Lloyd's Maritime and Commercial Law Quarterly
Forum non conveniens and ideal Europeans
Adrian Briggs*
This article deals with and develops the final point made in the previous article by Mr Peel, who considers whether and when an English court retains a discretion to decline to adjudicate claims brought against a defendant who is subject to the allegedly mandatory jurisdiction of the English courts under Art 2 of the Judgments Regulation. Its conclusion is that the discretion does survive in the cases identified by Mr Peel, but that a parallel justification for this is to be found in the doctrine of French writers. This should make it clear that an English court should not fear the criticism that a decision to stay proceedings in these instances would be inconsistent with
Owusu v.
Jackson, or that it would be a misguided attempt to resuscitate a common law principle which had been held to be wholly inconsistent with the Judgments Regulation. On the view taken here, the exercise of a carefully tailored jurisdictional discretion would be wholly consistent with the views of influential civilian jurists.
In his analysis of the decision of the European Court in Owusu
v. Jackson
, 1
Mr Peel2
advances the highly satisfactory argument that an English court should conclude that it has power to decline to hear a case, brought against a defendant domiciled in England but involving a connection with a non-Member State which, were it with a Member State, would have fallen within what is now Art 22, or 23 or 27 of the Judgments Regulation.3
This note is intended to lend weight to that suggestion, and to give further support to the submission that the way for an English court to do this is by the application of the doctrine of forum non conveniens
within the space left for it after the decision in Owusu
. The contention of this postscript to Mr Peel is that a distinct line of argument, emanating from French writers, complements and reinforces the approach which he proposes. It would be unfortunate if anyone were to conclude that this mainly gallic analysis is an alternative to what Mr Peel proposes, and it would be mistaken too for anyone to conclude that the two views were opposed to each other.
Mr Droz set the scene for the debate.4
If, he said, by reason of what is now Art 22 of
* Professor of Private International Law, University of Oxford; Fellow and Tutor in Law, St Edmund Hall; Barrister.
1. (Case C–281/02
) (forthcoming); [2005] 2 WLR 942. For other aspects of the decision, see the writer’s note at (2005) 121 LQR (forthcoming).
2. E Peel, “Forum non conveniens
and European Ideals” [2005] LMCLQ 363.
3. Council Regulation (EC) 44/2001.
4. “Si un juge français est radicalement incompétent pour juger d’un immeuble ou d’un brevet allemand, en raison de la specificité, et de la particularité, du droit réel ou droit des brevets allemands, on ne voit pas pourquoi il serait mieux armé pour juger d’un bail rural argentin ou de la validité d’un brevet japonais!”: [1990] Revue critique de droit international privé
1, 14.
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