Textuality and Preparatory Work

by Richard Gardiner

First, my thanks for Malgosia, Isabelle and Jan for all their comments.

The work of the ECtHR has an interesting aspect in the present context. One of the first to take up the Vienna rules systematically, the Court (as Malgosia shows) has apparently not found them to constrict its development of a distinctive line of case law appropriate to the Convention which the Court applies.

Isabelle’s first post also addresses case law of a single institution, indicating that the WTO Appellate Body has in effect reflected one of the central ideas of the ILC in formulating the first part of the general rule – that the ordinary meaning of terms has to be drawn as much from the context as from the dictionary (ie not simply seeking what Judge Higgins critically described as ‘a mythical “ordinary meaning”’, Kasikili/Sedudu Island (Botswana/Namibia)).

Isabelle also takes us deep into the difficulties over preparatory work. It will not always be possible to treat silence on a particular point as “constructive ambiguity”; nor will it always be clear that a matter was intentionally excluded from a treaty. A contemporary example is brewing up in different circuits of the US Court of Appeals.

The Warsaw Convention provides that claims relating to accidents and incidents in carriage by air must be brought in a court in one of four specified places (destination, domicile of carrier etc) “at the option of the plaintiff”. The next provision states that “questions of procedure” are for the law of the place of the court to which the case is submitted. Can that court reject the choice of the plaintiff, finding itself inappropriate (forum non conveniens)? Is the right offered by the treaty to the claimant to opt for a jurisdiction a matter of procedure, or an exercise of that option subject to being overruled as a matter of procedure?

Courts have differed on this, even before the 1999 Montreal Convention added a fifth jurisdictional possibility. Some negotiators argued in 1999 that the safeguard against improper use of the fifth jurisdiction would be the doctrine of forum non conveniens. In 1929 a proposal to allow courts to refuse to hear cases had not been taken up. In 1999 the matter was still not resolved in the Convention. The text remained substantially as in the 1929 Convention, retaining the “option” of the claimant and “procedure” being governed by the law of the forum.

The Court of Appeals, Ninth Circuit, held in 2002 that the Warsaw Convention did not permit a finding of forum non conveniens (Hosaka v. United Airlines Inc, cert. denied 537 U.S. 1227 (2003)). In contrast, the doctrine has been allowed application in relation to the Montreal Convention in a case now on appeal to the Court of Appeals, Eleventh Circuit (In re: West Caribbean Airways, S.A., Sept 27, 2007 (S.D. Fla. No. 06-22748)).

What is the extent of admissible preparatory work? Although the Montreal Convention is in form a new treaty, much of it has its origins in the 1929 Convention. What is the significance (if any) of the mixed practice under that Convention? Does the discussion at the 1999 Montreal Conference leave interpretative options open (other than for the plaintiff!). It looks as if this case could give the rules of treaty interpretation a good workout. Perhaps the failure of the Montreal Conference to resolve the issue (along with some other key issues in carriage by air) allows scope for what Jan describes as a “battlefield” and for continuation of unresolved political issues.


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