Forum non conveniens

Résumé du document

Dissertation de Droit Commercial en langue anglaise: Forum non conveniens (15 pages)





The doctrine of lis alibi pendens applies in private international law in order to avoid contradictory judgment. In deed, because the rules of jurisdiction can differ from a country to another, it may happen that two courts from two different legal systems are seized. Are they both going to pronounce a binding judgement, which could be unfair for the defendant and, in addition, dangerous if the judgements are contradictory (in deed, how to enforce two inconsistent judicial decisions?)?



According to the lis alibi pendens doctrine, when two courts are seized and have to hear the same dispute, the one which was last seized shall stay in the proceedings in favour of the court where the litigation was first introduced.



This doctrine is not only used in common law legal system. It is also used in civil law, especially in continental Europe. In deed, lis alibi pendens is mentioned in the Brussels Convention and in the Brussels I Regulation. Article 21 of the Brussels Convention states that ?where proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States, any court other than the court first seized shall of its own motion decline jurisdiction in favour of that court?. The Convention is clear when two courts from two Contracting States are seized of the same in case. But what happens if the first court seized is from a non Contracting State?



If the first court has already given a judgement, the problem is solved by the provisions of the Convention: Article 27-5 of the Brussels Convention states that ?a judgment shall not be recognised ? if the judgment is irreconcilable with an earlier judgment given in a non Contracting State involving the same cause of action and between the same parties, provided that this latter judgments fulfils the conditions necessary for its recognition in the State addressed?. But what happens when no judgment has been given?



This question presents an interest regarding common law jurisdiction. In deed, the rules governing the doctrine of lis alibi pendens in the United Kingdom and Ireland are considered more flexible that the rules in other jurisdictions of continental Europe which have more developed the doctrine than common law jurisdictions. Before English and Irish jurisdictions, it is always at a court's discretion to determine whether a stay should be granted. It was considered in the Schlosser Report when Britain and Ireland joined in the European Union. Thus, in these European common law legal systems, the lis alibi pendens doctrine seems to be closely linked to forum non conveniens. This leads to an interrogation concerning the consequences of the Owusu precedent on lis alibi pendens in England and Ireland. This question was brought before the Irish courts in the Goshawk case.

Extraits

[...] Canuslex Ltd, The Spiliada [1987] A.C “Forum Non Conveniens and the Brussels Convention” (1990) 106 L.Q.R Group Josi Reinsurance Company SA v. Universal General Insurance Company, [2000] ILPr 549 (ECJ). Owusu v. Jackson & Others, C-281/ ECR1-1383. Goshawk Dedicated Ltd & Others v. Life Receivables Ireland Ltd [2008] IEHC 90 (27 February 2008). Goshawk Dedicated (No. Ltd, and Cavell ManagementCavell Managing Agency Ltd v. Life Receivables Ireland Limited [2009] IESC 7. [...]

[...] However, the company operated its activities in Argentina where its central management and control was exercised. Thus, when the minority shareholder brought the proceedings in the English courts, the preliminary question was to know whether or not jurisdiction could be declined on the ground of forum non conveniens. For the minority shareholder, Ladenimor S.A., who had commenced the proceedings before the English courts, because the company had an English domicile, the British judges were obliged to assume jurisdiction by virtue of Article 2 of the Convention. [...]

[...] Gilbert U.S (1947). The Abidin Daver [1984] A.C MacShannon v. Rockware Glass Ltd. [1978] A.C Spiliada Maritime Corp. v. Canuslex Ltd, The Spiliada [1987] A.C Doe v. Armour Pharmaceutical Co. Inc . [1994] 3 I.R Intermetal Group Limited & Arnor v. [...]

[...] THE OWUSU CASE The Owusu litigation[21] was the first opportunity for the European court of Justice to pronounce on forum non conveniens. Mr Owusu was a British national domiciled in the United Kingdom. During his holiday in Jamaica, he struck his head against a submerged sandbank on the beach near the villa he rented which rendered him tetraplegic. He brought an action in England against Mr. Jackson who also was domiciled in England on the purpose that the contract contained an implied term that the beack would be reasonably safe or free from hidden dangers. [...]

[...] They were not regulating relations with non Contracting States”[19]. Thus, the Court of Appeal retained the power to decline jurisdiction on forum non conveniens grounds where the other appropriate forum were the courts of a non Contracting State: the Argentinan courts. However, the Court of Appeal's judgment was followed by an appeal to the House of Lords: their Lordships referred the Convention issues to the Court of Justice who was more appropriate to answer a question on the interpretation of the Convention's applicability. [...]