Term Paper on "Ecj the Practice of Forum Non-Conveniens"

Term Paper 14 pages (3888 words) Sources: 1+

[EXCERPT] . . . .

ECJ

The practice of forum non-conveniens has long been at the forefront of legal debate. Many experts have long contended that when a case involves individuals or businesses for which the domiciles are different the case should be heard in a location that is the most convenient. The discussion will focus on the practical implications of the ECJ decision Owusu v Jackson (1 march 2005, EU: Case C-281/02) on the ability and powers of the English court to decide whether to hear a case or not on the basis of forum (non)conveniens. Let us begin our discussion by defining non-forum conveniens and its implications.

Forum Non-Conveniens

The use of forum non-conveniens became a prominent issue 20 years ago with the Bhopal disaster that occurred in India. This disaster occurred at a pesticide plant, which was a subsidiary if a U.S. company called Union Carbide. The Leakage of toxic gas from the plant caused the deaths of 3800 people and the injuries of many more. In the aftermath of the disaster there an international legal case in which the idea of forum non-conveniens' was used by Union Carbide to evade a lawsuit in the United States. The article explains that Under this doctrine, courts can dismiss or 'stay' a case if the location is inappropriate or inconvenient for the defendant. Forum non-conveniens has been routinely used by U.S. corporations over the last two decades to block cases involving personal injury and/or environmental damage suffered overseas. UK companies have used the doctrine in a similar way (Bhopal 20 years on: forum non-conveniens...2005)."

The article also asserts that there is a traditional and new form of the concept of forum non-conveniens. The traditional view came about as a result of the St. Pierre Case decided in the UK. This case found that "a court could not refuse to consider a case within its jurisdiction unless the plaintiff's choice of forum was:...oppressive or vexatious to the defendant or would be an abuse of process in some other way (Bhopal 20 years on: forum non-conveniens...2005)." The belief concerning the traditional use of forum non-conveniens was that such a rule would prevent a spiteful plaintiff from deliberately harassing a defendant through legal action in an inconvenient location. Because taking a company to court in its home country could not amount to harassment, local corporations had no escape from their home courts under the traditional concept of forum non-conveniens.

The article also explains that a new concept of forum non-conveniens came about in the 1980's in the United Kingdom and in the United States.

The article asserts that the old concept of forum non-conveniens was discarded because of the drastic increase in the number of commercial litigation that flooded the courts which usually involved foreign parties. Thus, in lieu of the traditional system these two countries developed a "more appropriate" or "more suitable approach to such suits. This approach involves the balancing of foreign and local factors to determine which location is a more natural fit to host the case. The article asserts that this new approach places an immediate handicap on foreign plaintiffs, especially in human rights cases, where the event causing the injury or damage, the witnesses and much of the evidence would invariably be located in the plaintiff's own country -- key factors suggesting a forum non-conveniens dismissal under the new doctrine.

Osuwu V Jackson and forum non-conveniens

Now that have garnered a better understanding of the concept behind forum non-conveniens, let us examine the case at hand and the impact that it will have on the previously discussed procedure. It is important to note that the reference for the preliminary ruling in this case concerns the interpretation of Article 2 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L. 304, p. 36)... According to its preamble the Brussels Convention is intended to facilitate the reciprocal recognition and enforcement of judgments of courts or tribunals, in accordance with Article 293 EC, and to strengthen in the Community the legal protection of persons therein established. The preamble also states that it is necessary for that purpose to determine the international jurisdiction of the courts of the contracting States. The provisions relating to jurisdiction appear in Title II of the Brussels Convention. According to Article 2 of the Convention: 'Subject to the provisions of this Convention, persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that State. Persons who are not nationals of the State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that State'. However, Article 5(1) and (3) of that convention provides that a defendant may be sued in another Contracting State, in matters relating to a contract, in the courts for the place of performance of the obligation in question, and, in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred (."

According to Hawkings (2005) the claimant in this case (Owusu) was living in the United Kingdom and rented a holiday villa in Jamaica from the first defendant who was also domiciled in the United Kingdom in 1997 (Hawkings 2005). This vacation house had access to a private beach, which the claimant frequented. When visiting the beach the claimant injured his head as a result of a diving accident in which he struck a sandbank (Hawkings 2005). This accident caused the claimant to suffer a C5 tetraplegia (Doherty 2005). The case file reported that another English vacationer had suffered a similar accident two years earlier in which she, was also left tetraplegic (Judgment of the Court...2005). As a result of this earlier accident the action in tort against the Jamaican defendants encompasses not only assertion that they failed to warn swimmers of the hazard presented by the submerged sand bank, but also an assertion that they failed to take note of the earlier accident (Judgment of the Court...2005).

He sued Mr. Jackson and 5 other defendants, who were all involved in one way or another with the control and management of the beach off which the accident happened (Doherty 2005). These defendants included The Enchanted Garden Resorts & Spa Ltd., Mammee Bay Resorts Ltd., Mammee Bay Club Ltd., Consulting Services Ltd., and Town & Country Resorts Ltd. (Judgement of the Court...2005). These 5 defendants were all domiciled in Jamaica, and had carried out no relevant activities outside that country (Doherty 2005).

According to Doherty (2005) Jackson had insurance coverage on his villa but claims could only be made in Jamaica. In addition, the type of coverage that the defendant had would not be sufficient to cover a claim involving a tetraplegia injury (Doherty 2005). On the other hand, many of the other defendants had adequate insurance coverage (Doherty 2005). The author asserts that Mr. Jackson applied to have the claim in England stayed on grounds of forum non-conveniens and all the Jamaican defendants applied to have service against them set aside. Almost all the relevant acts or omissions happened in Jamaica, and Jamaican law was clearly the law of the torts and arguably the law of the contract between Mr. Owusu and Mr. Jackson. The claimant, however, contended that there was no power to stay the claim against Mr. Jackson at all. To do so would be inconsistent with the Brussels Convention (which was in force at the relevant time), since Article 2.1 provides a mandatory requirement that (unless other articles override) a person be sued in the state of his domicile. Mr. Jackson was domiciled in England, and Mr. Owusu had an indefeasible right to sue him here (Doherty 2005)."

However Doherty (2005) reports that this same principle could not be applicable to the other five defendants. The rational for why Jackson could be tried in England but the other defendants had to be tried in Jamaica is quite simple. In this particular case, the defendants asserted that the Brussels Convention regulated jurisdiction amongst Member States, not amongst a Member and a non-Member State, which was not a matter of legitimate Community interest (Doherty 2005). Such an argument wad consistent with previous English authority: In re Harrods [1992] (Doherty 2005).

The judge affirmed the argument of the defendants that Jamaica was the appropriate forum to stay the case (Doherty 2005). Nevertheless, he agreed with Mr. Owusu's argument that the Brussels Convention prohibited a stay against Mr. Jackson, and so declined to stay the claim against any defendant (Doherty 2005). In addition, the author reports that the Court of Appeal did not appear entirely to support the judge's argument, but believed the matter needed to be referred to the European Court of Justice (Doherty 2005).

The Court of Appeal questioned the European court concerning whether, given the state of affairs, a court could implement a discretionary power, accessible under its national law, to reject jurisdiction in favor of the courts of a non-contracting state… READ MORE

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