This assignment will consider compare and contrast
This assignment will see comparison and contrast with peculiar mention to overall expediency, scope and range of commissariats the Convention of Choice of Court Agreements concluded on 30 June 2005 by the Hague Conference on Private International Law and the European government on legal power and enforcement of judgements.
This assignment will cover foremost with the European government. In the instance of Owusu v Jackson [ 1 ] , the ECJ deprived the English tribunals of the power to exert any discretion in relation to international differences and it held that, in such a state of affairs, the English tribunal was bound by Article 2 of the EC Regulation 44/200, viz. that a party domiciled in a member province must be sued in the tribunals of that province, even if an overpowering figure of factors point to a non-member province as a more appropriate forum [ 2 ] .
Mr Owusu was domiciled in England. He made a contract with Mr Jackson, who was besides domiciled in England, under which the latter rented him a vacation Villa in Jamaica. The contract contained a proviso that Owusu would hold entree to a private beach nearby. He maintained that this included an implied term that the beach would be safe for bathing. He went on the vacation and swam from the beach. Unfortunately he struck a concealed obstruction and earnestly injured himself.
In add-on to actioning Jackson, he besides brought proceedings against a figure of Jamaican companies, including the company that owned the beach and the company that was responsible for its direction and upkeep. All the Jamaican suspects were sued in civil wrong. The tribunal had legal power against Jackson under the Convention, since Jackson was domiciled in England. The other suspects were non domiciled in any Contracting State, so legal power over them depended on English jurisprudence. Owusu claimed that the tribunal had legal power over them as necessary or proper parties, under CPR 6.20 ( 3 ) .
The suspects claimed that Jamaica was a more appropriate forum and asked the English tribunal to remain the proceedings before it. The accident had occurred in Jamaica, and about all the grounds was at that place.
The instance was heard by a Grand Chamber of the European Court, composed of nine Judgess. The European Court held that the prohibition on forum non conveniens applies whenever the suspect is domiciled in the State of the forum, even if there is no connexion with any other Contracting State. The Court said that regard for the rule of legal certainty-in its position, one of the aims of the Convention-would non be to the full guaranteed if a tribunal holding legal power under the Convention could use the forum non conveniens philosophy. No effort was made to see for whose benefit this rule of legal certainty was intended to run.
This opinion is singular for its absolute refusal to see the demands of rationality. If the United Kingdom is a member of the European Union, we evidently have to do accommodations, merely like everyone else. It seems that the Continental Judgess on the European Court want to level the common jurisprudence as an aim in its ain right. The brushing aside of all practical considerations is besides upseting.
In so far as EU member provinces are concerned, Article 23 of the Regulation provides that where the parties, one or more of whom is domiciled in a member province, have agreed that the tribunals of a member province are to hold legal power to settle differences, so those tribunals shall hold sole legal power [ 3 ] .
However, Article 27 of the Regulation provides that where tribunal proceedings affecting the same parties and the same cause of action are brought in the tribunals of a different member province, it is the tribunal of the state in which the proceedings are first brought which must make up one’s mind whether it has legal power. It applies the Continental philosophy of Li pendens [ 4 ] , under which the tribunal foremost seized hears the instance, and the other tribunal gives it up ; Article 21 of the Convention provides that where proceedings affecting the same cause of action are pending between the same parties in two different Contracting States, the tribunal seized 2nd must of its ain gesture stay the proceedings before it, until the legal power of the other tribunal is established. Once this happens, it must worsen legal power.
The ECJ has held that Article 21 of the Brussels Convention could non be overridden by a pick of tribunal understanding [ 5 ] . As Sherrington [ 6 ] points out “In practical footings, the determination allows a party to derive an immediate tactical advantage by get downing proceedings contrary to the parties ‘ understanding on pick of tribunal, thereby doing hold while the tribunal foremost seised determines the issue of legal power, and coercing the other party to incur costs, some, or all, of which may non be recoverable” . Although instead it is argued that “the attack of the Brussels Convention to this affair is, at first sight, admirable. It carves out the chief cases in which there is likely to be unequal dickering power-such as consumer contracts -for separate intervention ; otherwise it makes choice-of-court understandings perfectly adhering, provided certain formal demands ( designed to guarantee that the parties know what they are holding to ) are met. It besides provides that choice-of-court understandings are deemed to be sole, unless the parties agree otherwise [ 7 ] . At least until the chosen tribunal has decided non to hear the instance, all other tribunals are precluded from taking legal power [ 8 ] .”
In the instance of JP Morgan Europe Ltd V Primacom AG and others [ 9 ] , a instance which was concerned a difference as to Primacom ‘s liability to JP Morgan under a loan installation, this point was demonstrated. Primacom commenced negative declaration proceedings against JP Morgan in the German tribunals in breach of an sole English legal power understanding. JP Morgan later commenced proceedings against Primacom in the English tribunals for a declaration of Primacom ‘s liability. Justice Cooke held that both sets of proceedings involved the same parties and the same cause of action and, therefore, under Article 27, he was obliged to remain the action until the German tribunal determined whether it had legal power.
In September 2005, the German tribunal ruled that the instance should be heard in the English tribunals. The parties settled in December 2005 but non before digesting a drawn-out and dearly-won jurisdictional conflict which could hold been avoided but for the legal loophole created by Article 27.
Next the Hague convention on pick of tribunal understandings will be considered. The Convention was agreed on 30 June, 2005 but, as yet is non ratified or in force in any single state. Presently, the UK, like other member provinces, is engaged in the procedure of audience with interested parties with a position to set uping whether confirmation would be in the national involvements.
The Hague Choice of Court Convention contains a given of exclusivity [ 10 ] , and imposes a compulsory legal power upon the chosen tribunal. Not merely is the chosen tribunal prohibited from worsening legal power, but any other tribunal seized by one party [ 11 ] is required to suspend or disregard its proceedings. The Hague government therefore must be contrasted with the inflexible accent of the Brussels government on the pre-eminence of the tribunal foremost seized, and the consequence which in bend this has [ 12 ] , in fortunes falling to be governed by the Brussels government, upon the legal consequence of parties ‘ playings where, for good motivations or bad, they seek to go from a antecedently agreed pick. However, under the Hague Convention, the affair can non be said yet to hold received comprehensive intervention. It seems non possible to disregard anterior disputed inquiries, if raised, such as capacity to come in into a pick of tribunal understanding [ 13 ] , and cogency of the putative pick of tribunal understanding itself. The cogency and effectivity of the pick of tribunal understanding shall be treated as an understanding independent of the other footings of the contract, and its cogency can non be contested entirely on the land that the contract of which it forms portion is non valid. But which court/which jurisprudence is to make up one’s mind upon the cogency of the pick of tribunal understanding? The inquiry of invalidness of the pick of tribunal understanding is to be decided by the jurisprudence of the State of the chosen tribunal, a solution which, though round, belongs recognisably to the ‘putative solution ‘ statement ; the inquiry of deficiency of capacity to contract, on the other manus, is to be decided by the jurisprudence of the tribunal foremost seized This latter suggested solution seems incorrect in rule, for by this path the intelligent ‘contractor ‘ may confabulate retrospective incapacity upon himself. Examination of the concluding version of the Convention reveals that rating of pick of tribunal understanding is a power conferred ( in a negative mode ) on both the tribunal chosen and the tribunal non chosen ( but foremost seized [ 14 ] ) .
So it can be seen that the Hague Convention sets out three basic regulations:
- The tribunal of a province to which the convention applies, chosen by the parties in an sole pick of tribunal understanding, shall hold legal power to make up one’s mind a difference to which the understanding applies [ 15 ] ;
- a tribunal of a catching province other than the chosen tribunal must suspend or disregard proceedings to which an sole pick of tribunal understanding applies [ 16 ] and
- a judgement given by a chosen tribunal must be recognised and enforced in the tribunals of other undertaking provinces [ 17 ]
There are some exclusions to these regulations. One case would be if the understanding is void and null under the jurisprudence of the province of the chosen tribunal or where giving consequence to the understanding would take to a apparent unfairness or would be contrary to public policy of the province of the tribunal seised.
It should besides be noted that under Articles 19 and 20, undertaking provinces can do declarations declining to find differences in line with a pick of tribunal understanding or declining to recognize or implement judgements given by a chosen tribunal if there is no connexion between the province of the chosen tribunal and the parties or the difference. Article 21 goes farther still, leting a province which “ has a strong involvement in non using this convention to a specific affair ” merely to “ declare that it will non use the convention to that affair ” . Declarations can be made at any clip. They are non retrospective in consequence.
It is hoped that if the Convention is ratified by EU member provinces, it will rectify the tenseness between Articles 23 and 27 of the Regulation in that if a member province tribunal is seised of a affair which is governed by a legal power understanding in favor of another member province, that tribunal is obliged, under the Convention, to disregard the proceedings and to give consequence to the understanding. In fact, it is likely that Article 23 of the Regulation will necessitate amendment as it now overlaps to a great extent with Article 5 of the Convention. To the extent that the Convention applies to non-member provinces, it will hopefully supply the reply to whether Article 2 of the Regulation trumps any pick of tribunal understanding confabulating legal power on that province, as, under the Convention, pick of tribunal understandings must be honoured, even if such an understanding confers legal power on the tribunal of a province which is non that of the suspect ‘s legal residence.
It can be concluded that if the Convention is to be ratified by the EU member states it will supply a more suited alternate to the issue of the pick of tribunals for European members, the current state of affairs is unsatisfactory and does non suit easy with commercial thought. It is hence concluded that it is the preferred option, provides the best pick and brings with it versatility and equity to international jurisprudence. And as pointed out above The Hague Choice of Court Convention contains a given of exclusivity [ 18 ] , and imposes a compulsory legal power upon the chosen tribunal. Not merely is the chosen tribunal prohibited from worsening legal power, but any other tribunal seized by one party [ 19 ] is required to suspend or disregard its proceedings. The Hague government therefore must be contrasted with the inflexible accent of the Brussels government on the pre-eminence of the tribunal foremost seized, and the consequence which in bend this has [ 20 ] , in fortunes falling to be governed by the Brussels government, upon the legal consequence of parties ‘ playings where, for good motivations or bad, they seek to go from a antecedently agreed pick.
Erich Gasser GmbH V MISAT Srl Case C-116/02, 9 Dec 2003
Gamelstaden V Casa de Suecia SA [ 1994 ] 1 Lloyd ‘s Rep 433
JP Morgan Europe Ltd V Primacom AG and others [ 2005 ] EWHC 508 ( Comm ) ;
Kurz V Stella Musical [ 1992 ] Ch. 196 ; [ 1991 ] 3 WLR 1046 ; [ 1992 ] 1 All ER 630
Owusu V Jackson ( t/a Villa Holidays Bal Inn Villas ) Case C281/02, The Times 9 Mar 2005
Turner V Grovit [ 2005 ] 1 AC 101
Legislation and Conventions
EC Regulation 44/200
Hague Convention on Choice of Courts
Crawford E, ( 2005 ) “The Uses of Putivity and Negativity In the Conflict of Laws” , International and Comparative Law Quarterly 54.4 ( 829 )
Hartley T, ( 2005 ) “The European Union And The Systematic Dismantling of the Common Law of the Conflict of Laws” , International and Comparative Law Quarterly 54.4 ( 813 )
Sherrington P, ( 2006 ) “Choice Words” , Legal Week January 12
Cassese A, ( 2005 ) “International Law” , 2neodymiumEdition, Oxford University Press
Crawford J & A ; Lowe V, ( 2005 ) “The British Year Book of International Law” , 75ThursdayEdition, Claredon Press
Harris D, ( 2004 ) “Cases and Materials on International Law” 6ThursdayEdition, Sweet and
Morris J, ( 2005 ) “The Conflict of Laws” , 6ThursdayEdition, Sweet and Maxwell