Forum Shopping in the European Judicial Area (Sstudies of by Pascal de Vareilles-Sommieres
By Pascal de Vareilles-Sommieres
One of many concerns left untouched through the Brussels conference of September 27, 1968 (and by way of the Brussels-1 legislation changing it) matters the leeway left to household courts while employing ecu principles on foreign jurisdiction in civil and advertisement issues. for example, is the court docket less than an obligation of strict compliance with the jurisdiction rule because it is drafted? may this sort of responsibility cross as far as to require the court docket to abide through the jurisdiction rule, although it is getting used by way of one of many litigants to accomplish an unfair outcome, for instance to hold up adjudication at the advantages? less than what stipulations may perhaps the courtroom decline jurisdiction as a result of any improper discussion board procuring, hence ruling out the ecu provision on jurisdiction? fresh litigation within the eu court docket of Justice (ECJ) has excessively yielded restrictive solutions, ruling out any discretion via family courts to therapy any inconvenience coming up from the stern software of the ecu provisions, if such discretion have been supplied for through 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. so much observers have wondered the appropriateness of prescribing a blind software of eu principles on jurisdiction by means of household courts, counting on the felony traditions of EC Member States often supplying for corrective mechanisms — corresponding to discussion board non conveniens in English legislation and exception de fraude in French legislation — in situations whilst a celebration abusively triggers the jurisdiction of a court docket in an effort to receive an unjust virtue, hence practising unacceptable discussion board buying. The time has now come for an research, lower than either EC legislations and comparative legislation, of the ramifications of the hot Gasser/Turner/Owusu instances. This selection of reports via the various best English and French specialists analyzes the fine details of jurisdiction and discussion board purchasing in Europe.
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Extra info for Forum Shopping in the European Judicial Area (Sstudies of the Oxford Institute of European and Comparative Law)
Example text
106 Columns Design Ltd / Job: Forum_Shopping / Division: Intro_Peel /Pg. 112 It is too late to re-visit the circumstances of Owusu. It is in the assessment of this more limited recourse to forum non conveniens that this conference might adopt a constructive approach which looks to the future. 112 A Briggs, above n 109. Perhaps one could be forgiven the parochial observation that this may amount to allowing some states to apply their national law to regulate jurisdiction between the courts of Contracting and non-Contracting States, but not the United Kingdom.
It certainly ensures that two courts may not concurrently address whether each has jurisdiction. But, in doing so, it merely ensures that the court first seised has priority in addressing whether Article 23 applies at all. And, in doing so, it contemplates that the first court will, if necessary, give effect to Article 23 and the principle of party autonomy which it embodies. Fourthly, the outcome in Gasser is not anomalous because it tolerates proceedings in a non-contractual forum. It is not singular because the court first seised is permitted to determine its own jurisdiction, even if that turns upon whether a jurisdiction agreement in favour of another court is effective.
16 Columns Design Ltd / Job: Forum_Shopping / Division: Ch1_Fentiman /Pg. Position: 7 / Date: 14/11 JOBNAME: Sommieres: Forum Sho PAGE: 10 SESS: 7 OUTPUT: Tue Nov 27 13:18:26 2007 34 Richard Fentiman applies. But what if it does not apply, as was argued in Gasser? Difficulty arises because such cases concern competence-competence—a court’s power to determine issues of jurisdiction. They involve parallel proceedings, and the threat of inconsistent judgments, concerning such issues. This begs a cluster of hard questions about the recognition of judgments.