Forum non conveniens
Ajouté le mardi 09 mars 2010 par
jpmaginot (France)
Dissertation dans droit privé - droit commercial
Document: Dissertation de Droit Commercial en langue anglaise: Forum non conveniens (15 pages)
Extrait:
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.
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