Forum Non Conveniens doctrine – post Brexit applicability in transnational litigation*

ANONYMIZOVÁNO REDAKCÍ

Abstract

The article follows the birth of the judicial development of English forum non conveniens doctrine
in stay proceedings, its alterations, and applicable tests leading to CJEU’s decision in Owusu.
Owusu ultimately forbade English courts to stay its proceedings and allow a “more convenient” forum
to decide on the dispute merits, in case where the jurisdiction was conferred by Brussels regime –
not only concerning other EU courts but worldwide. With the UK’s withdrawal from the EU, a question
appears whether English courts might again exercise their doctrinal power. If affirmatory, the
paper proceeds to assess various applicable, or presumably fitting, instruments, both for
allocation of jurisdiction and recognition, and enforcement of judgments – Lugano Convention, Hague
Convention 2005, and Hague Convention 2019. The paper also assesses how these instruments might
interact with the use of forum non conveniens doctrine.

Keywords

Forum non conveniens, jurisdiction, enforcement, recognition, Lugano Convention, Hague Convention
2005, Hague Convention 2019, Brexit

1                 Introduction

The almost never-ending negotiation between the United Kingdom (“UK”) and European Union (“EU”) had
reached its peak on 31 January 2021 when the UK ultimately left the EU. This marks a soon-to-expire
transitional period in which the UK is subjected to “regulation without representation” in the EU
bodies. The so-called Brexit may or may not bring the national self-determination proclaimed in the
Brexit negotiations[1]. However, it will bring many private international law questions. As
borders, citizenships and workforce may already be fully negotiated, circulation of judgments and
their recognition and enforcement are not.

This paper forms a part of a series of articles, each reflecting fragment of English private
international law doctrines and their respective formation, the stance of EU law or CJEU case law
towards those doctrines, and their possible and feasible application after Brexit in regard to EU
domiciled persons. This article focuses on forum non conveniens doctrine in stay proceedings, as a
situation in which the court recognizes another forum to be more appropriate to hear the case and,
therefore, stays the proceedings in favour of such forum, should the defendant agree to be
subjected to other forum’s jurisdiction.

This paper does not address the implications of Brexit as is nor deals with the whole
post-transition setup in the mutual relationship between the UK and the EU per se unless explicitly
specified otherwise. The paper also does not cover transitional cases ongoing at the end of the
transition period or commenced after the transition period in Scotland, Wales, and Northern
Ireland.

The introductory part of this paper shall introduce the central thesis to which concurring
arguments are ought to be present in the following chapters. The introductory part also institutes
the framework of reference used hereto.

The second chapter presents the core of modern forum non conveniens doctrine in stay proceedings as
exercised in England. For proper understanding, one needs to be acquainted with elementary
doctrinal evolution. At the outset, adoption of the doctrine in England is assessed, primarily
concerning the creeping undertaking of its Scottish counterpart. Once established, the emerging
test(s) in granting the stay proceedings are evaluated and reflected via relevant case law. This
chapter forms a basic understanding of forum non conveniens, on which later chapters build.

The third chapter discusses the position taken by the Court of Justice of the European Union
(“CJEU”) in the Owusu case in stay proceedings in matters where the jurisdiction was conferred by
the Brussels Convention. This chapter also deliberates on the effect and impact of the Owusu case
on EU and non-EU courts. Consequently, the English stance on the Owusu case and its interpretation
is shown.

Czech doctrinal attitude will not be discussed following the reasoning that to the full extent
applicable, the Czech Republic jurisprudence follows the CJEU case-law and EU law, and as civil law
country, itself has no analogy to such doctrine.

The fourth chapter presents the optional possibility to refrain from the CJEU’s case law. Marking
it to be a path to open the English judicial market to greater favourability and possibility to
exercise powers ultimately banned by the CJEU.

The fifth chapter then evaluates possible judicial cooperation frameworks between UK and EU. Each
presented option is given objective likelihood, and most feasible frameworks are accompanied by an
assessment of the possibility to exercise forum non conveniens doctrine by English courts. If
allowed, then a reflection toward jurisdiction allocation, and recognition and enforcement
considered, as well as practical benefits and pitfalls.

For the purpose of this paper, as seen to be of most interest to the upcoming legal challenges,
only forum non conveniens doctrine in litigation is evaluated (stay proceedings). This paper does
not concern with the forum conveniens doctrine, which allows English courts to serve proceedings on
foreign defendants (service-out proceedings).[2] Different positions taken to service-out
proceedings and stay proceedings in case law are for the purpose of this paper diminished as they
are ultimately unified in the Spiliada[3] case.

In the words of simplicity, the forum conveniens doctrine allows English courts to serve out
actions and decide disputes even though they do not have per se jurisdiction. The jurisdiction is
then conferred on English courts because they are convenient to decide on merits and where English
forum is the one in which the case may most suitably be tried for the interests of all the parties
and the ends of justice. On the other hand, forum non conveniens doctrine allows English courts to
refuse to exercise their rightfully invoked jurisdiction because there is a more convenient (more
suitable) forum in which the case may most suitably be tried for the interests of all the parties
and the ends of justice and defendant can present such forum as well as its intention to be
subjected to its jurisdiction.

Hypotheses in this paper considered are that (a) modern forum non conveniens doctrine is only
feasible in cases where domestic law applies, (b) Lugano Convention framework retains the same
approach to forum non conveniens as presently under Brussels regime, and (c) Hague conventions
frameworks are deemed to be the most feasible framework for the UK to retain some degree of
international judicial cooperation, however, neither allows for direct applicability of forum non
conveniens.

2                Formation of modern Forum Non Conveniens doctrine England

“[…] where the court is satisfied that there is some other available forum, having competent
jurisdiction, which is the appropriate forum for the 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 justice”[4]. Fully
comprehensive and concurrently utmost foreign to civil law, which does not allow for review of the
appropriateness of conferred proper jurisdiction[5].

Parties may either agree to adjudicate their dispute in England, or the plaintiff can unilaterally
elect England to be the seat of adjudication by bringing the claim to England courts. The election
may or may not be based on proper assessment of applicable law. If the jurisdiction of chosen
English court is proper, the defendant may object to the jurisdiction or dispute its
appropriateness.

The defendant hence may demonstrate that the English forum is forum non conveniens because the
natural forum of the dispute in matter is elsewhere.[6] As much as English courts deem themselves
to be professional and effective, they do find other courts to prove to be on the same footing.[7]
Among the most important, where there is a foreign substantive law to be applied, the English court
is likely to refuse to adjudicate on the subject matter of the dispute and instead leaves the
plaintiff to sue in courts of such law.[8]

2.1           Early 1900s formation of Forum Non Conveniens doctrine in stay proceedings

Deriving its roots from 17th-century Scottish doctrine forum non competens in decisions[9]
assessing the power of the court to decline its proper jurisdiction to hear brought case in the
“interest of justice”[10] and its later transformation to forum non conveniens in Macadam v
Macadam[11] found its way[12] into existence of the “modern” English forum non conveniens doctrine
at the beginning of 20^th century. Threefold of decisions in early 1900 pawed the way to
discretionary refusal to exercise otherwise sound jurisdiction in cases not involving lis alibi
pendens[13] as an as-of-right cases – Logan v Bank of Scotland[14], Egbert v Short[15], and In re
Norton’s Settlement[16].

In Logan v Bank of Scotland, a case concerning misinterpretation of a prospectus of share allotment
of Scottish company, and subsequent action brought by the plaintiff in England, a stay of
proceeding has been granted, and jurisdiction of English courts has not been exercised on the basis
that the “claim had been brought to vex them [defendant] and/or abuse the court’s practice”[17]. A
court thus had to balance the as of right to initiate a proceeding in England[18] against the
objective of non-abuse of English courts’ hospitality.[19] Since the claim took place in Scotland
and all evidence ought to be obtained in Scotland, the court assessed the impendent inconvenience
of trying the case in England, which might inflict injustice on the defendant, therefore rendering
the proceeding vexatious and oppressive.[20]

In Egbert v Short and In re Norton’s Settlement, the cases involved a short period of defendants’
presence in England, in which the actions were initiated. The courts stressed that caution in the
exercise of stay of proceeding must be exercised.[21] In addition, in In re Norton’s Settlement,
the court had established that a stay could not be granted based merely on convenience, rather
based on proof of difficulty or practical impossibility to get justice in England[22].

2.2          Two limb test in St. Pierre

In 1935, ruling in lis alibi pendens case St. Pierre[23], albeit applicable to stay the case as
well, ceased the progress made by Logan v Bank of Scotland, Egbert v Short and In re Norton’s
Settlement. The following test has been formulated under St. Pierre ruling “The true rule about a
stay […] may I think be stated thus: (1.) A mere balance of convenience is not a sufficient ground
for depriving a plaintiff of the advantages of prosecuting his action in an English Court if it is
otherwise properly brought. The right of access to the King’s Court must not be lightly refused.
(2.) In order to justify a stay two conditions must be satisfied, one positive and the other
negative: (a) the defendant must satisfy the Court that the continuance of the action would work an
injustice because it would be oppressive or vexatious to him or would be an abuse of the process of
the Court in some other way; and (b) the stay must not cause an injustice to the plaintiff. On both
the burden of proof is on the defendant.”[24] Consisting of two limbs, the first one endorses In re
Norton’s Settlement that balance of convenience on its own is insufficient to grant a stay and
concurrently protects the plaintiffs right to commence proper proceedings in England. The second
one confirms the position of Logan v Bank of Scotland on conduct of balancing exercise.

The decision in St. Pierre then served as a plaintiff-oriented approach to a dismissal of plea for
stay[25] becoming a “state of affairs is chiefly a by-product of judicial doctrinal development at
common law being as much the result of how a landmark decision has been understood in succeeding
cases and commentary as what was actually stated in that decision.”[26] Therefore, the
discretionary stay of proceedings became non-existing. This implication, altogether with the
slowness of English courts, became a cornerstone for the rise of forum shopping in England.[27]

2.3          Atlantic Star and post-Atlantic Star rulings

Nearly 40 years after St. Pierre, a relaxation and liberalization of narrowly interpreted St.
Pierre test was exercised in Atlantic Star[28], a case involving a claim of a Dutch ship against a
Dutch owner of a container vessel for damages caused by a collision of the ships at Belgian
sea[29]. Lord Wilberforce assessed that “close and rigid an application may defeat the spirit which
lies behind it”[30].

This approach was undertaken in 13 years of analysis pursued by the House of Lord on undesirability
to apply the vexatious and oppressive test narrowly[31], which started with Atlantic Star and led
to the adoption of English forum non conveniens doctrine.

Following Atlantic Star, MacShannon[32] case marks the reforming step forward incorporation of
forum non conveniens doctrine through the factor of forum “appropriateness”. A case where
plaintiffs sued in England based on an expectation of speedier process and greater damages. The
ruling in MacShannon presented a revised test and transferred the burden of proof in the second
limb of the test from the defendant to the plaintiff, who thus must prove a stay of proceeding
would create an injustice[33], while it was still the defendant’s burden to provide the court with
an alternative forum being the dispute’s centre of gravity[34] “[…] in order to justify a stay, two
conditions must be satisfied, one positive and the other negative: (a) the defendant must satisfy
the court that there is another forum to whose jurisdiction he is amenable in which justice can be
done between the parties at substantially less inconvenience or expense, and (b) the stay must not
deprive the plaintiff of a legitimate personal or juridical advantage which would be available to
him if he invoked the jurisdiction of the English court.”

While liberalizing the test for granting a stay, it is argued that itself did not prevent forum
shopping of England forum.[35] Although the second limb of the MacShannon test ought to be
objective, the courts were able to refuse the grant of stay even when a more appropriate forum was
presented based on the plaintiff’s juridical advantage in England.[36] A similar approach to still
pro-plaintiff behaviour is observed in Astro Exito[37].

However, arguably, dissenting opinion in MacShannon shows the need of English law to start paying
due respect to other legal systems “Time and time again we said that when a plaintiff validly
invoked the jurisdiction of these courts […] he is prima facie entitled to pursue it to the end.
[…] The good old days are gone. Our entry into the Common Market has brought many changes. One of
them is the recognition that the legal systems of other countries have their merits”[38]. The
prominence of the MacShannon test is best illustrated in its application to other areas of English
private international law – decisive test whether an anti-suit injunction[39] should be issued –
both carrying similarity as to upholding English jurisdiction.

In 1984 the House of Lords moved even further in the Abidin Daver[40] and incorporated comity
principles into the test rationale while refusing to exercise the pro-plaintiff behaviour
further.[41] Among others, the need to present evidence to support injustice on the plaintiff side
must be based on cogent evidence[42], as well as it pronounced that “[…] judicial chauvinism has
been replaced by judicial comity to an extent which […] is now ripe to acknowledgement”[43] and
that current English law “is indistinguishable from the Scottish legal doctrine of forum non
conveniens”[44].

2.4          Spiliada case as adoption of the modern English form of Forum Non Conveniens doctrine

The contemporary scope of forum non conveniens doctrine was established in 1986 in the Spiliada
case by express recognition of its existence as as-of-right[45]. The modern English forum non
conveniens test consists of a twofold procedure[46]. The defendants part of the procedure consist
of 3 steps – (1) showing the availability of competent jurisdiction outside England[47], which is
the appropriate forum for the present dispute and that such forum will assume jurisdiction over the
claim[48], (2) persuading the court to grant a stay of proceedings[49], for which the defendant and
court shall assess (3) whether the presented forum is the “natural” forum of the dispute, taking
into consideration (i) availability of witnesses, (ii) governing law, and (iii) habitual residence
of the parties. Should the court be satisfied to grant a stay, the procedure shifts to the
plaintiff who may prove “circumstances by reason of which justice requires that a stay should
nevertheless not be granted”[50]. However, the court will not refuse to grant a stay if substantial
justice[51] is to be done in the natural forum. Hence comity plays an important role, a role that
could not be found prior to Abidin Daver.[52]

The stay thus will be refused either if England is the centre of gravity for the presented
dispute[53] or should not the foreign forum justly entertain the claim, thus proclaiming the
convenience of the English forum[54].

Merely only one part of the Spiliata test underwent tendencies to judicial change. The first stage
is the burden to present an available forum with competent jurisdiction outside England.[55]
However, in the Bank of Kuwait[56] case, the court refrained from ascertaining of availability of a
foreign forum in the first stage of the Spiliada test since substantial justice would not be
obtained in such forum[57], a factor which ought to be assessed in the second limb of Spiliada
test. This departure was remedied in the Connelly case[58] , and availability remained even when
the plaintiff would experience difficulties in bringing the claim.[59] Therefore any difficulties
or injustices on the plaintiff’s part was to be assessed only in the second limb of the Spiliada
test.[60]

It is hence argued that the current forum non conveniens doctrine remains the same as was
established in Spiliada.[61]

3                Applicability of Forum Non Conveniens doctrine within the EU (pre-Brexit)

The matter of forum non conveniens doctrine and its interoperability with EU law could have been
resolved in the early 1990s in the case Re Harrods[62]. Case concerning English corporation accused
of unfair prejudice of minority shareholder. Since all business was carried by said company in
Argentina, the Court of Appeal ruled that proceedings should be stayed in the forum of
incorporation as the forum has no meaningful connection to the dispute itself, and the natural
forum is Argentina. The court also assessed that it is not obliged to exercise its jurisdiction as
Brussels Convention is not applicable since no other Contracting State is involved. Hence paying
due concern to its character of regulation of jurisdiction between the Contracting States.[63] The
Court of Appeal, therefore, did not see grounds to apply Brussels Convention to a case where no
other Contracting State was concerned. House of Lords reference to the CJEU for preliminary ruling
might have provided some answers. However, the case was settled before the CJEU could reach its
decision.[64]

Therefore, it was not until 2005 when the forum non conveniens doctrine came under the purview of
CJEU in the Owusu[65] case. A claim brought in the UK, by UK plaintiff, against UK and Jamaica
defendants for injuries sustained in Jamaica, the court found that the action could not be stayed
based on Art. 2[66] of Brussels Convention[67]. The appellate court then referred the matter with
the preliminary question to the CJEU. The preliminary question asked was inter alia[68] whether it
is inconsistent with Brussels Convention if a contracting state to Brussels Convention would stay
its proceedings, based on rules of national law, brought against a person domiciled in that
contracting state in favour of non-contracting state court should the jurisdiction be based on the
general rule of jurisdiction vested to art. 2 of Brussels Convention (a) if the jurisdiction of no
other contracting state was in issue, and (b) if the proceedings had no connecting factors to any
other contracting state.[69]

CJEU stated that the application of the Brussels Convention requires some international
element[70]; conversely, it does not predominantly require legal relationship to more than one
contracting state[71]. Hence an internalization may be produced by the presence of a
non-contracting state domiciled person[72]. Thus, art. 2 being of mandatory nature, no derogation
is permitted unless Brussels Conventions explicitly allows it.[73] The discretion to stay
proceedings based on forum non conveniens is not available under Brussels Convention[74] as
“plaintiff must be sure which court has jurisdiction. He should not have to waste his time and
money risking that the court concerned may consider itself less competent than another”[75].
Therefore, the forum non conveniens doctrine would infringe on the principle of legal
certainty[76], being the cornerstone of the Brussels Convention[77]. On such consideration, the
CJEU ruled that the applicability of forum non conveniens doctrine is precluded on jurisdiction
conferred by art. 2 of the Brussels Convention.[78] The Owusu case thus holds in substance that
jurisdiction of Member State court is mandatory the courts cannot decline jurisdiction even in
favour of third-State courts.[79]

The CJEU thus “significantly restricted the ability of the English courts to refuse jurisdiction
over an English-domiciled defendant, even where there is clearly a more appropriate jurisdiction in
which to hear the case”[80]. European rules of jurisdiction are thus “based on the principles of
legal certainty and predictability, refusing any flexibility from considerations of convenience,
fairness and justice”.[81] It was however argued that the CJEU interpreted the rights “as though it
gave rights to a claimant rather than defendant, inverting the usual understanding.”[82]

English courts nevertheless remained firm in their position not to follow Owusu and affirmed their
authority to stay proceedings in favour of non-contracting state’s courts and “continued to limit
Owusu’s influence and applicability”[83] unless the case has a relationship to another EU Member
state.[84] English court hence followed the position taken in Re Harrods as not to apply Owusu in
cases where jurisdiction was conferred by the Brussels regime, yet no other Member state was
concerned with the proceedings.

Consequently, limited forum non conveniens doctrine is arguably present in Brussels Ibis
Regulation.[85] Art. 33(1)(b) stipulates the right of the seized court to stay its proceedings
should lis pendens requirements be met in relation to non-EU Member State court, and the seized EU
court is satisfied that a stay is “necessary for the proper administration of justice”[86].
Assessment of the necessity is to be made in accordance with recital 24 of the Brussels Ibis
Regulation.

4               Brexit and established CJEU case law

All England courts but the Supreme Court and High Court of Justiciary[87] are bound by retained
CJEU case law forming part of EU law before the Brexit took place[88]. However, both courts have
the inherent right to depart from such law, the same fashion as it may be departed from previous
domestic law.[89]

Considering the return to the position taken in Re Harrods regarding the refusal of proper
jurisdiction conferred by the Brussels or Lugano regime. Even after Owusu ruling, “For the English
court to refuse jurisdiction, in a case against a person domiciled in England, on the ground that
the court of some non-contracting state is the more appropriate court to decide the matters in
issue does not in any way impair the object of the Convention of establishing an expeditious,
harmonious, and, I would add, certain, procedure for securing the enforcement of judgments, since
ex hypothesi if the English court refuses jurisdiction there will be no judgment of the English
court to be enforced in the other contracting states. Equally and for the same reason such a
refusal of jurisdiction would not impair the object of the Convention that there should, subject to
the very large exception of article 4, be a uniform international jurisdiction for obtaining the
judgments which are to be so enforced.”[90], one might argue the English courts will want to make
the as-of-right to stay proceedings again available.[91]

5                Future of the English judicial model and applicability of Forum Non Conveniens
doctrine

The UK is currently presented with multiple hypothetical options, part of which is already known
not to be currently feasible. Concerning the jurisdiction allocation, the UK may either (a) join
the Lugano Convention[92], (b) apply the Hague convention regimes, (c) negotiate a new treaty with
the EU, or (d) refrain from all and resort to national law. However, allocation of jurisdiction is
not the whole picture of private international law. The underlying question is not whether to rely
on national law being the general option for civil disputes where no international treaty (or EU
law) is applicable (hence no unified promulgation on jurisdiction allocation exists), however,
question of enforcement and recognition of judgments is equally essential.

Thinking beyond mere jurisdiction allocation, but from the outset primarily with the enforcement of
the judgment, the least attractive to private international law is option (d), as the only relevant
question would be whether the UK retains the CJEU ruling in Owusu or not. Consequently, this option
seems inapplicable in its merits as the UK already acceded to the Hague Convention 2005 framework
in its own right[93]. It may, however, be of interest regarding judgment recognition and
enforcement.

Second, to last, option (c) seems, in light of the difficulties alongside Brexit and political
unfriendliness between UK and EU, hardly feasible. And if applicable, any presumption of its
content and scope would be hard to foresee, as no one expected the “hard Brexit” to occur anyway.
Therefore, we are left with options (a) and (b) to discuss.

5.1           Lugano Convention and Forum Non Conveniens doctrine

As mentioned, the UK may depart from any retained EU law unless accession to Lugano Convention is
made.[94] Pursuant art. 72(3) of the Lugano Convention, the accession of a new contracting party
requires unanimous agreement. Alternatively, the UK might have opted to join EFTA, in which case
the art. 71 of the Lugano Convention would supersede art. 72.[95] EFTA membership yet seems
unlikely.[96]

Should the UK accede to the Lugano Convention, the position of the English court regarding the
as-of-right stay of proceedings would remain unchanged based on two paradigms. Brussels
instruments[97] and the Lugano convention form a “closed system”[98] of the Brussels-Lugano zone.

Protocol 2 to Lugano Convention promulgates a substantial link to Brussels I Regulation, making
both identical in different spheres of territorial application.[99] Alterations to the 1998 Lugano
Convention[100] were made to reflect changes done in respect to Brussels Convention and Brussels I
Regulation as well as to reflect established CJEU case-law.[101] The material scope has therefore
aligned between Lugano Convention and Brussels I Regulation, both in regard to contracting and
non-contracting states.[102]

Consequently, Lugano Convention itself promulgates an obligation of contracting parties “pay due
account to the principles laid down by any relevant decision [...] by the courts of the States
bound by this Convention and by the Court of Justice of the European Communities”[103] aimed to
prevent different interpretation of corresponding provisions of Brussels Regulations and Lugano
Convention.[104] This approach seeks “to arrive at as uniform an interpretation as possible”[105].
CJEU is therefore endowed with the interpretation power to Lugano Convention. Hence CJEU case law
is precedential to Lugano Convention even when rendered based on corresponding Brussels regime
articles.[106] However, CJEU ought to note non-EU member states when issuing a decision relating to
the Lugano Convention.[107] Even considering such, it is highly improbable that the CJEU would
revert its previous decisions in Owusu; thus, the forum non conveniens doctrine would remain
inapplicable in the Contracting States.[108]

While this scenario has been assessed by English commentators to be the most feasible one, no one
counted on the firm dissenting stance of the EU. In May 2021, the EU Commission issued its
communication to the EP and EC[109] assessing the application of the UK to accede to the Lugano
Convention and stating inter alia “EU should not give its consent to the accession of the United
Kingdom to the Lugano Convention”[110]. In relatively short reasoning, the Commission stated that
“current Contracting Parties […] participate, at least partly, in the EU’s internal market,
comprising of the free movement of goods, services, capital and persons”[111] and “Lugano
Convention supports the EU’s relationship with third countries which have a particularly close
regulatory integration with the EU”[112]. EU Commission further stated that the UK is (from the
time of Brexit) an ordinary third country without a high level of mutual trust between Contracting
parties and the UK since no economic interconnection based on the applicability of four freedoms is
present.[113] Hence, the stance of the EU ought to be that any regulation for judicial cooperation
between the UK and the EU is to be done via multilateral Hague Conventions.[114]

It is consequently apparent that Lugano Convention will not be the applicable framework for EU-UK
judicial matters. Hence Hague Conventions might remain as the most feasible solution.

5.2          Hague Convention 2005 and Forum Non Conveniens doctrine

Insofar as the international jurisdiction arising out of an exclusive choice of court clause[115],
however not to asymmetric[116] or non-exclusive clauses[117], the Hague Convention 2005[118]
applies. The UK has been a party to the Hague Convention 2005 through its membership in the EU,
though, after the withdrawal from the EU, the UK has acceded to the Hague Convention 2005 in its
own right on 28 September 2020. Hague Convention 2005 then entered into force on 1 January
2021.[119] Consequently, Hague Convention 2005 applies solely where an exclusive jurisdiction
clause has been entered after the convention’s entry into force in relation to the state granted
exclusive jurisdiction.[120] However, the UK government believes otherwise, and the judicial
outcome is uncertain.[121]

While Hague Convention 2005 framework might be of use to regain the power to issue injunctive
measures, the same could not be said about staying jurisdiction of chosen court. Art. 5 (2) of the
Hague Convention 2005 clearly states that “A court that has jurisdiction under paragraph 1 shall
not decline to exercise jurisdiction on the ground that the dispute should be decided in a court of
another State.”[122] Any other Contracting state court must suspend or dismiss the
proceedings.[123] Hague Convention 2005 thus employs a clear set of rules to prevent the
frustration of litigation[124] in the chosen court by forum non conveniens doctrine[125] , and the
court must adjudicate the matter, no matter how sensible it could be to grant relief of its
jurisdiction[126]. Consequently, public policy ground for refusal to recognize and enforce
judgment[127] does not include invoking forum non convenience defence[128].

Notwithstanding the previous, limited applicability of forum non conveniens is conceivable through
the negative scope. A state may refuse its jurisdiction should all parties to an international case
be resident of the same Contracting State and “the relationship of the parties and all other
elements relevant to the dispute, regardless of the location of the chosen court, are connected
only with that State”[129]. In such specific cases, the forum non conveniens doctrine may be
applicable despite the art. 5(2) promulgation.[130] However, this hardly seems to be a proper use
of forum non conveniens as it is not exercised against jurisdiction conferred by Hague Convention
2005 since the dispute does not fall within the positive scope. Hence the court applies forum non
conveniens to otherwise conferred jurisdiction, should no other instrument prohibit so.

Additionally, Contracting State may declare limiting jurisdiction and refuse to exercise
jurisdiction over disputes to which an exclusive choice of court agreement applies if “except for
the location of the chosen court, there is no connection between that State and the parties or the
dispute”[131]. Should such declaration be made, the neutrality of the Hague Convention 2005 and its
purpose of predictability and certainty could be severely undermined.[132] However, the UK has not
made any declarations pursuant to art. 19.[133] Hence it seems only a limited number of cases are
eligible for stay of proceedings as being out of scope pursuant art. 1(2).

About the recognition and enforcement of judgments, there is very little to discuss. Should a
judgment be given pursuant to Hague Convention 2005, other Contracting States are bound to
recognize and enforce such judgment, which is in effect and enforceable in the state of origin[134]
unless an exception can be found[135]. The Hague Convention 2005 stipulates 7 exceptions to the
default rule of recognition and enforcement to which all the court has facultative power to refuse
recognition and enforcement.[136]

Considering the above, there exist only two possibilities to exercise forum non conveniens
doctrine. One would require a declaration pursuant to art. 19 – something which has not been done.
The second one requires a finding of the court that art. 1(2) is applicable. If so, the court would
need to refuse jurisdiction confessed by the Hague Convention 2005 and consequently found otherwise
applicable own jurisdiction, which would be stayed per forum non conveniens doctrine. The “more
convenient” court would not then be able to confer its jurisdiction by Hague Convention 2005 since
its jurisdiction is not based on an exclusive choice of court[137] made by the parties to the
dispute.[138] Hence, recognition and enforcement of the given judgment of other state courts would
have to be sought through different means.

5.3          Hague Convention 2019 and Forum Non Conveniens doctrine

While Hague Convention 2005 is a mixed convention, Hague Convention 2019[139] merely “facilitates
the effective international circulation of judgments in civil or commercial matters”[140]
Notwithstanding only 3 contracting parties to the Hague Convention 2019 to this date, the widely
used Hague Convention 2005 has not come into force for mere 10 years either. The process of
ratifications is rather slow, and this instrument cannot be dismissed simply due to the UK not
being a party to it yet. Therefore, this section does assume the UK accedes to the Hague Convention
2019.[141]

Many problems regarding the applicability of forum non conveniens doctrine vanish since Hague
Convention 2019 does not cover the allocation of international jurisdiction. However, would it be
possible to allocate discrepancies related to forum non conveniens doctrine in recognition and
enforcement of judgments?

In relation to the eligibility of judgment for recognition and enforcement[142] , any judgment
given in dispute where the defendant “argued on the merits before the court of origin without
contesting jurisdiction”[143] is eligible. Subparagraph (f) does not only contain objection to
jurisdiction but also to its discretionary non-exercise.[144] Therefore, there seems to be no
arising problem. Should the defendant fail to challenge jurisdiction or request to decline the
exercise of jurisdiction, the defendant conceded to the court’s jurisdiction and consequently to
recognition and enforcement in the other Contracting States.[145] However, should either of the
objections – jurisdiction per se or request to stay proceedings based on forum non conveniens
doctrine – be successful, it will be until the other forum renders its judgment, which might need
recognition and enforcement. In this case, an assessment to jurisdiction basis and relevant
instrument for recognition and enforcement must be given.

Interestingly, notwithstanding art. 13(1) of the Hague Convention 2019 providing a fallback to lex
fori of requested court in matters of recognition and enforcement (e.g., “the law of the requested
State determines whether recognition is automatic or requires a special procedure”[146]), art.
13(2)[147] explicitly forbids the use of lex fori forum non conveniens doctrine in such recognition
and enforcement proceedings[148]. Hence, forum non conveniens cannot be a ground for refusal to
recognize and enforce judgment[149] satisfying at least one of the filters in art. 5 and general
provisions of art. 4(3).[150]

No correlating provision is to be found in Hague Convention 2005, and one can only assume whether
this might amount to the eligibility of the requested court under Hague Convention 2005 to refuse
recognition and enforcement on the grounds that recognition or enforcement should be sought in
another State. It is my belief that art. 13(2) Hague Convention 2019 is considering art. 4(1)
second sentence of the Hague Convention 2019 redundant. If a judgment “is eligible for recognition
and enforcement within the scope of the Convention, and the criteria laid down in the following
provisions of Chapter II are met, it is not open to a State to refuse recognition or enforcement on
other grounds under national law”[151]. Therefore, lack of similar provision within the Hague
Convention 2005 as is embodied in art. 13(2) Hague Convention 2005 does not entail a right of
requested Contracting state to refuse recognition and enforcement based on provisions of national
law.

6               Conclusion

This paper aims to evaluate the feasibility of the forum non conveniens doctrine in light of
Brexit. The question is not whether English courts might want to do so, as it is apparent there
were times when those courts themselves were reluctant to exercise this power, however, whether
they even have or would have the tools to do it.

While doctrinal position regarding forum non conveniens is relatively coherent, EU law does not
favour its applicability. Following its formation in lis alibi pendens cases Logan v Bank of
Scotland, Egbert v Short and In re Norton’s Settlement, the modern forum non conveniens doctrine
and its test was established under another lis alibi pendens case St. Pierre. In conjuncture with
anti-suit injunctions, both doctrines assessed their applicability on the vexatious and oppressive
test. However, the judicial practice under St. Pierre was so radically plaintiff oriented that stay
of proceeding on the ground of forum non conveniens became non-existent.

In 40 years following St. Pierre, the test for the grant of stay reformed from narrow
interpretation to liberal use in Atlantic Star and from vexatious and oppressive factor to factor
of appropriateness in MacShannon. Defendant argues for foreign dispute’s centre of gravity.
Plaintiff argues the injustice a stay would cause. The cause for injustice was then further
specified in Abidin Daver.

Modern forum non conveniens was finally recognized as as-of-right in Spiliada, taking a position
argued under MacShannon and Abidin Daver. The doctrine remains the same to this date.

The inherent power of English courts to stay proceeding on the grounds of forum non conveniens was
exercised during UK’s membership in the EU on multiple occasions until 2005 and CJEU’s ruling in
Owusu. CJEU went far and beyond to reject the application of forum non conveniens. CJEU held that
while the international element is required under Brussels Convention, this does not have to be in
the presence of more than one Contracting State (Member State under Brussels I and Brussels Ibis
Regulation). Therefore, the Brussels regime applies if it is part of the lex fori of the court and
the dispute is somehow international. Consequently, general jurisdiction conferred by the Brussels
regime is mandatory and cannot be declined unless otherwise allowed by the Brussels regime, even
when the other forum would be outside the EU.

English courts, nevertheless, refused to follow Owusu and followed Re Harrods to retain their
authority to stay proceeding in favour of non-EU courts when no other Member State is involved.

The question is, then, what can be done with this situation. Speaking purely without any
international cooperation in mind, should England want to be free to utilize forum non conveniens,
they may do so by departing from established CJEU case-law and not concluding or acceding to any
international convention. This approach is nowhere to be sound in the 21^st century and does not
promote transnational litigation. It is also something the UK does not want to do as a request for
accession to Lugano Convention was deposited, and the UK became a contracting state of Hague
Convention 2005 in its own right.

Lugano Convention framework, as part of the Brussels-Lugano zone, would ultimately ban the use of
forum non conveniens in the same manner as adjudicated in Owusu. UK’s accession to Lugano
Convention also seems highly improbable since a unilateral agreement on new accessions is needed,
and the EU refuses to allow UK to participate in the Lugano framework. This correspondingly answers
hypothesis (b).

Being said that the UK has already acceded to Hague Convention 2005, what does that mean for forum
non conveniens? Firstly, this applies solely to exclusive choice of court clauses, merely a part of
how the jurisdiction can be conferred. In this narrow scope, the Hague Convention 2005 prohibits
the use of forum non conveniens, neither in jurisdiction allocation nor in recognition and
enforcement proceedings. The only exception to the general rule is a hypothetical declaration made
by the contracting state regarding the link between the forum and parties of the dispute. The UK
has not made such a declaration, which is deemed positively as this would undermine the purpose of
the Hague Convention 2005.

Considering second of Hague instruments, Hague Convention 2019 does not regulate jurisdiction
allocation, merely with recognition and enforcement of judgments. As forum non conveniens is mainly
used to rebut the jurisdiction of the court, it is much less used in further proceedings. Presuming
the UK accedes to Hague Convention 2019 since it is the most favourable instrument for recognition
and enforcement available to date apart from the Brussels-Lugano zone, forum non conveniens cannot
be a ground for refusal.

Following the expressed hypothesis, since accession to Lugano Convention seems to be ultimately off
the table forum non conveniens may be exercised by English courts so long the suit was not brought
to English courts pursuant exclusive prorogation clause. To retain some degree of international
cooperation, at least recognition and enforcement of judgment wise, the UK must have confidence
that the Hague Convention 2019 becomes a widely used instrument and accede to it as well. In regard
to international jurisdiction, an exclusive prorogation is ultimately covered. However, an approach
to the international allocation of the jurisdiction where jurisdiction was not exclusively
prorogated still remains a mystery.

________________________________

* This article was supported by ERDF project "Internal grant agency of Masaryk University" (No.
CZ.02.2.69/0.0/0.0/19_073/0016943).

[1] MAY, Theresa. Prime Minister’s letter to Donald Tusk triggering Article 50. gov.uk [online].
29. 3. 2017 [cit. 30. 8. 2021]. Available at:
https://www.gov.uk/government/publications/prime-ministers-letter-to-donald-tusk-triggering-
article-50

[2] ARZANDEH, Ardavan. Forum (non) conveniens in England: past, present, and future. Oxford: Hart,
2019, pp. 8, 28–29, 79–83. Studies in private international law. ISBN 978-1-78225-640-3.; BRIGGS,
Adrian. Civil jurisdiction and judgments. Seventh edition. Abingdon, Oxon: Informa law from
Routledge, 2021, pp. 480–540. ISBN 9780367415327.

[3] Spiliada Maritime Corp. v Cansulex Ltd. [1987] A.C. 460 (H.L.); [1986] 3 All ER 843, [1987] AC
460, [1987] 1 Lloyd's Rep 1, [1987] ECC 168, [1987] 1 FTLR 103, [1986] UKHL 10, [1986] 3 WLR 972.

[4] Spiliada

[5] Scotland and Quebec to name an exception to the general rule.

[6] BRIGGS 2021, op. cit., p. 410.

[7] Ibid.

[8] Ibid.

[9] E.g. Vernor v Elvies, 6 Dict. of Dec. 4788 (1610) and consequently M’Morine v Cowie, 7 D 270 IH
(1845).

[10] BRAND, Ronald A. and Scott R. JABLONSKI. Forum non conveniens: history, global practice, and
future under the Hague convention on choice of court agreements. New York: Oxford University Press,
2007, p. 7. CILE studies. ISBN 978-0-19-532927-8.

[11] Macadam v Macadam, 11 M 860 (1873).

[12] On the transformation of Scottish forum non competens to early 1900 English forum non
conveniens see ARZANDEH, op. cit., pp. 24–34.; BRAND, JABLONSKI, op. cit., pp. 7–10.

[13] ARZANDEH, op. cit., p. 35.

[14] Logan v Bank of Scotland [1906] 1 KB 141 (CA 1905).

[15] Egbert v Short [1907] 2 Ch 205.

[16] In re Norton’s Settlement [1908] 1 Ch 471 (CA).

[17] ARZANDEH, op. cit., p. 36.

[18] Logan v Bank of Scotland, para. 150.

[19] ARZANDEH, op. cit., p. 36 with reference to Logan v Bank of Scotland, para. 150.

[20] Ibid., p. 37.

[21] Egbert v Short, para. 212; In re Norton’s Settlement, para. 479.

[22] In re Norton’s Settlement, para. 479, 486.

[23] St. Pierre v South American Stores (Gath & Chaves), Ltd. [1936] 1. K.B. 382 (C.A.).

[24] St. Pierre, para. 398.

[25] For further development of plaintiff-oriented approach to St. Pierre test, mainly its second
part of first limb see ARZANDEH, op. cit., pp. 44–46.

[26] Ibid., pp. 45–46.

[27] BELL, Andrew S. Forum shopping and venue in transnational litigation. Oxford: Oxford
University Press, 2003, para. 3.78. Oxford private international law series. ISBN 0-19-924818-4.
See also Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197. Interestingly, some
view forum shopping as a good thing stating “[…] but if the forum is England, it is a good place to
shop in, both for the quality of the goods and the speed of service”, see The Atlantic Star [1973]
QB 364 (CA) 381G and 382C (“Atlantic Star”).

[28] BRAND, JABLONSKI, op. cit., pp. 14–15.

[29] The collision consequently caused another Belgian vessel to sink.

[30] Atlantic Star.

[31] ARZANDEH, op. cit., p. 53.

[32] MacShannon v Rockware Glass Ltd. [1978] A.C. 795 (H.L.).

[33] BRAND, JABLONSKI, op. cit., pp. 16 with reference to MacShannon.

[34] European Asian Bank v Punjab and Sind Bank [1981] 2 Lloyd’s Rep 651.

[35] SCHUZ, Rhona. Controlling Forum-Shopping: The Impact of MacShannon v. Rockware Glass Ltd.
International & Comparative Law Quarterly. Cambridge: Cambridge University Press, 1986, Vol. 35,
no. 2, p. 374, 408.

[36] BRAND, JABLONSKI, op. cit., pp. 17.

[37] Astro Exito Navegacion S.A. v W.T. Hsu [1983] 1 Lloyd’s Rep. 666 (Q.B. Comm Ct.)

[38] MacShannon, para. 380.

[39] ANONYMIZOVÁNO REDAKCÍ

[40] The Abidin Daver [1984] AC 398 (HL), para. 410.

[41] Ibid., para. 411.

[42] Ibid.

[43] Ibid.

[44] Ibid.

[45] ARZANDEH, op. cit., p. 66.

[46] As opposed to Scottish doctrine applied in one-stage test. See ANTON, A. Private International
Law. Edinburgh: W Green & Son Ltd. 1967, p. 148–154. ISBN: 0414000021.

[47] Resting on Scottish case Sim v Robinow (1892) 19 R 665 (IH).

[48] BRIGGS, Adrian. Civil jurisdiction and judgments. Sixth edition. Abingdon, Oxon: Informa law
from Routledge, 2015, p. 685. ISBN 9781138825604.

[49] Should the connection of defendant to England be frail (e.g., the suit was served while
visiting England) it should be all the easier to prove appropriateness of another forum. See
Spiliada.

[50] Spiliada, para. 478.

[51] E.g. De Dampier v De Dampier [1988] 1. A.C. 92 (H.L.).

[52] FELDMAN, Kathryn N. and Susan M. VELLA. The Evolution of “Forum Conveniens”: Its Application
to stay of proceedings and Service Ex juris. Advocates’ Quarterly. Ontario: Agincourt, 1989, Vol.
10, no. 2, p. 174.

[53] COLLINS, L. et al. Dicey, Morris & Collins on the Conflict of Laws. London: Sweet & Maxwell,
2012, para. 11–143. ISBN: 978-0414024533.

[54] Ibid., para. 11–144.

[55] MacShannon, para. 812; Spiliada, para. 476.

[56] Mohammed v Bank of Kuwait and the Middle East KSC [1996] 1 WLR 1483 (CA).

[57] See also BRIGGS, Adrian. Private International Law. British Yearbook of International Law.
Oxford: Oxford University Press, 1996, Vol. 67, no. 1, p. 587.

[58] Connelly v RTZ Corporation [1996] QB 361 (CA).

[59] New Hampshire Insurance Co v Strabag Bau AG [1992] 1 Lloyd’s Rep 361 (CA).

[60] Connelly.

[61] ARZANDEH, op. cit., pp. 79, 105.

[62] Re Harrods (Buenos Aires) Ltd (No. 2) [1992] Ch 72 (CA), para. 101.; BRIGGS 2021, op. cit.,
pp. 358–360.

[63] Re Harrods, para. 98, 103.

[64] Case C-314/92: Reference for a preliminary ruling made by the House of Lords, by order of that
court dated 13 July 1992, in the case of Ladenimor SA against Intercomfinanz SA.

[65] Judgment of the Court (Grand Chamber) of 1 March 2005. Andrew Owusu v N. B. Jackson, trading
as "Villa Holidays Bal-Inn Villas" and Others, Case C-281/02.

[66] Art. 4 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12
December 2012 on juris- diction and the recognition and enforcement of judgements in civil and
commercial matters (“Brussels Ibis Regulation”).

[67] 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and
commercial matters.

[68] Second preliminary question was not discussed as the first question was answered
affirmatively. See Owusu, para. 47 et seq.

[69] Owusu, para. 22.

[70] Report by Mr P. Jenard on the Protocols of 3 June 1971 on the interpretation by the Court of
Justice of the Convention of 29 February 1968 on the mutual recognition of companies and legal
persons and of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments
in civil and commercial matters (“Jenard Report”), OJ 1979 C 59, p. 8.; Owusu, para. 25.

[71] Owusu, para. 24.

[72] Ibid., para. 26.

[73] Ibid., para. 37.

[74] Ibid., para. 37.; Report by Professor Dr Peter Schlosser on the Convention of 9 October 1978
on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and
Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and
commercial matters and to the Protocol on its interpretation by the Court of Justice („Schlosser
Report”), para. 77–78.

[75] Schlosser Report, para. 78.

[76] Owusu, para. 38, 41.

[77] Judgment of the Court of 28 September 1999. Case C-440/97, para. 23.; Judgment of the Court of
19 February 2002. Case C-256/00, para. 24.

[78] Owusu, para. 46.

[79] NYUTS, Arnaud. Chapter 13: Owusu, Gasser, Turner and West Tankers – Is the Hague Convention on
Choice-of-Court Agreements the Solution? In: AFFAKI, Bachir Georges and Horacio Alberto Grigera
NAÓN (eds). Jurisdictional Choices in Times of Trouble, Dossiers of the ICC Institute of World
Business Law. Paris: Kluwer Law International; International Chamber of Commerce. 2015, Vol. 12, p.
191.; See also VLAS, Paul. Chapter II: Jurisdiction. In: MAGNUS Ulrich and Peter MANKOWSKI. Volume
1 Brussels Ibis Regulation – Commentary. Cologne: Verlag Dr. Otto Schmidt, 2015, pp. 109–111.

[80] WATERS, Andrew. “Forum Shopping” in Fraud Actions Following Owusu v. Jackson. Journal of
International Banking and Financial Law. London: Butterworth & Co., 2010, Vol. 25, p. 359.

[81] HESS, Burkhard and Martina MANTOVANI. Current developments in forum access: Comments on
jurisdiction and forum non conveniens – European perspectives on human rights litigation. MPILux
Research Paper Series 2019, Luxembourg: Max Planc Institute. 2019, no. 1, p. 2.

[82] BRIGGS, Adrian. The Death of Harrods: Forum Non Conveniens and the European Court. Law
Quarterly Review, London: Sweet & Maxwell, 2005, Vol. 121, p. 535.

[83] HAM, Jared. (Br)exit Strategy: The Future of the Forum Non Conveniens Doctrine in the United
Kingdom After ‘Brexit’. Cornell International Law Journal. Ithaca: Cornell Law School, 2020, Vol.
52, p. 730.

[84] Gomez v Gomez-Monche Vives [2008] EWHC 259 (Ch), [2008] 3 WLR 309.

[85] MITCHENSON Jason and Thomas SCHULTZ. Rediscovering the Principle of Comity in English Private
International Law. European Review of Private Law, Alphen aan den Rijn: Kluwer Law International
Issue, 2018, Vol. 26, no. 3, p. 330.

[86] Art. 33(1)(b) Brussels Ibis Regulation.

[87] Sec. 6(4)(a) and (b) of Chapter 16, European Union (Withdrawal) Act 2018 in line with 2020
Chapter 1, European Union (Withdrawal) Act 2020 (“Withdrawal Act”).

[88] Withdrawal Act, sec. 6.

[89] Ibid., sec. 6(5).

[90] Re Harrods, p. 97

[91] Subject to part 5.1 below.

[92] Convention on jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters.

[93] BRIGGS 2021, op. cit. pp. 559–560.

[94] UK deposited an application to accede to the Lugano Convention on 8 April 2020. See
Notification to the Parties of the Convention on Jurisdiction and the Recognition and Enforcement
of Judgments in Civil and Commercial Matters, concluded at Lugano on 30 October 2007. Federal
Department of Foreign Affairs FDFA [online]. 14. 4. 2020 [accessed on 2020-05-24]. Available at:
https://www.eda.admin.ch/dam/eda/fr/documents/aussenpolitik/voelkerrecht/autres-conventions/Lugano2
/200414-LUG_en.pdf

[95] Possibility of UK re-joining the EFTA then lays solely on the EFTA members in accordance with
Art. 56 of the Convention of 4 January 1960 on establishing the European Free Trade Association, as
amended.

[96] “They might like to welcome the UK into their organization, although this British “swing-back”
might not amuse the EU, whose sympathy could be more important to the EFTA States in the long
term.” UNGERER, Johannes. Consequences of Brexit for European Private International Law. European
Papers. 2019, Vol. 4, No. 1, p. 400.

[97] Brussels Convention, Council Regulation (EC) No 44/2001 on jurisdiction and the recognition
and enforcement of judgments in civil and commercial matters, Regulation (EU) No 1215/2012 of the
European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters

[98] RAPHAEL, Thomas. The Anti-Suit Injunction. Oxford: Oxford University Press, 2008, p. 272. ISBN
978-0-19-928732-1.

[99] Convention on jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters, signed in Lugano on 30 October 2007 — Explanatory report by Professor Fausto
Pocar (Holder of the Chair of International Law at the University of Milan) (“Pocar Report”), OJ C
319, para. 197, 198.; JOSEPH, David. Jurisdiction and Arbitration agreements and their enforcement.
London: Sweet & Maxwell, 2010, p.369. ISBN 978-1-84703-897-5.

[100] Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and
commercial matters.

[101] Pocar Report, para. 197, 198.

[102] Art. 1 (1) and (2) Lugano Convention; Pocar Report, para. 14.

[103] Protocol 2, art. 1 Lugano Convention.

[104] Preamble and Protocol 2 of the Lugano Convention.

[105] Pocar Report, para. 77.

[106] Ibid., para. 196, 197.

[107] Ibid., para. 198.

[108] BRIGGS 2021, op. cit., pp. 379.

[109] COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL EMPTY,
Assessment on the application of the United Kingdom of Great Britain and Northern Ireland to accede
to the 2007 Lugano Convention, COM(2021) 222 final (“Communication”).

[110] Communication, p. 2.

[111] Ibid.

[112] Ibid.

[113] Ibid., p. 3.

[114] Ibid.

[115] Much the same as The Convention on the Recognition and Enforcement of Foreign Arbitral Awards
requires explicit consent to arbitration.; On further analysis of exclusivity see ZABLOUDILOVÁ,
Kateřina. Choice of Court Agreements after Brexit. In ROZEHNALOVÁ, Naděžda. Universal, Regional,
National – Ways of the Development of Private International Law in 21st Century. Brno: Masaryk
University, 2020, pp. 287–288. ISBN 978-80-210-9496-3.

[116] For asymmetric choice of court clauses see further MALACHTA, Radovan. Prorogace soudu a
asymetrické doložky v 21. století. In KORONCZIOVÁ, Andrea and Tibor HLINKA. Míľniky práva v
stredoeurópskom priestore 2019. Bratislava: Univerzita Komenského v Bratislave, 2019, pp. 69–78.
ISBN 978-80-7160-517-1.

[117] See exceptions to the general rule on exclusivity at art. 22 Hague Convention 2005.

[118] Convention of 30 June 2005 on Choice of Court Agreements.

[119] Art.31 (2) of the Hague Convention 2005.; Communication, p. 3.; For the gap between accession
and entering into effect see LEIN, Eva. Unchartered territory? A few thoughts on private
international law post Brexit. In: A. Bonimi – G. P. Romano (eds.). Yearbook of Private
International Law, Volume 17 (2015/2016). Lausanne: Swiss Institute of Comparative Law, 2017, p. 35
et seq.

[120] FITZGERALD, McCann. UK Application to Join Lugano Convention following Brexit: An Update.
Lexology [online]. 2021 [cit. 19. 8. 2021]. Available at:
https://www.lexology.com/library/detail.aspx?g=82d63f4b-f470-4c7a-acf4-9bec870a8140

[121] “Whilst acknowledging that the Instrument of Accession takes effect at 00:00 CET on 1 January
2021, the United Kingdom considers that the 2005 Hague Convention entered into force for the United
Kingdom on 1 October 2015 and that the United Kingdom is a Contracting State without interruption
from that date.” Declarations, Reservations, Depositary communications. HCCH [online]- 2020, [cit.
10. 8. 2021]. Available at:
https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid=1318&disp=resdn

[122] With an exception to internal allocation of judicial power. Art. 5 (3) (b) Hague Convention
2005.

[123] Art. 6 Hague Convention 2005.

[124] BRAND, JABLONSKI. Op. cit., p. 208. CILE studies.

[125] Hague Conference on Private International Law. Prel. Doc. No 26 of December 2004 -
Explanatory Report on the preliminary draft Convention on exclusive choice of court agreements,
drawn up by Trevor C. Hartley and Masato Dogauchi, 2004, para. 100.; KAMEL, Alexander. Cooperative
Federalism: A Viable Option for Implementing the Hague Convention on Choice of Court Agreements.
The Georgetown Law Journal, Georgetown: Georgetown University Law Center, 2014, Vol. 102, p. 1827.;
LANDBRECHT, Johannes. The Hague Conference on Private International Law: Shaping a Global Framework
for Party Autonomy. International Business Law Journal. London: Thomson Reuters, 2017, Vol. 1/2017,
p. 38.

[126] BRIGGS 2021, op. cit., p. 556.

[127] Art. 9(e) Hague Convention 2005.

[128] BRAND, JABLONSKI, op. cit., p. 209.

[129] Art. 1(2) Hague Convention 2005.

[130] PALERMO, Giulio. The Future of Cross-Border Disputes Settlement: Back to Litigation?. In:
GONZÁLEZ-BUENO, Carlos. 40 under 40 International Arbitration. Madrid: Dykinson, 2018, p. 364.

[131] Art. 19 Hague Convention 2005.

[132] PALERMO, op. cit., p. 367.; BERARD, Marie. Chapter 6: The Limits to the Parties’ Free Choice
of Jurisdiction – Is an Objective Link between the Parties’ Selected Jurisdiction and their Dispute
Required? A Review of the Approach of International Instruments and National Courts. In: AFFAKI,
Bachir Georges and Horacio Alberto Grigera NAÓN (eds). Jurisdictional Choices in Times of Trouble,
Dossiers of the ICC Institute of World Business Law. Paris: Kluwer Law International; International
Chamber of Commerce. 2015, Vol. 12, p. 88.

[133] Declarations, Reservations, Depositary communications. HCCH [online]. 2020, [cit. 10. 8.
2021]. Available at:
https://www.hcch.net/en/instruments/conventions/status-table/notifications/?csid=1318&disp=resdn

[134] Art. 8 Hague Convention 2005.

[135] Ibid., Art. 9; For detailed comparation of refusal grounds to Brussels regime see MALACHTA,
Radovan. Mutual Trust between the Member States of the European Union and the United Kingdom after
Brexit: Overview. In VALDHANS, Jiří. Brexit and its Consequences. COFOLA International 2020. Brno:
Masaryk University, 2020, p. 43–47. ISBN 978-80-210-9800-8.

[136] HARTLEY, Trevor and Masato DOGAUCHI. Explanatory Report on the 2005 HCCH Choice of Court
Agreements Convention. The Hague: Permanent Bureau of the Conference, 2005, p. 69. ISBN:
978-1-78068-209-9.

[137] Art. 3(a) Hague Convention 2005.

[138] HARTLEY, DOGAUCHI, op. cit., pp. 49–52.

[139] Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or
Commercial Matters.

[140] Judgment Selections. HCCH [online]. 2019 [cit. 23. 8. 2021]. Available at:
https://www.hcch.net/en/instruments/conventions/specialised-sections/judgments

[141] Similar opinion is reflected in MALACHTA 2020, op. cit., p. 49.

[142] Art. 5(1) Hague Convention 2019.

[143] Ibid., Art. 5(1)(f).

[144] GARCIMARTÍN, Francisco and Geneviève SAUMIER. Explanatory Report on the 2019 HCCH Judgments
Convention. The Hague: Permanent Bureau of the Conference, 2020, p. 97. ISBN: 978-90-83063-32-4.

[145] ZHAO, Ning. Completing a long-awaited puzzle in the landscape of cross-border recognition and
enforcement of judgments: An overview of the HCCH 2019 judgments convention. Swiss Review of
International and European Law, Zürich: Swiss Association of International Law, 2020, Vol. 30, no.
3, p. 357.

[146] GARCIMARTÍN, SAUMIER, op. cit., p. 139.

[147] “The court of the requested State shall not refuse the recognition or enforcement of a
judgment under this Convention on the ground that recognition or enforcement should be sought in
another State.”

[148] GARCIMARTÍN, SAUMIER, op. cit., p. 142.

[149] ZHAO, op. cit., p. 350.; STEWART, David. The Hague Conference Adopts a New Convention on the
Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. American Journal
of International Law, Cambridge: Cambridge University Press, 2019, Vol. 113, no. 4, p. 778.

[150] For specifics on acceptable bases of jurisdiction see NIELSEN, Peter Arnt. The Hague 2019
Judgments Convention - from failure to success? Journal of Private International Law, London:
Taylor & Francis, 2020, Vol. 16, no. 2, pp. 205–246.

[151] GARCIMARTÍN, SAUMIER, op. cit., p. 79.