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Lloyd's Maritime and Commercial Law Quarterly

Book Reviews

CLAIMS FOR CONTRIBUTION AND REIMBURSEMENT IN AN INTERNATIONAL CONTEXT: Conflict-of-Laws Dimensions of Third Party Procedure. Koji Takahashi, Research Fellow, Institute of Maritime Law, University of Southampton. Oxford University Press, Oxford (2000) xlvi and 299 pp., plus 5 pp. Index. Hardback £65.
This addition to the Oxford Monographs in Private International Law, based on the author’s Ph.D. thesis at the London School of Economics, will be useful to specialist practitioners and academics but, due to sloppy editing by the publishers, it falls short of excellence. The book, as its title indicates, is concerned with claims of the nature described which may be based on tort, contract, equity, restitution or the Civil Liability (Contribution) Act 1978.
The author examines the jurisdiction and choice of law issues that arise and the extent to which res judicata principles prevent inconsistent decisions when the original and contribution claims are heard in different countries. He then examines the merits of third party procedure, its jurisdictional bases under the Brussels Convention, and the rules governing ex juris service.
The Convention adopted by the Civil Jurisdiction and Judgments Act 1982 has created a jurisdictional minefield where a defendant seeks to raise contribution issues in third party proceedings and the parties are domiciled in different Contracting States. The author comprehensively explores these difficulties and the complications introduced by proceedings for negative declarations, and exclusive jurisdiction or arbitration clauses. He also examines the use of the anti-suit injunction in aid of third party proceedings or later proceedings for contribution. His concluding chapters deal with the chain transactions commonly found in international commerce and the obstacles to back-to-back reimbursement resulting from the application of different laws.
The utility of this book with the treatment of the topics in depth can be gauged from a comparison with the necessarily succinct treatment of the major topics in Dicey & Morris on the Conflict of Laws, 13th edn (2000). Unfortunately the treatment of some topics is unsatisfactory. The discussion on pp. 27–28 suggests that Art. 5(1) of the Brussels Convention may apply to restitution claims. The text refers to Barclays Bank Plc v. Glasgow City Council [1993] Q.B. 429, but the decision of the House of Lords in the same case (Kleinwort Benson Ltd v. Glasgow City Council [1999] 1 A.C. 153) is only mentioned in a footnote. This is not good enough since Lords Goff, Clyde and Hutton held that Art. 5(1) had no application to restitution claims. On pp. 31–32 the author criticizes Lord Hutton’s interpretation of Art. 5(3) in the same case, which also excluded restitution claims, but he fails to mention that on this issue the House was unanimous.
The author’s treatment on pp. 82–83 of the effect of contractual terms on non-contractual liability for contribution is disappointing. Although, as he states, there is no direct authority on the point there is surely no reason for treating exclusion clauses differently in this area. He criticizes Dicey & Morris for suggesting that a contractual right to contribution will exclude any non-contractual right, but has misread the passage he quotes.
Chapter 4 deals with the potential for inconsistent determinations when a contribution claim is tried independently of the original claim. Some comments may be in order. At p. 94 the author states that a tortfeasor held liable for a negligent act may later fail against his insurer if his tortious act is

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