1. Private International Law Sciences Po Paris Spring 2017
Choice of forum
Giuditta Cordero-Moss, Ph.D., Dr.Juris
Professor, Oslo University

2. Choice of forum as first step
Forum applies its own conflict rules
Even though no law suit is contemplated, you have to identify the forum

3. Sources for Choice of Forum
Civil procedure of the forum
International Instruments
Bruxells I regulation
Lugano Convention
Hague Convention (EIF 2015: EU, Mexico, Singapore)
Bilateral treaties
...

4. REGULATION (EU) No 1215/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12 December 2012
on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast)

5. History 1968 Brussels Convention Amended by Accession Conventions
Brussels I regulation (44/2001)
Brussels I recast (1215/2012)
1988 Lugano Convention
2007 Lugano Convention

6. Double convention Rules on jurisdiction
Rules on recognition and enforcement of judgments

7. Rules on jurisdiction Do not assume reciprocity with non-member states
Apply in all international disputes where the defendant is domiciled in a member state
But: employees, consumers
Apply in civil and commercial matters

8. Claimant does not need to bedomiciled in a member state
Article 4 1. Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State. Article 5 1. Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter.

9. Case C-281/02 (Owusu)

10. C-412/98 (Group-Josi)

11. Main rules of jurisdiction
Defendant’s forum (Art. 4)
Alternative fora (Art. 7)
Agreed forum (Art. 25)
Special rules protecting weaker party (Section III, IV, V)
Exclusive jurisdiction (Section VI)

12. Hague Convention On Choice Of Court Agreements (Concluded 30 June 2005)
Entered into force 2015 in EU, Mexico, Singapore USA and Ukrained have signed, but not ratified

13. Double convention Rules on jurisdiction
Rules on recognition and enforcement of judgments

14. Main rules of jurisdiction
The chosen court must in principle hear the case (Art. 5)
Any court not chosen must in principle decline to hear the case (Art. 6)

15. Lacking international conventions
Forum’s own civil procedure determines jurisdiction
Two main approaches:
Wide (long arm) jurisdiction + discretion (forum non conveniens)
Clearly specified jurisdiction + obligatory application

16. The Yukos case: A variety of decisions
European Court of Human Rights
Energy Charter Treaty
UK-Russia BIT
Spain-Russia BIT
Houston court
...

17. The Facts
Established 1993 to own and control a number of stand-alone entities specialising in oil production
Privatized
Tax inspection : Yukos carried out its activity through 22 trading companies that were sham entities to evade taxes.
Supreme Court confirms tax fraud and orders to pay RUB 572 billion
Main production company seized and sold at auction 19 December 2004
Price ca 1/3 of alleged value
Purchaser:unknown investor, in turn purchased by state owned company
Yukos declared insolvent 4 August 2006
Liquidated 12 November 2007

18. Yukos’ claims No fair trial Unlawful, arbitrary and disproportionate
Access to pages file documents on 17 May 2004; hearings on 21 May 2004
Unlawful, arbitrary and disproportionate
Supreme Court disregarded time bar and acted retroactvely;
Authorities unyieldingly inflexible as to the pace of enforcement proceedings
Discriminatory (otherwise tolerated practice)
Abusive (political motivation)

19. Houston Court’s jurisdiction for Yukos’ insolvency?
: Khodorkovski arrested
: Subsidiary established in Houston
: USD transferred to subsidiary ( legal fees)
: Yukos files for bankruptcy protection (chapter 11) before Houston court

20. Cont.
Houston court issues international restraining order pending decision
Deutsche Bank withdraws from financing of Gazprom’s bid
: Auction takes place
: Houston court dismisses case
Forum conveniens
Not against comity
Dismissal based on totality of circumstances
Lack of good faith
Practicability of enforcement

21. Possible approaches to jurisdiction
Common law
Civil law, EU
Long arm (in the case at hand: immaterial property)
Forum non conveniens
Discretion
Flexible, but unpredictable
May be abused
Specific connecting factors (in the case at hand: COMI)
No discretion
Unflexible, but predictable
May be abused to a lesser extent (”Italian torpedo” limited by art. 31(2) Brussels I recast)