Lloyd's Maritime and Commercial Law Quarterly
LIS ALIBI PENDENS AND FORUM NON CONVENIENS IN COLLISION ACTIONS AFTER THE CIVIL JURISDICTION AND JUDGMENTS ACT 1982
Elizabeth Blackburn*
Introduction
Articles 21, 22 and 23 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters1 (the Jurisdiction Convention), now enacted in the Civil Jurisdiction and Judgments Act 1982 (the 1982 Act), have further developed the law relating to the staying of proceedings and the principles which should be applied when there are identical or closely related proceedings pending in another forum.
In the last decade, the House of Lords, in a series of decisions beginning with MacShannon v. Rockware Glass Ltd.2 and culminating in Spiliada Maritime Corporation v. Cansulex Ltd.,3 has brought English law into line with Scottish law, so that, prior to the coming into force of the 1982 Act, the English courts had a discretion to stay an action on the basis that there was clearly or distinctly shown to be some more appropriate forum, having competent jurisdiction, in which the action might be tried more suitably for the interests of all the parties and for the ends of justice. In the Spiliada case, Lord Goff specifically stated that he could see no reason why the English court should not refuse to grant a stay in a case where there was no natural or clearly more appropriate forum, such as would generally be the case where there was a collision on the high seas between vessels of different flags.4 In The Abidin Daver,5 where the collision occurred in the Bosporus and one of the colliding ships was Turkish, Turkey was held to be a clearly more appropriate forum than England. However, the doctrine of forum non conveniens is not known on the Continent.6
* Barrister
1. Dated 27 September 1968, including the 1971 Protocol on the interpretation of the Convention by the European Court, Luxembourg, 3 June 1971. At present there are eight states which are Contracting States for the purposes of the 1982 Act, namely: France, West Germany, the Netherlands, Luxembourg, Belgium, Italy, the United Kingdom and Denmark. It is expected that Ireland will soon become a party to the Jurisdiction and Judgments Convention, and at some stage so will Greece, Spain and Portugal. On the effect of the Convention on maritime claims, see generally G. Brice, Q.C., “Maritime Claims: the European Jurisdiction Convention” [1987] 2 LMCLQ 281; D. C. Jackson, Civil Jurisdiction and Judgments: Maritime Claims (1987).
2. [1978] A.C. 795.
3. [1987] A.C. 460, noted by Briggs [1987] 1 LMCLQ 1.
4. At p. 477.
5. [1984] A.C. 398.
6. Brice, supra, fn. 1, 290; T. C. Hartley, Civil Jurisdiction and Judgments (1984), 79.
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