Forum Shopping in the European Judicial Area (Sstudies of by Pascal de Vareilles-Sommieres

By Pascal de Vareilles-Sommieres

One of many matters left untouched by means of the Brussels conference of September 27, 1968 (and through the Brussels-1 legislation exchanging it) issues the leeway left to household courts while utilising ecu ideas on overseas jurisdiction in civil and advertisement concerns. for example, is the courtroom lower than an obligation of strict compliance with the jurisdiction rule because it is drafted? could the sort of responsibility cross as far as to require the court docket to abide through the jurisdiction rule, although it is getting used through one of many litigants to accomplish an unfair outcome, for instance to hold up adjudication at the advantages? less than what stipulations may well the court docket decline jurisdiction as a result of any fallacious discussion board buying, hence ruling out the eu provision on jurisdiction? contemporary litigation within the ecu courtroom of Justice (ECJ) has excessively yielded restrictive solutions, ruling out any discretion by way of household courts to treatment any inconvenience coming up from the stern software of the ecu provisions, if such discretion have been supplied for by means of the lex fori — the Gasser case, the Turner case, and the Owusu case. This sequence of rulings from the ECJ increases a number of questions. such a lot observers have puzzled the appropriateness of prescribing a blind program of eu ideas on jurisdiction via household courts, hoping on the felony traditions of EC Member States often supplying for corrective mechanisms — comparable to discussion board non conveniens in English legislations and exception de fraude in French legislations — in situations whilst a celebration abusively triggers the jurisdiction of a court docket that allows you to receive an unjust virtue, therefore training unacceptable discussion board purchasing. The time has now come for an research, less than either EC legislation and comparative legislation, of the ramifications of the hot Gasser/Turner/Owusu circumstances. This choice of experiences by means of many of the top English and French specialists analyzes the fine details of jurisdiction and discussion board procuring in Europe.

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24 And, in any event, cases such as Gasser clearly involve the prospect of parallel proceedings and irreconcilable judgments concerning jurisdiction. Parallel Proceedings in Gasser However it might have arisen, the Court in Gasser was presented with different possible solutions to the problem of parallel proceedings. 25 If a claimant invokes the jurisdiction of a Member State’s courts, where the parties have agreed that another Member State’s courts should have jurisdiction, the first court should stay its proceedings until the agreed court has declined jurisdiction.

83 But this may be what the European Court has wrought since the creativity of the common law and its adherence to a private law model of adjudication will not easily be subjugated. THE OWUSU CASE: THE REJECTION OF ‘FORUM NON CONVENIENS’ The three passages which have been extracted from the judgment of the Court for particular comment essentially represent the principal reasons given by the Court for rejecting the application of the doctrine of forum non conveniens to regulate jurisdiction between the courts of a Contracting State and the courts of a non-Contracting State: (1) no exception on the basis of forum non conveniens was provided for on the accession of the United Kingdom in 1978; (2) the operation of the Convention would be rendered too uncertain; in particular, both defendants and claimants should be able to predict with reasonable certainty where the case between them may be heard; and (3) since the doctrine of forum non conveniens is recognised only in a limited number of Contracting States, to allow it to operate in cases like Owusu would affect the uniform application of the rules of jurisdiction contained therein.

They concern not jurisdiction over the merits of the dispute, but the issue of competence-competence, jurisdiction to determine jurisdiction. They concern which court is entitled to determine the validity and effect of an alleged jurisdiction agreement. Secondly, for similar reasons, the question is not whether Article 27 trumps Article 23. It clearly does not. In such cases, the potential defendant’s pre-emptive strike occurs before any court has determined the effect of the jurisdiction agreement, and thus whether Article 23 is engaged at all.

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