Forum non Conveniens et régime des conflits de compétence dans l'espace judiciaire européen: vers une solution intégrée

Abstract

First paragraph: The Brussels Convention was concluded in 1968 between the original six Member States of what is now the European Union (EU). France, Germany, Italy and the Benelux countries did not have the doctrine of forum non conveniens as part of their private international law systems and therefore it is not surprising that the Brussels Convention did not adopt forum non conveniens. Instead, for conflicts of jurisdiction between courts in different Contracting States to the Convention the drafters adopted a lis pendens rule in Article 21: “Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States, any court other than the court first seised shall of its own motion decline jurisdiction in favour of that court. A court which would be required to decline jurisdiction may stay its proceedings if the jurisdiction of the other court is contested.” This was a strict first come first served approach when the litigation in both countries involved the same parties and the same cause of action. One of the main aims of the drafters of the original Brussels Convention was to avoid irreconcilable judgments in different Member States of the EU. However, this risk does not just arise where there is complete identity of parties and cause of action as covered by the lis pendens rule. Therefore, even the original Brussels Convention, agreed by the six civil law founding members, sacrificed some legal certainty in the conflicts of jurisdiction rules to further reduce the risk of irreconcilable judgments. They did so by giving courts, other than the court first seised, a discretion to decline jurisdiction for related actions in Article 22 (where there was a risk of irreconcilable judgments) even though the parties or the cause of action were not identical : “Where related actions are brought in the courts of different Contracting States, any court other than the court first seised may, while the actions are pending at first instance, stay its proceedings. A court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the law of that court permits the consolidation of related actions and the court first seised has jurisdiction over both actions.