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CYPRUS: APPLICATION OF THE DOCTRINE OF FORUM NON CONVENIENS AFTER THE CASE OWUSU -vs- JACKSON

Introduction:

The Cyprus legal system followed English law until 1960. Since then, it has been closely modeled on its English counterpart.

One of English legal doctrines adopted by Cypriot Courts is the doctrine of “forum non conveniens”.

After the accession of Cyprus to the EU the application of the above English doctrine has been drastically restricted or almost put to an end.

Doctrine of “Forum Non Conveniens”

The concept of the doctrine of “forum non conveniens”, was defined by Lord Goff in the English case Spiliada Maritime Corporation vs. Cansulex Ltd (1987) AC 460 at page 476, which held that:

“... a national court may decline to exercise jurisdiction on the ground that a court in another State, which also has jurisdiction, would objectively be a more appropriate forum for the trial of the action, that is to say, a forum in which the case may be tried more suitably for the interest of all the parties and the ends of justice.”

Cyprus Courts, therefore, have discretionary power to stay the proceedings before them in cases where they consider that the courts of another State, are more suitable or appropriate for the trial of the action.

The case Owusu vs. Jackson C 128/02 [2005] QB 801, of the European Court of Justice (‘ECJ’), was a reference for a preliminary ruling by the English Court of Appeal, seeking interpretation of Article 2 of the Brussels Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters(‘Brussels Convention’), substituted by Regulation EC No. 44/2001.

The said Article 2 provides that persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that State.

The ECJ in Owusu vs. Jackson has strictly limited the scope of the application of forum non conveniens, in cases which fall outside the scope of the Brussels Convention and did not give the opportunity to the Court of Appeal to stay the proceedings.

Consequently, the above decision, compels Cyprus Courts to take jurisdiction even in cases where the underlying facts have a closest connection with a different state.

Application of the ECJ Judgement in Owusu vs. Jackson before Cyprus Courts:

The rule expressed in Owusu vs. Jackson was adopted in Hampton Advisory Group SA vs. Bost AD and others, Civil Appeal 13/2009 dated 27/03/2012 where the Cyprus Court held that "... as rightly indicated by the company in its outline, the opinion also failed to mention that Bulgaria is a member of the European Union since 2007 and failed to take into account the Regulation 44/2001, including the decision of Owusu v. Jackson and Others (Case C-281/02) [2005] QB 801, of the Court of European Communities, which has stressed the imperative of the provision of Article 2 of Regulation 44/2001 and that the authors of the Brussels Convention did not provide for an exception to basis of forum non conveniens.."

 

Furthermore in Prosceno Trading Ltd vs. M.v. Frunze and others, Action No. 6273/2010, the Cyprus Court of First Instance decided thatIt is true that the rule formulated in Owusu v. Jackson is absolute…..Accordingly I consider that there is a close link between the claims against local and foreign defendants that they should be joined and judged simultaneously, in order to avoid the risk of irreconcilable judgments, as provided in Article 6 (1) of the EC 44/2001 .”

 

Article 6(1) of EC 44/2001 provides that a person domiciled in a Member State, being one of many defendants, may also be sued in the courts of the place where any one of them is domiciled, provided the claims 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.

 

Conclusion

The judgment in Owusu vs. Jackson has given an opportunity to the Cyprus Courts to acquire jurisdiction in a case before them, even though the facts of the case give jurisdiction to the courts of a different State as a more appropriate forum for the hearing of the case.

 

The above Cyprus Courts’ judgments, illustrate that when examining whether or not Cyprus Courts have jurisdiction in a case, they must take into account the decision in Owusu vs. Jackson as well as Articles 2 and 6(1) of EC 44/2001.

For further information on this topic please contact Mr. Markos Papamarkou at SOTERIS PITTAS & CO LLC, by telephone (+357 25 028460)

or by fax (+357 25 028461) or by e-mail (mpapamarkou@pittaslegal.com).