No. 506.
Mr. Westenberg to Mr. Fish.


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.


Mr. Gericlce to Mr. Westenberg.

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,



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.

  1. F. M. C. Asser on the effect or the execution of decisions rendered in a foreign country in civil and commercial cases. (Revve de droit international et de legislation compare, 1869.)