Put your foot in the icy water: Don’t be afraid to come to powerful conclusions
A dissertation that is written with balanced conclusions is a boring one. Reasoned opinion is important. Nothing would get done in this world if we said “X is right, but Y is equally right, so let’s just leave things the way they are”. Sitting on the fence may well get you a good upper second class award but there is little chance of it getting you a first. A certain English teacher, Sandra MacCallum, at Kyle Academy once taught that, sometimes, “you’ve got to put your foot into the icy water”. Don’t be afraid to come to powerful conclusions. Hopefully the below example, with a reasonable, opinionated attack on the ECJ’s lack of respect for the common law principles of the Scottish export doctrine forum non conveniens, illustrates the significance of this suggestion.
It is perplexing that in Owusu Advocate General Léger, and perhaps indirectly the ECJ, suggested that applying forum non conveniens may be incompatible with the “reasonable time” requirement of the right to a fair trial under Article 6(1), whereas analysis of its proper operation shows that it is compatible and may even be a useful tool in providing faster and more economic litigation.
Although it is at least somewhat refreshing to see ECHR arguments being acknowledged in an international private law context without encouragement, it is nevertheless peculiar that Article 6 concerns have been identified in relation to forum non conveniens, “one of the most civilised of legal principles” as Lord Goff of Chieveley put it, when the ECJ did not properly apply or even consider Article 6 in Gasser, where the need for its recognition was much more significant. The ECHR is not an optional instrument that can be applied to justify a course of reasoning, however misguided, on the one hand and dismissed when apparently greater considerations require it on the other; careful legal analysis is required for its operation, which analysis does not appear to have been applied or even respected by the ECJ.