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I. Forum non conveniens and the Brussels Convention

Published online by Cambridge University Press:  17 January 2008

Peter McEleavy  and
Gilles Cuniberti
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Extract

On 1 March 2005 the European Court of Justice in Owusu v Jackson held that the English doctrine of forum non conveniens was inconsistent with the Brussels Convention (the ‘Convention’) when a defendant was domiciled in the United Kingdom, even if the natural forum was in a Non-Contracting State.

Type
Current Developments Private International Law
Information
International & Comparative Law Quarterly , Volume 54 , Issue 4 , October 2005 , pp. 973 - 981
Copyright
Copyright © British Institute of International and Comparative Law 2005

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References

1 C-281/02.

2 CPR 3.1(2)(f).

3 [2002] EWCA Civ 877. There had been an earlier attempt to refer the issue of the compatibility of forum non conveniens with the Convention, but that case had settled before the European Court could deliver a ruling: see Re Harrods Ltd (Buenos Aires) Ltd [1992] Ch 72.

4 Report of Professor Schlosser on the Convention of 9 Oct 1978 on the Accession of Denmark, Ireland, and the United Kingdom (OJ 1979 C59, 71), at paras 77 and 78.

5 Or, alternatively, that being a procedural rule, it does not fall within the scope of the Convention, but that its application would impair the effectiveness of the Convention, see: North, PM and Fawcett, JJCheshire and North's Private International Law (13th ednButterworths London 1999) p 266 n 20.Google Scholar

6 Risk of irreconcilable judgements, possibility to consolidate both actions before the court seised in the first place, courts of first instance.

7 English courts may also issue anti-suit injunctions which, from the Continent, appears as an even more controversial reaction. The European Court of Justice ruled in Turner v Grovit (C-159/02; see also T Kruger ‘The Anti-Suit Injunction in the European Judicial Space: Turner v Grovit (2004) 4 ICLQ 1030; that anti-suit injunctions are also incompatible with the Brussels Convention.

8 See Gaudemet-Tallon, H (Bruylant LGDJ Brussels/Paris 1994) Rev Crit DIP 387; A Nuyts L'exception de Forum Non Conveniens (Bruylant LGDJ Brussels/Paris 2003) p 289.Google Scholar

9 As the Convention aims at harmonizing the law of the Contracting States, it seems clear that the scope of the European answer extends to the cases where European requirements are not met, such as potential litigation. The rule is then that such parallel litigation is not worth addressing and that there is no power to decline jurisdiction.

10 C-412/98 [2000] ECR I-5925.

11 See also Dillon, LJ in Re Harrods (Buenos Aires) [1991] 4 All ER 334, at 342 f.Google Scholar

12 Group Josi (n 10).

13 See, eg, Group Josi (n 10) p 35; C-256/00 Besix [2002] ECR I-1699, p 52.

14 Obviously, once informed by his lawyer of the rule of Art 2 and the potential higher award of damages that an English court could grant, the venue could be, to say the least, more foreseeable for the defendant. However, it is submitted that, when it refers to ‘well-informed defendants’, the European Court does not have in mind defendants who have sought legal advice, but rather potential defendants who have not yet taken such step. Indeed, after consulting their lawyers, defendants are not merely ‘normally well informed’ and thus able to ‘reasonably foresee’ before which court they will be sued, they know the law and their rights and thus the available fora to claimants.

15 Arts 4(5).

16 Draft Regulation on the Applicable Law to Non-Contractual Obligations, 3 May 2002, Art 3(3). See also Proposition for a European Convention on the Law Applicable to Non-Contractual Obligations, 1998, Arts 3 and 7.

17 Briggs, A and Rees, PCivil Jurisdiction and Judgments (3rd ednLLP London 2002) para 2.216.Google Scholar

18 Briggs and Rees ibid para 4.15.

19 Haji-Ioannou v Frangos [1999] 2 Lloyd's Rep 337.

20 International Credit and Investment Co (Overseas) Ltd v Adham [1999] ILPr 302, 309.

21 Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 482.

22 (11) The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant's domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject matter of the litigation or the autonomy of the parties warrants a different linking factor.

23 Overseas Union Insurance Ltd v New Hampshire Insurance Co C-351/89 [1991] ECR I-3317.

24 Société Mignera Di Fragne, Cour de Cassation, 26 Nov 1974 (1975) Clunet 108 comm Ponsard; (1975) Rev Crit DIP 491 comm D Holleaux.

* Law Lecturer, Paris XII University; Avocat à la Cour, Paris.