SA MARIE BRIZZARD ET ROGER INTERNATIONAL FOR REGISTRATION OF A JUDGMENT OF THE COUR D'APPEL DE BORDEAUX v.

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OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD MACKAY OF DRUMADOON in the Petition of S.A. MARIE BRIZZARD ET ROGER INTERNATIONAL Petitioners for Registration of a Judgment of the Cour d'Appel de Bordeaux dated 29 January 2001 ________________

Petitioners: Tyre, Q.C.; Dundas & Wilson, C.S.

Respondents: Keen, Q.C., Cheyne; McGrigor Donald

5 April 2002

[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 William Grant & Sons Limited and William Grants & 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 Brizzard" and to the two respondent companies as "Grants". William Grant & Sons Limited are a holding company and William Grant & Sons International are one of the subsidiaries of that holding company. Both companies have their Registered Office in Scotland.

[2]Marie Brizzard seek to enforce in Scotland a Judgement of the Cour d'Appel de Bordeaux dated 29 January 2001. In terms of that Judgement, Grants have been ordered to pay Marie Brizzard 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 William Grant & Sons Limited and William Grants & Sons International Limited to Marie Brizzard, 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 Brizzard and Grants entered into a distribution agreement, for the exclusive distribution of Grants' whiskies in France by Marie Brizzard. On 17 March 1993, Grants informed Marie Brizzard of their intention to terminate that exclusive distribution agreement, with effect from 31 December 1993. On 30 December 1993, Marie Brizzard commenced proceedings against Grants in the Tribunal de Commerce de Bordeaux. Those proceedings were defended by Grants. Grants 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 Brizzard obtained a Judgement against Grants in the Tribunal de Commerce de Bordeaux. That court assumed jurisdiction and held (i) that Grants had terminated the distribution agreement between Marie Brizzard and William Grant & Sons International Limited without any legitimate reason, (ii) that the period of nine months' notice given by William Grant & Sons International Limited to Marie Brizzard, when the agreement was terminated, had been insufficient and in bad faith, and (iii) that in the circumstances both William Grant & Sons Limited and William Grants & Sons International Limited were liable in damages to Marie Brizzard. 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 Grants pay Marie Brizzard certain sums:

"- Jointly sentence the companies WILLIAM GRANT & SONS INTERNATIONAL Ltd and WILLIAM GRANT & SONS Ltd, to pay (MARIE BRIZZARD) the amount of 380 million francs, subject to increase, corresponding to 4 years and 3 months of gross profit margin, of which it was deprived during the notice period.

- Jointly sentence the GRANT Companies to pay the amount of 60 million francs to MARIE BRIZARD corresponding to its financial participation in the advertising for the GRANT and Glenfiddich during the five years preceding the break.

- Jointly sentence the Companies WILLIAM GRANT & SONS INTERNATIONAL Ltd and WILLIAM GRANT & SONS Ltd to pay (MARIE BRIZZARD) the amount of 100 million francs as damages and interest.

- Jointly sentence the Companies WILLIAM GRANT & SONS INTERNATIONAL and WILLIAM GRANT & SONS to pay (MARIE BRIZZARD) the amount of 200,000 francs, excluding taxes, under article 700, as well as the costs.

- Jointly sentence the Companies WILLIAM GRANT & SONS INTERNATIONAL and WILLIAM GRANT & SONS to payment of the legal interest on the amount of the sentences to be issued against them the said interest having in turn to produce interest in the meaning of article 1154 of the Civil Code".

[4]The Tribunal de Commerce de Bordeaux also ordered that Marie Brizzard pay Grants the sum of FF66,903,946, in respect of the purchase of Grants' products, by a Swiss subsidiary of Marie Brizzard. It also ordered provisional enforcement of its awards in favour of Marie Brizzard, after set off of the amount found due by Marie Brizzard and on condition that Marie Brizzard provide a bank guarantee in the sum of FF101,000,000.

[5]Grants 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 Brizzard 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. Grants 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, Grants enrolled a motion to stay the appeal proceedings in terms of Article 38 of the Brussels Convention. During a hearing on that motion, Grants 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 Brizzard now seek to enforce. It is to be noted, in passing, that in the appeal that came before Lord Clyde, Grants 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 Grants' entitlement under Article 6 of the European Convention on Human Rights.

[7]The Judgement of the Cour d'Appel de Bordeaux, in Grants' appeal against the Judgement of the Tribunal de Commerce de Bordeaux, was handed down on 11 June 1996. The Judgement contained a passage, which has been translated in these terms (No. 6/34 of Process):-

"FOR THESE REASONS

States acceptable the appeal concerning the provisional enforcement of the judgement of the commercial court of Bordeaux of 27 January 1995.

Removes from the discussions the certificate of 5 March 1996 from Mr David J. EVANS.

Confirms the judgement of the commercial court of Bordeaux of 27 January 1995 on the competence, on the acceptability of the action of Marie Bizard et Roger International company on the merits, an insufficient previous notice time of approximately one year for terminating the exclusivity contract, on the conviction of William Grant and Sons companies and William Grant and Sons International Ltd companies to pay Ffr 36,159,240 for taking back the stock, Ffr 13,003,326 for 1993 advertisement and promotional costs and Ffr 120,000 based on Article 700 of the NRCP, on the one hand, and on the other hand from Marie Brizard et Roger International company to pay the sum of Ffr 66,903,346 for the purchases carried out by its subsidiary, Agrofinex, and on the compensation of convictions.

It confirms as far as the initial point for the interests of Ffr 36,159,240 and the conviction of William Grant and Sons Ltd and William Grant and Sons Ltd to pay the sum of Ffr 30,000,000.

Says that the sum of Ffr 13,003,326 shall produce interests from 22 June 1994 and that of Ffr 36,159,240 from 1st January 1994;

Rejects Marie Brizard et Roger International company's claims Ffr 100,000,000 for additional damages.

Before pronouncing the law on the compensation of the consequences for insufficient previous notice time for the distribution contract by William Grant and Sons companies:

Orders an appraisal and appoints Mr Victor AMATA, sworn expert to the Cour de Cassation, 5 rue Anatole de la Forge 75017 PARIS (tel.: (33) (1) 43.80.27.16 - Fax (33) (1) 43.80.67.24) with the mission to give all the accounting and financial elements to enable the court to appreciate the elements of damages suffered by Marie Brizard et Roger International company after the insufficient previous notice time of about one year for the termination of an exclusive distribution contract of William Grant and Sons Ltd and William Grant and Sons International Ltd.

Sets at Ffr 50,000 the amount to be deposited within two months by Marie Brizard et Roger International company at the Secretary of the Cout of Appeal, to be deducted from the expenses and the expert's fees.

Sets to 1st March 1997 as the deadline to lodge the appraisal report.

Convicts jointly and severally William Grant and Sons Ltd and William Grant and Sons International Ltd to pay Marie Brizard et Roger International company a sum of Ffr 25,000,000 to be paid to the court to be deducted from the prejudice resulting from the unsufficient previous notice time.

Convicts jointly and severally William Grant and Sons Ltd and William Grant and Sons International Ltd, to pay to Marie Brizard et Roger International company for the appeal procedure a compensation of Ffr 80,000 based on Article 700 of the BRCP;

Rejects the claims of William Grant and Sons Ltd and William Grant and Sons International Ltd for a compensation for the same Article 700 of the NRCP and damages for the improper procedure;"

[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 Brizzard were competent (i.e. that the French courts had jurisdiction), that Marie Brizzard's claim against Grants was admissible and that an additional year's notice should have been given by Grants, before they terminated the agreement with Marie Brizzard. It will also be noted that the Cour d'Appel de Bordeaux quashed the order for Grants to pay Marie Brizzard the sum of FF100,000,000 by way of additional damages and ordered (a) that the loss suffered by Marie Brizzard in respect of the failure to give sufficient notice should be determined by a judicial expert, Mr. Amata, (b) that Grants pay Marie Brizzard (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 Brizzard 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 Grants pay FF25,000,000 by way of advance payment, and (d) ordered that Marie Brizzard pay Grants the sum of FF66,903,946, in respect of purchases of Grants' products, by the Swiss subsidiary of Marie Brizzard.

[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 Brizzard applied to have the findings of that report confirmed. Their application was opposed by Grants, 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 Grants to pay Marie Brizzard an additional interim payment of FF10,000,000.

[10]In the meantime, Grants 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 Brizzard and Grants and whether the Cour d'Appel de Bordeaux had erred in ruling that the period of notice given by Grants, when they terminated the agreement with Marie Brizzard, was insufficient by one year. Grants' 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 Brizzard 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 Brizzard and Grants 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, Grants were ordered to pay Marie Brizzard 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, Grants 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 Grants, 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, Grants made a part payment to Marie Brizzard 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, Grants made a further part payment to Marie Brizzard of FF10,000,000.

Application to the European Court of Human Rights

[14]On 28 June 2000, Grants 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 Brizzard, 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 Brizzard 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, Grants claim that in their dispute with Marie Brizzard 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 Brizzard. Counsel for Grants 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.

[16]In their application to Strasbourg dated 28 June 2000, Grants also claim that their Convention rights under Article 6(1) have been violated by reason of a lack of the appearance of objective impartiality in the French Commercial Courts and Tribunals in general and an effective lack of objective impartiality on the part of the Tribunal de Commerce de Bordeaux itself. The Tribunal de Commerce de Bordeaux is one of a number of Commercial Courts and Tribunals in France. Lay judges, who are elected, constitute those Commercial Courts and Tribunals. The judges of a particular Commercial Court or Tribunal, and those who elect them, are normally engaged in industry and commerce within the geographical area in which the Commercial Court or Tribunal is located. It is claimed that this gives rise to a lack of the appearance of objective impartiality on the part of Commercial Courts and Tribunals in general. The objective impartiality of the Tribunal de Commerce de Bordeaux itself is also challenged, having regard to the composition of that particular court and the fact that the litigation which came before it concerned a dispute between Marie Brizzard, a company based in the Bordeaux region of France, and Grants, two Scottish companies.

[17]Notwithstanding the terms of Grants' 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 Grants 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.

[22] It is convenient at this stage to quote Articles 38 and 39 of the Convention. Articles 38 and 39 provided as follows:-

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 Grants and that Marie Brizzard 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 William Grant & Sons Limited and William Grants & 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. William Grant 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. William Grant 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 William Grant 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 William Grant & 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.

[25]For the sake of completeness, I should record that in an earlier Opinion in this process, dated 10 November 2001, I dealt with a motion on behalf of Grants, which sought recall of arrestments on the dependence of the petition, which had been laid by Marie Brizzard in furtherance of a warrant granted by Lord McEwan. For the reasons set out in that Opinion, I granted that motion and ordered the release of certain funds that had been consigned by Grants.

Hearing on Grounds of Appeal

[26]The hearing before me extended over four days. During the first two days, I was addressed by junior counsel for Grants. Much of his submissions were directed at persuading me to follow the course adopted by Lord Clyde and to refer certain questions as to interpretation of the Brussels Convention to the European Court of Justice for a preliminary ruling. Two documents, Nos. 7/29 and 7/30 of Process, were lodged on behalf of Grants, setting out drafts of those questions. It was submitted that all these questions required to be referred to the European Court of Justice, before I could decide either Grants' application, in terms of Article 38 of the Brussels Convention, for a stay of their Article 36 appeal, or the Article 36 appeal itself. Later during the hearing, senior counsel for Grants departed from that suggestion and accepted that it is was open to me to decide Grants' appeal under Article 36, without referring any preliminary questions to the European Court of Justice. I agree. I leave open at this stage the question as to whether any such reference may be required, in relation to Grants' 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 Brizzard and Grants 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 Grants came to address me, the motion made on behalf of Grants was that I should allow Grants' appeal under Article 36 against Lord McEwan's interlocutor of 1 May 2001 or, alternatively, stay these proceedings in terms of Article 38. Marie Brizzard, 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 Grants 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, Grants' 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 Brizzard, Grants' 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 Grants' 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 Brizzard 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 Brizzard 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 Grants, 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 Grants 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 Grants 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 Brizzard 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 Brizzard and Grants, including the constitution, jurisdiction and powers of the Cour d'Appel de Bordeaux and the Cour de Cassation, before deciding whether Grants' entitlement in terms of Article 6(1) was infringed? Counsel for Grants invited me to adopt the former approach and counsel for Marie Brizzard the latter.

Submissions on behalf of Grants

[31]Following on from the terms of their application to the European Court of Human Rights, Counsel for Grants argued that by reason of its constitution and procedures the Tribunal de Commerce de Bordeaux had failed to comply with the requirements of Article 6(1). Counsel for Grants argued that after Marie Brizzard raised their action in the Tribunal de Commerce de Bordeaux, Grants were entitled to a reasonable opportunity to comment on the case adduced by Marie Brizzard and to present their own case before a court that was so constituted and which discharged its functions in such a manner as to exclude any legitimate doubt on the part of Grants as to that court's independence or impartiality. The constitution and actings of the Tribunal de Commerce de Bordeaux had not been such as to exclude any legitimate doubts on the part of Grants as to that court's independence and impartiality. Grants' concern with regard to a lack of impartiality on the part of Tribunal de Commerce de Bordeaux was based on two factors:-

• There is a lack of appearance of objective impartiality on the part of the French Commercial Courts and Tribunals in general; and
• There was an effective lack of impartiality on the part of the Tribunal de Commerce de Bordeaux in the circumstances of this case.

When dealing with the alleged infringement of Grants' Convention rights under Article 6(1), senior counsel for Grants did not adopt the submissions of junior counsel to the effect that the Tribunal de Commerce de Bordeaux had lacked subjective impartiality, as well as objective impartiality.

[32]As one of the cornerstones of Grants' 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 Grants 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 Grants' 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 Grants 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 Grants 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).

[36]Counsel for Grants also sought to advance detailed criticisms of the Tribunal de Commerce de Bordeaux itself. It was submitted that the constitution of that particular Court and its actual conduct of the proceedings between Marie Brizzard and Grants would, not unreasonably, have reinforced doubts about the Court's independence and impartiality. Grants point out that Marie Brizzard is a long established and major commercial concern in Bordeaux. Grants also found on the fact that in January 1995 the President of the Chamber of Commerce in Bordeaux was a part owner and managing director of Marie Brizzard. Grants stress that the judges of the Tribunal de Commerce de Bordeaux were elected from within and by the membership of the Chamber of Commerce of Bordeaux. The Court actually sat within the chambers of that Chamber of Commerce. Grants also found on the fact that in 1995 an employee of Marie Brizzard was an elected member of the Tribunal de Commerce de Bordeaux, although they accept that the individual concerned played no part in the proceedings between Marie Brizzard and Grants and in delivering the Judgement of 27 January 1995.

[37]Although it was stressed by senior counsel for Grants 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 Grants that certain aspects of the Tribunal de Commerce de Bordeaux' s conduct had reinforced, again not unreasonably, Grants' doubts as to a lack of impartiality of the Tribunal de Commerce de Bordeaux. Counsel for Grants submitted that it was not clear to Grants 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 Grants, when they terminated their distribution agreement with Marie Brizzard. 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. Grants 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 Brizzard. Nor, before the Tribunal de Commerce de Bordeaux, had Grants been given any opportunity to examine the authors of a report on which Marie Brizzard 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 Brizzard'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 grants [Marie Brizzard] as compensation for the insufficient notice."

Senior counsel for Grants 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 [Grants] and the effect of their sudden decision on the image of [Marie Brizzard] 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 [Grants] to pay to [Marie Brizzard]."

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 Grants 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 Grants that the Tribunal de Commerce de Bordeaux had been behaving in a manner that was not impartial, so far as the claims by Marie Brizzard were concerned. Relevant to that suspicion, of course, were the facts that Marie Brizzard is one of the oldest established commercial concerns in Bordeaux, that the part owner and managing director of Marie Brizzard 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 Grants 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 Grants as to the independence and impartiality of the Tribunal de Commerce de Bordeaux. It was sufficient for Grants 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 Grants' 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 Grants' 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 Grants founded on the manner in which the Tribunal de Commerce de Bordeaux had conducted the proceedings before them, he stressed that Grants 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 Grants 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. Grants 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 Brizzard now seek to enforce in Scotland.

[42]Having regard to the detail of that chapter of the submissions on behalf of Grants, it is appropriate to look further at what happened when Grants' 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 Brizzard. That evidence was not disputed by Grants nor countered by any affidavit evidence lodged on behalf of Grants. Whilst the affidavit of Maître Eduard Marsissens, lodged on behalf of Grants, 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 Grants did not seek to dispute the evidence placed before me by Marie Brizzard as to the jurisdiction, powers and procedure of the Cour d'Appel de Bordeaux. Grants 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 Brizzard should have been given an additional year's notice, when Grants 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.

[44]Senior counsel for Grants argued that the failure of the Tribunal de Commerce de Bordeaux to meet the requirements of Article 6(1) vitiates the whole of the legal proceedings in France and, in particular, the Judgement of the Court of Appeal of Bordeaux, dated 29 January 2001, which Marie Brizzard now seek to enforce in Scotland. That was because when the Judgement of the Tribunal de Commerce de Bordeaux dated 27 January 1995 first came before the Cour d'Appel de Bordeaux on appeal, only part of the Judgement of the Tribunal de Commerce de Bordeaux had been quashed. Looking to the terms of the Judgement of 11 June 1996 (No. 6/34 of Process) and in particular to the passage from that Judgement, which I have already quoted (in paragraph [7] above), senior counsel for Grants argued that it was clear that the Cour d'Appel de Bordeaux had not quashed the whole Judgement of the Tribunal de Commerce de Bordeaux. The Cour d'Appel de Bordeaux's Judgement had not stated explicitly that was what was being done. Nor when the matter was looked at objectively, did that appear to have happened. Indeed, page 3 of the subsequent Judgement of the Cour d'Appel de Bordeaux, dated 29 January 2001, had stated "By a ruling dated June 11,1996, ... the present Court, amongst other things, confirmed the judgment handed down by the Bordeaux Tribunal de Commerce on August 27, 1995, stating that reasonable notice of termination of the distribution agreement ... should have been an additional year, ending December 30, 1994". Thus, so it was argued, the Tribunal de Commerce de Bordeaux' s determination that the notice of termination of the distribution agreement "should have been an additional year, ending on 30 December 1994" was a determination that had been rendered irrevocable by the Judgement of the Cour d'Appel de Bordeaux dated 11 June 1996. That meant that the Tribunal de Commerce de Bordeaux's determination on that particular issue had become no longer open to challenge and now constituted one of the foundations of the Judgement of the Cour d'Appel de Bordeaux dated 29 January 2001. Put shortly, if material parts of the Judgement of the Tribunal de Commerce de Bordeaux still existed, then that Judgement could not be divorced from the Judgement of the Cour d'Appel de Bordeaux dated 29 January 2001, which Marie Brizzard now seek to enforce. It was also submitted that, in any event, this Court should consider whether there was any objective justification for Grants perceiving that a material part of the Tribunal de Commerce de Bordeaux's Judgement had not been quashed by the Cour d'Appel de Bordeaux, but rather had been affirmed by that appellate court. .

[45]Counsel for Grants argued that the fact that the Cour d'Appel de Bordeaux was a Convention compliant court did not assist Marie Brizzard. If, on account of its particular structure and organisation, the Tribunal de Commerce de Bordeaux had not complied with the requirements of Article 6(1), Grants' Convention rights had been infringed, notwithstanding the powers of Cour d'Appel de Bordeaux to revisit all questions of fact and law that had been before the Tribunal de Commerce de Bordeaux. The mere involvement of an appellate court could not cure an Article 6(1) problem that arose out of the structure of the court of first instance. That was illustrated by Starrs v Ruxton 2000 JC 208 and Miller v Dickson 2001 SLT 988. Moreover, the Tribunal de Commerce de Bordeaux was a "court of the classic kind". It had to be Convention compliant in its own right. Reference was made to De Cubber v Austria (1984) 7 E.H.R.R 236, paragraphs 32 and 33.

[46]Senior counsel for Grants argued that it was open to Grants to found upon the Tribunal de Commerce de Bordeaux's infringement of their Convention rights under Article 6(1), even although that point had never been raised in France in the appeals before the Cour d'Appel de Bordeaux and the Cour de Cassation. Merely because Grants had not taken any point about Convention rights, during the appellate process, did not deprive them of the right to found, in the present proceedings, on the public policy exception to enforcement. There was no rule of Scots law that a party, such as Grants, seeking to oppose the enforcement of a decree of a foreign court, must first have exhausted all their remedies in the country of that foreign court. What had happened was that Grants had been advised by their French lawyers not to raise this issue. They were advised that the French Courts would not sustain the argument now being advanced and that raising the argument might well prejudice Grants' position in respect of other issues. Grant's decision not to take the point before the French courts should not therefore be viewed as their having waived their Convention rights in terms of Article 6(1).

[47]Senior counsel argued that because the Judgement of 29 January 2001 is tainted by the Tribunal de Commerce de Bordeaux's failure to meet the requirements of Article 6(1), it would follow that this Court would itself violate Grants' Convention rights under Article 6(1) by allowing recognition and enforcement of that Judgement of the Cour d'Appel de Bordeaux under the Brussels Convention. It would be contrary to the public policy of the United Kingdom to allow the Judgement of the Cour d'Appel de Bordeaux to be enforced. Accordingly, Article 27 (1) of the Brussels Convention applied. In any event, were this Court to enforce the Judgement of the Cour d'Appel de Bordeaux, doing so would place the Court in breach of the provisions of section 6(1) of the Human Rights Act 1998.

Submissions on behalf of Marie Brizzard

[48]Senior counsel for Marie Brizzard, on the other hand, argued that the correct approach was to look at the proceedings in France as a whole. It was Grants' entitlement "to a fair and public hearing ... by an independent and impartial tribunal" that was the fundamental consideration for the purposes of Article 27.1 of the Brussels Convention. It was submitted that upon a proper analysis of the Strasbourg jurisprudence this Court should consider the whole proceedings in France, including what had taken place before the appellate courts. When an issue such as that raised by Grants requires to be resolved, the full circumstances of the case should be examined to determine whether any violation of Article 6(1) has taken place and, if so, whether any initial violation of Article 6(1) by a court of first instance has been remedied by the existence and nature of the appellate procedures available. That was the position with cases in "courts of the classic kind", as well as with cases involving administrative tribunals. In some cases, particular criminal cases, it might be unlikely that appeal proceedings would be capable of remedying any initial violation. It was submitted, however, that there was nothing in the Strasbourg jurisprudence that compelled the Court of Session to ignore everything that had taken place since 1995 and to decide Grants' appeal in this Court solely on the basis of what may have occurred when Marie Brizzard's action was before the Tribunal de Commerce de Bordeaux.

[49]The main focus of the submissions of senior counsel for Marie Brizzard was that any violation of Article 6(1) that may have occurred when the proceedings were before the Tribunal de Commerce de Bordeaux would have been remedied when the case came before the Cour d'Appel de Bordeaux for the first time. He founded on the contents of the second affidavit of Maître Dupeux as to the procedure before and powers of the Cour d'Appel de Bordeaux. As a matter of fact, there had been a complete rehearing of all questions of law and fact in the case, before an appellate court whose compliance with Article 6(1) was not challenged in any respect. Grants' full defence to the action raised by Marie Brizzard, including the issue of the appropriate period of notice for termination of the distribution agreement had been considered de novo, by a court whose independence and impartiality is unchallenged. In the absence of any oral evidence having been presented in either court, no question arose of the Tribunal de Commerce de Bordeaux having had any advantage over the Cour d'Appel de Bordeaux. From the Cour d'Appel de Bordeaux, the case had gone to the Cour de Cassation. It was important to note that following upon that court's rejection of Grants' pourvoi, the case had been returned to the Cour d'Appel de Bordeaux, not to the Tribunal de Commerce de Bordeaux.

[50]During the course of this chapter of his submissions, senior counsel for Marie Brizzard referred to Adolf v Austria (1982) 4 E.H.R.R 313, paragraphs 38 - 40, De Cubber v Austria (1984) 7 E.H.R.R 236, paragraphs 32 and 33, Aksoy v Turkey (1996) 23 E.H.R.R. 553, paragraph 51, Edwards v United Kingdom (1997) 24 E.H.R.R. 221, paragraphs 30 - 39, and Brown v Stott 2001 SLT 59.

[51]Senior counsel for Marie Brizzard also founded on the fact that any complaint by Grant as to a lack of objective impartiality on the part of the Tribunal de Commerce de Bordeaux could have been raised by Grants before the Tribunal de Commerce de Bordeaux itself, when the action came before the Cour d'Appel de Bordeaux and also when it came before the Cour de Cassation. That had not occurred. Had the complaint been raised before the Tribunal de Commerce de Bordeaux, the case could have been transferred to another Commercial Court. Before the Cour d'Appel de Bordeaux and also before the Cour de Cassation, the complaint could have been advanced as a ground for quashing the decision of the Tribunal de Commerce de Bordeaux. Indeed the complaint is not raised in the appeal that is currently before the Cour de Cassation. In such circumstances it was not open to Grants to challenge the impartiality of the Tribunal de Commerce de Bordeaux, when it had the opportunity to do so in France, but had consciously refrained from doing so. Reference was made to Bulut v Austria (1996) 24.E.H.R.R 84, paragraph 34. If Grants had had the opportunity to take the point in France, and had not done so, then there had been no breach of the requirements of Article 6(1). Senior counsel for Marie Brizzard made clear that he was not arguing that at any stage of the proceedings in France that Grants had waived their entitlement to their Convention Rights under Article 6(1) (cf. Miller v Dickson 2001 SLT 988). Nor did he argue any other form of personal bar, based on Grants' failure to exhaust their domestic remedies in France. What he contended was that Grants' acknowledgement that the point could have been taken by them in France illustrated that the French courts had made available to Grants all they were entitled to in terms of Article 6(1).

[52]Having regard to the principal focus of his submissions, senior counsel for Marie Brizzard submitted that it was not necessary that I consider whether the Tribunal de Commerce de Bordeaux was Article 6 compliant. But in the alternative, he invited me to hold that Grants had not placed sufficient evidence before me to hold that the Tribunal de Commerce de Bordeaux had not complied with the requirements of Article 6(1). It was argued that the Tribunal was one of a system of Commercial Courts and Tribunals that had survived over a considerable period of time, without having been successfully challenged as lacking objective impartiality. It was necessary to look behind appearances before deciding that the realities of the Tribunal's practice failed to meet the requirements of Article 6(1) (reference was made to Delcourt v Belgium (1979-80) 1 E.H.R.R. 355, paragraphs 31 and 36). This Court would require to be provided with much more information than it had been, before it should form any view that the Tribunal was not Article 6(1) compliant. There was nothing in the documentary material founded upon by Grants that suggested that the French Government or the National Assembly of France have any concerns as to a structural lack of impartiality of Commercial Courts and Tribunals. In that regard, it was important to bear in mind that even if the legislative proposals founded upon by Grants were to be implemented, a litigation such as the present would come before a Commercial Court or Tribunal composed entirely of elected lay judges.

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 Grants in terms of Article 36 of the Convention. That appeal relates to Marie Brizzard'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 Grants contend that the Judgement that Marie Brizzard 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 Grants, after the Tribunal de Commerce de Bordeaux handed down on 27 January 1995, and what has actually taken place, since Grants 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 Grants 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, Grants 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 Brizzard and Grants. 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 Grants 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 Grants 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 Brizzard and Grants "should have been an additional year, ending December 30^th 1994", is one of the foundations of the Judgement of the Cour d'Appel de Bordeaux of 29 January 2001 that Marie Brizzard 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 Grants' 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 Brizzard and Grants. Accordingly if any infringement of Grants' 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 Grants 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 Grants 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 Grants 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 Grants 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 Grants 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 Grants' 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 Grants 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 Grants. 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 Grants and Marie Brizzard have been engaged since 1993.

[66]There is no dispute that the question as to whether Grants 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 Grants' 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 Grants 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 Grants 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, Grants 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 Grants' 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 Grants, 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 Grants 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 Grants 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 Grants's appeal in terms of Article 36 of the Brussels Convention.

[65]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

[66]During the course of the hearing, I also received submissions on behalf of both parties relating to the second matter raised in Grants' Grounds of Appeal, namely that these proceedings should be stayed in terms of Article 38 of the Brussels Convention, pending the outcome of Grants' 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 Grants' Article 36 appeal were to be refused.

[67]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 Brizzard providing security and, if so, what that security should be.

[68]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.