal is located. Judges receive no
compensation for holding office. They are elected for fixed and renewal
terms of office, subject to their being unable to serve beyond fourteen
years, without a break of one year. The judges are elected by members
of an electoral college, composed of persons involved in commercial and
industrial activities in the area of the particular Commercial Court or
Tribunal . The rules of procedure of Commercial Courts and Tribunals are
less formal than in other French courts.
33. The Commercial Courts and Tribunals have also been criticised on
account of the absence of any outside control over their jurisdiction. The
lack of any requirement for judges to be legally qualified appears to have
encouraged criticism that their decisions have tended to violate basic
principles of law and procedure and the rights of the parties appearing
before them. Despite the fact that the decisions of Commercial Courts
and Tribunals are subject to appeal, it is claimed that the conduct of
the judges who constitute Commercial Courts and Tribunals are not
subject to any immediate legal supervision and control. The French public
prosecutor, who is permitted to sit in other jurisdictions in France, in order
to verify the proper discharge of magisterial duties, is not permitted to sit
in the Commercial Courts and Tribunals. All this, it is suggested leads to
the decisions of Commercial Courts and Tribunals being reached on the
basis of close professional relationships and personal friendship.
34. Maître Stehlin's affidavit refers to a number of reports prepared
for the National Assembly in France and to draft legislation currently
before that parliament. Those legislative proposals proceed on the basis
that the system of Commercial Courts and Tribunals will remain. It is
proposed that the procedures for electing, training and disciplining the lay
judges and guarding against conflicts of interests should be altered. In
particular, the electoral colleges are to be abolished. The proposals also
include the introduction of professionally qualified judges, who would sit
with the elected judges in some, but not all, cases. Those professional
judges would be remunerated and would enjoy security of tenure. It
is also proposed to reorganise the judicial authorities supervising the
Commercial Courts and Tribunals, by involving the Presidents of regional
Cours d'Appel.
35. As I have indicated, a number of those criticisms and the legislative
proposals are discussed in written productions that G.s have lodged. I
need not refer to those documents in great detail. There is no dispute
as to their terms or that within the French Government and the National
Assembly of France there is a fairly widespread view that the system of
Commercial Courts and Tribunals merits some reform. To some extent,
at least, the proposals for reform appear to be driven by the concerns of
informed commentators as to whether Commercial Courts and Tribunals
are adhering to the requirements of Article 6(1). To illustrate the nature
of the material upon which G.s sought to found I will, however, refer
to two documents. The first is the Explanatory Statement forming part
of a Report of the French Ministry of Justice, dated 18 July 2000 (The
French and English versions are Nos. 7/46 and 7/47 of Process). Having
referred to other reports relating to Commercial Courts and Tribunals the
Explanatory Document states:-
" In addition the reports agree on the fact that the judgments handed
down are very disparate. They highlight in particular the huge diversity
of procedures, the lack of control over judges, and the risks of conflicts
of interest because of the closeness with the parties amenable to the
jurisdiction of the court.
For these reasons, the Government has decided to undertake a reform of
the Commercial Courts. This reform ... maintains the French exception of
elected commercial judges, whilst introducing a system combining elected
judges and professional judges, for the organisation and functioning of
the Commercial Courts.
This system is intended to ensure a justice of quality, by combining
the expert knowledge of legal rules of procedure of professional judges
with the awareness of the economic dimension provided by the elected
judges."
The second document is National Assembly Document No. 2912, a
Report on behalf of the Constitutional Laws, Legislation and General
Administration Commission of the Republic on Draft Bill (No. 2545)
relating to reform of the Commercial Courts, dated 1 February 2001 (The
French and English versions are Nos. 7/44 and 7/45 of Process). Without
there being any necessity to quote from that document, it is clear from
its contents that one of the factors motivating the proposed legislative
reforms is a wish to ensure that the Commercial Courts and Tribunals in
France are compatible with Article 6(1)….
37. Although it was stressed by senior counsel for G.s that no argument
was being advanced as to the existence of any subjective impartiality
on the part of the Tribunal de Commerce de Bordeaux, it was submitted
on behalf of G.s that certain aspects of the Tribunal de Commerce de
Bordeaux' s conduct had reinforced, again not unreasonably, G.s' doubts
as to a lack of impartiality of the Tribunal de Commerce de Bordeaux.
Counsel for G.s submitted that it was not clear to G.s or to their French
lawyers, why the Tribunal de Commerce de Bordeaux had found that
an additional one year period of notice should have been given by G.s,
when they terminated their distribution agreement with Marie B.. It
was asserted that the sum awarded by the Tribunal de Commerce de
Bordeaux, as compensatory damages, had borne no relation to lack
of notice for such a period of one year. G.s complained that when the
proceedings were before the Tribunal de Commerce de Bordeaux, they
had not been allowed any access to the books and records of Marie B..
Nor, before the Tribunal de Commerce de Bordeaux, had G.s been given
any opportunity to examine the authors of a report on which Marie B.
were founding in relation to damages. Reference was made to the fact
that the Tribunal de Commerce de Bordeaux had not commissioned
an independent report nor undertaken any other form of independent
examination of Marie B.'s report, before awarding compensatory damages
of FF100,000,000 in these terms:-
"Whereas, if this figure is not otherwise justified, all the same, it appears
to be in line with the figures and the results mentioned in Court; the
Court, using its sovereign power to judge, will set at FF 100,000,000 the
amount that it G.s [Marie B.] as compensation for the insufficient notice."
Senior counsel for G.s also founded on the fact that the Tribunal de
Commerce de Bordeaux had awarded what he described as exemplary
damages of FF30,000,000, expressing that particular award in these
terms:-
"Whereas therefore, taking into account the attitude displayed by
[G.s] and the effect of their sudden decision on the image of [Marie
B.] after thirty-five years of flawless co-operation, the Court will set at
FF30,000,000 the amount of damages and interest that it will sentence
[G.s] to pay to [Marie B.]."
The Tribunal de Commerce de Bordeaux had ordered immediate execution
of their Judgement, in respect of both those awards of damages. In the
event, the Cour d'Appel de Bordeaux had subsequently quashed both
awards of damages and had reversed the order for execution of those
awards.
38. Senior counsel for G.s submitted that the apparent arbitrariness of
the awards of damages made by the Tribunal de Commerce de Bordeaux
had contributed to a not unreasonable suspicion in the minds of G.s that
the Tribunal de Commerce de Bordeaux had been behaving in a manner
that was not impartial, so far as the claims by Marie B. were concerned.
Relevant to that suspicion, of course, were the facts that Marie B. is one
of the oldest established commercial concerns in Bordeaux, that the part
owner and managing director of Marie B. was at the relevant time the
President of the Chamber of Commerce, in whose chambers the Tribunal
de Commerce de Bordeaux convened, from whose membership the judges
of the Tribunal de Commerce de Bordeaux were drawn and by whose
membership the judges were elected.
39. In the whole circumstances, I was invited to hold that the Tribunal
de Commerce de Bordeaux had been so constituted and had discharged
its functions in such a manner that there was objective justification for
G.s having entertained legitimate doubts in respect of the independence
and impartiality of the Tribunal de Commerce de Bordeaux. There had
not been sufficient guarantees in place to exclude any legitimate doubts
on the part of G.s as to the independence and impartiality of the Tribunal
de Commerce de Bordeaux. It was sufficient for G.s to establish that the
independence and impartiality of the Tribunal de Commerce de Bordeaux
were objectively open to doubt. Reference was made to De Cubber v
Austria (1984) 7 E.H.R.R 236, paragraphs 26 and 27. It was submitted
that G.s' perception of a lack of impartiality could not be dismissed as
unreasonable in the circumstances. In this regard particular reference
was made to the steps being taken by the French Government and in
the National Assembly to reform the system of Commercial Courts and
Tribunals in France. On that factual basis, I was invited to hold that
G.s' Convention rights under Article 6(1) had been infringed when the
proceedings were before the Tribunal de Commerce de Bordeaux.
40. It is appropriate to repeat that when senior counsel for G.s founded
on the manner in which the Tribunal de Commerce de Bordeaux had
conducted the proceedings before them, he stressed that G.s were not
seeking to establish any subjective partiality or bias on the part of the
members of the Tribunal de Commerce de Bordeaux. Likewise, senior
counsel recognised that having regard to the provisions of Article 29
of the Brussels Convention, this Court is precluded from reviewing the
substance of a foreign judgement.
41. Counsel for G.s also advanced submissions as to why the alleged
failure of the Tribunal de Commerce de Bordeaux to comply with the
requirements of Article 6(1) was significant in the present appeal, which
relates, of course, to the recognition and enforcement of a Judgement
of the Cour d'Appel de Bordeaux. It was argued that alleged failure was
of significance because the Judgement of the Tribunal de Commerce de
Bordeaux had only been quashed in part by the Cour d'Appel of Bordeaux
Judgement of 11 June 1966. G.s claim that part of the Judgement of the
Tribunal de Commerce de Bordeaux survived 11 June 1996 and now forms
the foundation of the Judgement of the Cour d'Appel of Bordeaux, dated
29 January 2001, which Marie B. now seek to enforce in Scotland.
42. Having regard to the detail of that chapter of the submissions on
behalf of G.s, it is appropriate to look further at what happened when
G.s' appeal against the Judgement of the Tribunal de Commerce de
Bordeaux first came before the Cour d'Appel of Bordeaux. As far as the
jurisdiction and powers of a Cour d'Appel are concerned, when such a
court is dealing with an appeal from a Commercial Court or Tribunal, a
complete re-hearing of the case can take place. That is competent by
virtue of the provisions of Articles 561, 562 and 563 of the New Code of
Civil Procedure ("NCPC"), which allow parties a full re-hearing of the case
and authorise the Cour d'Appel to decide afresh all questions of fact and
law. Accordingly, before the Cour d'Appel de Bordeaux, both parties were
able to lay before the Court all the documentary material that had been
before the Tribunal de Commerce de Bordeaux. It was also open to them
to produce new documentary evidence and to address, in their written
and oral submissions, all the claims and issues that had been raised
before the Tribunal de Commerce de Bordeaux. Oral evidence was not
competent, either before the Tribunal de Commerce de Bordeaux or the
Cour d'Appel de Bordeaux. No question arises, therefore, of the Tribunal
de Commerce de Bordeaux having enjoyed any advantage from listening
to witnesses, not heard by the Cour d'Appel de Bordeaux.
43. Evidence as to the jurisdiction and powers of the Cour d'Appel of
Bordeaux is to be found in the Second Affidavit of Maître Jean-Yves
Dupeaux, a lawyer for Marie B.. That evidence was not disputed by
G.s nor countered by any affidavit evidence lodged on behalf of G.s.
Whilst the affidavit of Maître Eduard Marsissens, lodged on behalf of G.s,
refers to the Judgements of the Cour d'Appel of Bordeaux as "merely
duplicating all the judicial findings" by the Tribunal de Commerce de
Bordeaux, counsel for G.s did not seek to dispute the evidence placed
before me by Marie B. as to the jurisdiction, powers and procedure of
the Cour d'Appel de Bordeaux. G.s accepted that before the Cour d'Appel
de Bordeaux issues of fact and law could have been re-argued. It was
argued, however, that it was important to look at what the Cour d'Appel
de Bordeaux had actually done, not merely at what it had been entitled
to do. Senior counsel argued that the Cour d'Appel de Bordeaux had not
been bound to determine, of new, all questions of fact that arose. It had
been open to the Cour d'Appel de Bordeaux to proceed on the basis of
considering whether the Tribunal de Commerce de Bordeaux had been
entitled to reach the views that it had and, in particular, whether it had
been entitled to hold that Marie B. should have been given an additional
year's notice, when G.s terminated the distribution agreement. If that was
the approach that the Cour d'Appel de Bordeaux had adopted, then, so it
was argued, the Tribunal de Commerce de Bordeaux's had not quashed
the determinations of the Tribunal de Commerce de Bordeaux. Nor had it
substituted its own determinations for those of the Tribunal de Commerce
de Bordeaux. …
Decision on Article 36 appeal
53. As I have already made clear, I see no reason to refer any questions
to the European Court of Justice before reaching a decision on the appeal
taken by G.s in terms of Article 36 of the Convention. That appeal relates
to Marie B.'s efforts to enforce in Scotland the Judgement of the Cour
d'Appel de Bordeaux dated 29 January 2001. It is appropriate therefore
that I begin by dealing with the relationship between that Judgement and
the Judgement of the Tribunal de Commerce de Bordeaux handed down
on 27 January 1995. That is because G.s contend that the Judgement that
Marie B. seek to enforce is tainted by its connection with and dependence
upon the original Judgement of the Tribunal de Commerce de Bordeaux.
54. I start by reviewing the appellate procedure that was available to G.s,
after the Tribunal de Commerce de Bordeaux handed down on 27 January
1995, and what has actually taken place, since G.s lodged their appeal to
the Cour d'Appel de Bordeaux. The detailed history of the various appeals
I have set out above. In my opinion, however, the salient facts are these.
When the case first came before them, the Cour d'Appel de Bordeaux had
the necessary powers and jurisdiction to conduct a complete re-hearing of
the case. The Cour d'Appel was entitled to decide, of new, all the claims
and issues that had been before the Tribunal de Commerce de Bordeaux.
No oral evidence had been led before the Tribunal de Commerce de
Bordeaux. None could be led before the Cour d'Appel de Bordeaux. The
parties were, however, perfectly entitled to rely upon not only the same
documentary evidence that was before the lower court, but also any
additional evidence that they wished to produce. The parties were also
free to make submissions about all the issues and claims that had been
before the Tribunal de Commerce de Bordeaux. It is accepted on behalf of
G.s that included the right to raise questions as to whether the Tribunal
de Commerce de Bordeaux was Article 6 complaint. In the light of the
legal advice they had received, G.s decided not to raise that particular
issue.
55. In my opinion, it is clear from the whole terms of the Judgement
dated 11 June 1996 that the proceedings before the Cour d'Appel de
Bordeaux did involve that court in rehearing the whole case between
Marie B. and G.s. Both from the procedure that the Cour d'Appel de
Bordeaux followed and the terms in which that court dealt with the
various claims and issues that were raised before it, I consider that it is
obvious that the appeal was conducted in such a manner that the whole
case was re-heard, rather than approached on the narrower basis of
considering whether the Tribunal de Commerce de Bordeaux had been
entitled to reach the determinations that it did. It may also be relevant
to bear in mind that had G.s argued before the Cour d'Appel de Bordeaux
that the Tribunal de Commerce de Bordeaux had not been Article 6(1)
compliant, it is distinctly possible that the Cour d'Appel de Bordeaux
might have phrased its Judgement in different terms, whatever merit it
had attributed to submissions concerning Article 6(1).
56. In reaching these views, I have taken full account of the terms in
which the Cour d'Appel de Bordeaux expressed its conclusions, in the
excerpt from its Judgement, under the heading "FOR THESE REASONS",
which I have quoted in paragraph [7] above. In my opinion, the language
used in that section of the Judgement must be construed in the context
of the terms of the rest of the Judgement. I have also borne in mind
the terms of the Judgement of the Cour d'Appel de Bordeaux, dated
16 November 1998, the Judgement of the Cour de Cassation, dated 8
February 2000, and the Judgement of the Cour d'Appel de Bordeaux,
dated 29 January 2001, (Nos. 6/35, 6/36 and 6/37 of Process) upon
which counsel for G.s sought to rely. All three Judgements speak in terms
of the Cour d'Appel de Bordeaux having "confirmed" its own Judgement of
11 June 1996, the Judgement of 27 January 1995, handed down by the
Tribunal de Commerce de Bordeaux. Once again, however, the language
used must be construed in the context of the history of what happened
and what could have been argued when the case first came before the
Cour d'Appel de Bordeaux.
57. In these circumstances, I have reached the conclusion that when the
whole history of the French proceedings are looked at objectively, it is not
possible to argue that the Cour d'Appel de Bordeaux did not re-hear the
case that was before the Tribunal de Commerce de Bordeaux. Having said
that, however, some of the language used by the Cour d'Appel and the
Cour de Cassation in their judgements has been such that it may have
given rise to the perception that the determination made by the Tribunal
de Commerce de Bordeaux on 27 January 1995, to the effect that notice
of termination of the distribution agreement between Marie B. and G.s
"should have been an additional year, ending December 30th 1994", is
one of the foundations of the Judgement of the Cour d'Appel de Bordeaux
of 29 January 2001 that Marie B. no seek to advance.
58. In these circumstances I should also address whether the Judgement
of 29 January 2001 is tainted by an infringement of G.s' Convention
rights under Article 6(1). There is, of course, no suggestion that the Cour
d'Appel de Bordeaux and the Cour de Casstion have not been fully Article
6 compliant, throughout their involvement with the litigation between
Marie B. and G.s. Accordingly if any infringement of G.s' entitlement
under Article 6(1) has occurred, it can only be based on aspects of the
constitution, procedures and conduct of the Tribunal de Commerce de
Bordeaux. Accordingly, in considering if G.s have suffered an infringement
of their Convention rights under Article 6(1) in France, the question rises
very sharply whether the proceedings before the Tribunal de Commerce
de Bordeaux should be considered in isolation or whether account should
be taken of the whole proceedings in France, including the proceedings
before the appellate courts.
59. I have reached the clear view that the approach I should follow is the
latter. In my opinion, in determining whether G.s are entitled to rely on
the public policy exception to be found in Article 27(1) of the Brussels
Convention, full account should be taken not only of the proceedings
before the Tribunal de Commerce de Bordeaux, but also of the appellate
procedures that were available to G.s and what actually happened before
the Cour d'Appel de Bordeaux and the Cour de Cassation.
60. In reaching that view, I have of course taken into account the
Strasbourg jurisprudence to which I was referred. I am under a statutory
duty to do so (section 2(1) of the Human Rights Act 1998). However, I
find nothing in the Strasbourg jurisprudence to which I was referred that
persuades me that when dealing with a court action, which involves the
determination of civil rights and obligations, the correct approach is to
focus attention solely on the alleged failings of only one of the courts or
tribunals through which that court has passed. On the contrary, there are
certain observations in those authorities that support the view that the
whole proceedings should be looked at, before any decision is reached
as to whether the requirements of Article 6(1) have not been met. In
Adolf the European Court of Human Rights, when dealing with an alleged
violation of Article 6(2), recognised that the reasoned decision of the
District Court Innsbruck must be read with the judgment of the Supreme
Court of Austria and in the light of it (paragraph 40). That view was
taken, notwithstanding the fact that the reasoned decision was capable of
suggesting that Mr. Adolf had committed a criminal offence and that the
presumption of innocence guaranteed by Article 6(2) had thereby been
infringed.
61. In de Cubber, the European Court of Human Rights dealt with a
complaint by a Belgian citizen, who had been convicted of offences of
forgery and uttering forged documents, by a trial court consisting of
three judges, one of whom had previously acted as the investigating
judge in the same case. Whilst the Court expressed the view that a
restrictive interpretation of the requirements of Article 6(1) would not
be consonant with the object and purpose of that Article, it nevertheless
acknowledged the possibility that "a higher or the highest court might,
in some circumstances, make reparation for an initial violation of one
of the Convention's provisions" (see paragraphs 32 and 33). In the
circumstances of that criminal case, the Court held that the Court of
Cassation had not cured the defect, since it had not quashed on Article
6(1) grounds the applicant's conviction. As I have indicated, counsel
for G.s sought to obtain some support for their submissions from the
Judgement in de Cubber. They sought to characterise the Tribunal de
Commerce de Bordeaux as a "court of the classic kind", which required to
comply with the requirements of Article 6(1). They argued that de Cubber
supported the contention that an appellate court could never rectify a
breach of Article 6(1) brought about by a structural or organisational
defect of a lower court. In my opinion, such an absolute view need not be
taken from de Cubber. Once it is acknowledged that appellate proceedings
can make reparation for the violation by an inferior court of one of the
provisions of the European Convention on Human Rights, it becomes a
question of facts and circumstances whether or not the defect can be, and
has in fact been, cured in a particular case. In de Cubber, of course, the
Court of Cassation held, contrary to the submissions of the appellant, that
there had not been any breach of the requirements of Article 6(1) and
neither ordered nor undertook any rehearing of the case.
62. In Edwards, the applicant had been convicted on charges of robbery
and burglary at Sheffield Crown Court.. The prosecution case against him
had depended on police evidence. After the applicant was convicted, an
independent police investigation was carried out, during the course of
which the applicant became aware of further evidence. That evidence
ought to have been disclosed to the defence during the applicant's trial.
The applicant's conviction was then referred to the Court of Appeal, by the
Home Secretary. The Court of Appeal dismissed the applicant's appeal.
Before the European Court of Human Rights, the applicant complained
of violations of Articles 6 and 13. In relation to the alleged violation of
Article 6(1) the Court stated that it "Must consider the proceedings as
a whole, including the decisions of the appellate courts ... to ascertain
whether the proceedings in their entirety, including the way in which
the evidence was taken, were fair.". When it turned to examine the
circumstances of the case, the Court was persuaded that there had been
a defect in the trial proceedings. However, having regard to the history
of the proceedings before the Court of Appeal, during which the Court of
Appeal had considered the additional evidence and the applicant's counsel
had elected neither to apply for the police witnesses at the original trial
to be called to give evidence nor to seek recovery of the full report of
the independent police investigation, the European Court of Human
Rights held that the defects of the original trial had been remedied by the
subsequent procedure before the Court of Appeal.
63. It may be open for debate as to whether the Tribunal de Commerce
de Bordeaux falls to be described as a court of the classic kind. In my
opinion, however, whether it falls within that classification or not, there
is nothing in the Strasbourg jurisprudence I have seen that would have
prevented any complaint about an alleged lack of independence or
impartiality on the part of the Tribunal from being raised and resolved
before an appellate court. If the complaint had been well-founded, the
appellate court would have been able to address any violation of Article
6(1) by the lower court, whether by sending the case back to a differently
constituted lower court, for a complete rehearing, or by conducting such
a re-hearing itself. In at least some cases involving the determination of
civil rights and obligations, such courses of action appear to be eminently
feasible.
64. The possibility of an appellate court rectifying the occurrence of
some violation of Article 6(1) by a lower court is one reason, if not the
principal reason, for the rule that an applicant must exhaust his domestic
remedies before lodging his complaint with the European Court of Human
Rights (Article 35(1)). Whilst that rule has no application in the present
appeal, its existence is nevertheless consistent with the approach I favour.
Indeed, if G.s had the opportunity to raise this issue, initially before the
Tribunal de Commerce de Bordeaux and subsequently before the Cour
d'Appel or the Cour de Cassation, both of whom who could have rectified
any alleged infringement of G.s' Article 6 Convention rights, does that not
enable this Court to hold that when the proceedings in France are viewed
as a whole, it cannot be said that G.s were deprived of their entitlement
under Article 6? (see Edwards, at paragraph 39, and Aksoy v Turkey
(1996) 23 E.H.R.R. 553, at paragraph 51, and Bulut v Austria (1996) 24
E.H.R.R.84, at paragraph 34).
65. Turning to the domestic authorities to which I was referred, I find
nothing in Starrs v Ruxton, Brown v Stott or Miller v Dickson persuades
me that I should adopt the approach advocated by counsel for G.s. All
three of these cases involved criminal proceedings before temporary
sheriffs. The facts of those cases are accordingly far removed from the
circumstances surrounding the civil proceedings in France in which G.s
and Marie B. have been engaged since 1993.
66.There is no dispute that the question as to whether G.s have suffered
some infringement of their entitlement in terms of Article 6(1) in France
has to be considered objectively. The Judgement being enforced is that of
Cour d'Appel. In my opinion, when the whole history of the proceedings
in France is viewed objectively and when account is taken, inter alia, of
the jurisdiction and powers of the Cour d'Appel de Bordeaux, the grounds
upon which G.s' appeal was argued before that court, the approach the
Cour d'Appel took when hearing and determining the appeal that gave rise
to their Judgement of 11 June 1996 and the conscious decision by G.s not
to raise any question as the compatibility of the Tribunal de Commerce
de Bordeaux with Article 6(1) before the Cour d'Appel de Bordeaux or
the Cour de Cassation, both of which are Article 6 compliant, there is no
basis for any legitimate doubt that G.s suffered some infringement of
their entitlement in terms of Article 6(1). In my opinion, there is no basis
for any belief, that when the proceedings in France are considered as a
whole, G.s were not afforded the opportunity to have their civil rights and
obligations, insofar as they were the subject matter of those proceedings,
determined by an independent and impartial tribunal.
67. Accordingly even if there is a factual basis, arising out of the
composition, procedures and conduct of the Tribunal de Commerce de
Bordeaux, for any objective concern as to whether G.s' Article 6(1)
Convention rights were infringed, there is, in my opinion, no basis for
any such concern when the proceedings in France are viewed as a whole.
Whether one analyses the situation as one in which an infringement of
Article 6(1) may have occurred, when the proceedings before the Tribunal
de Commerce de Bordeaux, and, if so, was rectified by what occurred
during the subsequent appellate procedure available to G.s, or whether
the correct analysis is that no such infringement ever occurred, when the
proceedings in France are looked at as a whole, the same conclusion is
reached. There is now no objective basis for any concern or belief that
the Judgement of the Cour d'Appel de Bordeaux of 29 January 2001 is
in some way tainted by G.s having suffered in France some infringement
of their entitlement in terms of Article 6(1). That means that the second
of the questions I posed in paragraph [28] should be answered to the
effect that the whole proceedings in France ought to be taken account of.
It also means that the first and third questions fall to be answered in the
negative. It follows that G.s have failed to establish that there it would
be contrary to public policy for this Court to authorise the enforcement
in Scotland of the Judgment of the Cour d'Appel de Bordeaux dated 29
January 2001. For these reasons, I am minded to refuse G.s's appeal in
terms of Article 36 of the Brussels Convention.
68. Standing that conclusion, it is neither necessary nor appropriate for
me to express any views on the submissions I received as to whether
during 1994 and 1995 the Tribunal de Commerce de Bordeaux was
constituted and conducted itself in a manner compatible with the
requirements of Article 6(1).
Further procedure
69. During the course of the hearing, I also received submissions on
behalf of both parties relating to the second matter raised in G.s' Grounds
of Appeal, namely that these proceedings should be stayed in terms of
Article 38 of the Brussels Convention, pending the outcome of G.s' further
appeal to the Cour de Cassation. A number of those submissions were
directed to whether it would be competent for this Court to stay these
proceedings for enforcement, if G.s' Article 36 appeal were to be refused.
70. I have reached the view that I should not reach any conclusions
in respect of any of those submissions, until parties have had the
opportunity of making submissions on the additional questions that now
arise, namely whether enforcement of the Judgement of the Cour d'Appel
de Bordeaux should be conditional on Marie B. providing security and, if
so, what that security should be.
71. Accordingly, the case will be put out By Order, on a date convenient to
the parties, when I can be furthered addressed on all questions that arise
in relation to this Court's powers under Article 38. It would be helpful, if
in anticipation of that hearing, parties could hold discussions to determine
whether any measure of agreement can be reached