29 September 2005

Discretion, Sovereignty and Multilateral Trust in European Civil Jurisdiction Law

Recent ECJ judgments on the Brussels-I Regulation on jurisdiction in civil and commercial matters have provoked comments on the Court's treatment of the fundamental interests involved in jurisdiction law generally and on the EC's position in this field in particular. Especially important in this respect have been the Court's pronouncements in the cases of Gasser v. MISAT (2003), Turner v. Grovit (2004) and Owusu v. Jackson (2005) on the nature and scope of the Community system of conflicts of jurisdiction. These cases have profound implications for (a) the balance between legal certainty and substantive justice in individual cases and (b) the balance between Community authority and national competence in the area.

Professor Adrian Briggs in his casenote of Owusu in the October 2005 issue of the Law Quarterly Review ("The Death of Harrods") pays special attention to the second point mentioned. In Owusu, the Court forbade the application by the English courts of the (English) docrtine of forum non conveniens, in cases that had no jurisdictional links with any other Member State than the United Kingdom. Proponents of such application had argued that these cases were did not involve the EC Internal Market to a degree sufficient to warrant application of the Regulation. The Court gave this argument short shrift and professor Briggs writes:

"This marking out of
territory by the court was deadly serious. It was intended to warn off those who might advance similar arguments about lack of connection to the internal market to trim or undermine the scope of the Judgments Regulation. It will also serve to prevent those who may advance similar arguments to cast doubt on the treaty basis of Regulations, present and to come, governing choice of law in contract, tort and unjust enrichment, family law, etc. Disparities in any of these areas of national law may, just as speciously, be said to obstruct the internal market. Careful and precise legal arguments about the legal basis for such legislation will be impotent against a boilerplate paragraph, bolted into every judgment, which will say that any disparities between national legislation will impede the functioning of the internal market, and that legislation to eradicate such disparities is therefore within the competence of the organs of the European Union."

Professor Ronald A. Brand makes similar points in a University of Pittsburgh School of Law Working Paper (no. 25/2005, available on SSRN). He interestingly connects the issues involved to broader questions of party autonomy and state sovereignty, labeling the Court's recent judgments a "regression" with regard to the balance between these concerns. Professor Brand writes:

"Recent cases of the ECJ interpreting the Brussels Convention [now the Regulation, JB] demonstrate a federalization of Community law, with the Court clearly trying to unify private international law principles within the Community structure. It is important, however, that this maturation of a multilateral system into a central regime not bring with it the absolutist approach to private international law rules that has otherwise been rejected in efforts to enhance multilateral cooperation and elevate party autonomy."

One central argument raised over and over again by the Court in decisions like the ones cited is the importance of mutual or multilateral trust between the courts of the Member States. This hitherto fairly elusive concept of trust has now been analysed by Felix Blobel and Patrick Spath in their recent European Law Review article "The Tale of Multilateral Trust and the European Law of Civil Procedure". From the article's abstract:

"Critics assert that such a postulate is mere fiction, and question how it can work in the parties' interests. This article explores the nature and function of mutual trust in transeuropean civil litigation, argues that its simulation is generally justified for establishing a single European judicial space, but also uncovers its possible pitfalls and limits."

Readers interested in these topics could finally also have a look at the book I published last month with SDU publishers in The Hague in the Allen & Overy Legal Research Series, called "Judicial Discretion in European Law on Conflicts of Jurisdiction", which tries to deal with these and related issues. The book argues that the Court's rigid interpretation of the Convention/Regulation, granting overriding weight to the values of legal certainty and predictability, has been insufficiently sensitive to the particular national settings in which the rules are to be applied. This lack of attention the informal and contextual dimensions of jurisdiction regimes, the book asserts, is an important cause of significant divergent applications of European rules at the national level.

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