Get creative!
Creative argument is essential if you’re going to get a first. Perhaps only unless your tutor or professor doesn’t know the topic well can you get away rehashing old argument and ideas that have been discussed thousands of times before. Having worked with academia in trying to commercialise intellectual property rights (IP), through, for instance, spin-off companies, it is clear that innovation is crucial for the business models of universities. It goes something like this: University teaches its students; Students produce research in which they and/or the university have IP, such as copyrights or patents; Student and/or university commercialises that IP by selling or licensing it to journals or other entities, such as companies. Money, then, gets reinvested into the system or society, which gets to work with the new innovation or improvement. The below argument is example of how such creativity can light up your dissertation, add value to your University and get you a better mark overall.
4.6. Owusu v Jackson
Further relevance of Article 6 can be seen in the context of the ECJ’s analysis of forum non conveniens in Owusu v Jackson. Fundamentally wrong, the ECJ believed that a defendant “would not be able…reasonably to foresee before which other court he may be sued.” However, it is the defendant who asks for a stay and thus his foreseeability of a stay in this respect is secured.
Article 6 is underpinned by the principle of legal certainty. Although legal certainty has specific provision in some articles of the ECHR, it is not confined to those articles; the specific provisions require domestic law “to be compatible with the rule of law, a concept inherent in all the articles of the Convention.” Legal certainty comprises the particularly significant aspect of foreseeability. In this regard, the ECtHR has noted that: “a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able…to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.” It is at least arguable that this would encompass procedural certainty emanating from rules of jurisdiction.
If the forum non conveniens doctrine permitted stays without the defendant’s asking, the defendant would have such little legal certainty that there may even be an arguable infringement of his right to a fair trial under Article 6, not only incompatible with the higher test of legal certainty of jurisdictional rules under the Brussels regime. This would result from the defendant’s lack of foreseeability as to where proceedings against him would take place. Contrastingly, cogent arguments can be made against forum non conveniens, inter alia, because of the uncertainty for the claimant. Notwithstanding, it could be said that his rights under Article 6(1) are upheld through his right of access to a court somewhere else. Moreover, he would have much more legal certainty than that of the defendant under the ECJ’s interpretation of forum non conveniens because stays under proper operation of forum non conveniens are granted, to some extent, within the confines of regulated and foreseeable discretion.
It can therefore be seen that the ECJ had analysed something which would be incompatible not only with Scottish and English law, but also with the ECHR and HRA 1998. Although a proper analysis of forum non conveniens would probably not have altered the outcome of Owusu, it would have been much more respectable to the common law, already set to be dismantled through an inevitable course of Europeanization, not to knock down, to some extent, a “straw man.”
4.7. Conclusions
It is clear that there are disparate approaches to the right of access to a court, perhaps emanating in part from varying attitudes to the importance of human rights. Most civil jurisdiction cases will involve access being denied to one court, while access to another is still available. These will generally not breach Article 6 since there is no right of preference of court under Article 6 as Aikens J held in The Kribi, a judgment fully respectable of human rights. Contrastingly, in the limited number of cases which do yield Article 6 concerns, respect for human rights has been inconsistent, a worrying position particularly in light of the recognition of new, potential Article 6 challenges, such as in the areas of exclusive jurisdiction agreements and limitations on jurisdiction. Notwithstanding, such concerns may be unfounded, given the flexibility of international private law rules, such as the demands of justice under the second limb of Spiliada, which can effectively prevent indirect breaches of Article 6.
Endnotes
Except in exceptional circumstances: Collins et al: 2006, para.12-006 n.20.
E.g. Articles 5 and 7.
Reed and Murdoch: 2001, para.3.33.
Amuur v France [1996] ECHR 20, at [50].
Reed and Murdoch: 2001, para.3.36.
Sunday Times (No1) v United Kingdom [1979] ECHR 1, at [49].
Harris: 2005, p939; despite a lack of express mention by the ECJ in Owusu (n29); cf. Opinion of AG Leger in Owusu, at [160].
Hartley: 2005b, pp824-828; cf. Mance: 2007.
(n72).
