Adjudication without Frontiers
Edited by Horatia Muir Watt, Lucia Bíziková, Agatha Brandão de Oliveira and Diego P. Fernandez Arroyo
Chapter 2: Judicial discretion (from Bhopal to Brexit): Owusu v. Jackson
Owusu v. Jackson, usually referred to simply as the ‘Owusu case’, is a 2005 ECJ judgment on a reference for a preliminary ruling from the English Court of Appeal on the interpretation of the 1968 Brussels Convention. It contains two important principles that did much to alienate English common lawyers in their uneasy relationship with the common judicial area. Firstly, it considered judicial discretion inherent in the English doctrine of forum non conveniens to be inconsistent with the Convention. Under the second principle, it ruled that the Convention was applicable whenever the defendant is domiciled within a Contracting State, wherever the facts may have taken place or the claimant domiciled. Thus, the Brussels Convention precluded the courts of Contracting States from declining the jurisdiction conferred on it by Article 2 of that Convention on the ground that a court of a non-Contracting State would be a more appropriate forum for the trial of the action. This applied even if the jurisdiction of no other Contracting State was in issue and the proceeding had no connecting factors to any other Contracting State. Mr. Owusu, who was a British national domiciled in the United Kingdom, suffered a very serious accident during a holiday in Jamaica. As he dived into the sea from a beach accessed from a private villa, he struck his head against a submerged sand bank and hurt his fifth cervical vertebra, which rendered him tetraplegic.
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