OPINION OF ADVOCATE GENERAL
delivered on 14 December 2004(1)
N.B. Jackson, trading as ‘Villa Holidays Bal-Inn Villas’,
Mammee Bay Resorts Ltd,
Mammee Bay Club Ltd,
The Enchanted Garden Resorts & Spa Ltd,
Consulting Services Ltd
Town & Country Resorts Ltd
(Reference for a preliminary ruling from the Court of Appeal (England and Wales) (Civil Division))
(Brussels Convention – Where and to whom applicable – Accident occurring in a non-Contracting State – Physical injury – Action brought in a Contracting State against a person domiciled in that State and other defendants domiciled in the non-Contracting State where the accident occurred – Doctrine of forum non conveniens in relations between a Contracting State and a non-Contracting State – Incompatibility with the Brussels Convention)
Table of contents
|A – The Brussels Convention
|B – The doctrine of forum non conveniens in English law
|C – The doctrine of forum non conveniens since the entry into force of the Brussels Convention in the United Kingdom
|II – The facts and the main proceedings
|III – The meaning and scope of the questions referred to the Court of Justice
|A – The territory and the persons to which Article 2 of the Brussels Convention applies
|1. Mr Jenard’s report and the wide-ranging debate to which it gave rise
|2. The wording of Article 2 of the Convention
|3. The general scheme of the Convention
|4. The aims of the Convention
|5. The alleged obstacles to the application of Article 2 of the Convention to a legal relationship connected only with a Contracting
State and a non-Contracting State
|a) The alleged obstacles based on international law
|b) The alleged obstacles under Community law
|B – Compatibility of the forum non conveniens doctrine with the Brussels Convention
|1. The intention of the authors of the Convention
|2. The wording of the first paragraph of Article 2 of the Convention
|3. The general scheme of the Convention
|4. The objectives and the useful effect of the Convention
Does the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial
preclude a court of a Contracting State which is seised of an action against a person domiciled in the territory of that
State and therefore has jurisdiction to hear such an action on the basis of Article 2 of the Convention from exercising, under
its national law, a discretion to decline to exercise such jurisdiction, on the ground that a court of a non-Contracting State
would be a more appropriate forum to determine the dispute?
That is, in essence, the question submitted by the Court of Appeal (England and Wales) (Civil Division) in these proceedings.
The question is not totally new since the Court of Justice already had referred to it, about 10 years ago, a similar question
from a national court of last instance, the House of Lords. However, the Court of Justice did not have an opportunity to give
a ruling on that point because the question was finally withdrawn by the national court after the parties settled their differences
As in that earlier case, the Court of Justice now has an opportunity to examine the compatibility of the forum non conveniens
doctrine with the Brussels Convention. According to that doctrine, which is well known in the common law countries, a court
is entitled to decline to exercise jurisdiction conferred on it by law where it considers that the forum of another State
would be more appropriate to deal with the case.
In this case, as in the earlier one, the question of the compatibility of the doctrine of forum non conveniens
with the Brussels Convention arises only in regard to relations between a court of a Contracting State and a court of a non-Contracting
State, to the exclusion of relations between courts of different Contracting States. This issue therefore prompts questions
as to the territorial scope of the Brussels Convention and the persons to whom it applies. In that connection, although the
issues here are considerably different, a comparison may be drawn with the Opinion procedure, still pending, concerning the
future revised Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.
Also, it is interesting to note that the Court recently examined another mechanism that is well known in common law countries,
commonly known as ‘anti-suit injunctions’. That device enables a national court to issue an injunction to restrain a party
to proceedings pending before it from commencing or continuing legal proceedings before a court of another State, where it
appears that the party in question is acting in bad faith in order to impede proceedings already pending. The House of Lords
sought a ruling from the Court of Justice on the compatibility of such a device with the Brussels Convention when it is used
in relations between courts of different Contracting States. In its judgment in Turner
the Court’s answer was negative.
That judgment deserves attention, although the purpose of and the conditions for applying the mechanism of ‘anti-suit injunctions’
and the forum non conveniens
doctrine differ considerably and, in contrast to this case, the Turner
case raised no question of the territorial scope of or persons covered by the Brussels Convention. As Advocate General Ruiz-Jarabo
Colomer emphasised in his Opinion in Turner
, those two mechanisms ‘presuppose some assessment of the appropriateness of bringing an action before a specific judicial
I – Legal background
A – The Brussels Convention
Adopted on the basis of Article 220 of the Treaty establishing the European Economic Community (which became Article 220 of
the EC Treaty and then Article 293 EC),
the Brussels Convention seeks, according to its preamble, ‘to strengthen in the Community the legal protection of persons
Its sole recital states that ‘it is necessary for this purpose to determine the international jurisdiction of their courts,
to facilitate recognition and to introduce an expeditious procedure for securing the enforcement of judgments, authentic instruments
and court settlements’.
Thus, the Brussels Convention constitutes what is commonly known as a ‘double’ Convention, in that it includes not only rules
for recognition and enforcement but also rules on direct jurisdiction which are applicable in the Contracting State of origin,
that is to say at the stage of the proceedings for the adoption of the judicial decision capable of being recognised and enforced
in another Contracting State.
As regards the rules on direct jurisdiction, they apply where the dispute in some way involves or is linked with the territory
of a particular Contracting State. That involvement or link derives most frequently from the domicile of the defendant
and, in certain cases, the subject-matterof the dispute
or the will of the parties
As far as the defendant’s domicile
is concerned, it is the basis for a general rule of jurisdiction. The first paragraph of Article 2 of the Brussels Convention
states that ‘[s]ubject to the provisions of this Convention, persons domiciled in a Contracting State shall, whatever their
nationality, be sued in the courts of that State’. Thus, where the defendant is domiciled in a Contracting State, the courts
of that State in principle have jurisdiction.
Article 3 of the Convention clarifies the scope of that general rule. First, the opening paragraph provides that ‘[p]ersons
domiciled in a Contracting State may be sued in the courts of another Contracting State only by virtue of the rules set out
in Sections 2 to 6 of this Title’. Second, in accordance with that logic, the second paragraph of that article prevents the
plaintiff from invoking against such persons rules of jurisdiction which are known as ‘exorbitant’ (in force in the Contracting
States), that is to say rules which have the effect of removing those persons from the jurisdiction in principle enjoyed by
the courts of the Contracting State of their domicile, as provided in Article 2 of the Convention.
As regards Sections 2 to 6 of Title II of the Convention (to which the first paragraph of Article 3 refers), they list, first,
a series of jurisdictional rules of an optional nature, which enable a plaintiff to choose to bring his action before a court
of a Contracting State other than that of the domicile of the defendant.
They then lay down certain jurisdictional rules which either require proceedings to be brought in the courts of a Contracting
State, to the exclusion of those of any other Contracting State (including that of the defendant’s domicile),
or allow a court of a Contracting State to adjudicate even though it would normally not have jurisdiction to do so under
the rules laid down by the Convention.
The latter jurisdictional rules (appearing in Articles 16, 17 and 18 of the Convention) are based on the existence of a connecting
factor other than that of the defendant’s domicile. That connecting factor derives either from the object of the dispute
(Article 16 of the...