Current developments in forum access: Comments on jurisdiction and forum non conveniens – European perspectives on human rights litigation

Prof. Dr. Dres. h.c. Burkhard Hess
Martina Mantovani

MPILux Working Paper 1 (2019)

Abstract: This article explores the approach recently adopted by supranational and national courts in Europe vis-à-vis the assessment of jurisdiction in human rights and public interest litigation.

In its first part, the article analyses whether, and to extent, the private international law doctrine of forum of necessity could, in the current state of the law, help guaranteeing the effectiveness of the “right to a court” vested by article 6 E.C.H.R. Reference will be made to the interpretations of this head of jurisdiction recently submitted by the highest civil courts of France and Switzerland, as well as by the European Court of Human Right in the seminal Naït-Liman case.

Remarking the fairly narrow understanding of said doctrine arisen in recent case-law, this article, in its second part, looks into alternative procedural strategies that plaintiffs in foreign-cubed cases may adopt in order to ground jurisdiction in Europe. The paper contends, in particular, that there are multiple ways in which these  plaintiffs could profit from the hard-and-fast logic underlying the jurisdictional regime set in place by the Brussels I bis Regulation. Nevertheless, while establishing jurisdiction might no longer be a big impediment, several other issues of procedural and substantive law might still derail a judgment on the merits.

Keywords: Forum of necessity; forum non conveniens; human rights litigation; public interest litigation; Brussels Ibis Regulation.