Burkhard Hess and Vincent Richard
Burkhard Hess and Cristian Oro Martinez
Martina Mantovani and Burkhard Hess
This chapter analyses the approach of national and international courts in Europe vis-à-vis the use of procedural mechanisms based on judicial discretion in human rights and public interest litigation. Before European courts, the doctrines of forum necessitatis and forum non conveniens find their natural limitation in the hard-and-fast logic which underpins the Brussels Ibis Regulation. In matters covered by this instrument, recent litigation evidences that, in continental Europe as in common law countries, the prima facie approach to the jurisdictional test required under EU law has been successfully exploited by victims of human rights infringements to circumvent most of the traditional hurdles barring accessing to a court with jurisdiction. Nonetheless, although establishing jurisdiction might no longer be an insurmountable impediment, other procedural and substantive law hurdles might still come between these claimants and a favourable judgment on the merits.
Vincent Richard and Burkhard Hess
This Chapter focuses on the 1965 Service and the 1970 Evidence Conventions which are two HCCH instruments organising active judicial cooperation between Contracting States. The 1965 Service Convention helps parties or courts in one Contracting State serve judicial and extrajudicial documents to a person domiciled in another Contracting State. The 1970 Evidence Convention allows courts to gather evidence from another Contracting State through particular means. This Chapter highlights possible shortcomings and improvements to these important HCCH instruments. The authors note that the mechanisms set up by the instruments rely on Central Authorities, which constituted the main progress accomplished by the two conventions at the time of their adoption, observing, however, that this often gives rise to unnecessary delays. They suggest that this explains why several subsequent instruments have chosen to adopt a more decentralised approach, including, for example, two EU Regulations which abandoned the mandatory involvement of Central Authorities, confining them to a supporting role when problems arise. The authors further note that the 1965 Service Convention shows more robustness than the 1970 Evidence Convention. Parties frequently use the 1965 Service Convention, whereas they often try to bypass the 1970 Evidence Convention in favour of a faster route. The main area of concern is the inability of these Conventions to take advantage of and utilise technological improvements. The authors argue that time has come to review both Conventions comprehensively and adapt them to the needs of modern cross-border litigation by allowing for the use of information technologies to facilitate direct communication and the exchange of information.