10.1 WEIGHED JURISDICTION IN PRIVATE INTERNATIONAL LAW. ON FORUM (NON) CONVENIENS AND FORUM NECESSITATIS

This thesis deals with the doctrine of forum (non) conveniens and that of forum necessitatis in Dutch private international law. Chapter 1 introduces the central subjects of this thesis, i.e., the open-ended jurisdiction mies of forum non conveniens, forum conveniens and forum necessitatis. These three fora provide Dutch courts with a broad discretionary power to determine on a case-by-case basis whether it is appropriate to exercise jurisdiction in international cases. While the forum non conveniens doctrine deprives jurisdiction which otherwise would exist, forum conveniens and forum necessitatis are grounds for creating jurisdiction. On the basis of forum non conveniens a Dutch court is entitled to decline jurisdiction, which it formally possesses, if it considers the Netherlands as an inappropriate forum, because the case is insufficiently connected with the Netherlands, or if it considers the courts of another state to be in a better position to deal with the case. The forum conveniens doctrine is actually the counterpart of forum non conveniens. If there is no specific ground for jurisdiction, Dutch courts can still assume jurisdiction when the case is sufficiently connected with the Netherlands. Generally speaking, before a court can exercise jurisdiction it is necessary that the case has sufficient, or at least some geographical connection with the judicial sphere of the court seised. However, exceptions to this basic rule are conceivable, especially if the plaintiff cannot institute legal proceedings before the courts of another state. A total lack of jurisdiction causing a situation in which the plaintiff ends up in a denial of justice should be prevented at all costs. Therefore, in such circumstances Dutch courts may accept jurisdiction by necessity on the ground of forum necessitatis.

This thesis primarily focuses on Dutch private international law. First of all it deals with the position of forum (non) conveniens and forum necessitatis in the Dutch national mies of jurisdiction. Chapter 2 gives an overview of the particular form of forum non conveniens in Article 429c of the Dutch Code of Civil Procedure (hereafter: `CCP') and the case-law generated by Dutch courts on this article. As from 1 January 2002 Article 429c CCP has been replaced. From this date Dutch law gives general mies on jurisdiction in Articles 1 to 14 CCP. Chapters 3, 4 and 5 explores whether, and if so, to what extent the doctrines of forum (non) conveniens and forum necessitatis are a part of the national rules of jurisdiction as laid down in Articles 1 to 14 CCP. Chapters 6 and 7 of this study deal with forum (non) conveniens and forum necessitatis in European private international law. Attention is paid to the status of forum non conveniens and forum necessitatis in Regulation (EC) No. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility (`Brussels IIA')1 and Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (`Brussels I' ).2 Finally, Chapter 8 provides some comparative remarks on the application of the forum non conveniens doctrine by American courts.

On 1 January 1970 a variant of the forum non conveniens doctrine was introduced in Article 429c of the Dutch CCP. Article 429c CCP is the subject of Chapter 2. Article 429c CCP was a local rule of venue which only applied in petition cases (`verzoekschriftprocedures' ). This provision allocated venue to the courts of the location in which the petitioner had his (habitual) residence. When the petitioner had no residence in the Netherlands it allocated venue to the Hague Court. At that time the international jurisdiction of Dutch courts was derived from the local tules of venue, at least in situations where the case fell outside the scope of relevant conventions (`distributie bepaalt attributie'). According to the forum non conveniens restriction laid down in Article 429c CCP Dutch courts, which formally had jurisdiction on the basis of a rule of venue, declined jurisdiction if the petition was insufficiently connected with the Netherlands. In general the Dutch forum non conveniens doctrine was applied in family law matters, especially in cases of parental responsibility and in cases concerning the use of the marital home after divorce, but not in the underlying divorce cases. The Dutch forum non conveniens doctrine did not apply in legal proceedings commencing with a writ of summons (`dagvaardingsprocedures'), with the exception of summary proceedings (`kort geding').

The question of whether a Dutch court could be qualified on the basis of Article 429c CCP as a forum non conveniens was answered on a case-by-case basis. For example, in the field of cases of parental responsibility Dutch courts declared themselves in principle forum non conveniens when the child had his or her habitual residence outside the Netherlands. However, Dutch courts nevertheless exercised jurisdiction where the parents of the child agreed on the issue of parental responsibility. In that case the exercise of jurisdiction was assumed to be in the interest of the child. Another example is a petition concerning the use of the mantal home after divorce. A Dutch court usually declared itself forum non conveniens when the marital home was located outside the Netherlands, except in circumstances wherein the parties agreed on the future use of the marital home. Another exception to the use of the forum non conveniens doctrine was made when a forum non conveniens declaration from a Dutch court would result in a denial of justice. Where a Dutch court' s abstention would cause a petitioner to be unable to subsequently bring his or her case before the court of another state, Dutch courts exercised jurisdiction by necessity. This was true even when the case had no, or insufficient connection with the Netherlands.

On 1 January 2002 a new Dutch CCP came into force. The first chapter of the new CCP contains a comprehensive section of national tules on the jurisdiction of Dutch courts. If a case falls outside the scope of relevant treaties and EU-Regulations, the international jurisdiction of Dutch courts is determined by Articles 1 to 14 CCP (see also Article 1 CCP). The jurisdiction of Dutch courts is no longer derived from the national tules of venue.3 In drafting general tules on jurisdiction in CCP, the Dutch legislator was broadly inspired by the Brussels I Regulation (and its predecessor the Brussels I Convention), the Brussels IIA Regulation (and its predecessor the Brussels II Regulation) and the treaties of the Hague Conference on Private International Law of 1961 and 1996 on the protection of children. In the context of the new Dutch rules of jurisdiction the question could be raised whether a forum non conveniens device is still needed in the new CCP. Do the new Dutch tules contain any exorbitant bases of jurisdiction? If this is not the case, is correction by the forum non conveniens doctrine no longer required? Chapter 3 addresses this question.

The general forum non conveniens tule in international petition, as provided for under Article 429c CCP, no longer exists in Articles 1 to 14 CCP. Under the new tules of jurisdiction the applicability of forum non conveniens is reduced to just one type of cases, viz the issue of the parental responsibility that arises in divorce cases and that is meant for the period after divorce (Article 4 (3)(a) CCP). According to this tule a Dutch court can, in spite of its jurisdiction, decline jurisdiction on forum non conveniens grounds with regard to measures of parental responsibility, when 'he considers himself not in a suitable position to serve the best interest of the child, because the case has insufficient links with the Netherlands.' In view of this tule Dutch courts shall decline jurisdiction on the basis of forum non conveniens when the child has his or her habitual residence outside the Netherlands. This practice is in accordance with international standards in the field of parental responsibility (see e.g., Article 8 Brussels IIA Regulation). However, inspite of the habitual residence in another state, Dutch courts will assume jurisdiction when such jurisdiction is in the best interest of the child. For example, Dutch courts may assume jurisdiction where the parents of the child have agreed on the issue of parental responsibility. The forum non conveniens doctrine in Article 4 (3)(a) CCP is a flexible tool which enables Dutch courts to fine-tune their jurisdiction in the best interest of the child.

In Chapter 3 it is argued that the deletion of the general forum non conveniens tule from the new CCP, is not justified for international petition cases. Article 3 CCP gives grounds for jurisdiction of Dutch courts regarding international petition cases. Article 3 (a) CCP embodies aforum actoris that confers jurisdiction upon Dutch courts if, for example, the petitioner has his or her habitual residence in the Netherlands. When the petitioner resides in the Netherlands, Dutch courts are obliged to assume jurisdiction. There is absolutely no possibility to decline jurisdiction, even though the examples given in paragraph 3.5.6 of this study illustrate that Article 3 (a) CCP can, in some cases, lead to exorbitant jurisdiction. For example, why should a petitioner who has his or her habitual residence in the Netherlands be given access to find a Dutch court having jurisdiction over a petition that involves the protection of an adult whose habitual residence is outside the Netherlands? Should Article 3 (a) CCP therefore provide Dutch courts the ability to decline jurisdiction on forum non conveniens grounds? In my view this question has to be answered positively.

In contrast with forum non conveniens the forum conveniens doctrine creates jurisdiction for Dutch courts. Therefore, forum conveniens is not a negative doctrine, but rather a positive doctrine. It provides Dutch courts with broad discretionary power to consider whether it is appropriate to exercise jurisdiction. The new mies on jurisdiction in the Dutch CCP include two forms of forum conveniens, which are discussed in Chapter 4. According to Article 3 (c) CCP Dutch courts have jurisdiction in international petition cases 'when the petition is otherwise sufficiently connected with the Netherlands.' This is a general forum conveniens rule that applies in all petition cases, except in cases of divorce (Article 4 CCP) and parental responsibility (Article 5 CCP). The required connection with the Netherlands must exist through means other than those otherwise expressed in the CCP jurisdictional mies. The forum conveniens doctrine of Article 3 (c) CCP is of particular importance in family law matters with regard to Dutch citizens who reside outside the Netherlands. The Dutch nationality of a person who lives abroad can provide the required connection with the Netherlands. However, Article 3 (c) CCP does not contain an absolute forum nationalitatis.

Secondly, a specific forum conveniens rule is included in Article 5 CCP, which provides for jurisdiction of Dutch courts in cases of parental responsibility outside of divorce cases. Article 5 CCP primarily gives a negative rule of jurisdiction. The basic principle is that Dutch courts Jack jurisdiction when the child does not have his or her habitual residence in the Netherlands. So, Article 5 CCP deprives Dutch courts of jurisdiction. The rationale behind this negative rule is that the courts of the child' s habitual residence is the best equipped to deal with a case of parental responsibility. That court is considered to be the natural forum. However, exceptions are conceivable. By way of exception, Article 5 CCP makes it possible for a Dutch court to assume jurisdiction, notwithstanding the habitual residence of the child in another state, when the court considers itself to be a forum conveniens, i.e., the case is sufficiently connected with the Netherlands in such a way that the court finds itself in a good position to serve the best interest of the child. An example of a forum conveniens on the basis of Article 5 CCP can be found in cases in which the parents of the child have agreed on the parental responsibility.

Article 9 (b) and (c) CCP contains two different forms of the so-calledforum necessitatis. The basis of this jurisdiction can be found in the fundamental right of access to a court as guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). When there is no ground in the CCP on which Dutch courts can base their jurisdiction, they may nevertheless exercise jurisdiction by necessity if there is no other available court (in a jurisdictional sense) or accessible court (in a practical sense) for the plaintiff, for example where no other court outside the Netherlands has jurisdiction to hear the case, or where the access to a foreign court having jurisdiction is practically obstructed due to war, natural disaster, revolution, etc. For this absolute form of forum necessitatis, Article 9 (b) CCP does not require that the case be connected with the Netherlands. That is different in the relative form of forum necessitatis as provided by Article 9 (c) CCP. In this second form of forum necessitatis, Dutch courts may exercise jurisdiction where there is an available court outside the Netherlands with jurisdiction to hear the case, but it is unacceptable for the claimant to bring his claim before this court based on case specific circumstances (e.g., because fair trial is not guaranteed). In this case, Article 9 (c) CCP requires that the case be sufficiently connected with the Netherlands, for example, where the plaintiff is a resident of the Netherlands. Another difference between the two forms of forum necessitatis is that the absolute form (Article 9 (b) CCP) applies in both petition cases and legal proceedings commencing with a writ of summons, whereas the relative form (Article 9 (c) CCP) only applies in legal proceedings commencing with a writ of summons.

Chapter 5 deals with the question of which cases justify the exercise of jurisdiction by Dutch courts on the basis of forum necessitatis. Dutch case law shows that claimants often ask for the application of one of the two forms of forum necessitatis in Article 9 CCP. The arguments proffered by the claimants include their unfamiliarity with a foreign legal system and that the foreign trial will take an unreasonably long time. Fortunately, Dutch courts are very reserved by accepting jurisdiction on forum necessitatis grounds. Case law shows two decisions in which a Dutch court exercised jurisdiction by necessity on acceptable grounds. First, in District Court Rotterdam 4 June 2003, NIPR 2004, 158, Article 9 (c) CCP applied because it was unacceptable for the Dutch plaintiff to bring his case before an Iraqi court due to the chaos in Iraq caused by the American invasion of that country. Second, Court of Appeal of The Hague 21 December 2005, NJF 2006, 154, exercised jurisdiction in a divorce case on the ground of forum necessitatis where a Dutch woman and her Maltese husband, both living in Malta, were unable to divorce in Malta since Maltese law does not know the possibility of divorce. One interesting question is whether the exercise of jurisdiction pursuant to Article 9 (c) CCP is justified on the ground that the legal costs of proceedings in another state would be excessively high. The prevailing view in Dutch literature is that excessively high legal costs can be no decisive argument for justifying the use of forum necessitatis, a view that I share.

On 1 March 2005 the Brussels IIA Regulation became effective for all Members of the European Union except for Denmark. This Regulation provides for rules concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility. As far as the issue of jurisdiction with regard to parental responsibility is concerned, the basic tule under the Brussels IIA Regulation is that jurisdiction belongs to the courts of the Member State in which the child has his or her habitual residence at the time the court is seised (Article 8 paragraph 1 Brussels IIA). Articles 9 to 12 of the Brussels IIA Regulation makes several exceptions to this basic tule. For example, parties may agree on the jurisdiction of the courts of a Member State other than the Member State in which the child habitually resides (Article 12 Brussels IIA). The interest of the child calls for flexibility of the mies on jurisdiction. Article 15 of the Brussels IIA Regulation provides such flexibility. According to Aaide 15 a court of a Member State having jurisdiction as to the substance of the matter, by way of exception, may transfer the case to a court of another Member Sate with which the child has a particular connection and which is better placed to hear the case or a specific part thereof. This provision introduces an individual forum non conveniens luie which is child interest-oriented. A transfer on forum non conveniens grounds is only allowed in exceptional circumstances in which the interest of the child calls for a transfer to a better placed court in another Member State. Chapter 6 pays exhaustive attention to Aaide 15 Brussels IIA Regulation.

Aaide 15 Brussels IIA Regulation gives procedural mies that prescribe in detail how a transfer on forum non conveniens grounds should be realized. For example, Aaide 15 states which courts of Member States may transfer a case, to which courts of Member States a transfer can be made and the judicial consequences of an acceptance or refusal of transfer Article 15 Brussels IIA Regulation distinguishes two ways in which a transfer can be realized. First of all, a transfer on forum non conveniens grounds in which the parties fulfill an active role. In that case the court of a Member State stays the proceedings and invites the parties to introduce a request before the court of another Member State that is better placed to hear the case (Article 15 (1)(a)). Secondly, a transfer on forum non conveniens grounds can be requested directly by the court of a Member State to a court of another Member State that is better placed to hear the case, without intervention of the parties (Aaide 15 (1)(b)). However, if the transfer is made of the court' s own motion, the transfer must be accepted by at least one of the parties. Notwithstanding the fact that Aaide 15 Brussels IIA Regulation is not very clear in some respects (e.g., it is unclear whether appeal is allowed from transfer-decisions), in my opinion the forum non conveniens luie as embodied in this article is a welcome addition to the jurisdictional mies in the Brussels IIA Regulation in cases of parental responsibility. Forum non conveniens could fulfill a useful role since the interest of the child claims flexibility with regard to the mies on jurisdiction. However, it should be prevented that Article 15 Brussels IIA Regulation lead to superfluous disputes on jurisdictional issues between the parents of the child.

Chapter 7 addresses the question as to the compatibility of the forum non conveniens doctrine with the jurisdiction regime of the Brussels I Regulation (and the Brussels Convention). It is clear that there is no place for the doctrine of forum non conveniens in the relationship between the courts of Member States, once the jurisdiction of a court is based on the Brussels I Regulation. One of the aims of the Brussels I Regulation is to provide for highly predictable jurisdictional roles that enable the parties to reasonably predict which court has jurisdiction over their case. Also, the Brussels I Regulation provides for a jurisdiction regime that is mandatory in nature. When a provision in the Brussels I Regulation confers jurisdiction upon a court, that court is not only entitled but also obliged to exercise jurisdiction. The Brussels I Regulation explicitly determines when a court must decline jurisdiction in favor of the courts in another Member State (e.g., in cases of lis pendens, exclusive jurisdiction clause, etc.). It cannot be accepted that a forum non conveniens rule based on the internal law of a Member State violates this obligatory regime and decreases the predictability of jurisdiction. Actually, the forum non conveniens doctrine is not necessary in most cases because the Brussels I Regulation already provides for proper jurisdictional grounds. Thus, in intercommunity relations the use of the forum non conveniens doctrine is not allowed due to the obligatory system of the Brussels I Regulation and its aim to provide for highly predictable jurisdictional rules. But what about the extracommunity dimension of forum non conveniens? Is the court of a Member State, whose jurisdiction is based on the Brussels I Regulation, allowed to stay proceedings on forum non conveniens grounds in favor of the court of a non-Member State?

In international literature there are divided views with regard to this last question. Until recently, some authors in the United Kingdom were of the opinion that nothing in the Brussels I Regulation (and the Brussels Convention) prohibited the use of forum non conveniens in favor of courts in non-Member States, at least in cases which are connected with only one Member State and another non-Member State. There is also case law in the United Kingdom supporting this view. This controversial question has become a current topic due to a preliminary ruling of the European Court of Justice (ECJ) of 1 March 2005, Case 281/02, Owusu/Jackson .4 Although this ruling was given under the Brussels Convention, it will remain relevant under the Brussels I Regulation. The ECJ held that the Brussels I Convention leaves no room for the court of a Member State, which derived its jurisdiction from Article 2, to stay proceedings on the ground that a court of a non-Member State (in the present case: Jamaica) is a more appropriate forum for trial, even when the jurisdiction of no other Member State is in issue or the proceedings have no connecting factors to any other Member State. The ECJ pointed out that the general jurisdiction rule in Article 2 is mandatory, which means that once the court has jurisdiction by virtue of this article, it is not only entitled, but also obliged to accept and exercise this jurisdiction. Secondly, allowing the use of forum non conveniens would affect the principle of legal certainty, which is a cornerstone of the Convention. Further, the use of forum non conveniens is undesirable because it would affect the uniform application of the Brussels Convention, since this doctrine is only recognized in a limited number of Member States. In light of this preliminary ruling the curtain fell for the forum non conveniens doctrine under the Brussels Convention and the Brussels I Regulation. After Owusu, there is one interesting issue with regard to third states that still remains open. What about the mandatory nature of Article 2 Brussels I Regulation (and the Brussels Convention), for example, if the court of a non-Member State has been previously seised of the matter, which could give rise to a situation of lis pendens? What if the jurisdiction of the court of a non-Member State is designated by an agreement between the porties or derives from the location of immovable property? One could argue that in these cases the mies of the Brussels I Regulation (and the Brussels Convention) would apply by way of analogy.

The final Chapter of this thesis deals with the topic of the forum non conveniens doctrine as applied by U.S. courts. The U.S. forum non conveniens doctrine differs in many ways from its equivalent in the Brussels TJA Regulation and in the Dutch CCP. Chapter 8 shows the various differences, but also some of the similarities. In contrast with European procedural law and the Dutch CCP, the forum non conveniens doctrine in the U.S. especially applies in commercial cases. American courts stay proceedings on the basis of forum non conveniens if they consider themselves as 'a seriously inconvenient forum' and, in addition, the plaintiff can bring his claim before a 'more appropriate forum abroad.' The forum non conveniens doctrine in the U.S. is, among others, intended to reduce the effects of broad jurisdictional grounds such as `tag'-jurisdiction or jurisdiction based upon the Alien Tori Claim Act. The basic requirement for a forum non conveniens inquiry is the existence of an alternative forum abroad before which an adequate trial is guaranteed. There must exist an alternative forum abroad (i.e., in another U.S. (federal) state or outside the U.S.) that has jurisdiction to hear the case and which is practically accessible for the claimant. This alternative forum must be adequate, which primarily means that a fair trial must be guaranteed for the plaintiff. When an adequate alternative forum is localized, then the so-called `balancing test' stipulates which of the available courts is the more appropriate forum for trial. The `balancing test' is based upon a consideration of various factors: at the one hand, the private interest factors which are related to the interests of the parties (e.g., the location of evidence, the possibility of viewing premises if this would be appropriate to the action and all other practical problems which lead to an easy, expeditious and inexpensive trial), and on the other hand, the public interest factors (e.g., preventing forumshopping, considerations on jury duty, application of foreign law, enforceability of a judgment). When the `balancing test' points to a trial in the alternative forum abroad, American courts will stay the proceedings on forum non conveniens grounds, and will usually condition this stay in various ways. These conditions obligate the defendant to cooperate with the plaintiff if he decides to start new proceedings in the alternative forum, e.g., by not challenging the jurisdiction of the foreign court, making its witnesses and evidence available in the new proceedings abroad and voluntarily satisfying any judgment of the foreign court. Failure to comply with any of these conditions by the defendant constitutes a ground for reassuming jurisdiction by the American court upon request by the plaintiff. In American literature there is a growing call for redefining forum non conveniens as applied nowadays by U.S. courts. The main criticism concentrates on the discriminatory way in which this doctrine is applied in favor of American parties (and especially American companies).

This study shows that there is not one single forum non conveniens doctrine. Forum non conveniens is applied in various forms in different countries. The way in which the doctrine is applied depends on the function of forum non conveniens in the country concerned. For example, in the U.S. the forum non conveniens doctrine is primarily meant to reduce the effects of broad jurisdictional grounds, and also to protect American parties from legal proceedings of foreign plaintiffs instituted in American courts. Under the Brussels IIA Regulation and the new Dutch CCP, the doctrine of forum non conveniens provides for flexibility with regard to cases of parental responsibility. There are many differences between the U.S. forum non conveniens doctrine and the forum non conveniens as set forth in the Brussels IIA Regulation and the Dutch CCP. For example, with regard to the U.S. forum non conveniens doctrine, various private and public factors are taken into account, whereas the primary criterion under the Brussels IIA Regulation and the Dutch CCP is the 'interest of the child.' Should we, in Europe take an example from the way American courts apply the forum non conveniens doctrine? I don't think so. The way U.S. courts apply forum non conveniens leads to a lot of legal uncertainty and, at the jurisdictional level, creates an unjustified difference between local and foreign plaintiffs.