Thursday, November 24, 2005

Forum Non Conveniens-Doctrine inconsistant with Brussels Convention

Mr Owusu, a British national domiciled in the United Kingdom, suffered a very serious accident during a holiday in Jamaica. He walked into the sea, and when the water was up to his waist he dived in, struck his head against a submerged sand bank and sustained a fracture of his fifth cervical vertebra which rendered him tetraplegic. Following that accident, he brought an action in the United Kingdom for breach of contract against Mr Jackson, who is also domiciled in that State. Mr Jackson had let to Mr Owusu a holiday villa in Mammee Bay (Jamaica). Mr Owusu claims that the contract, which provided that he would have access to a private beach, contained an implied term that the beach would be reasonably safe or free from hidden dangers. Mr Owusu also brought an action in tort in the United Kingdom against several Jamaican companies, which were involved in access to or control and upkeep of the beach. The Court of Appeal (England and Wales) stated that, in this case, the competing jurisdictions were a Contracting State and a non-Contracting State. The question of the application of forum non conveniens in favour of the courts of a non-Contracting State, when one of the defendants is domiciled in a Contracting State, was not a matter on which the Court of Justice had ever given a ruling. ECJ held: Nothing in the wording of Article 2 of the Brussels Convention suggested that the application of the general rule of jurisdiction laid down by that article solely on the basis of the defendant’s domicile in a Contracting State was subject to the condition that there should be a legal relationship involving a number of Contracting States. for the jurisdiction rules of the Brussels Convention to apply at all the existence of an international element is required It must be observed, first, that Article 2 of the Brussels Convention is mandatory in nature and that, according to its terms, there can be no derogation from the principle it lays down except in the cases expressly provided for by the Convention. It is common ground that no exception on the basis of the forum non conveniens doctrine was provided for by the authors of the Convention, although the question was discussed. Respect for the principle of legal certainty, which is one of the objectives of the Brussels Convention would not be fully guaranteed if the court having jurisdiction under the Convention had to be allowed to apply the forum non conveniens doctrine. (ECJ 01.03.2005, C-281/02).

(Originally posted by Michael Wukoschitz)

Wednesday, November 23, 2005

No legal Basis for Transfer of Data from Airline Passenger Name Records to US Authorities?

In his opinion of 22 November 2005 (Cases C-317, 318/04) European Advocate General Léger proposed anullment of Commission and Council decisions on transfer to the American authorities of personal information concerning air passengers. Following the terrorist attacks of 11 September 2001, the United States adopted legislation to require airlines carrying passengers to, from or across United States territory to give the American authorities electronic access to the data contained in their Passenger Name Records. After negotiations with US authorities the Commission adopted a decision (the adequacy decision), holding that the US Bureau of Customs and Border Protection (CBP) offered a sufficient level of protection for personal data transferred from the Community whereas the Council adopted a decision approving the conclusion of an agreement between the European Community and the United States on the transfer of data from Passenger Name Records by airlines. Both decisions were challenged by the European Parliament before the European Court of Justice (ECJ). In his opinion the Advocate General concluded that the adequacy decision infringed the underlying measure, namely Directive 95/46, and proposed to annul that decision. Concerning the Council’s decision he considerd that Article 95 EC which concerns the adoption of measures for approximating the legal, regulatory and administrative provisions of Member States which have as their object the establishment and functioning of the internal market, did not constitute an appropriate legal basis and proposed that the Court should annul that decision as well. Although Opinions of the Advocate General are not binding, ECJ judgements at a high percentage follow these proposals.

(Originally posted by Michael Wukoschitz)