dissertation turnitin copy

COMPARATIVE ANALYSIS OF THE DOCTRINE OF STAY OF PROCEEDINGS
UNDER THE ENGLISH TRADITIONAL RULES AND THE BRUSSELS I
REGULATION: OWUSU V JACKSON REVISITED
JOEL TYORUMUN GAADI
SUBMITTED TO THE UNIVERSITY OF WALES IN FULFILMENT OF THE
REQUIREMENTS FOR THE AWARD OF THE DEGREE OF LLM.
SWANSEA UNIVERSITY, SEPTEMBER, 2008

TABLE OF CONTENT
ACKNOWLEDGEMENT .................................................................................................... iii
INTRODUCTION AND SCOPE......................................................................................... iv
TABLE OF CASES ............................................................................................................... ix
TABLE OF STATUTES ...................................................................................................... xii
TABLE OF ABBREVIATIONS ........................................................................................ xiii
CHAPTER ONE
1.0 STAY OF PROCEEDINGS UNDER THE ENGLISH TRADITIONAL RULES....1
1.1 DOCTRINE OF FORUM NON CONVINIENS AS A BASIS FOR STAYING
PROCEEDINGS ..................................................................................................................... 1
1.2 DOCTRINE OF FORUM NON CONVINIENS IN PRACTICE; THE TWO STAGE
TEST AND THE EXERCISE OF THE COURTS DISCRETION................................... 2
1.3 CRITICISMS , REMARKS AND COMMENTS ON THE DOCTRINE OF FORUM
NON COVINIENS AND ITS PRACTICE................................................................... 11
CHAPTER TWO
2.0 STAY OF PROCEEDINGS UNDER THE BRUSSELS I REGULATION............ 16
2.1 BASIS AND PRACTICE OF STAY OF PROCEEDINGS UNDER ARTICLES 27
-29 OF THE REGULATION................................................................................................
16

2.2 REMARKS AND COMMENTS ON THE PRACTICE OF STAY OF
PROCEEDINGS UNDER THE BRUSSELS I REGULATION..................................... 21
2.3 COMPARISON OF THE BASIS FOR A STAY OF PROCEEDINGS UNDER THE
ENGLISH TRADITIONAL RULES AND THE BRUSSELLS I REGULATION........ 24
CHAPTER THREE
3.0 CRITICAL ANALYSIS OF AND THE IMPORT OF THE ECJ’S DECISION IN
OWUSU V JACKSON........................................................................................................... 27
3.1 OWUSU V JACKSON (T/A VILLA HOLIDAYS BAL INN VILLAS) CASE C-
281/02....................................................................................................................................
.. 28
3.1.1 THE OPINIONS AND UNANSWERED QUESTIONS.......................................... 32
3.1.2 THE IMPORT OF THE OPINION IN PRACTICE................................................ 38
3.2 COMMENTS, REMARKS AND CRITICISM OF THE ECJ’S OPINION............. 41
CHAPTER FOUR
4.0 SUMMARY.................................................................................................................... 51
4.1 RECOMMENDATIONS .............................................................................................. 54
4.2 REMARKS AND CONCLUSION............................................................................... 59
BIBLIOGRAPHY................................................................................................................. 63

DEDICATION AND ACKNOWLEDGEMENTS
To a God of second chances and new beginnings; for the grace and opportunity, nothing
compares.
To my African Queens; Queen, Mercy, Helen (the wind beneath my wings) and Beauty,
for love underserved, - you guys humble me.
To my Aunt Josephine, I can never thank you enough.
To “my brother from another mother”- Seye ‘Mama D pikin’ Demuren, - for making
the year liveable. Next chapter...
Grateful acknowledgements to: Dr. Theodora Nikaki, for her invaluable advice, support
and guidance on this project and all through the study year; Dr. and Mrs. Andrew
Iwobi for the warmest welcome to Swansea, Drs. Baris Soyer, B. Donnelly, all the
lecturers, and LLM staff at Swansea University and the amazing class of 2008.

INTRODUCTION
As Globalisation and its attendant effects become prevalent, international business
interactions and relations between persons across jurisdictions are made easier and more
enhanced. With these, situations arise where conflicts between persons may fall within the
jurisdiction of two or more courts, in different countries each of which may have a legitimate
right to exercise its power over the matter. The result most times is the problem of forum
shopping, with each party seeking to bring the matter within the jurisdiction that is most
amenable to it or more inconvenient for its adversary.
Under the English traditional conflict of law rules, practical and logical considerations govern
the allocation of jurisdiction1
to the court which is best suited to be seised of a matter. Thus,
in a matter involving an international conflict of jurisdiction, an English court would consider
the exercise of the power whether or not to stay proceedings for a matter before it to be tried
in such forum as is clearly or distinctly more appropriate. The nomenclature for this
mechanism adopted by the English courts is the doctrine of forum non Conviniens.
1
Jurisdiction here is used in terms of the competence of a court to exercise its judicial powers to hear and
determine a matter

The United Kingdom2
has however acceded to the Convention on Jurisdiction and
Enforcement of Judgement in Civil and Commercial Matters (the Brussels Convention) 19683
by which uniform jurisdiction rules have been adopted by member states to enable ease of
recognition and enforcement of judgments within the common market of the European
Community4
. Under this Regulation, precedence is given to the court in any jurisdiction that
is first siesed of a matter. Thus, every other court must5
, or may6
(in very specific
circumstance) stay proceedings, regardless of the merits of any argument, in deference to the
court that is first seised of a matter.
Can we then assume that in circumstances where there is a possible conflict between an
English court and a court of another member state to the Judgement Regulation, there is still
room for the former to apply its doctrine of forum non conviniens to stay or refuse a stay of
proceedings where jurisdiction has been allocated in accordance with the rules under the
Regulation? The solution appears straight forward and simple enough, it cannot7
.The
2
The United Kingdom consists of four different countries: England, Wales, Scotland and Northern Ireland. The
focus of this Article however, shall be on the practice of stay in England, which is to all intents and purposes
same as that in Wales
3
By virtue of the Civil Jurisdiction and Judgement Act (UK) 1982.This Convention has now been enacted as a
Regulation of the European Community as Council Regulation (EC) No.44/2001 on Jurisdiction and
Enforcement of Judgement in Civil and Commercial Matters; the Brussels I Regulation 2001. The Brussels
Convention 1968 and the Brussels I Regulation are materially the same, particularly and for the purpose of the
present discourse. Thus, though most of the cases discussed here where decided under the Convention, the
position has not changed under the Regulation. In this paper, references shall hereafter be made to the
judgement Regulations and member states, and the Convention and contracting states interchangeably except
where a direct quotation is necessary. Brussels I Regulation and Judgement Regulation shall also be used
interchangeably to mean Council Regulation (EC) No.44/2001 on Jurisdiction and Enforcement of Judgement in
Civil and Commercial Matters.
4
For a detailed exposition of the chronological development, contracting parties and member states and effect
of the Conventions and Regulations, see Briggs, A and Rees ,P, Civil Jurisdiction and Judgments, 4th
edn
(London:LLP, 2005), pp 6-10
5
Under Articles 27 and 29 Brussels I Regulation
6
Article 28, ibid.
7
Fentiman, R ‘Ousting Jurisdiction and the European Conventions’ C.Y.E.L. S 3 (2000) pp 107-138 (108)

Regulation has clear rules on which court may exercise jurisdiction and courts of member
states are expected to mechanically apply those rules, without question.
The problem becomes more acute however, where the conflict involves an English court and
the court of a third state, which is not a party to the Brussels I Regulation. The difficulty is
further pronounced as there is no jurisdictional rule in this regard under the Brussels regime;
no textual provision in the Regulation nor the Schlosser or Jenard Reports and until recently,
with great doubt and controversy, no authority regarding this issue. Europe had embarked on
a voyage and left the rest of the world behind.
The reasoning prevailed beginning with the now disavowed case of Re Harrods8
; the English
courts had taken the view, not without criticism from some9
that to all intents and purposes, it
was manifest that the provisions of the Regulation were not applicable to such conflict as
highlighted above. To the English jurist, it was a question of common sense, practical and
logical. The Convention was made to deal with conflict of laws between intra-Regulation
member states10
it was never meant to govern conflicts as may arise between a member state
and a third country. In the latter situation, the English courts reasoned that the traditional
conflict of law rules of member states were still applicable to determine which court may
exercise jurisdiction.
This was the situation until the issue again arose and a reference was made to the European
Court of Justice11
for an advisory opinion in Owusu v Jackson12
. The case involved a personal
8
Re Harrods (Buenos Aires) Ltd [1992] Ch. 72
9
See generally Kennett, W, ‘ Forum Non Conviniens in Europe’ CLJ (1995) pp. 552-577
10
See Re Harrods (Buenos Aires) Ltd fn 8.per Bingham. L,J at p.103, echoing the view expressed by Collins,
L,‘ Forum Non Conviniens and the Brussels Convention’ LQR 106 (1990) pp.535-536
11
Hereafter ECJ
12
[2002] EWCA Civ 877

injury claim brought by Mr.Owusu against Mr. Jackson, both domiciled in England, and five
other defendants domiciled in Jamaica. The claimant had sustained serious injuries at a
holiday resort in Jamaica, which he had contracted to stay at from the first defendant and
which said resort was under the management and care of the other five defendants. All
material events occurred in Jamaica, and the only connection with England was that the
claimant and first defendant where domiciled, and the contract entered into in England. There
was no question of a connection with any other Contracting state to the Brussels Convention.
The defendants applied for a stay of action on the basis of forum non conviniens.
On a reference to the ECJ, the Court in a terse and as some have added
“intellectually...unsatisfactory”13
judgement14
, ruled that Article 2 of the Convention applied
in the circumstances of the case and the doctrine of forum non conveniens was precluded
under the Convention as a basis of staying proceedings in favour of courts of third states. The
court declined to consider the circumstances in which it may be possible, that member states
may still be called upon to apply their traditional conflict of law rules, also waving aside the
practical difficulties and logical inconsistencies that its unequivocal statement of law may
entail.
The questions then arise, for some, on the scope of the Brussels I Regulation, for others, on
the textual construction of the Regulation and yet for others, the teleological argument and
the scheme and objective of the Regulation15
. These are the narrow issues. The broader and
more important issue is the effect of the ECJ’s judgement in Owusu in practice and the
difficulties which it entails. The opinion in Owusu may be open to two interpretations: first,
where there is a conflict of jurisdiction between a member state and a third state which is not
13
Fentiman R, ‘English Domicile and the Staying of Actions’ Case comment , CLJ 64 (2005) 2 pp.303-5 (305)
14
C-281/02 [2005] ECR I-1383-464
15
Fentiman, R ‘Ousting Jurisdiction and the European Conventions’ fn.7 at p.113

party to the Brussels I Regulation, the member state must exercise jurisdiction, once there is a
connection with Europe, no matter how tenuous; on the other hand, it could also mean that
where such conflict arises member states must apply the rules of the Regulation to resolve
such conflict16
. The first interpretation seems unacceptable and unlikely, the second more
probable; however the court never expressly sanctioned that conclusion.
The judgement in Owusu v Jackson seeks to proffer a simple solution to a difficult problem, a
sort of Greek approach to the Gordian knot. However, unlike the great Greek, it is doubtful if
the basis of the decision would go on to rule the hearts of all. The opinion ignores the fine
niceties and nuances that are inherent in questions of private international law and glosses
over the real issues, leaving more questions than it sought to answer.
Within the framework of the European Community, a wholesale acceptance of the doctrine of
forum non conviniens as a basis of stay of proceedings may not be ideal for reasons beyond
the scope of this exercise, however, in the light of amongst others, a search for a global
system for allocating jurisdiction, recognition and enforcement of judgements, rejecting the
doctrine in totality may not be a better option. The ideal would be a mechanism or formula
which would determine when it would be appropriate within the European framework to stay
proceedings in respect of conflict of jurisdiction between member states and third countries.
A workable solution to allocate jurisdiction to the court which is best suited to hear and
determine a particular dispute.
SCOPE
16
The much touted ‘effet reflex’ principle.

This exercise seeks to compare the practice of stay of proceedings under the English
traditional conflict of law rules and the Brussels I Regulation, 2001. The objective is to
analyse the basis and the reasoning behind the mechanisms adopted under the two systems,
the arguments in favour of and against the doctrine of forum non conviniens, a review of the
opinion in Owusu v Jackson and the effect of that judgement; in that regard, what the position
may be in situations of conflicts between a member state and a third state, comments on the
lacuna in the Regulation and suggestions on possible “third ways”.
In the first part, we shall attempt a critical overview of the practice of stay of proceedings in
England and Wales and the practice as permitted under the Brussels I Regulation; the rules,
and basis under the two systems shall be analysed. The different criticisms of the doctrine of
forum non conviniens and the mechanism under the Brussels regime as the bases for staying
proceedings shall also be considered. The part concludes with a comparison of the two
systems, remarks and conclusions therefrom.
The second part shall focus on the facts and opinion from the ECJ’s judgement in Owusu v
Jackson; a critical analysis of the issues raised, the court’s opinion in respect thereto, the
questions left unanswered, the questions arising therefrom and the import of the decision in
practice.
It is argued that the proper object of any critical judicial excursion should be to focus on an
alleged deficiency in the law in use (rather than on theory) and its point is usually some kind

of remedy or reform17
. Thus the third part will focus on a need for compromise between the
two systems, suggesting possible reforms or third ways of approaching the matter in the light
of the problems and challenges which the decision in Owusu v Jackson may have
engendered.
TABLE OF CASES
Abidin Daver, the [1984] A.C. 398 (H.L)
Ace Insurance SA v Zurich Insurance Company [2001] 1 Lloyd’s Rep. 618 (CA)
Albaforth, the [1984] 2 Lloyd’s Rep. 91
Al Battani the [1993] 2 Lloyd’s Rep. 219
Amin Rasheed Shipping Corp. v Kuwait Insurance Company (The“Al Wahab”) [1984] AC 50
Askin and Others v ABSA Bank [1999] ILPr 471
Atlantic Star, the [1973] QB 364
Baghlaf Al Zafer Factory Co. Br. For Industry v Pakistani National Shipping Co. (No.1)
[1998] 2 Lloyd’s Rep. 229
17
Summers, R, ‘Theory, Formality and Practical Legal Criticism’ LQR 106 (1990) pp.407-430 (407)

Banco Atlantico SA v The British Bank of the Middle East [1990] 2 Lloyds Rep
Caltex Singapore Pte Ltd v BP Shipping Co. [1996]1 Lloyds Rep
Cleveland Museum of Art v Capricorn Art Int. SA [1990] 2 Lloyds Rep.166
Connelly v RTZ Corporation [1998] AC 854
Drouot Assurances SA v Consolidated Metallurgical Industries C-351/96 [1998] ECR I
-3057
Eli Lilly & Co.v Novo Nordisk A/S [2000] 1 ILPr 73 (CA)
Erich Gasser GmbH v MISAT srl [2003] ECR I-0000
Freifau von Horn v Cinnamond C-163/95 [1997] ECR I-5451
Gan Insurance company Ltd v Tai Ping Insurance company Ltd [1999] ILPr 729
Gubisch Maschinenfabrik KG v Palumbo C-144/86 [1987] ECR 4861
Haji-Ioannou v Frangos [1999]2 Lloyd’s Rep. 337
Herceg Novi (owners) v Ming Galaxy (owners) [1998] 4 All ER 238
Konamaneni v Rolls Royce Ind. Power (India) Ltd [2002]1 All ER 979
Lubbe v Cape Plc [2000] 1WLR
Macshannon v Rockware Glass Ltd [1978] A.C. 795 (H.L)
Magnum, the [1989] 1 Lloyd’s Rep. 47
Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391
Mohammed v Bank of Kuwait and the Middle East KSC [1996] 1 WLR 1483

Mostyn v Fabrigas, 98 Eng. Rep. 1021, 1027 (KB 1775)
Oceanic Sun Line Special Shipping Co.Inc v Fay (1988) 165 CLR
Oinoussin Pride, the [1991] 1 Lloyd’s Rep. 126
Overseas Union Insurance Ltd v New Hampshire Insurance Co. C-351/89, [1991] ECR I-
3317
Owusu v Jackson [2002] EWCA Civ 877
Owusu v Jackson C-281/02 [2005] ECR I-1383-464
Prestrioka, the [2003] 2 Lloyds Rep.327
Phillip v Booth [2004] 2 Lloyd’s Rep. 457
Po, the [1991] 2 Lloyd’s Rep.206 (CA)
Radhakrishna Hospital Services Private Ltd & Eurest SA v EIH Ltd [1999] 2 Lloyd’s Rep.
249
Re Harrods (Buenos Aires) Ltd [1992] Ch. 72
Roneleigh Ltd v MII Exports Inc. [1989] 1 WLR 619
Sarrio S.A v Kuwait Investment Authority [1997] 1 Lloyd’s Rep. 113
Smith Kline & French Laboratories Ltd v Bloch [1983] A.C 795
St. Pierre v South American Stores (Gath and Chaves) Ltd [1936] 1 KB 382
Tatry, the Case C-406/92 [1994] ECR I-5439
Turner v Grovit Case C-159/02 [2005] ECR I-0000

Universal Groupe Insurance Co. v Groupe Josi Reinsurance Co.SA Case C-412/98 [2000]
ECR
Vishva Abha, the [1990] 2 Lloyd’s Rep. 312
Vishva Ajay, the [1989] 2 Lloyd’s Rep. 558
Zelger v Salinitri (No.2) C- 129/83 [1984] ECR 2397
TABLE OF STATUTES
European Council Regulation on Jurisdiction and Enforcement of Judgement in Civil and
Commercial Matters, 2001 (Brussels I Regulation)
Civil Jurisdiction and Judgement Act (UK) 1982.
Convention on Jurisdiction and Enforcement of Judgement in Civil and Commercial Matters
(the Brussels Convention)
Supreme Court Act 1981(UK)
STATUTORY INSTRUMENT AND RULES
Civil Procedure Rules 1998 (SI 1998/3132)
French Code of Civil Procedure, Decree Law No.81-500, May 12, 1981

TABLE OF ABBREVIATIONS
AC Appeal Cases
All ER All England Report
CA Court of Appeal
Ch. Chancery
CJQ Civil Justice Quarterly
CLJ Cambridge Law Journal
CLR Common Law Reports
C.Y.E.L.S Cambridge Yearbook of European Legal Studies
CPR Civil Procedure Rules
ECJ European Court of Justice
ECR European Court Reports
ELR European Law Review

EWCA civ. England and Wales Court of Appeal, Civil Division
H.L House of Lords
ICLQ International and Comparative Law Quarterly
ILPr International Litigation Procedure
JBL Journal of Business Law
KB Kings Bench
Lloyd’s Rep Lloyd’s Law Report
LMCLQ Lloyd’s Maritime and Commercial Law Quarterly
LQR Law Quarterly Review
NLJ New Law Journal
QB Queen’s Bench
WLR Weekly Law Reports

CHAPTER ONE
1.0 STAY OF PROCEEDINGS UNDER THE ENGLISH TRADITIONAL RULES
It has been observed18
that an English court may exercise a power to stay proceedings in three
situations viz in cases of lis alibi pendens, foreign jurisdiction clauses and on the basis of
forum non conviniens19
The first two situations are beyond the scope of this exercise, and our
emphasis shall be on the last situation; the discretionary grant of a stay where parties to a suit
have not designated a forum for the resolution of their dispute.
1.1 DOCTRINE OF FORUM NON CONVINIENS20
AS A BASIS FOR STAYING
PROCEEDINGS
18
Schuz , R ,‘Controlling Forum Shopping: The Impact of Macshannon v Rockware Glass Ltd’ ICLQ 35 (1986)
pp.374-412 (376 )
19
North P, M and Fawcett, J, J, Cheshire and North’s Private International Law, 13th edn, (New York: Oxford
University Press, 2004), p.334, however state that the third instance where a stay is applicable is in situations
where there is an arbitration agreement omitting the lis pendens ground.
20
The concomitant, ‘forum conviniens’, is the basis on which service out of jurisdiction is granted by English
courts. See further North P, M and Fawcett, J, J, Cheshire and North’s Private International Law, fn.19 at
pp313-21

Under English law, it is safe to identify that “forum non conviniens is a doctrine applied in...
allowing the court seised of a case the discretion to decline to exercise jurisdiction because
the interests of justice are best served if the trial takes place in another court”21
.
The emphasis under the doctrine is to find the ‘natural or most appropriate forum’ which is
best suited for the trial of the action and unlike the name implies convenience of neither the
parties nor the courts is the reason behind the adoption of the doctrine nor the cornerstone of
the concept of the natural forum although it is plain that proceedings in a forum other than the
natural forum may well be inconvenient to the defendant and even the plaintiff22
. In
Spiliada23
, the court adopted the definition offered by Lord Keith in both Macshannon24
and
the Abidin Daver25
, and Lord Goff identified the natural or most appropriate forum as that
forum with which the action ‘has the most real and substantial connection’.
2.1 DOCTRINE OF FORUM NON COVINIENS IN PRACTICE; THE TWO STAGE
TEST AND THE EXERCISE OF THE COURTS DISCRETION
21
Brand , A, R and Jablonski R,S, Forum Non Conviniens-History, Global Practice and Future under the
Hague Convention on Choice of Court Agreements (New York: Oxford University Press Inc, 2007), p.1
22
Hill, J, International Commercial Disputes in English Courts 3rd
edn, (USA/Canada: Hart Publishing, 2005)
p.280-81; also Bell, A, Forum Shopping and Venue in Transnational Litigation, (New York: Oxford University
Press, 2003) pp92-3; Cf the American practice of the doctrine, where it is said that the state of congestion of the
court’s docket and the parties’ convenience are essential factors.
23
Spiliada Maritime Corporation v Cansulex Ltd [1987] A.C 460
24
Macshannon v Rockware Glass Ltd [1978] A.C. 795 (H.L)
25
[1984] A.C. 398 (H.L)

The imprimatur of the doctrine of forum non conviniens in English jurisprudence is the
famous case of Spiliada Maritime Corp. v Cansulex Ltd 26
a case which defines the doctrine
as we shall observe below, in the context of its exercise and practice.
The power of an English court to stay proceedings is inherent and now reinforced by Statute,
i.e. the Supreme Court Act 1981, S. 49(3) and the Civil Jurisdiction and Judgments Act,
1982, s.49 etc27
In practice stays are sought in cases where a claim form has been served within the
jurisdiction28
. The courts discretion can only be exercised on the application of one of the
parties to the dispute, usually the defendant29
. Thus an English court would not suo moto stay
proceedings.30
Until recently, there was no time limit within which the applicant could apply
for a stay, however, under Civil Procedure Rules 1998, Pt 11, the application must be made
within 14 days in other courts and 28 days in commercial courts31
.The application has to be
made before the applicant takes any steps in the substantive suit which may be regarded as a
submission to the court’s jurisdiction32
and the court is enjoined to consider circumstances as
26
See fn 23 above
27
Collins, L, et al (Eds), Dicey, Morris & Collins; The Conflict of Laws ,14th
edn,(London: Sweet & Maxwell
Ltd, 2006) p.464;also North P, M and Fawcett, J, J, Cheshire and North’s Private International Law fn 19
pp.333-4
28
See North P, M and Fawcett, J, J, Cheshire and North’s Private International Law, fn 19 at p.338
29
For an example of a rare instance where a claimant may apply for a stay see Collins, L, et al (Eds), fn 27 at p.
465; also see fn.Error: Reference source not found at p.302
30
See Bell, A, fn.22. at p. 92
31
See Collins, L, et al (Eds), Dicey, Morris & Collins; The Conflict of Laws, fn 27 at p.484; cf Briggs, A and
Rees, P, fn.4 at p.324, for a view that an application (or even re-application) can be made to the court if facts
emerge at a later stage of the trial to support a plea of forum non conviniens; also Bell, A, fn. 22 pp 327-8
32
Hill, J, fn.22 at p.280; also North P, M and Fawcett, J, J, fn.19 at p.333, who posit that an application has to be
made at the commencement of proceedings.

they exist when the application is heard.33
The applications are nearly always dealt with on
the basis of affidavit evidence.34
The exercise of discretion whether or not to stay proceedings under the English traditional
rules is a carefully regulated and guided doctrine, a sort of discretion within a framework of
well formulated principles35
. It is submitted that the basic principle is that “...a stay will only
be granted on the ground of forum non conviniens where the court is satisfied that there is
some available forum, having jurisdiction, which is the appropriate forum for trial of the
action, i.e. in which the case may be tried more suitably for the interests of all the parties and
the ends of justice36
”
Lord Goff37
laid down a number of subordinate principles, which have been frequently
followed. “He referred to a two stage enquiry. The first stage is concerned with whether there
is another available forum which is “clearly” more appropriate than the English forum; the
second stage with the requirement of justice”38
33
Lubbe v Cape Plc [2000] 1WLR 1545, 1565-6; also Hill, J, fn 22.
34
Slater A,G, ‘Forum Non Conviniens :A View From The Shop Floor’ 104 LQR (1988) pp.554-575(568)
35
Per Bingham, J in Banco Atlantico SA v The British Bank of the Middle East [1990] 2 LL R. 504 at 506
36
Per Goff LJ in Spiliada Maritime Corporation v Cansulex Ltd, fn.Error: Reference source not foundat p. 476;
Collins, L et al (Eds), fn Error: Reference source not found at.p.467; North P,M and Fawcett, J,J, fn. Error:
Reference source not found at p.336; also Hill, J, fn. 22 at p.281
37
Spiliada Maritime Corporation v Cansulex Ltd, fn Error: Reference source not found above.
38
North P,M and Fawcett, J,J, fn Error: Reference source not found at.p.336

At the first stage the burden is on the defendant/applicant39
to show that there is an alternative
venue, which objectively, is more appropriate than England for the trial of the matter.
If the court is not satisfied that there is an alternative forum, it may at this stage dispense
with the application and proceed to hear the matter.
The first stage involves a consideration of the factors which point in the direction of another
forum as that with which the dispute has the most real and substantial connection. Such
factors may not only affect convenience and expense, but may relate to the applicable law
and the place where the parties reside or carry on business. 40
It is instructive that there is no
exhaustive list of factors and each case would be considered on its merits. However, from the
cases it can be deduced that some of the factors considered by the courts at this stage will
include;
Territorial Connections: i.e. places of residence of the parties, or where they carry on
business. The courts will consider that the place of residence of the defendant is prima facie
best fitted to deal with the matter. 41
Claims based on Tort: generally, actions of this kind are best tried in the courts within whose
jurisdiction the tortious acts were substantially committed.42
In the Albaforth43
, Goff LJ,
declared that where a claim is based on a tort allegedly committed within a certain
39
Briggs, A, ‘The staying of actions on ground of “forum non conviniens” in England today’ LMCLQ 1(1984)
pp.227-249 (240-1)
40
Spiliada Maritime Corporation V Cansulex Ltd, fn.Error: Reference source not found at p. 477-8; also Hill, J,
fn aboveaboveaboveaboveaboveError: Reference source not found.at p. 281
41
In Konamaneni v Rolls Royce Ind. Power (India) Ltd [2002]1 All ER 979 a stay was granted in a suit to
bring Derivative action against a company incorporated in India, on the grounds that India, being where most of
the shareholders where resident and the records of the company were kept was best fitted for the trial.

jurisdiction, it is not easy to imagine what other facts could displace the conclusion that the
courts of that jurisdiction are the natural forum.44
Convenience and Expense: the element considered here is the possible convenience of having
material witnesses at the forum, and the possible cost that may be incurred by either of the
parties in having their witnesses or other evidence in some other jurisdiction brought before
the court.45
Multiple defendants: where the matter involves various defendants and in the court’s opinion,
the ends of justice would be best secured if the matter is tried in another jurisdiction, i.e. to
enable the matter to be dealt with holistically, then the court will ordinarily grant a stay.46
Lis Alibi Pendens: the additional cost and expense and the possibility of conflicting decisions
from two different courts with the attendant difficulty in enforcement of such decisions are
some of the reasons advocated in objection to parallel proceedings based on the same facts,
and same cause of action, between the same parties. Thus, where there are relevant
proceedings already pending in an alternative forum, a court would exercise the power to
grant a stay of a matter before it, considering other relevant factors.47
42
Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391:also Caltex Singapore Pte Ltd v
BP Shipping Co.[1996]1 Lloyds Rep.
43
[1984] 2 Lloyd’s Rep. 91
44
Ibid. at p.96
45
[Cleveland Museum of Art v Capricorn Art Int. SA 1990] 2 Lloyds Rep.166where the defendant had applied to
stay an English action the court considered that relevant witnesses and material evidence were in America and
on that basis amongst others, granted a stay of the claimant’s action in England. Cf Spiliada, where the court
held that expert witnesses could be substituted and thus the cost the defendants may incur in bringing their
expert witnesses to London was not an issue.
46
See the ‘Oinoussin Pride’ [1991] 1 Lloyd’s Rep. 126, where the court ignored a jurisdiction clause in a charter
party and permitted an action to be stayed in England so that all the issues to be tried between the necessary
parties to the suit could proceed in Alabama. Each case is determined on its facts and circumstances, thus as was
held in Phillip v Booth, if all the potential defendants can be sued in England, then the court would refuse a stay.
47
Cleveland Museum of Art v Capricorn Art International SA, fn. 45

The Applicable Law: if there is an express choice of law to govern a contract, it is most likely
that the courts would exercise their discretion in favour of the courts of the governing law48
.
Questions of additional expense and convenience also arise as where a court of another
jurisdiction were to try to adjudicate on the law of a foreign country, experts in that law may
be required to educate and advise the court.
Language: where a decision would depend on the interpretation of a document, then the
language in which that document would be interpreted, becomes a relevant factor in
determining whether to grant a stay or not49
.
The “Cambridgeshire Factor”: in Spiliada Maritime v Cansulex Ltd50
, the court in regarding
the efficiency, expedition and economy of the case, held that where an earlier action, not
involving exactly the same parties, but based on materially the same grounds and involving
the same representatives, evidence etc had been tried in a particular court, justice would
demand that the courts of that jurisdiction would be most appropriate to hear a subsequent
related matter.
However, where the court concludes that there is an alternative forum it may then proceed to
consider whether justice demands that a stay be granted or refused. “At the second stage, the
burden of proof is on the claimant to establish that there are special circumstances by reason
48
Gan Insurance company Ltd v Tai Ping Insurance company Ltd [1999] ILPr 729
49
The ‘Magnum’, [1989] 1 Lloyd’s Rep. 47; also Haji-Ioannou v Frangos [1999]2 Lloyd’s Rep. 337. In the ‘Al
Battani’, [1993] 2 Lloyd’s Rep. 219 the court held that England was a more appropriate forum to decide a
matter wherein the Bills of Lading, the subject of the dispute and survey reports on damage to goods carried
thereunder were in English. The court reasoned that territorial connection with Egypt was not decisive when
juxtaposed against the time and expense it would take to interpret the document into Arabic before the matter
could be determined by the court.
50
fn Error: Reference source not found.

of which justice requires that the trial should proceed in England.... The court will consider
all the circumstances of the case, including circumstances which go beyond the connecting
factors with other jurisdictions...; of prime significance is the question whether the claimant
would obtain justice in the foreign jurisdiction” 51
The courts are saddled with the task of weighing the balance between the factors that militate
for a trial in England and those that require the English action be stayed in favour of a trial in
a foreign jurisdiction. It is basically a weighing of these factors that calls for an exercise of
discretion, as the identification of an alternative forum is a fairly objective factor.
The factors that may influence the court’s decision at this stage include:
Time Bars: dependent on the circumstances, and reasonableness of the petitioner in not
commencing action in the alternative forum, the court may consider that it is not just to
deprive him of the benefit of having started proceedings within the limitation period
applicable in this country, when that in the foreign jurisdiction has elapsed.52
Delay in the Foreign Forum: where substantial delay in the foreign forum would deprive the
plaintiff of the justice of the case, then a stay may be refused even where the matter has its
most real and substantial connection to that forum.53
Costs: ordinarily the courts would not on the basis that a claimant would lose a cost
advantage if a matter is decided in the alternative jurisdiction, refuse a stay.54
However where
51
Hill, J, fn.Error: Reference source not found at p.283
52
Baghlaf Al Zafer Factory Co. Br. For Industry v Pakistani National Shipping Co. (No.1) [1998] 2 Lloyd’s
Rep. 229; also the Prestrioka [2003] 2 Lloyds Rep.327
53
the ‘Vishva Ajay’ [1989] 2 Lloyd’s Rep. 558. However, much has been said that this factor amounts to the
English courts invariably putting the practices of other courts on trial, and demonstrably in Radhakrishna
Hospital Services Private Ltd & Eurest SA v EIH Ltd [1999] 2 Lloyd’s Rep. 249 the court refused to grant a stay
on the ground that delay in India would not ordinarily lead to substantial injustice.
54
the ‘Oinoussin Pride’, fn.46

the issue of award of costs would amount to substantial injustice in the foreign court, then
this would have an influence on the court’s decision one way or the other.55
In the ‘Al
Battani’56
the court considered that in Egypt a plaintiff was allowed to recover court fees
only, and an action involving costs close to £200,000, was an instance where a stay of the
English action would “deprive the plaintiff of the fruits of his victory”
Damages: the amount of damages recoverable by the claimant in an action is not ordinarily a
relevant factor in the exercise of the courts discretion.57
However where the damages
awardable by the alternative forum are so substantially low, the court may refuse a stay in
order to allow the plaintiff enjoy the fruits of a victory under the English system58
.
Resources: in Connelly v RTZ Corporation59
the court considered that a situation where the
claimants may not be able to pursue their action in the alternative jurisdiction on the ground
that they would not have access to the courts because of their pecuniary status was a relevant
factor. Consequently, they refused to stay an action which clearly had the most territorial
connection to Namibia and nothing substantial to do with England.
Competing choice of law: where the exercise of jurisdiction revolves round a determination
of the relevant choice of law as made by the parties, it is considered that the courts will
exercise a jurisdiction in favour of English Jurisdiction, where the conflict is between English
law and some other foreign law.60
55
Roneleigh Ltd v MII Exports Inc.[1989] 1 WLR 619
56
see fn 49 above.
57
Spiliada Maritime Corporation v Cansulex Ltd , fn Error: Reference source not found
58
the ‘Vishva Abha’[1990] 2 Lloyd’s Rep. 312
59
[1998] AC 854; also Lubbe v Cape, fn.33 above
60
See the ‘Magnum’ , fn Error: Reference source not found above

Procedural Fairness: generally, a claim by a plaintiff that there would be procedural
unfairness against him in the alternative forum is not a relevant factor, however, where the
plaintiff can prove that he may not receive a fair trial in the foreign court for political, racial
or religious reasons, the court may refuse a stay.61
None of the factors by itself is conclusive. In practice, the courts take an objective view of
the factors involved and weigh them in relevant circumstances to arrive at a decision whether
or not to exercise its discretion one way or the other.62
The test established by Spiliada Maritime Corporation v Cansulex Ltd63
, and the factors
considered may be subject to criticism depending on perspective, however, it must be
observed that the test is not cast in stone and the factors are not sacrosanct. The test seeks to
establish a framework to “guide” courts in trying to determine an appropriate forum for
resolution of disputes so as to meet the “ends of justice” in the interest of all parties.
It is the position that the exercise of this discretion is a matter for the trial court and appellate
courts have been charged to be slow in interfering in the trial judge’s exercise of discretion.64
The courts should also endeavour to make a determination of the appropriate forum in a
matter of hours and not days.65
61
Mohammed v Bank of Kuwait and the Middle East KSC [1996] 1 WLR 1483. However, in Askin and Others v
ABSA Bank [1999] ILPr 471 the court held that this factor would not be a determinant factor where the plaintiffs
do not have a cogent ground for their claim of procedural unfairness.
62
Amin Rasheed Shipping Corp. v Kuwait Insurance Company (The “Al Wahab”) [1984] AC 50
63
See fn 23 above
64
Per Lord Templeman in Spiliada Maritime Corporation v Cansulex Ltd [1987] fn 23at p.465; also North P,M
and Fawcett, J,J, fn 19 at.p.336; Hill, J,fn Error: Reference source not found at .p.297
65
Spiliada Maritime Corporation v Cansulex Ltd, fn. Error: Reference source not foundat p. 465

The effect of a stay is that the matter is held in abeyance and the claimant is required to sue in
the alternative forum. The courts remain seised of the matter, but will suspend further
consideration of them, to permit the claimant to prosecute his claim in the courts of another
state66
.The stay may be lifted in appropriate circumstances; and as the action remains pending
throughout, there is no problem of exceeding limitation time periods.67
1.3 REMARKS ,COMMENTS AND CRITICISMS OF THE DOCTRINE OF FORUM
NON CONVINIENS AND ITS PRACTICE
The doctrine of forum non conveniens seeks to find a natural forum, in which a case may be
tried, not just for the benefit of either the plaintiff or the defendant, but of all parties, and for
the ends of justice. This analysis of the basis of the doctrine is said to be founded on notions
of procedural fairness.68
Certainly there is much to commend in a principle which does not
permit either party, to seek advantage in a forum which best suits him as a venue for trial, but
leaves it for an impartial judge to determine on an objective basis, not only taking into
consideration the interests of the parties involved alone, but the “ends of justice” as they
appear to him69
. There is no convincing reason why the choice of a court should lie solely
within the control of just the claimant, and not both parties: it may be the claimant’s claim,
but it is also the parties’ dispute70
.Briggs articulates the argument in the light of judicial
efficiency and cooperation when he stated that “... [forum non conviniens] allows a judge in
66
Briggs, A, and Rees, P, fn 4 at pp 297-8
67
Briggs, A, The Conflict of Laws ,2nd
edn, (New York: Oxford University Press, 2008) p.99
68
Bell, A,fn.22 at.pp90-1
69
In this regard, see the dicta of Lord Denning in Smith Kline & French Laboratories Ltd v Bloch [1983] A.C
795 at 817
70
Briggs, A and Rees, P, fn 4 at p.300

one country to yield to the submission that the courts of another country are better placed to
give the parties the adjudication they deserve. It gives effect to that judicial comity which
acknowledges that where sovereignties collide, a sensitive solution is preferable to an abrupt
one”.71
It is clearly more effective that Roman law is best adjudicated before Roman courts as
English Law will be better tried before an English Judge.
Such is the attraction of the doctrine that some have drawn a comparison between the forum
non conveniens principle and the rules for determining the proper law of contract, hence the
references under the doctrine to ‘connecting factors’ and to the natural forum as ‘that with
which the action had the most real and substantial connection’72
.
However, the doctrine has not been without criticism, these criticisms relate both to matters
of fundamental principles and practical shortcomings involved in the search for the natural
forum73
.The analysis below highlights a few.
Brennan, J is often cited as suggesting in his judgement in the Australian case of Oceanic
Sun Line Special Shipping Co.Inc v Fay74
that the broad discretion reposed in courts by the
doctrine of forum non conviniens is inconsistent with the rule of law which imposed upon
courts a ‘duty to exercise their jurisdiction when litigants invoke it’. The learned judge
reasoned that it was illegitimate for the courts, through the exercise of ‘a discretion guided by
no more specific a touchstone than the ends of justice to alter the parties’ rights’. The concern
71
Briggs, A, The Conflict of Laws, fn 67 at.p.100
72
Schulz, R, fn Error: Reference source not found at p. 382; also Barma, A and Elvin, D ‘Forum Non
Conviniens: Where to from here?’ LQR 101 (1985) pp.48-68 (61)
73
Bell, A, fn Error: Reference source not found2 at p.120
74
(1988) 165 CLR 197 at 239

of the courts, in his view, is the enforcement of existing rights and liabilities, not the creation,
modification or abolition of rights and liabilities.75
There is also the criticism, that the Scottish doctrine of forum non conviniens looks for a
forum where the ends of justice can best be served, without appearing to be too specific about
how this decision is made76
.The doctrine in its practice under English law has been further
confounded by the formulation of a pseudo- scientific formula; weighing advantages and
disadvantages on either side in addition to a determination of the natural forum, before a
decision is made, one way or the other. He contends that “although the weighing of
advantages and disadvantages is attractively easy in theory, its theoretical justification seems
obscure alongside the identification of a natural forum, and its operation in practise is less
easy than at first sight”77
In practice, the doctrine has also been a subject of much controversy. According to
Robertson78
, the determination of the courts in England to replace judicial chauvinism with
judicial comity has led to the wholesale surrender to discretion and the adoption of a doctrine
which lacks clarity, is inconsistent and unpredictable. The discretion exercised by judges he
argues, is so broad and vaguely circumscribed as to amount to an instinctive process. The
approach rests on factors too legion and imponderable to be enumerated or assigned weights.
He concludes that this leaves room for uncertainty enabling litigation79
and such
inconsistency, that two similar cases have diametrically opposite results80
. For instance in
75
Bell, A, fn 22 pp.121-26
76
Briggs, A, ‘Forum Non Conviniens –Now We Are Ten?’ Legal studies 3 (1983) 74 at 85
77
Ibid. at p.84
78
Robertson, D,W, ‘Forum non Conviniens in America and England: “A rather Fantastic Fiction’ LQR 103
(1987) pp.398- 432 (410)
79
See also Hogan, G, ‘The Brussels Convention, Forum Non Conviniens and the Connecting Factors Problem’
ELR 20 (1995) pp. 471-493 (473)
80
Robertson, D,W,fn 78 above at pp. 414-5

Caltex Singapore Pte Ltd v BP Shipping Ltd81
Clarke, J held that although Singapore was a
more appropriate forum proceedings would not be stayed on the grounds that the basis of
calculation of damages awardable to the claimant would only be by reference to the lower
1957 Convention on Limitation of Liability for Maritime Claims, and the English action
would make reference to the higher 1976 version of the Convention. In direct contradiction,
the court of Appeal in Herceg Novi (owners) v Ming Galaxy (owners)82
held in similar
circumstances, that the fact that a foreign court more closely connected with the dispute,
would apply the 1957 version rather than the 1976 version was not sufficient to justify a
refusal of a stay.
The approach under the doctrine brings to mind the criticism levelled at the early court of
equity, -in this instance, where the parties try their matter is dependent on the “length of the
judge’s foot”.
Slater83
argues that a consideration of the factors which may militate against or for a grant of
stay of proceedings as a preliminary issue, does not afford the courts the opportunity of a
detailed analysis. To debate these questions at length at an early stage, he asserted, is
frequently a speculative and futile exercise.84
It is also argued that the doctrine implies a “fight to determine where to fight”, “litigation
about where to litigate” and essentially calls for “... a secondary trial...the expenditure of time
and money which that would involve is out of all proportion to the importance of the question
under consideration”85
81
See fn 42 above
82
Herceg Novi (owners) v Ming Galaxy (owners) [1998] 4 All ER 238
83
Slater, A, G, fn 34 above. at p. 568
84
Ibid.
85
Ibid. at p.569

Following from the above criticism is also the view, that “...interlocutory litigation over the
question of venue is likely to be encouraged and the process of the courts abused. One such
perceived abuse is the use of stay applications to delay or ‘buy time’.”86
The argument goes
that usually applications for a stay are not all made in good faith, with a defendant seeking
the appropriate forum for the ends of justice to be met. Considerations of inflation, interest
and exchange rates is a motivation for a defendant to stall, through interlocutory applications,
thus postponing the evil day, when judgement can be levied against him.
Whatever the pros and cons, the importance of the doctrine of forum non conviniens as a
basis of stay of proceedings under the English traditional conflict of law rules ,and one may
add throughout the Common law world, cannot be over emphasised. A proper perspective on
the subject however, can be better obtained through an overview of the alternative
mechanism for the grant of a stay in a situation of jurisdictional conflict.
86
Bell, A, fn 22 at p. 127

CHAPTER TWO
2.0 STAY OF PROCEEDINGS UNDER THE BRUSSELS I REGULATION
The rules of jurisdiction codified in chapter II of the Brussels Regulation seek to determine
which state’s courts are most appropriate to assume jurisdiction, taking into account all
relevant matters.87
The nature of the rules however creates room for forum shopping and
possibly parallel proceedings in two or more courts. In some instances the rules give a
plaintiff a choice of different member states in which to sue.88
To reduce the risk of irreconcilable judgements and promote litigation economy, section 9 of
the said chapter regulates the problem of proceedings simultaneously pending in courts of
different member states in respect of similar or related disputes.89
The section provides bright
line rules as to which court can exercise jurisdiction and which must stay its proceedings,
decline jurisdiction or exercise a discretion to do either or none.
2.1 BASIS AND PRACTICE OF STAY OF PROCEEDINGS UNDER ARTICLES 27-
29 OF THE REGULATION
Closely modelled after the doctrines of litispendence and connexite under French law,
Articles 27, 28 and 29 provide the rules for allocating jurisdiction between conflicting fora
within the Brussels regime.90
The provisions are based primarily on a test of chronological
priority, under which a court subsequently seised is required or invited to defer to the court
87
Bell, A , fn 22 at p. 55
88
E.g. Article 5 of the Brussels Regulation
89
Stone, P, Civil Jurisdiction and Judgments in Europe (New York: Longman,1998) p.131
90
Park, W, International Forum Selection (The Netherlands : Kluwer Law International, 1995) p. 149

first seised, rather than on a judicial evaluation of the relative appropriateness or convenience
of the two fora.91
Parallel proceedings involving similar disputes92
“In cases where there may be two or more courts with jurisdiction to try a particular dispute,
such clashes of jurisdiction are resolved by the blunt instrument of the ‘first come, first
served’ rule of Article 27”93
. It lays emphasis on the chronological sequence of proceedings
and establishes something akin to the American domestic ‘first filed rule’94
The court of the
member state first seised of the matter takes priority, and any court of another member state
must of its own motion decline jurisdiction, once the jurisdiction of the court first seised is
established in that state95
. Under Article 27, the second seised court is required to decline
jurisdiction and may not examine the jurisdiction of the first seised court96
. The Rule in
Article 27 is clear enough: the court first seised has jurisdiction and may exercise it; the later
ones must stay their proceedings until the jurisdiction of the first court is established, and
then must decline jurisdiction.97
“The justification for this rule is that the jurisdictional
provisions of the Regulation are common to all member states; and it must be easy for the
91
Stone, P,fn 89 at.p.131
92
Regulated under Article 27 Brussels I Regulation
93
Briggs, A, and Rees, P, fn 4 at. p. 34
94
Bell, A, fn 22 at p. 61
95
Schlosser Report, p.125; also North P, M, and Fawcett, J, J, fn 19 at p.251
96
See Overseas Union Insurance Ltd V New Hampshire Insurance Co. C-351/89, [1991] ECR I-3317,re-
affirmed in Freifau von Horn v Cinnamond C-163/95 [1997] ECR I-5451; also Briggs, A, and Rees, P,fn 4 at
p. 238; Bell, A, fn.22 at p.62: also North P,M and Fawcett, J,J, fn. 19 at p 251; for a submission that a court
second seised may examine the first court’s jurisdiction, where the latter has jurisdiction under Article 22, see
Stone, P, fn.89 at p.134
97
Briggs, A, and Rees, P, fn 4 at p. 229

court seised first, as for the court seised second, to determine whether the court seised first
has jurisdiction.”98
The rule in Article 27 (1) imposes a mandatory obligation on the court subsequently seised,
an obligation which must be performed by the court’s own motion if necessary99
. “...If one of
the parties does not apply to the court for cessation of its proceedings, the court must in any
event take such action ex proprio motu-of its own motion”100
The rule is inflexible and it
appears, would be applied even if the court first seised, has assumed jurisdiction in breach of
a jurisdiction agreement made by the parties101
.
Article 27 requires three ‘identities’: identity of parties (but procedural differences between
the formulation of the claimants and defendants are not decisive); identity of object (the two
actions must have the same end in view); and identity of cause (they must be based on the
same facts and rules of law)102
.
Where the same parties are involved in the two suits the situation is straightforward, the first
in time to sue prevails. However where there is a question of identity of parties due to
difference in name, capacity or constitution, the court has established a practical test to
determine if the parties in both cases are identical, to wit; whether the interests of the parties
is ‘identical and indissociable.103
98
See Briggs, A and Rees ,P, fn 4 at p. 239
99
Stone, P, fn 89 at. p.133
100
Kaye, P, Civil Jurisdiction and Enforcement of Foreign Judgement (Oxford: Professional Books Ltd, 1987)
p.1218
101
See Erich Gasser GmbH v MISAT srl [2003] ECR I-0000
102
Case C-406/92 The Tatry[1994] ECR I-5439
103
See Drouot Assurances SA v Consolidated Metallurgical Industries C-351/96 [1998] ECR I -3057

The object of a suit would be regarded as identical where a decision one way or the other
would have the same end or effect. Thus in Gubisch Maschinenfabrik KG v Palumbo104
, it
was held that an action to enforce a contract and an action to rescind that contract or have it
dissolved, were both instituted to determine whether the contract was binding.105
The cause of action in a matter would also be the same where the facts and the rule of law
under which two sets of proceedings are brought is the same. It is irrelevant how the
arguments are formulated. In Gubisch106
it was held that where two sets of proceedings were
based on the same contractual relationship and both actions were brought one for breach and
the other for rescission of that contract, the cause of action was the same107
.
Under the Regulation, unlike the position under the Convention, the question of ‘when
seised’ has been removed from national procedural law and is regulated under Article 30108
.
There is no discretion given to the courts of either member state as to whether they should
take jurisdiction.109
The court first seised must exercise jurisdiction and any challenge to its
jurisdiction must be argued before it, whilst any other court must stay proceedings until the
former decides one way or the other. If the first court eventually decides that it is
incompetent, the second court will lift its stay and permit its action to proceed.110
Parallel proceedings involving Related Disputes111
104
C-144/86 [1987] ECR 4861
105
See also the Tatry fn 102 above
106
fn Error: Reference source not found4 above
107
See the Tatry, fn 102
108
Bell, A, fn 22 at p. 62; cf the position as held in Zelger v Salinitri (No.2) C- 129/83 [1984] ECR 2397
109
North P, M and Fawcett, J, J,fn 19 at p. 252
110
Stone, P, fn 89 at p.134
111
Regulated under Article 28 Brussels I Regulation

Article 28 permits a second seised court to stay its proceedings in circumstances where
‘related actions’ are pending in the courts of another member state. It also permits a second
seised court to decline jurisdiction over actions ‘related’ to those pending in an earlier
seised, if the first seised court has jurisdiction over the actions in question and its law permits
the consolidation of proceedings.112
The courts powers under this Article are permissive, not
compulsory.113
Any court other than the court first seised may (rather than must), while the
actions are pending, stay its proceedings.
For the courts to exercise its power under Article 28, certain conditions have to be met. First,
there must be an application by one of the parties for such an order under paragraph 2 but not
expressly under paragraph 1; the law of the member state to which the first court belongs
must permit the consolidation of related actions; and the first court must have jurisdiction to
entertain both actions.114
Paragraph 3 defines related actions for the purpose of the Article115
In
the Tatry116
, the ECJ, provided a guide on when an action could be regarded as related when it
opined that actions are related if they would involve the risk of conflicting decisions, without
necessarily involving the risk of giving rise to mutually exclusive legal consequences.
The basis for the exercise of the power to stay or decline is not clear. However, it has been
argued that “[Article 28] gives discretion, in exercising which ‘regard may be had to the
question of which court is in the best position to decide a given question’. Thus, it is
submitted that the court may consider matters ‘such as the extent of relatedness, the stage
112
Bell, A, fn 22 at p.68
113
Briggs, A, and Rees, P, fn 4 at p. 242
114
Stone, P, fn Error: Reference source not foundError: Reference source not found at p.142
115
The concepts and requirements under the Article are more fully discussed in the English Court of Appeal
decision in Sarrio S.A v Kuwait Investment Authority [1997] 1 LLR 113
116
Fn Error: Reference source not found; also see Sarrio S.A v Kuwait Investment, fn.Error: Reference source
not found above

reached in each set of proceedings and the proximity of each court to the subject matter of the
case’. This involves considerations of forum conviniens117
, but there is one crucial additional
consideration that is unique to this area, namely that there is a risk of irreconcilable
judgement if a stay is not granted”.118
Parallel proceedings in circumstances of Conflicting Exclusivity119
The race to institute action becomes more glaring in the rare case where courts located in two
member states assume to exercise exclusive jurisdiction. This is the situation provided for
under Article 29. Thus for instance, in a situation where a dispute concerns an easement
benefitting one land in one member state and burdening land in another member state,
compulsorily, the court second seised must defer to the mandatory priority given to the court
first seised. Article 29 is just a reflection of the rule laid down under Article 27.
2.2 REMARKS AND COMMENTS ON THE PRACTICE OF STAY OF
PROCEEDINGS UNDER THE BRUSSELS I REGULATION
Under the Brussels I Regulation, the rule is: ‘do not wait to be sued, but sue first’. 120
“The
Judgment Regulation attaches little weight to the ideal that litigation should take place, where
this is contentious, in its natural forum and there is practically no judicial discretion which
may cause or encourage a case to be heard in its natural forum within the union of member
states”.121
The view is that the rules allocating jurisdiction under the Brussels I Regulation
117
A view also expressed by Stone, P, fn 89
118
North P, M, and Fawcett, J, J, fn 19 at p. 258
119
As regulated under Article 29
120
Briggs, A, ‘Anti-European Teeth for Choice of court Clauses’-case comment on Continental Bank v Aeakos
LMCLQ [1994)] pp.158-163 (158)
121
Briggs, A and Rees ,P, fn 4 at p34; emphasis added

have considered all possibilities and each court granted jurisdiction is probably the most
appropriate to handle such matter. The attitude is that every court within the Union is
efficient and capable of administering the same justice as all other courts. The ECJ had
opined that courts within the Union must trust each other122
.
There is the argument that a mechanistic first filed rule such as embodied in Articles 27 and
29 of the Regulation has the merit of simplicity and is designed to avoid the twin evils of
inconsistent decisions and a race to the judgement in those courts exercising jurisdiction.123
It
has the additional and salutary result that judicial resources are not wasted through duplicated
proceedings. The courts with concurrent jurisdictions are not required nor indeed permitted,
whether implicitly or explicitly, to make assessments of or comparisons with the courts of the
other jurisdiction or their procedural facilities. The danger that reflections on the
appropriateness of courts of different countries to exercise jurisdiction may necessarily
involve invidious comparisons, inimical to notions of judicial comity, is thus avoided.124
However, there is also the view that a blunt first to file rule such as the principle behind
article 27 is not without its faults. One such fault is the potential for the rule, in cases of
multiple defendants to bifurcate litigation which ideally should be heard in a single forum.
The most obvious weakness of the rule embodied in Article 27 is that under it, there is simply
a ‘race to seise’. The premium placed on commencing proceedings first may well serve to
increase and promote litigation, at the expense of, arguably more desirable and less costly
forms of dispute resolution. This is evident in practice, and Briggs has noted the challenge
such a rule may have in international litigation especially, when he observed that; “...the
courteous solicitor’s habit of writing a letter before action is, from the client’s point of view,
122
Turner v Grovit Case C-159/02 [2005] ECR I-0000
123
The motivation for such a race is the possibility of being able to plead in the ongoing foreign proceedings that
the first judgement renders those proceedings res judicata or establishes an issue or cause of action estoppels
124
Bell, A, fn Error: Reference source not found at pp.63-4

disastrous. In effect, it invites the opponent to snatch the jurisdictional advantage by
launching proceedings in the court of his choosing...in a case in which pressure may be
exerted, or some strategic or other advantage may be obtained by choosing the forum for the
battle, there is no justification for surrendering one’s best point before one has begun.”125
This
has led many to offer the uncanny advice that for a prospective litigant who would prefer any
litigation to take place in a particular forum, speed in commencing proceedings is essential.126
Under Article 28, the nature of the concept of ‘related action’ and the questions of degree,
necessarily raised and difficult to elucidate, means that any formula ultimately arrived at will
leave a considerable discretion with the court asked to stay the second set of proceedings,
thus providing a further avenue for hard fought battles concerning venue.127
“The exact basis
upon which this discretion is to be exercised is nowhere made explicit in the Regulation.”128
The opinions are that the effects of stays of proceedings under the Brussels regime have been
expressed in the objectives which the Regulation seeks to achieve.129
125
Briggs, A, ‘Anti-European Teeth for Choice of court Clauses’-case comment on Continental Bank v Aeakos,
fnError: Reference source not found at pp. 158-9
126
Briggs, A and Rees, P, fn 4 at p. 34
127
Bell, A,fn 22 at p.69
128
Bell, A, fn 22, ibid; also Fentiman, R ‘Ousting Jurisdiction and the European Conventions’ fn 7 at p.126
129
Harris, J ‘Related Actions and the Brussels Convention’–Case comment on Sarrio v Kuwait Investment
Authority LMCLQ (1998) pp.145-151 (145) writing in relation to Article 28 argues that the doctrine of stay
functions to:
(a) prevent litigation taking place in two member states which will lead to legally irreconcilable judgements, in
the sense that the enforcement of both in the same state would be precluded
(b) ensure that, whenever the court first seised rules upon matters which are essential to its reasoning process
and which will also be critical to the other action, the latter claim will not be advanced in the courts of another
member state, at least until the outcome of the first action is resolved.
(c) enable two actions to be heard together in the same court even though the separate enforcement of two
judgements from different contracting states would not be precluded, whenever there are issues common to both
potential sets of proceedings.
The first point applies to Articles 27-29 as well, whereas the latter two are peculiar to Article 28.

2.3 COMPARISON OF THE BASIS FOR A STAY OF PROCEEDINGS UNDER THE
ENGLISH TRADITIONAL RULES AND THE BRUSSELLS I REGULATION
The approach here is to identify the salient aspects of the practice of stay of proceedings
under the two regimes juxtaposed against one another. The purpose is a simple comparison.
It is pertinent to reiterate that although the Regulation is an attempt at harmonisation of
European laws, the total absence of any aspect of common law practice of stay of
proceedings and the seemingly wholesale imposition of Continental law policies necessarily
implies a bias and any attempt at comparison cannot totally eliminate a sense of value
judgement dependent on perspective.
The point may seem rather moot, but it is important to note that the development, practice
and basis of the principles governing the exercise of the power to stay, are wholly judge made
under the English traditional system130
. The practice and principles of stay under the Brussels
I Regulation however, are clearly provided under statute and codified. The import of the
flexibility of the former and rigidity of the latter approach becomes explicit in international
litigation to disputes which are characteristically dynamic.
Under Brussels I regime, there must be parallel proceedings in two or more courts for a stay
to be considered. Under the English traditional rules, parallel proceedings, if they exist are
relevant considerations, not conditions precedent to the exercise of the power. The latter
procedure avoids any potential for multiple proceedings.
There is the requirement for the court on its own initiative to stay action under the Brussels
regime, parties’ autonomy seems discarded and the court may stay as a result of the self
130
On this view with respect to English conflict of law rules generally, see Hartley,T.C ‘The European Union
and the Systematic Dismantling of the Common Law of Conflict Laws’ ICLQ 54 ( 2005) pp.813-828 ( 813)

regulating objective of the Regulation. A fundamental aspect of the English procedure is that,
the parties have the initiative to move the court to exercise its powers. The latter system is
more aligned with developments under international dispute resolution where party autonomy
is fast becoming the accepted norm.
Whereas the doctrine of forum non conviniens as a basis for a stay in its application is
universal i.e. there is no jurisdictional limit within which the English court must exercise its
power. The exercise of the power to stay under the Regulation ignores the problem of
simultaneous actions, one in a member state and the other in a non-member state as evident
from the circumstances in Owusu v Jackson.
The apparent omission or limitation of the power of stay in respect to situations of conflicting
jurisdictions between member states and third states though understandable in the sense that
the Regulation was made by Europeans for Europe, leaves a lacuna with respect to
‘international litigation’. Simply put, where there is a conflict between a member state and a
state which is not party to the Brussels I Regulation, there is no provision for the courts to
consider a stay of proceedings one way or the other on any ground131
.
The realities of international business and litigation are admittedly complicated and there is a
need to provide for this possibility which was seemingly omitted under the Regulation. The
approach by courts, such as those in England where this scenario is far more frequent, is that
of practical functionality. There is a need to consider the most appropriate forum as between
the third state and a member state, in which a case could be tried more suitably for the
interests of all the parties and the ends of justice.132
The prevalent view amongst Continental
law member states however, is that principles are more important than practical operation of
131
See also Fentiman, R, ‘English Domicile and the Staying of Actions-Case Comment on Owusu v Jackson’, fn
13 above
132
This view was reflected in the Court of Appeal decision in Re Harrods (Buenos Aires) Ltd, fn 8 above

law. Thus a systematic interpretation of the provision of the Regulation does not permit a stay
of proceedings in any situation or on any ground other than as codified.
It is in this state that the decision in Owusu v Jackson was handed down by the ECJ. The
court’s opinion and its implications shall be our focus in the next chapter.
CHAPTER THREE
3.0 CRITICAL ANALYSIS OF, AND THE IMPORT OF THE ECJ’S DECISION IN
OWUSU V JACKSON
Pursuant to the Protocol adopted in 1971133
the ECJ was granted jurisdiction to interpret the
provisions of the Brussels Convention134
when a reference was made to it from a court of a
member state. This procedure seeks to give guidance to national courts on the application of
community law.
It was by virtue of this jurisdiction that the court of Appeal made a reference to the ECJ on
guidance on how to resolve the questions in Owusu v Jackson135
133
1979 OJ C59/66.
134
Under the Judgement Regulation 2001, the procedure for obtaining preliminary rulings is Article 234 of the
EC Treaty, as adapted by Article 68 EC.
135
[2002] EWCA Civ 877; [2002] ILPr 813

This chapter shall attempt to review the facts of the case, a critical analysis of the Advocate
General’s advice (which provided the material reasons for the judgment) and the ECJ’s
decision. The basis of reasoning shall be reviewed and criticised. In this regard we shall argue
that the decision of the court is not supported by its reasoning and the avowed scheme and
objective of the Judgement Regulation. We shall infer that the outcome of the Court’s
opinion in the case in hand is largely a result of a misinterpretation of the scheme and
objective of the Judgment Convention, and a misunderstanding of principles of English
procedural law. We shall align with the conclusion by some136
that the strict interpretation
approach to the letter of the provisions of the Regulation without regard to the ‘real
implications’ and function of legal rules within a society leaves more to be desired and tends
to produce results that are in practice, difficult to appreciate.
3.1 ANDREW OWUSU V N.B JACKSON (TRADING AS ‘VILLA HOLIDAYS BAL- INN
VILLAS’AND OTHERS; CASE C-281/02137
In 1997, Andrew Owusu of English domicile suffered a serious accident whilst on holiday in
Jamaica. While diving into the water at a resort, he struck his head on a submerged sand
bank and suffered a fracture to his fifth and cervical vertebra which rendered him
tetraplegic. Following the accident, Mr. Owusu brought proceedings in England for
compensation against Mr. Jackson, also domiciled in England. Mr Jackson had rented to
the claimant the villa in Jamaica, near which he was injured. In support of his action, Mr.
Owusu claimed that the contract, which provided that he, would have access to a private
beach, implicitly envisaged that the beach would be reasonably safe or free of hidden
dangers.
136
Hartley, T, C, fn Error: Reference source not found at p. 828
137
[2005] ECR I-1383-464

Mr. Owusu also sought to establish the liability of five Jamaican companies; the Mammee
Bay Club Ltd (the owner and operator of the beach to which Mr. Owusu was granted
access), the Enchanted Garden Resorts & Spa Ltd (which operates a holiday centre near
the beach in question, to which access was also granted) and Town & Country Resorts
Ltd (the operator of a large hotel next to the beach in question, which held a licence for
access to it subject to providing for management, maintenance and supervision thereof).
Under the English rules of civil procedure, Mr. Owusu sought leave to summon the Jamaican
companies concerned to appear before the English courts. Leave was granted by the
English judge.
In his defence, the first defendant raised an objection of forum non conviniens and therefore
requested that proceedings be stayed. The dispute he argued, displayed closer links with
Jamaica than with England, and second, his insurance policy covering the provision of
accommodation in Jamaica would not cover damages awarded by a non- Jamaican court.
The Jamaican co-defendants served also challenged the jurisdiction of the English court.
They asked that the English court decline jurisdiction and authorise proceedings abroad.
Judge Bentley QC dismissed all the defendant’s objections. With regard to the objection of
forum non conviniens put forward by the first defendant, he considered that the decision
of the Court of Justice in Universal Groupe Insurance Co. v Groupe Josi Reinsurance
Co.SA138
prevented a stay of proceedings on the sole ground that the court seised was not
appropriate to try the case. He was of the view that following that decision, because the
first defendant was domiciled in a contracting state, an action against him could not be
stayed on the basis of forum non conviniens. The court rejected the arguments put
138
Case C-412/98 [2000] ECR I-5925, particularly para.59-69 wherein the European Court of Justice held that,
in principle the jurisdictional rules of the Brussels Convention apply to a dispute provided that the defendant’s
registered office or domicile is in a contracting state.

forward by the other Jamaican defendants as well, reasoning that since proceedings
cannot be stayed as against the first defendant, the same should apply to the other
defendants. If that were not the case, there would be a risk that different courts in two
states ( United Kingdom and Jamaica) would be called on to adjudicate on the same
facts on the basis of identical or similar evidence and might reach different conclusion.
In those circumstances, the court at first instance considered that England, not Jamaica,
was the appropriate forum for trial of the action.
The defendants appealed to the Court of Appeal, contending that;
The Brussels Convention is not applicable to the circumstances at issue, so that it cannot be
relied on in this case to preclude operation of the doctrine of forum non conviniens.
The system of sharing jurisdiction set up by the Brussels Convention applies only in relations
between contracting states and not in relations between a contracting state and a non
contracting state where no question of sharing jurisdiction with another contracting state
arises.
For his part the claimant, maintained that the Brussels Convention does not concern only
conflicts of jurisdiction between the courts of contracting states. To limit the application
of the Convention to such conflicts would detract from the main objective of Article 2 of
the Convention, namely to guarantee legal certainty through forseeability of the court
having jurisdiction.
Mr. Owusu further asserted that the general jurisdictional rule in Article 2 of the Convention
is mandatory and cannot be derogated from except in situations expressly envisaged by
the convention, and the present case does not constitute such a situation.

Having regard to the views put forward by the parties, the English Court of Appeal, decided
to stay its proceedings and seek a preliminary ruling from the court of Justice on the
following questions:
1. Is it inconsistent with the Brussels Convention, where a claimant contends that the
jurisdiction is founded on Article 2, for a court of a contracting state to exercise a
discretionary power, available under its national law, to decline to hear proceedings
brought against a person domiciled in that state in favour of the courts of a non-
contracting state:
(a) If the jurisdiction of no other Contracting state under the 1968 Convention is in
issue;
(b) If the proceedings have no other connecting factors to any other contracting state?
2. If the answer to questions 1(a) or 1(b) is yes, is it inconsistent in all the circumstances
or only in some and if so in which?
In his advice, Advocate General Leger reformulated the essential issues for determination
thus139
:
1. whether Article 2 of the Brussels Convention is applicable where the claimant and the
defendant are domiciled in the same contracting state and the dispute between them,
before the courts of that contracting state, displays certain factors connecting it with a
non-contracting state, and not with another contracting state, so that the only question
of sharing jurisdiction which is likely to arise in this dispute involves only
139
[2005] ECR I-1383 paras. 72-79 pp.1387-3

relationships between the courts of a contracting state and those of a non-contracting
state, and not relations between the courts of different contracting states.
2. if the introductory question is answered affirmatively, whether the Brussels
Convention prevents a court of a contracting state –whose jurisdiction is based on
Article 2 of that Convention-from exercising a discretion to decline to exercise that
jurisdiction on the ground that a court of a non-contracting state would be better
placed to deal with the substance of the case, where the latter has not been designated
by any agreement conferring jurisdiction and has not previously been seised of any
claim liable to give rise to lis pendens or related actions and the factors connecting the
dispute with that non-contracting state are not of the kind referred to in Article 16 of
the Brussels Convention.
3.1.1 THE OPINIONS AND UNANSWERED QUESTIONS
The court considered that to answer the first question referred to it, it must first determine
whether Article 2 of the Brussels Convention was applicable in circumstances such as those
in the main proceedings.
The Advocate General advised that the first question boils down to whether the application of
Article 2 of the Brussels Convention is conditional upon the existence of a legal relationship
involving different contracting states. Starting from an analysis of the Jenard Report on
territorial and personal scope of the Convention,140
Mr. Leger posited that neither the wording
of Article 2 nor the general scheme of the Convention prevents that Article from applying to
a legal relationship involving a contracting state and a non-contracting state. The Advocate
General reasoned that if the authors of the Convention had intended to exclude Article 2 of
140
OJ 1979 C. 59,p.8

the Convention in such circumstances they would have taken care to say so expressly in the
actual body of the Convention.
With respect to the general scheme of the Convention, he submitted that the only instances
where the Convention makes application of its jurisdictional rules conditional upon the
existence of a legal relationship connected with more than one contracting state were those
instances expressly stated therein.
In the terms of its preamble, he submitted that the Convention aims ‘to strengthen in the
community the legal protection of persons therein established’ and this involves ‘enabling the
claimant to identify easily the court in which he may sue and the defendant reasonably to
foresee which court he may be sued.’141
The Court had also characterised those rules as
‘guaranteeing certainty as to the allocation of jurisdiction among the various national courts
before which proceedings in matters relating to a contract may be brought.’142
He concluded that those two aims of the Convention mean that the application of Article 2
cannot be made conditional on the existence of a dispute displaying connections with
different contracting states.
He thus advised that the first question be answered in the affirmative.
In this regard, the ECJ ruled that nothing in the wording of Article 2 of the Brussels
Convention suggests that the application of the general rule of jurisdiction laid down by that
Article solely on the basis of the defendants domicile in a contracting state is subject to the
condition that there should be a legal relationship involving a number of contracting states.
141
Referring to the ECJ decisions in case 38/81 Effer [1982] ECR 825 para.6; Case C-125/92 Mulox IBC
[1993]ECR i-4075, para.11;Case C-334/00 Tacconi [2002] ECR I-7357 para.20;Case C-18/02 DFDS Torline
[2004] ECR I-1417, para.36
142
Case C-288/92 Custom made Commercial [1994] ECR I-2913, para.15, and Case C-256/00 Besix [2002]
ECR I-1699, para. 25

The court then proceeded to consider whether in such circumstances, the Brussels
Convention precludes a court of a contracting state from applying the forum non conviniens
doctrine and declining to exercise the jurisdiction conferred on it by Article 2 of that
Convention.
The Advocate General approached the question from 3 different premises; the intention of the
authors, the text (particularly article 2), and the general scheme and objectives of the
Convention.
He chronicled the development of the Brussels Convention and the accession to it by the UK
and Ireland.143
He observed that in 1978144
the question of the compatibility of the forum non
conviniens doctrine was raised, and after reviewing the discussions as presented in the
Schlosser Report,145
concluded146
that the member states which negotiated and concluded the
Brussels Convention either had no intention of agreeing to include the forum non conviniens
principle in the scheme of the Convention which was established or that a majority of them
were firmly opposed to its inclusion. He submits that to accept a contrary argument would
amount to disregarding the intentions of the states which are parties to the Convention.
He argued further, that the wording of Article 2 militates against the acceptance of the forum
non conviniens doctrine. He opined that the first paragraph of Article 2 shows that the rule on
jurisdiction laid down in it is mandatory and not optional and that no derogation from that
rule is allowed otherwise than in cases expressly provided for by the Convention. He thus
concluded that the effect of the wording of Article 2 is that, in circumstances such as those of
143
He observed that it is essentially in these two countries that the doctrine of forum non conviniens was
practised, conceding that the doctrine was applicable to a lesser extent in the Netherlands.
144
On the accession of the UK, Ireland and Denmark to the Convention
145
OJ 1979 C.59, p.71. paras.77 and 78
146
Para. 229

the main proceedings, a court of a contracting state seised of litigation on the basis of that
Article has no discretion to decline to give judgment on the substance on the ground that a
court of a non contracting state would be a more appropriate court to do so147
.
Deducing from the general scheme of the Convention, he argued that derogations from the
general rule under Article 2, on grounds of the existence of a direct or particularly close
connecting factor between the dispute and the courts of a state other than that of the
defendant’s domicile148
, location of the subject matter of the dispute, 149
and the mechanisms
relating to parallel or related proceedings150
where only available in the context of relations
between contracting states.
On the premise of the objective and useful effect of the Convention, he argued that allowing a
court seised the opportunity to decline-in a purely discretionary manner –to exercise the
jurisdiction which it derives from Article 2, seriously affects the predictability of the effects
of the jurisdictional rules laid down by the Convention.151
He concluded that the answer to the second part of the first preliminary question must be that
the Brussels Convention prevents a court of a contracting state seised of jurisdiction on the
basis of Article 2 from exercising a discretion to decline to exercise that jurisdiction on the
ground that a court of a non contracting state would be more appropriate to deal with the
substance of the dispute, where the latter court has not been designated by any agreement
conferring jurisdiction, has not previously been seised of any claim liable to give rise to lis
147
Paras.233-4
148
Articles 5,6 and sections 3 and 4 of Title II
149
Article 17
150
Articles 19,21 and 22
151
Para. 263

pendens or related actions and the links connecting the dispute with that non-contracting
state are of a kind other than those referred to in Article 16 of the Brussels Convention.152
Following therefrom, the Court ruled that:
Article 2 of the Brussels Convention is mandatory in nature and no exception on the basis of
forum non conviniens was provided for by the authors of the Convention.153
Respect for the principle of legal certainty which is one of the objectives of the Brussels
Convention would not be fully guaranteed if the court having jurisdiction under the
Convention were allowed to apply the forum non conviniens doctrine.154
The legal protection of persons established in the community would also be undermined.
First, the defendant who is generally better placed to conduct his defence before the courts of
his domicile would not be able, in the circumstances such as those of the main proceedings,
reasonably to foresee before which other court he may be sued. Second, where a plea is raised
on the basis that a foreign court is a more appropriate forum to try the action, it is for the
claimant to establish that he will not be able to obtain justice before that foreign court, or if
the court seised decides to allow the plea, that the foreign court has in fact no jurisdiction to
try the action or that the claimant does not , in practice, have access to effective justice before
that court, irrespective of the cost entailed by the bringing of a fresh action before a court of
another state and the prolongation of the procedural limits155
.
Allowing the forum non conviniens doctrine in the context of the Brussels Convention would
be likely to affect the uniform application of the rules of jurisdiction contained therein so far
152
Para 280
153
Para.37 p. 1460
154
Para.38
155
Para.42 p.1461

as that doctrine is recognised only in a limited number of contracting states, whereas the
objective of the Brussels Convention is precisely to lay down common rules to the exclusion
of derogating national rules.156
While acknowledging that the defendants faced legitimate difficulties which would result in
practice from the obligation the English courts would then be under to try this case, inter alia
the difficulty of recovering their costs in England if Owusu’s action was dismissed, the
logistical difficulties resulting from the geographical distance, the need to assess the merits of
the case according to Jamaican standards, the enforceability in Jamaica of a default judgment
and the impossibility of enforcing cross-claims against the other defendants, the court
however held that such considerations are not such as to call into question the mandatory
nature of the rule contained in Article 2 of the Brussels Convention.
The ECJ thus concluded that the Brussels Convention, precludes a court of a contracting state
from declining the jurisdiction conferred on it by Article 2 of that Convention on the ground
that a court of a non-contracting state would be a more appropriate forum for the trial of the
action even if the jurisdiction of no other contracting state is in issue or the proceedings have
no connecting factors to any other contracting state.
With respect to the second question, the court considered that that question was
hypothetical157
. Arguing from the purpose of the procedure provided under Article 234 EC,
the Court submitted that its function was to provide national courts with an interpretation of
such Community law as is necessary for them to give judgment in cases upon which they are
called to adjudicate.158
Ruling that the factual circumstances envisaged under the second
156
Para.43 ibid.
157
Asked in connection with cases where there were identical or related proceedings pending before a court of a
non contracting state, a convention granting jurisdiction to such a court or a connection with that state of the
same type as those referred to in article 16 of the Brussels Convention

question were not the same as those of the main proceedings, the court held that it was
unnecessary to reply to the second question159
.
3.1.2 THE IMPORT OF THE OPINION IN PRACTICE
The decision extends the scope of the Brussels Regulation over disputes arising in other
jurisdictions, and invariably extends the European procedural regime to third states160
. This
sets progress in the search for a global mechanism for allocating jurisdiction back a few
notches. Under international law, the interface with international politics is greatly
emphasised and nation states deal with each other on the basis of reciprocity. A situation
where a court would seek to exercise its power over nationals of another jurisdiction without
a clear logical basis, but rather on a jurisdictional rule determined, not in conjunction but
arbitrarily by the former, can only be met by similar action. Arguing from one perspective,
Harris161
stated that in a case like Owusu, there was a serious possibility that where a stay was
granted for the action to be tried in Jamaica, any ensuing judgment would need enforcement
against the first defendant in English courts; and such judgement could then be refused
enforcement. It is difficult to accept that argument, first the action was stayed by the English
courts on the ground that justice would best be served by the Jamaican courts, it is unlikely
that the English courts would turn round and refuse to enforce that judgment except on
grounds offending its procedural rules. The learned writer also seems oblivious to the other
158
Reference was made to Case C-231/89 Gmurzynska-Bscher [1990] ECR I-4003, para.18, Case C-314/96
Djabali [1998] ECR I-1149, para.17, and Case C-318/00 Bacardi Martini and Cellier des Dauphins [2003]
ECR I-905, para.41
159
Para.52
160
Fentiman, R, ‘English Domicile and the Staying of Actions’-case comment on Owusu v Jackson, fn 13
at.p.303
161
Harris, J, ‘Stays of Proceedings and the Brussels Convention’ ICLQ 54 (2005) pp. 932-950 (940)

side of the coin; the courts in Jamaica may also refuse enforcement of the English judgment,
or may likely make a declaration of non-liability on application of the other defendants
regardless of the outcome of the English trial. A politico-judicial impasse ensues.
In practice Owusu creates more uncertainty than certainty. Prior to that decision, parties were
at least aware that the court would be called upon to determine the appropriateness of the
English forum for a trial. After Owusu, the questions would begin first, whether the action
falls within the Brussels regime or not162
. The court did not attempt in this case to delimit the
scope of the Judgment Regulation.
In practice Owusu spins a complex web. The decision implies that there are two sets of rules
in an English court dependent on a claimant’s domicile. Thus where a claimant domiciled in a
third state sues a defendant in England, the defendant may apply for a stay. There is no such
avenue for the defendant where the claimant is domiciled in England.
The decision also has a great impact on the problem of forum shopping that has for long
plagued English courts. The nature of the territory as a financial capital of the world and its
position in the Commonwealth of Nations has its attractions; thus the courts have devised a
mechanism which seeks to direct litigants to the most appropriate forum when necessary. The
decision in Owusu however, tends to encourage forum shopping. What is needed now for any
claimant, who in the armchair view of the ECJ is always looking to sue in the appropriate
jurisdiction, is any tenuous relationship with Europe. The relationships which in reality do
not amount to much may include domicile-which for individuals is a measly 3 months
residence163
, for companies amongst others, place of incorporation164
It is submitted that, this
162
It has been argued that forum non conviniens may still be pleaded by a party against whom jurisdiction is
founded on a basis other than the Brussels Regulation e.g. under CPR Part 6.20, see further Halkerston, G, ‘A
funny thing happened on the way to the forum...’ NLJ 155(2005) pp425-472 (437)
163
Ss.41 and 42(1) Civil Jurisdiction and Judgments Act 1982
164
Article 60 Brussels Regulation; a fact that was not missed by the court in Re Harrods (Buenos Aires)

is likely to make an English incorporated parent company of a multinational group, for
instance, an even more attractive target to foreign claimants who have suffered losses as a
result of the actions of a subsidiary incorporated abroad. Whilst such claimants would
struggle to pin liability upon the parent company as a matter of substantive law, such
companies have now been deprived of a useful tool for disposing of nuisance claims165
. The
increased domestic acceptance of negative declarative relief has also been identified as a
procedural factor that fuels this undesirable impact within an English jurisdiction.166
From the above, it is clear that the decision diminishes the ability of member states to
regulate access to their courts167
.The import of this for a country like England, which is
regarded as an international centre for dispute resolution, is that the burden on her courts
would be enormous, the outcome, a massive fall in the quality of justice hitherto delivered.
The impact of the decision in Owusu, on business practices on an international level was also
largely overlooked by the ECJ. Business men would regard a dispute over events which took
place in a particular jurisdiction to be resolved in that jurisdiction. That is the simple and
logical reason involved in most international relations. The decision goes against that grain of
reasoning. “To begin with, taking Owusu on its own terms, a jurisdiction agreement for the
courts of Jamaica would have to be refused legal effect; and if a claim will require a court to
adjudicate upon title to land in Jamaica, this foreign connection will be irrelevant as
well”168
.The refusal of the Court to answer, in its words those hypothetical questions further
reinforces this conclusion.
165
Hare, C, ‘Forum non conviniens in Europe: Game Over or Time for “Reflexion”?’ JBL (2006) pp.157-179
(171)
166
Halkerston, G, fn 162 above.
167
Fentiman, R, ‘English Domicile and the Staying of Actions’-case comment on Owusu v Jackson, fn.13 at
p.303
168
Briggs, A, ‘The Death of Harrods: Forum non Conviniens and the European Court’ LQR 121 (2005) pp.535-
540 (537)

3.2 COMMENTS, REMARKS AND CRITICISM OF THE ECJ’S OPINION
The reformulation of the questions referred by the ECJ, to whether; Article 2 was applicable
to the relationship between a contracting and non contracting state was deflecting the crux of
the matter169
. The question is not that simple. The question involved an answer to an obvious
lacuna in the Regulation170
.
What was necessary for the court to determine was the device applicable to allocate
jurisdiction between a third state and a member state171
where the Regulation and the
Conventions before it were silent.
The Regulation, it is humbly submitted, does not ‘properly’ apply in situations such as
Owusu’s.172
This is evident in the approach of the claimant in filing suit; he had sued the other
defendants under the English civil procedural rules, acknowledging that his action could not
be wholly supported under the Judgement Regulation. The court and Advocate General
brushed aside the argument supported by views expressed in the Jenard Report, and held that
‘an international element’ was not necessary for the provisions of the Regulation to kick in.
It is submitted however that a better approach would have been, in the face of that lacuna to
look at the objective underlying the Regulation for assistance. In its analysis, the Court
seemed to have taken the view that the aim of the Regulation was to provide certainty for,
and strengthen the protection of persons domiciled within the Community by providing
169
Cuniberti, C, ‘Forum Non Conviniens and the Brussels Convention’ Current Developments: Private
International Law, edited by McEleavy, P, ICLQ 54 (2005) pp.973-981(976)
170
See Para. 85, p. 1405, advisory opinion of Attorney General Leger where he admits that the territorial
application of Article 2 had not been precisely defined by the Convention.
171
See also Harris, J, ‘Stays of Proceedings and the Brussels Convention’ fn.Error: Reference source not found
at p.934
172
See also Peel, E, ‘ Forum non Conviniens and European Ideals’ LMCLQ (2005) pp.363-377 (370)

jurisdictional Rules. Arguing from the textual analysis of Article 293 of the EC Treaty,
Peel173
submits that it is all too easy to lose sight of the object of the Regulation and believe
that it is primarily a “jurisdiction” Regulation, given the greater emphasis on rules of
jurisdiction in chapter II. It is not. It is a “judgments” Regulation in which rules on
jurisdiction are included purely to facilitate the recognition and enforcement of judgments.
Thus, Fentiman rightly concludes that the Regulation applies only if thereby its objectives
would be served. The primary, defining purpose of the Regulation he further asserts is the
mutual enforcement of judgment between member states –harmonised jurisdiction being
required only to that end, thus staying or declining jurisdiction in favour of non-member
states leaves the Regulation’s primary objective untouched.174
It was therefore not necessary
to treat the questions as only strictly requiring an answer to the applicability of a rule of
jurisdiction based on Article 2.
Unfortunately though, the court held that the Convention and now, the Regulation does apply
to such circumstances175
. Does the court then try to find a mechanism by interpreting the
Regulation in such a way that the aspiration of the parties and the real ends of justice can be
achieved?
No. The ECJ held that the court of a member stated seised in such circumstances must
exercise jurisdiction, and where it has a device within its procedural rules to resolve such
difficulties, it could not revert to it. National law cannot complement community law where
the latter has shortcomings or omissions.
173
Peel, E, ‘ Forum non Conviniens and European Ideals’ fn Error: Reference source not found at p.367
174
Fentiman, R, ‘English Domicile and the Staying of Actions’-case comment on Owusu v Jackson, fn 13
175
Following its decision in Group Josi Case C-412/98 [2000] ECR I-5925

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