Current Developments in Forum Access: Comments on Jurisdiction and Forum Non Conveniens – European Perspectives on Human Rights Litigation

35 Pages Posted: 31 Jan 2019 Last revised: 2 Feb 2019

See all articles by Burkhard Hess

Burkhard Hess

Max Planck Institute Luxembourg for Procedural Law

Martina Mantovani

Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law

Date Written: January 29, 2019

Abstract

This article explores the approach recently adopted by supranational and national courts in Europe vis-à-vis the assessment of jurisdiction in human rights and public interest litigation.

In its first part, the article analyses whether, and to extent, the private international law doctrine of forum of necessity could, in the current state of the law, help guaranteeing the effectiveness of the “right to a court” vested by article 6 E.C.H.R. Reference will be made to the interpretations of this head of jurisdiction recently submitted by the highest civil courts of France and Switzerland, as well as by the European Court of Human Right in the seminal Naït-Liman case.

Remarking the fairly narrow understanding of said doctrine arisen in recent case-law, this article, in its second part, looks into alternative procedural strategies that plaintiffs in foreign-cubed cases may adopt in order to ground jurisdiction in Europe. The paper contends, in particular, that there are multiple ways in which these plaintiffs could profit from the hard-and-fast logic underlying the jurisdictional regime set in place by the Brussels Ibis Regulation. Nevertheless, while establishing jurisdiction might no longer be a big impediment, several other issues of procedural and substantive law might still derail a judgment on the merits.

Keywords: forum of necessity, forum non conveniens, human rights litigation, public interest litigation, Brussels Ibis Regulation

Suggested Citation

Hess, Burkhard and Mantovani, Martina, Current Developments in Forum Access: Comments on Jurisdiction and Forum Non Conveniens – European Perspectives on Human Rights Litigation (January 29, 2019). MPILux Research Paper 2019 (1). Available at SSRN: https://ssrn.com/abstract=3325711 or http://dx.doi.org/10.2139/ssrn.3325711

Burkhard Hess

Max Planck Institute Luxembourg for Procedural Law ( email )

4, rue Alphonse Weicker
Luxembourg, L-2721
Luxembourg

Martina Mantovani (Contact Author)

Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law ( email )

4, rue Alphonse Weicker
Luxembourg, L-2721
Luxembourg

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