The doctrine of forum non conveniens after Owusu v. Jackson (C-281/02) : does it still have a role to play?

Abstract

The doctrine of forum non conveniens is an offshoot of common law, which allows a court to decline its jurisdiction if it is of the opinion that a court of another country is more appropriate for the trial of the action. This thesis examines the historical origins of the doctrine, and its criteria for use as developed by English landmark judgments. In addition, its applicability if at all, within European legislation such as the Brussels I and Brussels II bis Regulations, as well as within the Maltese Code of Organisation and Civil Procedure is also analysed. The CJEU's leading case of Owusu v. Jackson, whereby the Court dismissed the doctrine's application within the ambit of the Brussels I Regulation is the main focus of the thesis. An analysis is made to explore whether the doctrine has any role to play eight years after this landmark judgment was given by the CJEU. The newly adopted Brussels I Recast Regulation is examined and a study is carried out as to whether the new Regulation favours the inclusion of the doctrine within the European regime. Finally, by means of suggestions for reform, an attempt is made to propose ways which the European and Maltese courts should follow in cases which require a stay of proceedings on the grounds of forum non conveniens.