International Trade Law in the Term Paper
- Length: 14 pages
- Subject: Business - Law
- Type: Term Paper
- Paper: #73900108
Excerpt from Term Paper :
There were many factors quoted for the reasons for this type of incompatibility, and they were the following: Article 2 of the Brussels Convention is in fact mandatory, and it can only be derogated from in the numerous ways and means that have been expressly provided for in the Convention.
Similarly, there was no provision for the forum non-conveniens in Article 2 of the Convention, and this was despite the fact that the Doctrine was discussed at the time when Denmark, Ireland and the United Kingdom acceded. Another factor stated was that legal certainty would never be fully guaranteed if there was such an incompatibility between the Brussels Convention and the forum non-conveniens doctrine, and furthermore, the very predictable nature of the rules of jurisdiction would become severely undermined. In addition, when a defendant has to come before the courts for any reason whatsoever, it would be infinitely better for him if he were to come before the courts of his own domicile, rather than anywhere else, and this would also mean that he would be unable to reasonably foresee the fact of which other courts he may be sued before.
If a foreign court were to be a better and a more appropriate forum, then the claimant would have to establish the fact of whether or not he would be able to avail of justice before the court of his domicile, or before a foreign court. He must then further be able to establish the fact that he would not be able to obtain better justice before that court, or, that the foreign court does in fact have no jurisdiction, or that the claimant does not, in practice, have an access to proper justice from that court. All of this must be carried out and analyzed by the claimant, and this must be done irrespective of the cost of actually bringing a fresh action before a court that exists in some other state, and that this would quite naturally entail the prolongation of the general procedural time limits. Finally, the forum non-conveniens would be recognized only in a few and limited number of contracting states, and this would mean that it would serve to affect the consistent and uniform application of the various rules of jurisdiction in contracting states.
The defendants of the case of Owusu vs. Jackson stated that there would plenty of negative consequences that would arise from the fact of the exclusion of the forum non-conveniens, when it was put into real practice. There were, according to the defendants, the following: the expenses for the defendants of holding proceedings in another country, quite a distance away form their own hometown Jamaica, would be stupendous, and these would have to be borne by the defendants. This is a true negative result, they stated. Another reason that the defendants said was negative was the fact that they would find it extremely difficult to recover costs and expenses were the claimant's action to be dismissed, for any reason, because of the fact that they would have to travel from their hometown of Jamaica each and every time they would have to collect the costs.
In addition, if the very logistical reason of the huge geographical distance between England and Jamaica were to be taken into account, then it was indeed a negative point against them, they said. The defendants stated that they desired the case to be judged according to the standards that existed in their hometown Jamaica, and not according to the standards as exhibited in England, which may work against them. Finally, the defendants said that the enforceability in Jamaica of a default judgment was a very real possibility, and in addition, if there were to be an impossibility of enforcing cross claims against the other defendants, then it would be an extremely difficult proposition for them. However, the Court had this to say, that although all the above claims appeared to be as genuine as ever, it had basically no right to question the very mandatory nature of the Article 2 of the Brussels Convention, according to which this was the fundamental and basic rule.
Finally, the result of the decision of the court was that the claimant would be entitled to bring the court proceedings to England, even though the actual incident of the accident did not in fact happen anywhere in England, and also that Jamaica in fact appeared to be better suited to the trial than England. There was in fact a second question put forth to the court, and this was whether or not the application for forum non-conveniens would be from here on be ruled out in all circumstances. The court in fact refused to answer the question, and because of the fact that this had not been dealt with in this case, it would leave open the possibility or the probability of the forum non-conveniens being applicable to certain circumstances, even if not for all. Particularly, where the involved parties would have chosen the jurisdiction of a non-contracting state, or where other proceedings would be pending in the other state involved in the case, or where the subject matter of the dispute is such that a contracting state would have by right taken the jurisdiction of the case, like for example, when the dispute pertains to land that is situated in that country, and so on.
The case of Owusu vs. Jackson would have a tremendous impact on the basic determination of various jurisdiction questions, where the claimant in the case sues both English domiciled defendants, as well as foreign domiciled defendants from a non-contracting state, in the same case and in the same proceedings. The conclusion that came about after the case was tried may be that if a number of defendants were to be sued in England, but only one of the defendants were to be actually domiciled in England, the English court will not stay the proceedings, even if it were brought to the notice of the court that the natural forum of the case is based in a non-contracting or a non-regulating state, or even if the principal defendant, in this case Owusu himself, is domiciled in a non-contracting or a non-regulating state. This type of defendant, may in fact find himself dragged into the proceedings in England, even in cases where neither he himself or the basic subject matter of the proceedings of the case have no relation whatsoever with England. It was therefore established that 'antisuit' injunctions have absolutely no place in any litigation that would involve the Brussels Convention countries, the basic principle behind it being that each court must be left to make its own decision regarding its own jurisdiction, without any sort of interference form a foreign court.
What exactly is the Brussels Convention, and what does it do, and how does this impact the jurisdiction of various countries? The Brussels Convention is nothing but a Treaty that establishes the European Economic Community', and it was in fact implemented to establish and to acknowledge the fact that it is essential for all courts to determine the international jurisdiction of their courts, and also to facilitate and to help the recognition of the introduction of an expeditious procedure to secure the basic enforcement of judgments, and of authentic instrument, and of court settlements.
In the question of cross border contractual disputes between the members of the European Union, how can one decide which country has the jurisdiction? The Consumer Provisions of the Brussels Regulation, which is implemented through the Civil Jurisdiction and the Judgments Order of 2001, states that in general, any sort of legal action in a civil or in a commercial dispute, is generally taken only as a last resort. This is especially true in most cross border consumer cases, wherein the disputes extend from one country to another, across the borders. Therefore, the government is committed to providing and promoting low cost and user-friendly substitutes and alternatives to expensive court action. At the same time, the government is also actively supporting the several different types of initiatives that would create and develop and promote cross border 'alternative dispute resolution schemes', or ADR, as they are known.
These schemes may be that of ombudsman, and also arbitration. It is generally widely believed that such ADR schemes would be able to contribute to consumer confidence, and to self-assurance in the single market of the European Union, and in the area of electronic commerce. But the fact remains that with the advancement of cross border shopping carried out through the Internet, several traders and consumers may become involved in contractual disputes, and any court, when faced with such a case, must decide whether or not it has the jurisdiction for the case. In fact, in the year 2000, the European Union adopted the Council Regulation, -- EC, number 44/2001, on the jurisdiction and on the resolution of the enforcement of the judgments in both civil as…