Similarly, there was no provision for the forum non-conveniens in Article 2 of the Convention, and this was despite the fact that the Doctrine was discussed at the time when Denmark, Ireland and the United Kingdom acceded. Another factor stated was that legal certainty would never be fully guaranteed if there was such an incompatibility between the Brussels Convention and the forum non-conveniens doctrine, and furthermore, the very predictable nature of the rules of jurisdiction would become severely undermined. In addition, when a defendant has to come before the courts for any reason whatsoever, it would be infinitely better for him if he were to come before the courts of his own domicile, rather than anywhere else, and this would also mean that he would be unable to reasonably foresee the fact of which other courts he may be sued before.
If a foreign court were to be a better and a more appropriate forum, then the claimant would have to establish the fact of whether or not he would be able to avail of justice before the court of his domicile, or before a foreign court. He must then further be able to establish the fact that he would not be able to obtain better justice before that court, or, that the foreign court does in fact have no jurisdiction, or that the claimant does not, in practice, have an access to proper justice from that court. All of this must be carried out and analyzed by the claimant, and this must be done irrespective of the cost of actually bringing a fresh action before a court that exists in some other state, and that this would quite naturally entail the prolongation of the general procedural time limits. Finally, the forum non-conveniens would be recognized only in a few and limited number of contracting states, and this would mean that it would serve to affect the consistent and uniform application of the various rules of jurisdiction in contracting states.
The defendants of the case of Owusu vs. Jackson stated that there would plenty of negative consequences that would arise from the fact of the exclusion of the forum non-conveniens, when it was put into real practice. There were, according to the defendants, the following: the expenses for the defendants of holding proceedings in another country, quite a distance away form their own hometown Jamaica, would be stupendous, and these would have to be borne by the defendants. This is a true negative result, they stated. Another reason that the defendants said was negative was the fact that they would find it extremely difficult to recover costs and expenses were the claimant's action to be dismissed, for any reason, because of the fact that they would have to travel from their hometown of Jamaica each and every time they would have to collect the costs.
In addition, if the very logistical reason of the huge geographical distance between England and Jamaica were to be taken into account, then it was indeed a negative point against them, they said. The defendants stated that they desired the case to be judged according to the standards that existed in their hometown Jamaica, and not according to the standards as exhibited in England, which may work against them. Finally, the defendants said that the enforceability in Jamaica of a default judgment was a very real possibility, and in addition, if there were to be an impossibility of enforcing cross claims against the other defendants, then it would be an extremely difficult proposition for them. However, the Court had this to say, that although all the above claims appeared to be as genuine as ever, it had basically no right to question the very mandatory nature of the Article 2 of the Brussels Convention, according to which this was the fundamental and basic rule.
Finally, the result of the decision of the court was that the claimant would be entitled to bring the court proceedings to England, even though the actual incident of the accident did not in fact happen anywhere in England, and also that Jamaica in fact appeared to be better suited to the trial than England. There was in fact a second question put forth to the court, and this was whether or not the application for forum non-conveniens would be from here on be ruled out in all circumstances. The court in fact refused to answer the question,...
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