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Note on the Question of "Forum Non Conveniens" in the Perspective of a Double Convention on Judicial Jurisdiction and the Enforcement of Decisions

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During the meeting of the Special Commission of June 1994 on the question of recognition and enforcement of foreign judgments in civil and commercial matters, the mechanism of forum non conveniens was broadly discussed and raised certain concerns. According to item 32 of the Conclusions drawn up by the Permanent Bureau, "it seemed that a consensus might emerge in favour of allowing a limited possibility for application of the theory of forum non conveniens in specific cases to be determined and on the condition that a mechanism of co-ordination be instituted in the convention. The essence of this mechanism would be that, where the court of a Contracting State considers that the court of another Contracting State is better placed than it is to judge the case pending before it, under circumstances which might be set out in the convention, it would stay proceedings before it until that other court has declared itself to have jurisdiction. If this second court refuses to exercise jurisdiction, the first court would then have to decide the case on the merits".

During the discussions, it was recognized that the problem deserved to be studied in somewhat more depth. At the meeting on general affairs and policy of the Conference, the representatives of States who had an interest in this mechanism had committed themselves to work with the Permanent Bureau in order to provide information. Overviews drawn up by certain governments on this topic will be found as annexes to this Note.

It should above all be pointed out for purposes of information that the question of forum non conveniens was the subject of a significant publication. This is the book entitled Declining Jurisdiction in Private International Law, Reports to the XIVth Congress of the International Academy of Comparative Law, Athens, August 1994, General Report by J.J. Fawcett, Clarendon Press, Oxford 1995. This collective work studies the positive laws of the following countries: Argentina, Australia, Belgium, Canada-common law provinces, Canada-Quebec, Finland, France, Germany, United Kingdom, Greece, Israel, Italy, Japan, the Netherlands, New Zealand, Sweden, Switzerland, United States of America; and Professor Fawcett offers a remarkable synthesis of these which, with the author's and the publisher's consent, is reproduced as Annex E to this Note. The body of this Note will be limited therefore to taking up the problem of forum non conveniens and some related questions in the perspective of the preparation of a double convention drawing its inspiration from the Brussels and Lugano Conventions.

* * * * *

I    Forum non conveniens and exorbitant jurisdiction

In the first edition of his treatise on private international law from the point of view of Scots law, A.E. Anton revealed that the Scottish doctrine of forum non conveniens had at its origin the purpose of fighting against abuses of personal service of process carried out on the territory of the forum -- which normally results in its having jurisdiction -- where the litigation has no serious or reasonable connection with the said forum.¹ This doctrine which may be defined "as a general discretionary power for a court to decline jurisdiction on the basis that the appropriate forum for trial is abroad or that the local forum is inappropriate" ² was broadly developed thereafter in the common law systems and the United States where personal service has taken on particularly exorbitant proportions, for example, when it is carried out in the course of an airline flight above a certain territory.

In other systems which do not have the doctrine of forum non conveniens as a general doctrine, the exorbitant jurisdiction to be sanctioned by the mechanism of forum non conveniens in a specific manner could be the forum of the patrimony, of the domicile or of the nationality of the plaintiff (see for example Article 429 c, paragraph 15, of the Dutch Code of Civil Procedure in matters of family law, which applies to any matter which must be brought before the court by request, including among others all questions of family law).³

The tendency which emerged provisionally from the Special Commission's discussions would be indeed to adopt a double convention establishing a list of "good" bases for jurisdiction and forbidding the use of the "bad" bases for jurisdiction, the exorbitant grounds for jurisdiction (enumerated in the Brussels and Lugano Conventions (Article 3) as well as in the Protocol to the Hague Convention on Enforcement of Decisions (Article 4)). In such a hypothesis, the treaty mechanism is substituted entirely for the mechanism of forum non conveniens in order to eliminate the exorbitant bases for jurisdiction, the "improper fora".

In principle -- and this is already a first element for reflection and discussion -- it will be necessary to examine, even in the hypothesis of a "complete" double convention in the style of Brussels/Lugano on the worldwide scale, whether a total exclusion of the mechanism of forum non conveniens is justified, as is the case on the regional (European) scale.⁴ That will depend, among others, on the degree of precision with which the "good" bases for assuming jurisdiction are defined and on the character (quasi automatic or not) of the system of recognition and enforcement adopted in the future convention.

Obviously, in any case, there could only be question of a mechanism (1) based on the idea of co-ordination among courts (a denial of justice must in particular be avoided at any price) and (2) established according to objective criteria to be defined by the convention, otherwise the reasoning of forum non conveniens would bring a risk of reintroducing the arbitrary element which was precisely what one wanted to avoid (see below under VI).

The possibility cannot, however, be excluded of having a convention which goes less far than a double (complete) convention and which, without eliminating exorbitant bases for jurisdiction at the litigation stage, sanctions their use at the level of recognition and enforcement of judgments rendered against a defendant who is integrated into one of the Contracting States. The mechanism is well-known since it is illustrated by the Protocol to the Hague Convention on the Enforcement of Decisions and Article 59 of the Brussels and Lugano Conventions.⁵

In such a hypothesis, certainly, the systems which have the forum non conveniens mechanism might continue to use it in order to fight at the level of direct assumption of jurisdiction against exorbitant grounds for jurisdiction and no one could complain of this since the utilization of such grounds for jurisdiction would be sanctioned by the treaty at the level of enforcement!

Finally, it is known that in the mechanism of the Brussels and Lugano Conventions the exorbitant bases for jurisdiction accepted in the general law of the Contracting States may be utilized against persons domiciled outside of the Contracting States. If such a mechanism were taken up in a future Convention, the utilization of forum non conveniens to fight against the exorbitant bases for jurisdiction adopted in a Contracting State would have no interest for the other Contracting States since the defendant would have no connection with them.

II    Forum non conveniens and lis pendens⁶

The legal systems which have the doctrine of forum non conveniens often utilize it in order to permit a court before which an action has been brought to decline the exercise of jurisdiction or to stay the proceedings if the court of another State is seised of the same action. The staying of the proceedings may be based on the fact that the foreign judge appears to be better placed to exercise jurisdiction over the case, or simply to avoid the entry of contradictory or incompatible judgments. In other legal systems the exception based on lis pendens is an autonomous procedural institution which has its own rules: for example, this exception will work in favour of the first court whose jurisdiction is invoked, the foreign court will have to be competent according to certain rules adopted by the forum which must rule on the exception, the judgment to be handed down by the foreign judge must be enforceable in the country of the court which is ruling on the exception, etc.

If the perspective of a double convention is considered, there should be no doubt that a rule on the lis pendens exception would have to be adopted in order to avoid pointless proceedings, abuse of process and conflicts of judgments at the level of enforcement. This rule will have to be more or less rigid, of such a type that, depending on the case, it will eliminate the mechanism of forum non conveniens (rigid rule of Article 21 of the Brussels/Lugano Conventions)⁷ or will superimpose itself on this mechanism (if the rule is flexible). A pure and simple reproduction of the rigid rule of Article 21 in a convention of worldwide scope would bring a risk of posing certain problems. Can one on the worldwide scale, as do the Brussels and Lugano Conventions, leave it to the national systems to define the concept of "the court first seised"? Is it reasonable, on the worldwide scale, to attribute in all circumstances, and without any reservations an automatic prize to the party who acts the most quickly -- and this may be a question of several days or weeks only -- to be sure of being the first to bring proceedings before a court? Should the parties be thus encouraged to avoid seeking a friendly settlement of the issues?⁸

The example of a flexible rule may, moreover, be found in the exception for related actions appearing in Article 22 of the Brussels/Lugano Convention.⁹ Indeed, in cases of related actions where certain conditions are fulfilled, the court is free to decline jurisdiction or not to decline jurisdiction in favour of the foreign court before which the action was first brought or before which the principal action was brought. The criteria utilized in order to bring forum non conveniens into play may also be used to assess the desirability of applying the exception for related causes if the example of the Brussels and Lugano Conventions is followed. It should be recalled that, in the Brussels and Lugano systems, the fact that two actions are related constitutes only an exception to the jurisdiction of the court which is the second to be seised; the fact of being connected to a pending action is not, in itself, a basis for assuming jurisdiction.¹⁰ It is worth thinking about the possibility of going further in a worldwide convention, and accepting direct jurisdiction based on such a connection in order to avoid dispersion of the fora with all the attendant risks of irreconcilable decisions.

III    Choice of court clauses and forum non conveniens

In the international order, a choice of court clause tends to have a double effect. On one hand it serves as a basis for or simply reinforces the jurisdiction of the "chosen court" and, on the other hand, it creates lack of jurisdiction on the part of the "excluded" courts, those which might have had jurisdiction if there had not been such a clause. This double effect of "prorogation" and "derogation" is subject to various rules in comparative law. In the countries which accept the theory of forum non conveniens, it is for the court, whether it be chosen or excluded, to decide whether it accepts this prorogation or this derogation. In other legal systems the inclusionary effect may be accepted but not the exclusionary effect, or conversely, or yet these effects are accepted only for certain matters and not for others, for example if the question being litigated is outside of the scope of party autonomy, or the matter at issue involves protecting certain categories of persons, consumers, workers, etc.

In the perspective of a convention, there is no doubt that a rule should be adopted on choice of court clauses. If the rule is as rigid as that of Article 17, which provides for the exclusive jurisdiction of the court which is chosen, the doctrine of forum non conveniens will no longer have any role. (The case, important in practice, of actions including a third person in the choice of court clause may require special examination.) In case of a more flexible rule, the States which accept forum non conveniens will not be subject to reproach for utilizing this mechanism in order to ensure this flexibility.¹¹

IV    Forum non conveniens and reflex effects of exclusive bases for jurisdiction, lis pendens exceptions or choice of court clauses operating in favour of the courts of non-Contracting States

Where a double convention, such as the Brussels and Lugano Conventions, establishes a list of bases for assuming jurisdiction which are considered to be reasonable and are offered at the choice of the plaintiff, the plaintiff, upon making a choice, ought to be confident that he can pursue the action in respect of which he will undoubtedly have already invested considerable expenses. It is for the plaintiff to make the choice which he considers to be the most appropriate to his case. In principle, the court should not substitute itself for the plaintiff.

There are cases, however, in which, although a court apparently has jurisdiction under the Convention, it should be permitted to decline to exercise this jurisdiction where the litigation has substantial connections with a non-Contracting State.

A person is domiciled in Germany or in France -- both States being Parties to the Brussels Convention. If a lawsuit bears on the ownership of immovables situated in Italy or on the validity of a patent or trademark deposited in Spain, the French or German court of the domicile of the defendant, if it were to receive a petition, should decline the exercise of jurisdiction, for Article 16 of the Brussels and Lugano Conventions gives exclusive jurisdiction to the courts of the place where the immovables are situated or where the register of intellectual property is kept.¹²

This is so because the Contracting States thought that the court where the immovables are situated or where the register is kept, was in a better position to decide on a problem of real or intellectual property, since the registers of real property ownership or of the issuance of patents and trademarks can only be modified by an order emanating from a local public or judicial authority. If the defendant is at all times domiciled in France or in Germany and the lawsuit bears on a parcel of real property situated in India or on a patent registered in China -- these States not being bound by the Brussels Convention -- it can be acceptable for the French or German court to decline to exercise its jurisdiction, for it would be justice badly placed, as in the preceding example, to decide on the ownership of the immovable or the validity of the patent. In order to reach this result, certain countries may utilize the technique of forum non conveniens, while others may invoke the reflex effect of the exclusive bases for jurisdiction in favour of the courts of the non-Contracting States.

What has just been said about exclusive jurisdiction is equally true for the case where the exception of lis pendens is invoked on the grounds that the court of a non-Contracting State is also exercising jurisdiction in the case. Some will utilize forum non conveniens in order to make the exception operate, others will invoke the reflex effect of the initiation of procedures as recognized by the Convention. It will be noted that the Brussels and Lugano Conventions do not speak to the problems here raised, which is regretted by the commentators because the situation remains ambiguous. It would be well that these problems be raised during the Special Commission meeting and it might even be asked whether a new convention should not adopt an express provision.

The Brussels and Lugano Conventions also did not speak to the treatment of choice of court clauses in favour of the courts of non-Contracting States. Such an agreement is not by itself void. It will have the effect of derogation or prorogation accepted by the general law of the Contracting States, and on this basis the mechanism of forum non conveniens may naturally be utilized.

What has just been said with regard to choice of court clauses in favour of the court of a non-Contracting State, is essentially true also for arbitration clauses which exclude the jurisdiction of the courts of all States.¹³ The States bound by the New York Convention must apply Article II (3) of this Convention which, in principle, obligates the courts to decline the exercise of jurisdiction in favour of arbitration. For the States which are not Parties to the New York Convention it is their general law -- thus in certain cases the mechanism of forum non conveniens -- which will establish the extent to which the courts may or must decline to exercise jurisdiction, for it is to be supposed that the convention which will be drawn up, as is the case with the Brussels and Lugano Conventions, will eliminate from its scope of application the subject of arbitration. (See Conclusions of the Special Commission of June 1994, No 7.)

V    Limits of the mechanism of forum non conveniens within the framework of a treaty

Up to the present we have seen that the provisions of the convention to be drawn up either could eliminate, by rendering it useless, the mechanism of forum non conveniens (elimination of the exorbitant bases for jurisdiction, strict exception for lis pendens, respect of choice of court clauses) or could easily be accommodated to this mechanism (freedom to decide on application of the exception for related causes of action, respect for exclusive jurisdiction or a lis pendens exception in favour of the court of a non-Contracting State, etc.).

There are utilizations of the mechanism of forum non conveniens which might seem to be contrary to the spirit of an international convention. It has been pointed out in the legal writings that, in certain cases, forum non conveniens had been used to prevent foreigners from being able to have free access to national courts and there cause defendants residing or established in the country of the forum which is being petitioned to be condemned to pay damages, while there was no hesitation in opening the national jurisdictions by means of the mechanisms of forum conveniens or long-arm statutes to the complaints presented against foreigners by plaintiffs residing or established in the country of the forum. Within a treaty framework, it may be thought that such discrimination is difficult to accept. At the moment when the convention offers a basis for jurisdiction to the plaintiff, the plaintiff should be able to utilize it whatever might be its domicile, nationality or residence.

Moreover, one may think that certain arguments utilized on the level of taking of evidence abroad in order to justify declining the exercise of jurisdiction under the doctrine of forum non conveniens appear hardly admissible in a treaty framework. It was thought, for example, that the court of the defendant's domicile which receives a complaint from a foreigner in respect of facts which took place abroad, might decline its jurisdiction for the reason that the foreign State had not ratified the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters and that it would thus be difficult to gather the proof in question, which would make it better to have the litigation proceed abroad. The pretext, quite simply drawn from non-ratification of a convention which facilitates the taking of evidence, is difficult to accept. In any case, the problem of taking of evidence abroad has always existed well before the Hague Conventions were drawn up, and it seems excessive to suggest that, without the 1970 Convention, the problem of proof would be insoluble.

The bases for jurisdiction offered by a double international convention ought to be considered as having sufficiently reasonable links with the litigation so that the issues can be joined. It is possible that in certain circumstances the establishment of proof will be particularly difficult, and this is a risk to be taken by the plaintiff who must produce the proof. If the plaintiff does not succeed in establishing the facts, he will be non-suited. The judge exercising jurisdiction does not, in principle, have to substitute his will for that of the plaintiff in order to protect the latter in some way in spite of himself.

It seems that one may conclude that, outside of the cases previously studied in which declining of jurisdiction may be accepted either by the mechanism of forum non conveniens or the direct or reflex effect of the initiation of legal proceedings, a court of a Contracting State which is considered to have jurisdiction by the convention, except in very exceptional cases to be defined, may not decline to exercise his jurisdiction under the pretext that the courts of another Contracting State would be better placed to decide on the issues in the lawsuit.

VI    Criteria for the possible application of the mechanism of forum non conveniens in certain exceptional cases

In this respect it is interesting to note that in his important course on "The principle of proximity in contemporaneous private international law"¹⁴ Professor Lagarde, after having examined the practice of the courts of the English-speaking countries in applying the theory of forum non conveniens, proposed a "clause creating an exception to the rules of judicial jurisdiction" from which the non-treaty law of the States of the European continent may draw its inspiration. According to this clause "a tribunal which has jurisdiction might exceptionally declare itself not to have jurisdiction if it were established, on one hand, that this court was not very appropriate to handle the litigation because of its distance from the defendant and the difficulty for this court to gain access to evidence and the elements of the lawsuit and, on the other hand, that another court which is more appropriate and closer, offering the plaintiff equivalent guarantees as to its impartiality and as to procedural justice, might recognize itself as having jurisdiction if it were seised by the plaintiff. Finally, such a clause creating an exception would be however excluded where the court is one which is regularly chosen by the parties to the litigation".¹⁵

In order that such a clause may apply, it does not suffice therefore to weigh the advantages and disadvantages of the proceeding for each of the parties, but it will be necessary to refer to objective factors. This will eliminate the floating applications of the theory, as one finds them sometimes in the United States where the theory is sometimes utilized more as an element of assessment in the balancing of the interest of the parties than as a condition under which jurisdiction will be declined.¹⁶ In addition, it will be noted that, according to the clause proposed, jurisdiction should be declined only if the existence of a foreign court which has jurisdiction is guaranteed. Thus the hypothesis is eliminated which is also found in the American case law of declining jurisdiction where this would lead to a denial of justice.

It is important to emphasize that this clause creating an exception was proposed by the author for the general law of the States of the European continent, therefore to be used outside of the treaty frameworks such as those of the Brussels and Lugano Conventions. The closer that the convention which is to be drafted comes to the system of these Conventions, the less it will offer a place for such a clause. But if the idea of a mechanism such as that mentioned under item 32 of the Conclusions of June 1994 were to be retained, Professor Lagarde's proposal might be taken as a point of departure for a treaty formula. In this respect several more detailed questions would have to be taken up, for example:

-- should there be taken into account among the objective factors justifying the application of the clause not only private interests (which ones?), but also considerations of public interest (costs of the proceedings for the public treasury, difficulty for the judge to apply a foreign law)?¹⁷

-- should there be established, in the convention, and if so how, a procedure for determining whether the other court (1) is in fact more appropriate to handle the case, (2) offers equivalent guarantees to the plaintiff (to the parties), (3) confirms its own jurisdiction and, then, (4) has been in fact seised and has recognized that it has jurisdiction?¹⁸

-- may the first court condition its dismissal on the defendant agreeing not to raise certain objections before the second court (e.g. jurisdiction)?

-- should there be limits, in the convention, on the possibility to appeal from a decision on forum non conveniens in order to reduce the length and the costs of the proceedings?

VII    Limits of the mechanism of forum non conveniens where the alternative forum is located in a non-Contracting State

But how about the case where the court of a Contracting State thinks that the courts of a non-Contracting State are the ones which are better placed to decide on the issues? The case was illustrated in particular in the United Kingdom, where the English jurisdiction at the statutory headquarters of an incorporated company declared that it had no jurisdiction for the reason that the courts of Argentina, where such company's real and administrative headquarters were situated, were better placed to decide on the litigation.¹⁹ In the framework of a double convention of the Brussels/Lugano type, such a solution is even less acceptable than declining jurisdiction in favour of the courts of a Contracting State.

Indeed if, as in the particular case before the courts in England, the defendant has its domicile or its headquarters within the meaning of the Convention in a Contracting State, the exorbitant bases for jurisdiction known in the other Contracting States may not be utilized against this defendant. For this reason, if the company incorporated in England has property in the Netherlands, the plaintiff domiciled in the Netherlands cannot use the forum actoris or the forum arresti of the Netherlands in order to establish its claim and obtain payment from local property. It must normally go before the court of the domicile of the defendant or another court (place of enforcement of the obligation, place where the harmful event occurred, etc.). If it files its complaint with the court considered fundamentally as having jurisdiction of the domicile of the defendant and this court declines to exercise its jurisdiction, thinking that it is for the court of a third State to judge, the plaintiff obliged to initiate a lawsuit in a third State is not at all sure of being able to have this decision enforced in the place where the property to be seised is located. In the Dutch case, it is even certain that the Argentine judgment cannot be enforced in the Netherlands, since the Netherlands does not grant enforcement in the absence of a treaty. The property situated in the Netherlands may therefore become untouchable and the situation is blocked. In summary, if there is a basis for jurisdiction recognized by an international convention in favour of the court of a Contracting State, the plaintiff should not be deprived of the benefit of recognition by operation of law and the enforcement of the judgment in all the other Contracting States by being sent away to proceed in a non-Contracting State before a court whose judgment will certainly not have the same effect.

VIII    Sanction of foreign forum shopping

It appears from the reports to the XIVth Congress of the International Academy of Comparative Law and from the General Report of J.J. Fawcett²⁰ that the States which have adopted the doctrine of forum non conveniens have also utilized this method to deal with the problem of abusive forum shopping abroad. In this hypothesis, what is involved is to persuade the court at the forum not to decline the exercise of its jurisdiction as in the preceding hypotheses, but rather to enjoin a party against instituting legal proceedings abroad, for the foreign court would be in the particular case considered as being inappropriate to decide the matters at issue. Thus, if an action has been instituted in a forum, this forum may wish to prohibit one of the parties from instituting the same action abroad in order to avoid a risk of concurrent litigation and conflicting decisions. The court of the forum seised with a principal action may wish to prohibit the parties from litigating abroad a related question in order to avoid any possible incompatibility of decisions or simply because it appears to it to be "convenient" that the accessory related cause of action be submitted to the court which will decide upon the principal action. In the countries which do not know the method of forum non conveniens, these excesses, if they exist, are sanctioned subsequently by the non-recognition of the foreign judgment. But the method of forum non conveniens is intended to intervene a priori at the very stage of the direct assumption of jurisdiction.

It seems difficult to envisage that such a method might be utilized within the framework of a double convention drawing its inspiration from the Brussels and Lugano Conventions. As has been said, in the spirit of the convention all of the bases for assuming jurisdiction offered to the plaintiff are considered as being good and as having reasonable connections with the litigation. The result is that it should normally be presumed that no abusive forum shopping may exist where the plaintiff makes a choice between the different options which are offered to it. Certainly, conflicting decisions ought to be avoided, but the problem will then be dealt with in the convention itself by an exception for lis pendens or for related actions. In short, it seems that the use of injunctions for the purpose of prohibiting a party from bringing an action before a court considered to have jurisdiction under the convention would be contrary to the spirit of an international treaty. This question was not discussed at the first Special Commission meeting and this problem undoubtedly deserves to be addressed and clarified during the coming discussions.

ENDNOTES

¹See for details the document submitted by the United Kingdom (Annex D).

²Fawcett, op. cit., p. 10.

³According to this provision, "the court does not have jurisdiction if the request does not have a sufficient connection with the legal system of the Netherlands" (translation by the Permanent Bureau).

⁴Cf. P. Lagarde, Le principe de proximité dans le droit international privé contemporain, Cours général de droit international privé, Recueil des Cours (1986), I, p. 151: "This rigidity [of the rules for judicial jurisdiction and for lis pendens in the Brussels Convention] may be understood in the federalistic perspective of the Convention. When all is said and done, the courts of the Member States belong to the same legal order and, to this extent, the rules of the Convention may be assimilated to the rules for domestic jurisdiction. And since the Member States, and in any case the six founding States, have a rigid system of jurisdiction, it is quite natural that they have welcomed the rigid system of the Convention in their mutual relations."

⁵Article 59, first paragraph, reads as follows:

"This Convention shall not prevent a Contracting State from assuming, in a convention on the recognition and enforcement of judgments, an obligation towards a third State not to recognize judgments given in other Contracting States against defendants domiciled or habitually resident in the third State where, in cases provided for in Article 4, the judgment could only be founded on a ground of jurisdiction specified in the second paragraph of Article 3."

⁶See, in particular, Fawcett, op. cit., pp. 27-46 and the document submitted by the United Kingdom (under B) (Annex D).

⁷According to 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 stay its proceedings until such time as the jurisdiction of the court first seised is established.

Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court." (Text as amended by the Convention of 1989 on the accession of Spain and Portugal.)

⁸Cf. the critique in Fawcett, op. cit., pp. 24-25.

⁹This article provides: "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.

For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings."

¹⁰Cf. H. Gaudemet-Tallon, Les Conventions de Bruxelles et de Lugano (2nd ed.), No 297.

¹¹Indeed, in the common law systems the courts have discretion to declare that they are not convenient fora but only in exceptional circumstances, for example, if the defendant proves that the operation of the choice of court clause would be unjust. See Fawcett, op. cit., pp. 57-58.

¹²Article 16 provides:

"The following courts shall have exclusive jurisdiction, regardless of domicile:

1.    (a) in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Contracting State in which the property is situated; ...

4. in proceedings concerned with the registration or validity of patents, trade marks, designs, or other similar rights required to be deposited or registered, the courts of the Contracting State in which the deposit or registration has been applied for, has taken place or is under the terms of an international convention deemed to have taken place;

...".

¹³Fawcett, op. cit., pp. 58-62.

¹⁴See footnote 4, supra.

¹⁵Ibidem., p. 150 (translation by the Permanent Bureau).

¹⁶It is in particular the recent case law of the House of Lords (Spiliada case 1986) which" objectivized" the theory of forum non conveniens; see Fawcett, op. cit., pp. 11-12; but see also the document submitted by Australia (Annex A).

¹⁷See for a detailed discussion the documents submitted by the United Kingdom and the United States (Annexes D and C).

¹⁸See also the document submitted by Canada (Annex B).

¹⁹Re Harrods (Buenos Aires) Ltd [1991] 4 All ER 348; [1992] Cf. 72. The procedure for a preliminary judgment before the European Court of Justice was stopped following a settlement between the parties. (Case C-314/92 Ladenimor SA v. Intercomfianz SA.) See on the entirety of the question H. Gaudemet-Tallon, Le "forum non conveniens", une menace pour la Convention de Bruxelles? (à propos de trois arrêts anglais récents), Rev. crit. dr. internat. privé 1991, p. 491.

²⁰Op. cit., pp. 62-67.

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