It Is Necessary to Place Limits on Democracy in Order to Promote Human Rights?

Ex Justice Michael Kirby defines democracy in Australia as:

[a] sophisticated form of government which involves the general ability of the will of the majority to prevail but in a legal and social context in which the rights of vulnerable minorities are respected and defended

It must be argued that this succinct statement illustrates, expressly and implicitly, the potential for an inextricable relationship between democracy and human rights. The defending of human rights can only exist within a democracy, and conversely, the ability of anyone to raise their hand and claim a human right to be defended is a fundamental element of a democracy.

What are “human rights”? It must be argued that human rights are a mere concept, intangible ideals, principals within the realm of philosophy. The Universal Declaration of Human Rights says:

All human beings are born free and equal in dignity and rights

It must be argued that there is a distinct difference between the concept of human rights and the interpretation and application of human rights in a social context.

The interpretation of our human rights can be derived from the UDHR, other HR treaties and subsequently our own state and federal laws. However the language used in these instruments is left intentionally vague and ambiguous to allow different meanings to be inferred from the words. As time progresses and the nature of a normative society changes, values, deviant and moral actions change, the law changes slowly after to accommodate for the change in society. Drinking alcohol and driving is a good contemporary example of this. When talking about The Constitution Justice Kirby says:

The words [of the Constitution] take on their colour with the change in circumstance and attitudes

So we are able to apply the concept of rights to our society through the judicial and legislative processes, which are the checks and balances within a democratic system. For example, we have a right to free speech at Article 12:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

But does that mean we are allowed to say anything we want, wherever we want? It would have to be argued that we do not as various pieces of legislation have been enacted to stop “hate speech” and “defamation“. This must be argued to be a policy consideration and a formal social control mechanism. This illustrates how human rights in their purest form have restrictions put on them when applied in a social context. Anti-Terrorism legislation in Australia and across the world has seemingly trampled over human rights with arguably deplorable and undemocratic notions such as preventative detention and the abandonment of due process of law. However it should be argued that this type of legislation is a reaction to a real or perceived problem to preserve public safety. The question has to be asked if this is an acceptable trade. It was Benjamin Franklyn who wrote:

They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.

Is it necessary to restrict the democratic voting rights of offenders in prison? It must be argued that the democratic right of citizens of a country to have their say in the election process is a fundamental cornerstone of democracy and without it the country wouldn’t be a democracy. The Constitution Act implies this at s7 and s24 that the Senate and the House of Representatives be:

directly chosen by the people

It should be argued that the limits of this democratic process to certain members of society have been placed because of policy considerations involving social normative ideals. The “moral panic” drummed up in the press, fear and ignorance of the whole prison / rehabilitation process is a contributing factor.

It must be argued that the concept of eligibility is very important in the application of human rights in a democracy. Prisoners for example, are not eligible to vote, not eligible to liberty and so on. They have essentially lost the ability for those rights to be applied to them under certain circumstances for the sake of social order, punishment and protection. Does this concept of eligibility limit democracy? It should be argued that an action that is for the benefit of the majority of people and backed by the majority of people is a democratic action. As Justice Kirby says in the opening definition, democracy is the ability of the will of the majority to prevail.

What is “the majority“? The majority of any group is a complex and difficult question. There is the actual number of eligible voters, and then a vast and varied amount of subgroups within that number. What about the majority of Shiites and Sunny Muslims within that group, and so on. It should be argued that access to rights is based upon a number of normative, social, political and cultural eligibilities. Using the objective standard of “the reasonable person“, in Australia this is said to be “The man on the Bondi Tram” it is possible to start constructing an argument about which rights are to be assigned to which people, or rather the eligibility of people to have certain rights applied to them. For example the idea of death as punishment for apostasy, which is implied in the Koran could be argued to be a right under both Sharia law and under Article 18 of the UDHR which says:

Everyone has the right to freedom of thought, conscience and religion… and freedom… to manifest his religion or belief…

But Article 18 also says:

this right includes freedom to change his religion or belief.

It must be argued that no “reasonable” person could agree to death, the death penalty is abolished in Australia and Article 18 mandates the right to change religion, therefore, even though the concept of that right might exist, they would not be eligible to the application of this right in Australia for societal, policy and religious reasons and a democratic consensus by the people.

Reading a speech by Justice Michael Kirby he said:

There is a tension, even a contradiction, between democracy and protection of fundamental human rights. The tension arises because, if human rights are truly “fundamental”, even democracy should not be able to override them. In this sense, fundamental human rights impose a check on democracy, and deliberately so.

The idea of a “fundamental” set of human rights is a great idea and arguably exists in the philosophical realm of human rights as something to strive toward; however it must be argued that the application of these rights across the world would take on all different shapes and colours based upon social mores and context within the society. As it says in Melbourne University Law Review:

It is a myth that rights are ‘absolute trumps’ over majority preferences, aspirations or desires. In fact, most rights are not absolute. Under human rights instruments, rights are balanced against and limited by other protected rights, and other non-protected values and communal needs. A plurality of values is accommodated, not just rights. Moreover, in jurisdictions with human rights instruments that adopt an institutional dialogue model, the specific balance of the pluralistic values is assessed from a plurality of institutional perspectives – usually the executive, the legislative and the judicial.

When is it OK to limit democracy in favour of human rights? It could be argued that during war, genocide or other international atrocities it may be permitted for a democracy to act in an un-democratic way. For example, conscription and forced military service, frozen assets and restrictions on the free movement of peoples.

Another argument for a limit placed on democracy came about in the Northern Territory Intervention by the Howard Government in 2008. To enable them to implement this intervention they had to suspend the Racial Discrimination Actto allow this to occur. Allegedly, the rights of vulnerable members in those societies, namely women and especially children, needed protecting so much that the government had to suspend a racism act to enable this to happen. It would have to be strongly argued that this is in fact a racist action, bearing in mind that it would have been an illegal action under the Act. The idea of a government suspending a certain law to enable them to breach that law seems to be a very dubious and un-democratic thing to do.

In conclusion it must be argued that in some instances there may be some cause to limit the democratic process to all or certain members of society to enable the government to do some things of national importance. It should be argued that these instances are in fact extremely rare and the opposite is far more common. As society dictates, the will of the normative majority seems to supersede the application of rights to some members of the community, some of the time.

However, it could also be argued the opposite way, in that because the consensus of the public overrides the application of some human rights, if these rights are to be implemented, that the executive or legislature would have to ignore the will of the majority to get them passed. It should be argued that this is a strong case for limiting democracy to promote human rights, but it must be pointed out that this is in fact an action which very seldom happens.

What You Need to Know About “Alternative Dispute Resolution” in Employment Law Disputes

Alternative Dispute Resolution is not new. What is new is the rapid shift to private mediation and arbitration of cases that traditionally went to trial. If you have an employment or commercial dispute, the odds are increasing daily that you’ll find the courtroom doors closed to your case.

This article will provide some basic description of the Alternative Dispute Resolution process, and its costs, and also describe the trend toward using mediation and arbitration.

First, some clarifying descriptions: mediation is a voluntary submission of a case to a neutral, paid “deal broker” whose goal is not justice but closure. The parties to the mediation are not bound by the result, and agree that the discussions in the mediation will be kept confidential. There is no evidence taken in the mediation. The mediator is not an adjudicator of the facts, and reaches no decisions. He or she is certainly no dispenser of justice. Mediators have said to my clients in the opening session, “This will sound strange, but in this process today we will not be focused on either the truth or justice. Today, we have only one goal: to settle your case.”

The second major “Alternative Dispute Resolution” tool is arbitration. Arbitration is the private resolution of a dispute compelled by a contract between the parties, and requires the submission of evidence. The arbitrator acts as a judge of the facts and decides the issues of law. His or her decision is often final, with very limited rights of appeal to a court. The arbitration agreement often specifies the arbitration service that will provide the arbitrator. That arbitration service often has already developed a set of procedures and rules that will guide the arbitrator and parties on how the arbitration will be conducted. However, the parties can agree to different guidelines in their contract.

“Alternative Dispute Resolution” can be expensive. Successful, entrepreneurial mediators in Southern California in employment disputes, for example, command fees between $4,000 to $10,000 per day of service, the parties often splitting the cost of the mediation. Most employment law mediations require one full day. Complex cases, and certainly class action mediations, require multiple days.

Arbitration costs are also quite high. An Arbitrator may charge “per diem,” meaning a flat fee per day, or by the hour, but fees of $4,000 per day of arbitration would be considered normal in Southern California employment law disputes. An arbitration, like a trial, involves witness testimony, demonstrative evidence [charts, pictures, videos] and documentary evidence [often emails, data reports, memos, business records]. The result is that arbitration can consume a week of time or longer, and the expense can be substantial. The parties are also paying for their attorney’s time and any expert witness time as well.

Compare these costs to taxpayer supported access to the courts, and you see that the costs of justice has been shifted, and shifted generally to the disadvantage of the individual challenging misconduct by a corporation or other wealthy opponent. California courts have mitigated this burden on the employee by holding that in discrimination cases, the cost of arbitration will be no greater than what the employee would have occurred at a traditional court trial. Also, the California courts have held that they will not enforce arbitration agreements that are not basically fair and balanced in allowing the employee the benefits of preparing and submitting the case for arbitration. That includes access to evidence and basic “due process” in the conduct of the arbitration.

The general rule is that the winner recovers the “costs” of arbitration, which would include the cost of the arbitrator. However, unless there is a statute or written agreement between the parties for recovery of attorney’s fees, each side must pay his own attorney. In employment discrimination cases, there are just such “fee shifting” statutes favoring the employee. Also, employees often enter contingency fee agreements with their lawyer.

Mediation is an informal process. The parties usually meet in the mediator’s offices, and each occupies as separate conference room. It has become customary in my mediations in Southern California that the parties do not even see each other during the day. Instead, the mediator shuttles between them, stating to each the weaknesses [and occasionally the strengths] of their positions. However, the mediator is the voice of reason and dispassionate analysis. The mediator is not there to rubber stamp a party’s advocacy of why his case is so great, but to point out how badly things might turn out for that party if the case proceeded to trial. The goal is to provide a dose of caution and prudence, thereby inducing a party to avoid the risks of litigation by a written settlement, often that same day.

Arbitration is a formal process, but in my experience, not as formal as a courtroom, and with a refreshing degree of flexibility in fashioning the way the case is presented. Much of that flexibility depends on the individual arbitrator. Rules of evidence still apply, but arbitrators are more likely to allow evidence, subject to assessing its weight and credibility. However, the arbitrator is hired by the parties to conduct the arbitration according to the terms of the arbitration agreement, which may set forth strict procedural requirements. The place of arbitration is also often in the facility provided by the arbitration service, but without the usual pomp and gravity associated with a courtroom.

Most significantly, the arbitrator is accessible before the arbitration, often by conference call, to manage the case as it proceeds to hearing. The arbitrator in this way can quickly hear the arguments and decide a motion or resolve a discovery dispute, thereby keeping the case on track. Often, the timing of key events in the arbitration, such as when depositions will be completed, or a key motion will be heard, is arranged by consultation with the arbitrator followed by a stipulation of the parties. Thus, the process is more efficient because the parties have more access to the decision maker. Finally, arbitration often are concluded more quickly than trials. This is because there is no jury, and because court judges, unlike arbitrators, have hundreds, often thousands, of other cases to manage at the same time, and so must interrupt the trial calendar to attend to them.

The United States Supreme Court has taken a clear stand supporting the right of parties to agree to arbitration under the Federal Arbitration Act. The Court has given approval to often one sided agreements favoring the more financially dominate party who drafted the agreement, such as large financial institutions. The California Supreme Court has tried valiantly to fit notions of fairness within the sweeping mandate of the U.S. Supreme Court. The California Courts have held that under basic common law contract principles, an arbitration agreement must not be so one-sided in favor of the employer as to be “unconscionable.” This State-Federal battle continues, but the obvious ultimate victor will be a conservative U.S. Supreme Court, and the trend is already toward greater enforcement of arbitration agreements meeting the minimal requirements of federal law.

In conclusion, “Alternative Dispute Resolution” is the trend of the 21st century unless the State and Federal Judiciaries take measures to make the courts more accessible through the use of internet filing and service of process, video conferencing, and expedited jury trials. Also, repeal or amendment of the Federal Arbitration Act is indicated if the general population is to continue to believe in the American concept of equal access to justice.

Proposal to Reform New York DWI Laws Would Do Harm

“First, do no harm,” counsels the Hippocratic oath. Good doctors still honor these words – and so should legislators considering revisions to New York’s drunk driving laws.

Brendan Tully, a Democrat who ran for a seat in the state assembly, proposed a fundamental change in New York DWI law. Specifically, the proposal was to amend the law so that drivers charged with DWI are no longer allowed to plead to a lesser charge that is at the level of a traffic infraction. Although Tully did not win a seat in the Assembly, the proposal he put forward could come up again. Its flaws should therefore be confronted.

The premise of the proposal is that, under current law, the practice of allowing drunk driving charges to be plead down to a non-criminal offense amount to a loophole in the law. But this practice is not a “loophole”; it is a specific provision in the law whose removal would be a tremendous hardship for first-time, low-level offenders. Ending the ability of first-time, low-level offenders to plead down to a non-criminal offense would also greatly threaten the efficiency of the justice system. With so little incentive to plead, more and more cases would go to trial, causing long delays and multiplying inefficiencies.

To be sure, a proposal that seeks to make streets and highways safer by cutting down on drunk driving would be welcome. The statistics are sobering. Last year, according to Mothers Against Drunk Driving, 321 people lost their lives in New York State because of drunk driving.

Undue Hardship

Stigmatizing first-time, low-level offenders by removing the ability to plead down does not make sense. Doing so would create a form of modern-day scarlet letter that would unduly burden their job prospects and their entire futures.

Under present law, no conviction in New York State for DWI or any other crime can be expunged. A person who is convicted of Driving While Ability Impaired by Alcohol (DWAI), however, can truthfully state on an application for licensing, employment or admission into college that they have not been convicted of a crime.

This distinction is crucial. Especially for young people, a conviction for a crime could carry lasting consequences that could affect the ability to get financial aid, obtain a professional license or find suitable employment. Even those who are currently employed, such as teachers, could find their professional licenses at risk.

Under current law, prosecutors typically offer first-time offenders a chance to plead guilty to the offense of driving while ability impaired (DWAI), if offender’s blood alcohol content (BAC) levels were low and there were no injuries. To disallow prosecutors the discretion to tailor their approach to first-time offenders amounts to attacking the problem of DWI with a one-size-fits-all hammer when what is really needed is a scalpel.

Think about it. Is it really fair to treat a first-time offender who has a BAC level of.08 – the legal minimum to support a prosecution for DWI – the same as a person who has a BAC of.17? Under a proposal such as Tully’s, both persons would have a scarlet letter of a criminal conviction for the rest of their lives.

Effect on the Justice System

Besides the undue hardship that could be inflicted on low-level, first-time offenders, a proposal such as Tully’s would also be likely to create severe backlogs and inefficiencies in the court system. With the incentive removed to plead to a non-criminal offense like DWAI, more and more defendants would insist on going to trial.

At a time of tight resources, it would be very difficult to equip the system with enough prosecutors, enough juries, enough court personnel, and so on in order for it to work effectively. The result of removing the incentive to plead down would therefore be to create a bottleneck in the courts – causing excessive delays and mounting frustrations for all concerned.

Leandra’s Law

New York’s recent experience with Leandra’s law demonstrates the necessity of guarding the efficiency of an overloaded justice system. This law – named after an 11-year-old girl who died in a minivan crash – makes it a felony to drive while intoxicated with a person under 16 in the car.

Leandra’s law also led to a new requirement that the vehicles of first-time DWI offenders receive ignition interlock devices, which prevent a vehicle from starting if the driver’s blood alcohol content is over a certain point.

The challenges of enforcing Leandra’s law have strained New York’s already overtaxed criminal justice system. For example, caseloads for probation officers, who are needed to enforce the ignition interlock requirement, have increased substantially. Probation cases would surely skyrocket even further, if a proposal such as Tully’s were to pass.

All Cases Are Not the Same

Amending the law so that drivers charged with DWI are no longer allowed to plead to a non-criminal charge would do more harm than good. A parent who is way over the legal limit with a child in the back seat is justly the source of outrage. But the law has to be able to distinguish that case from that of a first-time offender with a relatively low BAC who caused no injuries.

Comparison of the Traditional English Laws & European Community (EC) Laws on Jurisdictional Values

Introduction: This paper endeavours to compare the traditional English law and the European Community (EC) law on jurisdictional values, in that, it seeks to understand and elucidate why the former set of jurisdictional rules value flexibility and justice while the latter values certainty and predictability vis-à-vis the other. It shall analyse their historical or political background, their objectives and bases for assuming jurisdiction. It shall highlight the areas of differences between these jurisdictional regimes with the assistance of authorities like significant Court cases and books that have besides explaining or simplifying the law have also helped its evolution.

Definition: The word ‘Jurisdiction’ can have several meanings, but if understood in context with the Court of law it generally means the ability or authority of a particular Court to determine the issues before it on which a decision is sought. The rules on Jurisdiction play a pivotal role in determining the Court’s ability to address the issues in a given matter.

Jurisdictional issues become complex on the involvement of more than one Court having jurisdiction. This is certainly an area of concern not only for the international trade or business (who may be put in an invidious position where they are unaware of the extent of their liability) but also the sovereign states that seek to trade with each other without having to spoil their amicable relationship.

The English Law: The English legal system (having the common law at its core) has had and still continues to have a formidable place in expounding the law on several issues, mostly due to the availability of intellectuals and experts that have helped it in doing so.

Traditional English law (the common law) is basically the case laws that have over period of time become an authority with regard to the matter determined therein. Prior to entering the European Union (EU) by signing the document of accession in 1978, in the U.K, along with the judge made laws, even legislations played a significant role though it may have been more or less remedial in nature. However, it seems logical to allow the judge made law to test the legislation whenever it is so required by the change in circumstances which can be given effect to with relative ease as in comparison with the legislation process.

Before the advent of the Brussels/Lugano system and the Modified Regulation the traditional rules were applied in all cases, and it is their historical roots that make it appropriate to refer to them as the traditional English law/rules.

The jurisdiction of English courts is determined by different regimes:
1. The Brussels I Regulation (hereinafter the ‘Regulation’) (an amended version of the Brussels Convention but notwithstanding the amendments it applies a similar system of rules on jurisdiction);
2. The Modified Regulation which allocates jurisdiction within U.K under certain circumstances; and
3. The traditional English rules.

There are other sets of rules on jurisdiction like the EC/Denmark Agreement on jurisdiction and the those contained in the Lugano Convention; but their ambit is restricted in application to the cases where the defendant is domiciled in Denmark in case of the former and in an EFTA member state in case of the latter. There is also the Brussels Convention which applies to Denmark alone.

The EC law: In contrast to the traditional English law, the European Community seems to place more importance on the legislative work than the judge made laws. Apparently, for the EC, it is more important that the basic edifice of their legal system should be based in a codified structure which it defends on the grounds of ease of understanding amongst other reasons. Whereas, English laws seem to put more emphasis on having a common law or judge made law background. On this anvil, one begins to understand the differences that exist between the respective legal systems and their values, that is, a basic difference in the manner of approaching the issues even in cases where their objectives may be same.

The EC law on jurisdiction is more inclined towards the importance of predictability and certainty in the rules than towards matters like justice and flexibility as can be understood upon reading the 11th recital of the Regulation that states: ‘The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction must generally be based on defendants domicile and jurisdiction must always be available on this ground save in few defined situations…’

Whereas, the only mention of flexibility in the Regulation is contained in the 26th recital wherein it provides that the rules in the regulation may be flexible only to the extent of allowing specific procedural rules of member states.

According to the EC law on jurisdiction, it seems that this particular requirement of predictability is necessary for parties to a dispute to know exactly within which jurisdiction(s) they can sue and be sued. The EC law gives priority to the primary objective of harmonizing the laws on jurisdiction within the territory of its member states and therefore makes it mandatory to uphold the strict accuracy to its principle while giving secondary status to the objective of justice for the parties. The EC law as well as the traditional English law may very well have their own justifications and reasons for following a particular system; but it is submitted that this seems to be not only a matter of difference in manner of approach or attitude but also a matter of prioritization of the objectives by both the EC law and traditional English law on jurisdiction. The list of cases mentioned hereinafter for the benefit of elucidating the topic under discussion are, as shall be evident, decided under the Brussels Convention which can be used for interpreting the rules under the Regulation.

Comparison of EC Law v English Law:
1. Bases of Jurisdiction: The most significant difference that exists between the traditional English laws and the EC law on jurisdiction is the element of discretion that the respective body of law gives to the judges in determining the jurisdictional issues. Under the Regulation the assumption of jurisdiction is largely mandatory with the court not being free to decline jurisdiction; whereas under the English traditional rules the assumption of jurisdiction is discretionary.

The Regulation applies only to matters that are civil and commercial in nature and not to those that have been explicitly excluded from its application (for e.g. Cases pertaining to arbitration, succession, wills and bankruptcy have been excluded from the application of the Regulation). Whereas, the traditional English rules apply not only to cases that fall outside the scope of Art.1 of the Regulation but also to those that fall within its scope where the defendant is not domiciled in any member state and the jurisdiction is not allocated by any of the rules which apply, regardless of domicile.

A. In the traditional English rules the court has jurisdiction in three situations:
i. If the defendant is present in England (though the court may stay the proceedings on the ground that another court is a more appropriate forum). Jurisdiction under this situation is dependent on the presence of the defendant in the country whereby the claim form may be served to him.
ii. If the defendant submits to the court’s jurisdiction: wherein the defendant submits by not contesting jurisdiction or by arguing the case on its merits.
iii. If the claim falls within Practice Direction: (CPR PD 6B) (which is dependent on the court giving permission to serve process out of its jurisdiction) where the court considering England to be the most appropriate forum (despite of absence of reasons under i. or ii. on the basis of some connection between England and the defendant. There seems on a perusal of this provision, a functional similarity with Arts.5 & 6 of the Regulation.

B. Jurisdiction under the EC Law: Except for certain instances where the applicability of the EC law on jurisdiction does not depend on the defendants domicile (Art.22 Exclusive Jurisdiction and Art.23 Prorogation of Jurisdiction) the EC law on jurisdiction rests on the domicile of the defendant, and makes it mandatory for the court of a member state to determine the jurisdictional issues and other issues where the defendant is domiciled in its jurisdiction.

The Brussels Regulation does provide for instances where the defendant can be sued in another member state though he is not domiciled in that particular state; but these cases have been very explicitly outlined in the regulation leaving little or no scope for the exercise of discretion by the judge. However, Art.4 of the Regulation provides that a member state can (subject to the provisions in Articles 22 and 23 of the Regulation) exercise its traditional laws on jurisdiction in cases where the defendant is not domiciled in any of the member states. This provision while giving scope for the applicability of the traditional rules has at the same time also given rise to the idea that there is now only one source of jurisdictional rules, namely the Brussels Regulation.

C. Mandatory rules under EC law v Forum Conveniens:
Forum conveniens: upon bringing an action in England, the claimant has to prove that it is the forum conveniens, that is, the matter can be tired therein in the interest of justice; and the relevant factors in considering this are the same as under forum non conveniens. Forum conveniens is determined in two stages, namely:
i. Where in the 1st stage the claimant should show that England is an appropriate forum (considering, among other things, the nature of dispute, issues involved and in cases where relevant, the availability of witnesses.
ii. At the 2nd stage the claimant must establish that even if there is another forum, justice will not be done there, showing thereby that England is the more appropriate forum.

However, England may not be the appropriate forum where the claimant will only be deprived of some legitimate personal or juridical advantage like a higher compensation award.

Mandatory rules under EC law: Unlike the Traditional English rules, under the Regulation, if the court has jurisdiction under any of the provisions thereof (e.g. Arts.2 or 5) it cannot refuse jurisdiction on the grounds that some other court is best suited to determine the matter, showing the mandatory nature of the rules.

In case of lis pendens (Art.27) or proceedings in 2 or more states (Art.28) the Regulation gives precedence to the court first seized (Art.29 & 30) regardless of the actual jurisdiction being in the court 2nd seized.

These rules are mandatory in so far as they fall within the scope of Art.1 of the Regulation; no deviation thereof is permitted on the grounds of justice or convenience or any like reason. Paraphrasing the reasoning of the ECJ, the reason for such mandatory compliance is the promotion of legal certainty and predictability and the free flow of judgments amongst the member states on the basis of the codified rules in the Regulation which are not dependent on any judge’s discretion.

2. Forum non conveniens and lis pendens:

A. Forum non conveniens: Jurisdiction under the traditional rules also depends on whether the court shall decline jurisdiction or stay the proceedings. An English court shall in determining jurisdiction under its traditional rules try to ascertain which is the more appropriate forum and may even stay its proceedings in cases where it thinks that another forum is best suited for the case and in doing so it employs what may be called the basic test i.e. whether it is in the interest of the parties and would meet the interest of justice.

However, it was the Spiliada Case which promulgated another test i.e. ‘the two stage test’ for deciding the more appropriate forum for determining the case before the court. Where the court considers, in the 1st stage which is prima facie the most appropriate forum (burden being on the defendant) on the basis of connecting factors like: (territorial connection) place where the parties reside, the law applicable, the availability of witnesses (if any), balance of convenience (applied in Spiliada itself) and where proceedings between the same parties arising out of the same dispute are pending before a foreign court, show how long the trial has been in existence which would be a strong argument in favour of forum non conveniens where such case is on the verge of resolution one (unlike Art. 27 of the Brussels Regulation, the traditional rules do not endorse a simple ‘first come, first serve’ approach) and whereas in the 2nd stage (burden shifting on the claimant) upon considering the relevant connecting factors it thinks that the dispute is more closely connected with a foreign court.

B. Lis alibi pendens: The doctrine of Lis Pendens under Art.27 of the Brussels Regulation makes it mandatory for the court which is second seized (in proceedings having same cause of action and same parties and the dispute is before the courts of two or more member states) to stay its proceedings in favour of the court first seized until such time till the latter has not established its jurisdiction notwithstanding that the court second seized may actually have prima facie grounds for the exercise of its jurisdiction (For example: Arts. 22 and 23).

In contrast to the traditional English law, the Brussels Regulation gives absolutely no discretion to the judge to stay its own proceedings and grant jurisdiction in favour of another court on grounds of availability of a more appropriate forum. For instance, in the Owusu case wherein the European Court of Justice held that Brussels Convention precludes a Court of a contracting state from declining jurisdiction conferred on it by Art.2 on the ground that a court of a non-contracting state would be more appropriate forum for the trial of the action even if the jurisdiction of no other state is in issue or the proceedings have no connecting factors to any other contracting state. This regardless of the fact that the person putting up a plea of forum non conveniens is able to prove that he may not be able to secure justice in a foreign court or that he is in fact devoid of any access to effective justice.

The doctrine of Lis Pendens may seem like a simplified manner of approaching simultaneous proceedings in different courts vis-à-vis the doctrine of forum non conveniens which is dependent on the judges discretion; and also seems logical in cases where there could be a possibility of having two conflicting decisions as may happen under the traditional rules. At the same time it also seems arbitrary in that it makes mandatory for the court first seized to decide upon its jurisdiction before the court second seized, regardless of any pressing evidence adduced that places jurisdiction elsewhere.

The doctrine of lis pendens seeks to support the object of the drafters of the Brussels Regulation which is to promote confidence in the internal market, to reduce disparities between national laws on the jurisdictional front; and to strengthen the belief of persons domiciled in the member states under the present jurisdictional set-up, so as to safeguard their legal and large monetary interests and this in turn leads to the creation of legal certainty which view or observation is supported by several bearers of intellect in the concerned field of study.

Art. 27 of the Regulation requires the court second seized to stay its proceedings until the court first seized has established its jurisdiction. This provision seems to give ample room for parties to commercial matters in particular to take advantage of the loopholes available in the legal framework established under the Brussels Regulation which is best explained by explanation of the term ‘Italian Torpedo’.

Art. 27 while intending certainty has ended up providing an avenue for a rat race of sorts to the court house for the parties having a dispute in civil and commercial matters as well as those that wish to obstruct the course of justice. A party seeking to prolong the outcome of the dispute can approach the court of a member state which otherwise on the merits of the case may not have the requisite jurisdiction to hear it (e.g. Italy); and where the hearing and official determination of only the jurisdictional issues may possibly take long enough to frustrate the objectives of the party seeking an early resolution or remedy for the mischief of the other party.

In the Transporti Castelletti case where a Danish shipping company had to contest a jurisdictional issue before the Italian court for eight years when the receiver of the cargo under its Bill of Lading brought proceedings in Italy this notwithstanding the fact that the Bill of Lading which it delivered to an Argentinean shipper for voyage from Argentina to Italy had explicitly mentioned a ‘choice of court clause’ favouring England. This outcome does beg the question if there are any provisions that guarantee a fair and speedy delivery of justice. This requirement seems to have been overlooked even by the European Court of Justice, specially, with regard to the lack of efficiency which the Italian courts have shown in dispensing speedy remedies.

This issue was once again put to test in the Erich Gasser GmbH v MISAT Srl which was pertaining to patent rights and also involved a ‘choice of court agreement’ (Art.17 of the Brussels Convention) whereby the parties are free to choose which court shall have exclusive jurisdiction or if the parties require they may even make it a non-exclusive jurisdiction clause by stating the courts that shall have jurisdiction.

Gasser an Austrian firm and MISRAT an Italian Company had submitted to the exclusive jurisdiction of an Austrian court by virtue of statement granting jurisdiction to the Austrian court contained in all invoices transacted under by the parties. But knowing that there was a possibility that Gasser may file a suit under the choice of court agreement, Misat with the intent to prolong the proceedings and the outcome of the case sought to invoke the jurisdiction of the Italian court and filed a suit there thereby making it the court first seized of the matter.

The case was pending before the Italian court for a period of eight years simply to have its jurisdiction established though it could be seen from the invoices transacted between the parties to the dispute that there was an explicit clause which was as per the provisions of Art.23 namely, i. the agreement was in writing; ii. in form with accords with practices which the parties have established between themselves; or iii. in international trade or commerce in a form which accords with a usage of which the parties are ought to have been aware and which is in widely known in such trade or commerce or regularly observed by the parties to the contract of the type involved in the particular trade or commerce.

3. Preclusion of jurisdiction under the English Law and EC law: Under the traditional English law, when the court finds itself to be the more appropriate forum it may grant an anti-suit injunction i.e. an injunction restraining a party from instituting or pursuing proceedings in another court, which is generally sought by defendants in foreign proceedings praying that the matter be decided in England where the grounds for injunction can include: unconscionable behavior, ends of justice and contractual reasons i.e. arbitration agreement.

In contrast to the English law under the Brussels Regulation the court 1st seized will determine its jurisdiction first and the courts 2nd seized shall (despite having jurisdiction over the matter on all relevant grounds) stay its own proceedings and not be permitted to issue any anti-suit injunction and will have to await the determination of jurisdiction by the court first seized. This despite the fact that the proceedings in the court first seized might be brought in bad fait and to frustrate the proceedings of the court second seized. (Based on the view of the ECJ that the states must trust each other, which seems like allowing the interest of justice in favour of an individual, as in Turner v Grovit to be overlain by the interest of the state)

Scope of jurisdiction in recognition and enforcement of judgments: A court cannot recognize or enforce a judgment without the requisite jurisdiction. The set of rules applicable would depend primarily on the country where the judgment was given. Recognition under the traditional law operates without impediments as regards judgments from many countries including many of the Middle Eastern countries, the non-common wealth countries including therein the US, Asia and Africa. Enforcement under the common law is dependent on bringing ordinary proceedings, whereas, the statutory regimes require specific procedures i.e. Registration.

In contrast to the English law, under the EC law on recognition and enforcement contained in Chapter III of the Regulation, jurisdiction is available only in civil and commercial matters; where the judgment is given by the court of a member state, the EC law will only give recognition and enforce those judgments that are given under the Regulation. Where unlike the common law there is no special procedure for recognition and enforcement; yet the number of defenses, are limited.

Critical Analysis: One critical aspect in favour of forum non conveniens is the noble and paramount objective namely, the interest of justice, which would have rightly served the need of cases like Gasser and Turner v Grovit had the objective of the EC law been so. In that, the requirement of maintaining comity amongst nations is given preference over doing justice to the parties, a codified structure and interpretation thereof seems to overrule the requirement of practicality and logic.

Due to cases like Gasser, there is a possibility that the reasoning of the European Court of Justice may be able to change the meaning behind the maxim pacta sunt servanda giving rise to instances where the terms contained in the express contracts like, jurisdiction agreement may be ignored or subverted in pursuance of sinister objectives like causing delays; frustration of commercial enterprise and cause heavy losses.

There are certain provisions in the Regulation (for instance Art.22 (4)) that run contrary to the objective of the EC law as stated hereinbefore, while leaving many questions unanswered. It may also be argued that the definition of lis pendens in Art.27 is quite technical and mechanical, being hinged on the 1st seized rule implying a first come first serve basis of justice, whereas in the traditional English laws there is no requirement of a definition; can deal with most problems with the help of discretionary rules. But matters like anti-suit injunctions under the traditional rules run contrary to modern objectives like comity of nations

The Regulation excoriates the application of the domestic laws on jurisdiction by member states under circumstances where the Regulation is applicable. Though the intention is to help parties to civil and commercial matters discern their rights and liabilities lie; but in doing so the EC law has in fact taken away much of the English Court’s discretionary power, as is evident from the outcome of the Owusu case.

Conclusion: It is submitted that it is not only the difference of attitudes or manner of approach that differentiates the traditional English law and the EC law on jurisdiction; but also the nature of these rules which as regards the EC law on jurisdiction is mandatory unlike- the traditional English law which is discretionary.

There have been instances wherein, on the basis of the traditional rules on jurisdiction, the English Courts have assumed jurisdiction in cases where it was clearly not the most appropriate court as per its two stage test promulgated in the Spiliada case; yet for the purpose of doing justice to the parties therein it has even given legal aid to the South African citizens on the English tax payers account, which in itself goes to show the extent to which the English court can be flexible.

The objective of the traditional rules is clear i.e. achieving justice for the parties to a dispute regardless of any set parameters; but this very factor makes a party to a commercial dispute uncertain of the jurisdictions it may or may not get sued in, which contingency the Regulation endeavours to clarify for the purpose of achieving its objective of building confidence in the European commercial market.

In light of the foregoing observations, it is submitted, that the traditional English laws do in fact prefer or value flexibility and justice over certainty and predictability, whilst the EC law on jurisdiction prefers or values certainty and predictability over flexibility and justice to the parties which is predominantly due to the inclination it has towards their respective objectives which mandates the said preference or prioritization.

The Law

All congressmen should be required to read “The Law,” by Frederic Bastiat. This 70-page book explains, like no other, what the role of the law and government should be. Having been written about one hundred and fifty years ago, it is amazing how relevant this book is today.

Today, the law has many purposes. If we think something is wrong or not as it should be, we are very quick to suggest a law that will fix the problem. We use the law for things for which it was not intended.

The law, Bastiat explains, is a collective force made up of individuals. Because of this, it should not be allowed to do what an individual himself should not be allowed to do. Legal Plunder, as Bastiat calls it, is an example of something that would be illegal for an individual to do, but it is considered legal when done by the government. This is a great example of how the law has been corrupted and it is being used to try to make everything that we might consider wrong, right. What is legal plunder? Here’s a great quote by Bastiat:

“…how is this legal plunder to be identified? Quite simply. See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime.”

So what should The Law be allowed to do? It should be allowed to do only what an individual should be allowed to do. For example, everyone would agree that an individual should be allowed to defend himself and his property. In this case, you can think of the collective force that is the government, as a group of individuals who are helping you defend yourself against someone trying to take your life or property. There is nothing wrong with a group of individuals helping you defend yourself, but there is something wrong with a group of people robbing someone, just as it is wrong for an individual to rob someone. Once one starts viewing the government as a collective force made up of individuals, it is easy to realize that we have made certain crimes legal, as long as they are committed by the collective force that is the government. The law’s purpose should be to protect the natural rights of individuals. These natural rights are the right to life, liberty, and property; nothing more.

One very important point that Bastiat makes in his book is that the law is supposed to play a negative role, not a positive one. What he means by this is that so often politicians use the law for what they consider to be justice, but justice cannot be created. Justice is only present in the absence of injustice. For example, The law should be used to protect me from the injustice of having my property taken away from me by someone else. This is an example of how the law makes sure justice reigns; by making sure the injustice of having my property stolen, doesn’t take place. On the other hand, when politicians try to help those less fortunate by taking money from others, they are trying to create what they think is justice, when in reality they are violating the natural rights of the people they are taking the money from, and are thus creating an injustice, which is the opposite of what the law should do. If I cannot get five of my friends to legally rob someone, why is the government allowed to do it for me?

The law’s role should be limited to one of protector; protector of our natural rights. If all Americans understood this, we would be well on our way to solving our problems, since most of our problems originate from the law being used for the wrong purpose. So how can we fix this corruption of the law? Quite simply. Make the same rules that apply to individuals, apply to the government.