Term Paper on "International Trade Law"

Term Paper 14 pages (6183 words) Sources: 1+

[EXCERPT] . . . .

International Trade Law

In the case of Owusu vs. Jackson, of 1 March 2005, case number C-281/02, trading as 'Villa Holidays Bal Inn Villas', the judgment of the Court was that the English Courts must pay the costs. The decision, made in this particular case, leaves the English courts vulnerable to try any case, even though the Court may believe that this may not be the very bets forum in which to hear the case. In fact, England has been the most favored venue for those claimants, who become attracted to the jurisdiction in English courts, by the mere prospect of gaining for themselves generous awards in damages.

As a matter of fact, there have been several cases wherein the defendants of the cases have been attempting to resist being sued here, based of the fact that there would be a better country in which to try the same claim. However, after the case of Owusu vs. Jackson, for which Article 2 of the Brussels Convention would apply perfectly, a defendant who has been domiciled in the United Kingdom would no longer be entitled to ask the English Court to decline jurisdiction on the grounds of forum non-conveniens, that is, in other words, deciding that some other forum may be more appropriate for the case. Perhaps, because of this case, defendants have actually lost a very important and popular tactic in cases that have an international element in them.

What was the actual case? Mr. Owusu, an English claimant, filed proceedings against six defendants, one of whom was an Englishman, and the other five defendants were Jamaican. It must be noted that Jamaica is not a signatory of the Brussels Convention. What had happened was that Owusu had suffered a serious accident when he had been holidaying in Jamaica; in the villa that he had incidentally rented form the first defendant, Mr. Jackson, who was domiciled in England. Owusu then proceeded to sue Jackson for 'breach of contract', and the other five Jamaican defendants for 'negligence'. The defendants all argued that the case did in fact have closer links to Jamaica than to England, but to no avail. The judge rejected all the arguments of the defendants, and made the decision that England and not Jamaica was the appropriate forum for the particular case.

The judge also stated that he was not in any position to stay the action against Jackson, because of the fact that he was an individual who was domiciled in a Contracting State. This also meant that he would be unable to stay the action against the other defendants as well, because of the fact that this would mean that there would arise a definite risk that the Courts in two different jurisdictions would have to try the same facts and issues in the same case, and reach entirely different conclusions. After this statement was made by the judge, the defendants appealed to the Court of Appeals. The Court of Appeals subsequently referred to the Court of Justice, the question of whether or not, in the case that was brought under Article 2, the English Court would actually be able to exercise its 'forum non-conveniens' in favor of a non-contracting case, in this particular case, Jamaica.

The Court of Justice thereafter found that the Article 2 did in fact apply to any disputes that would arise out of a contracting and a non-contracting state. The Court also stated that article 2 was mandatory in nature, and that when the Convention had been drafted, there had been no provision made for any disputes based on forum non-conveniens, and therefore, the defendants' plea that, first and foremost, the distance between England and Jamaica was too much, and secondly, that the case needed to be assessed according to the standards in Jamaica, and not according to the standards of England, were all not applicable under the mandatory nature of Article 2. When the Court of Appeal asked the Court of Justice another important question, that is, whether or not a domestic court would be able to, under any circumstances, be able to exercise a 'forum non-conveniens' diction, like for example, if there were to be any litigation involving the same or similar cases before another court, the Court of Justice was not able to provide a satisfactory answer.

What was summarized in the case of Owusu vs. Jackson, was that when a defendant who has been domiciled in the United Kingdom has been sued under Article 2, then the English Court would in fact no longer have any discretion to stay the proceedings, even if it feels that the case appears to be appropriate enough to be heard elsewhere, in the primary and basic interest of justice. This type of decision, it is felt, would serve to encourage overseas claimants, especially in those cases where the legal systems may be developed to an infinitely lesser extent than that of England, and perhaps these claimants would attempt to follow claims against companies, in the English Courts because of this same reason. Furthermore, the foreign claimants may become attracted by the possibility of the availability of public funding, as it is the general case in England, for trying out group actions and also for the prospects of attractive and generous damage rewards that are accorded in English courts.

The ECJ made the decision in the case of Owusu vs. Jackson, that the 'Court has no jurisdiction to stay proceedings in favor of a non-contracting state'. This was a landmark judgment on the part of the ECJ, because of the fact that this was the judgment that actually put an end to the long drawn out controversy over whether or not the English Court has the power to stay the proceedings in favor of a non-contracting state, on the basis of a forum non-conveniens', namely, that the other jurisdiction would be more appropriate to deal with that particular case. The Court's decision was in fact contrary to a similar case, that of Harrods Buenos Aires Limited, in the year 1992, in which the Court of Appeals decided that it would not be the most appropriate to go to another jurisdiction to try the case. Therefore, it can be said that the ECJ's decision in the case of Owusu vs. Jackson, followed a recent line of discussions and debate, in which the ECJ had taken a stand of certainty over the flexibility that is generally demonstrated by the English law.

According to an e-bulletin that was prepared by the 'Herbert Smith Association', Owusu had struck his head in Mammee Bay, Jamaica, when he had been swimming. Owusu had in fact struck his head against a submerged sandbank, and as a result, had to suffer serious injuries. The holiday villa, in which Owusu had been swimming, had been let to him by the first defendant, Jackson, who was also a British domicile. Owusu sued Jackson, in the English Courts, stating that there had been a breach of an implied term that the beach in which Owusu was swimming would actually be free form any hidden dangers, and would be safe for the purpose of swimming. In the same action, Owusu also sued several Jamaican companies, which had either owned, or leased, or licensed the use of the beach in which Owusu had hurt himself.

What was alleged was the fact that there had been an earlier accident of the same kind some time earlier on the very same beach, and the Jamaican companies had failed to issue a warning of any sort, and in addition, and the fact was that had they posted a warning of some kind, then perhaps the accident would have been averted. The fact that the warning was not issued was quoted in the action against the Jamaican companies. The ECJ had in fact initially rejected the argument that had been put forward by the defendants, and by the United Kingdom Government, that according to the Brussels Convention and its domicile rules, in Article 2, there would be no possibility of application, because of the fact that the claimant, that is, Owusu, and one of the defendants, that is, Jackson, were in fact domiciled in the United Kingdom, and the other defendants were domiciled in Jamaica. Therefore, according to Article 2 of the Brussels Convention, what was stated was that according to the provisions of the Convention, those persons domiciled in a contracting state must, whatever shall be their nationality, they may be sued in the courts of that state.

The Court also stated that the Article 2 would not be subject to any condition wherein there would be as a result a legal relationship between several numbers of contracting states. However, in order for the convention to apply at all in the case, there must exist, an international element, as it did indeed exist in the case of Owusu vs. Jackson. The Court further went on to state that the 'forum non-conveniens' doctrine was in fact not applicable and… READ MORE

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