CYPRUS: OWUSU -V- JACKSON AND THE END OF THE DOCTRINE OF FORUM NON CONVENIENS.
Having being a British Colony, Cyprus has adopted the Anglo-Saxon legal system, which is based on the Common Law.
One of the English legal doctrines, adopted by Cypriot Courts, is the doctrine of forum non conveniens, which gives them a discretionary power to stay proceedings, brought before Cyprus Courts, in favour of the courts of another jurisdiction, which they consider the more natural forum, for the trial of the action.
The legal principles regulating the exercise of such discretionary power were set out by Lord Goff in SPILIADA MARITIME CORPORATION -v- CANSULEX (1987) AC 460 at page 476:
“... a stay will only be granted on the ground of forum non conveniens,where the court is satisfied, that there is some other available forum, having competent jurisdiction,which is the appropriate for the trial of the action i.e. in which the case may be tried more suitably for the interests of all parties, and the ends of justice....”
The European Court of Justice, by its landmark ruling in OWUSU -v- JACKSON (2005) QB 801, has strictly limited the application of the English doctrine of forum non conveniens, in cases which fell outside the scope of the Brussels Convention (which is now superseded by the Brussels Regulation 44/2001 (“the Regulation”).
The decision in OWUSU -v- JACKSON, is of great importance, and benefit, to litigation practitioners, and claimants, as it forces the Cyprus Courts, to take jurisdiction, in specific cases, even where the facts of the cases, have the closest connection, with another country.
Consequences of the decision in OWUSU.
It is clear, from the decision in OWUSU, that even a very limited connection, with the jurisdiction of a Member State, will suffice to establish jurisdiction, based on the defendant’s domicile. Article 2 of the Regulation, providing that “persons domiciled in a contracting state shall, whatever their nationality, be sued in the Courts of that state” denies the courts of Member States (except Denmark), any discretion to stay the proceedings against the Defendants, domiciled in the Member States, on grounds of forum non conveniens.
The above position, is reinforced by the rules of domicile (see Articles 60 of the Regulation) which can be established in, either the place of incorporation or place of central management and control of a legal entity, and regarding individuals, on the basis of a very limited period of residence, in such Member State, provided that an intention to remain in the said State, can be inferred.
A Claimant, who will be able to establish jurisdiction of Cypriot Courts on the basis of Article 2 of the Regulation, in respect of at least one (1) local defendant -(not a bogus defendant but the Claimant shall show that he has a good prima facie case against the local defendant)- can then seek to bring other overseas defendants, before the Cyprus Courts, under Article 6 of the Regulation, which only requires a Claimant to demonstrate, that his claims against the local defendant(s) and against the overseas defendants are “so closely connected that it is expedient to hear and determine them together...”
Conclusion
Litigation practitioners and Claimants, should therefore be aware, that in cases, where jurisdiction is sought to be founded in Cyprus, Cyprus Courts are obliged to apply the provisions of inter alia Articles 2 and 6 of the Regulation, as well as the legal principles laid down in the OWUSU -v- JACKSON.
However in cases, where the local defendant is joined, for only the purpose of establishing jurisdiction of Cyprus Courts, over overseas defendants, Cyprus Courts have the power and duty to take a pragmatic approach, to ensure that the case is heard in the most appropriate forum, even within the strict framework of the Regulation (see PACIFIC INTERNATIONAL SPORTS CLUB LTD -v- SOCCER MARKETING INTERNATIONAL LTD (2009) EWHC 1839).
For further information on this topic please contact
Mr. Soteris Pittas( spittas@pittaslegal.com ) at SOTERIS PITTAS & CO LLC,
by telephone (+357 25 028460) or by fax (+357 25 028461)
The content of this article is intended to provide a general guide to the subject matter. Specialist advise should be sought about your specific circumstances.
