Transcript Voda v. Cordis

The iPad Case
(Exclusive Jurisdiction)
Injunctions granted to Apple, against Samsung, as of September 5, 2011
Country
Germany
The Netherlands
Australia
Product
Galaxy Tablet
Galaxy Smart
Phones
Galaxy Tablet
Germany
EU wide
Extent of
Injunction
(Originally EU wide
(except the Netherlands),
but now SUSPENDED and
limited to Germany)
(However, the Patent
involved is not registered
throughout the EU; so the
injunction only extends to
EU countries where the
patent is valid)
Reasoning
Community Design
Registration
Patent Infringement
(software)
Australia
Patent Infringement
(design patents)
Other examples of cases in which exclusive jurisdiction
would lead to duplication of proceedings
• Gallo v. Sting Music – 19 relevant jurisdictions
• Boosey & Hawkes Music Publishers, Ltd. v.
Walt Disney Co. – 18 relevant jurisdictions
• Voda v. Cordis – 6 relevant jurisdictions
Fundamental Human Right of
Access to a Court
Public international law
grants, to both aliens
and citizens alike, the
fundamental human
right of access to
courts
It has also been
explicitly adopted by
the EU.
Some countries, both
EU and non-EU
Members, have
adopted the doctrine
domestically
Universal
International Norms
Regional
International Norms
European Union
Domestic Adoption
•Article 8, Universal Declaration of
Human Rights
•Article 2.3, International Covenant of
Civil and Political Rights
•Article 6.1, European Convention for
the Protection of Human Rights and
Fundamental Freedoms
•Article 8, American Convention on
Human Rights
•Article 47, Charter of Fundamental
Rights of the EU
•Article 6.1- 6.3, Treaty of Lisbon
•EU Countries: Austria, Finland, Germany,
Italy, Spain, and the Netherlands
•Non-EU Countries: Australia, Brazil,
Canada, Colombia, Japan, Mexico, Russia,
South Africa, Switzerland, and Turkey
• U.S.: equivalent right of Due Process
Fundamental Human Right of
Access to a Court
Universal
International Norms
Regional
International Norms
European Union
Domestic Adoption
•Article 8, Universal Declaration of
Human Rights
•Article 2.3, International Covenant of
Civil and Political Rights
•Article 6.1, European Convention
for the Protection of Human Rights
and Fundamental Freedoms
•Article 8, American Convention on
Human Rights
•Article 47, Charter of Fundamental
Rights of the EU
•Article 6.1- 6.3, Treaty of Lisbon
•EU Countries: Austria, Finland, Germany,
Italy, Spain, and the Netherlands
•Non-EU Countries: Australia, Brazil,
Canada, Colombia, Japan, Mexico, Russia,
South Africa, Switzerland, and Turkey
This presentation will
focus on the
fundamental human
right of access to court
as established by
Article 6 of the
ECHR and interpreted
by the ECtHR, as the
ECHR is considered to
be the most advanced
international system for
the protection of
fundamental human
rights.
Fundamental Right of Access to
Court – Article 6 of ECHR
Article 6 – ECHR
“[I]n the determination of
his civil rights and
obligations…everyone is
entitled to a fair and public
hearing within a reasonable
time by an independent
and impartial tribunal
established by law.”
Article 6 does not
expressly guarantee
the right of access to
courts.
However, decisions of
the ECtHR have
established that the
denial of access to
domestic courts can
amount to a breach of
Article 6.
Article 6 – Relevance
General Relevance
Does Article 6 of the ECHR give rise to a general
principle of international or European law?
YES
General Principle of
EU Law
Explicitly rendered by Article 6.3 TEU
and relevant ECJ case law
General Principle of
International Public
Law
For the same reasons, mutatis
mutandis, that forum necessitatis is a
general principle of international law
As such, as a
general principle
of public
international law
and of EU law, the
right of access to
courts has a direct
effect and prevails
over domestic
rules, EU
secondary (at
least) norms, and
international
conventions.
Article 6 - Obligation
Article 6 imposes on its member states a nonhorizontal, positive, and procedural obligation of
result.
Nonhorizontal
Does not protect rights
holder against
interference from private
parties, but State itself
Positive
Requires state to take
“positive” action to
facilitate access to
court, not just refrain
from action
Procedural
Operates at procedural
level of adjudication,
rather than the
substantive level
Article 6 – Relevance
Relevance to IPRs
An additional question is whether administrative proceedings related to the granting of registered IPRs
fall within the category of proceedings related to “civil rights,” and thus within the scope of Article 6?
Other
registered
IPRs
Patents
Human Rights Commission –
“While there is no doubt that
patent rights, once granted,
must be considered as civil
rights…” Article 6 does not
encompass proceedings
between private persons and
administrative organs related to
“the registration of patents”
HOWEVER, this jurisprudence has
been overruled by subsequent
case law at the ECtHR with respect
to patents and designs
In these cases, the ECtHR decided
that administrative proceedings for
patents and design, which are
decisive for registration, involve a
determination of civil rights within
the meaning of Article 6..
The new ECtHR case law may be extended to all
other registered IPRs.
Budweiser – applicant
for TM owned a set of
proprietary rights
(same reasoning as
patents, extendable to
all IPRs)
Presumed
ownership in IPRs
systems
Disputes between private
persons and State do not
concern execution of
sovereign powers (as
previously discussed)
Article 6 - Restrictions
The right of access to courts, however, is not an absolute right and
certain restrictions on this right are permitted.
States may establish
regulations limiting
access in accordance
with a certain “margin
of apperciation” of the
“needs and resources
of the community and
of its individuals”.
However, such
limitations are
subject to the
oversight and
control of the
ECtHR.
Article 6 - Restrictions
According to the jurisprudence of
the ECtHR, to be lawful,
restrictions on access to courts
imposed by States must:
1) Be
established by
law
2) Have a
legitimate aim
3) Respond to
the principle of
proportionality
Article 6 - Restrictions
According to the jurisprudence of the
ECtHR, to be lawful, restrictions on
access to courts imposed by States
must:
1) Be
established by
law
To meet this requirement, the
restriction must
•“have some basis in domestic law”
•“accessible to the person
concerned”
•“compatible with the rule of law”
•be “consistent, clear, precise, [and]
foreseeab[le]”
2) Have a
legitimate aim
3) Respond to
the principle of
proportionality
Article 6 - Restrictions
According to the jurisprudence of the
ECtHR, to be lawful, restrictions on
access to courts imposed by States
must:
1) Be
established by
law
2) Have a
legitimate aim
3) Respond to
the principle of
proportionality
Advantages considered legitimate by ECtHR
include:
•Advantages for the individual concerned
•Advantages for the administration of justice
•Compliance with public international law
•Cooperation between legal systems
Article 6 - Restrictions
According to the jurisprudence of the
ECtHR, to be lawful, restrictions on
access to courts imposed by States
must:
1) Be
established by
law
2) Have a
legitimate aim
3) Respond to
the principle of
proportionality
•According to jurisprudence, restrictions are
proportionate when they realize a fair balance between
the limits to the right of access to courts and the aim
sought to be achieved by the restrictions.
•To be considered proportionate, the applicants
must have available to them reasonable alternative
means to protect their rights and these means
must be effective.
Article 6 - Restrictions
This ECtHR jurisprudence raises
several questions:
Article 6 – International
Jurisdiction
Questions 1: Is a Member State of the ECHR in breach of Article 6
when such State’s courts refuse to try a case on the grounds that
they do not have international jurisdiction according to the
relevant applicable international jurisdiction rules?
Article 6 – International
Jurisdiction
Questions 1: Is a Member State of the ECHR in breach of Article 6 when such
State’s courts refuse to try a case on the grounds that they do not have
international jurisdiction according to the relevant applicable international
jurisdiction rules?
General Rule
Limitations
• A domestic court must adjudicate a case,
even when it would not generally do so
according to its international procedure
norms, when its declining of jurisdiction
would violate the right of access to a court.
•Article 6 obliges Member States, in
principle, to grant access to their courts
whenever a case is sufficiently and not
fortuitously linked to the forum state.
• However, Member States can restrict right
of access to their courts but only when the
following four requirements are met:
•Restrictions are established by law
and sufficiently clear
•Pursue a legitimate aim, which is only
the case when they comply with public
international law.
•Proportionate to the aim pursued
•The applicant can protect his or her
rights through the use of other
reasonable and effective alternative
means of recourse.
Article 6 – International
Jurisdiction
Question 1: Is a Member State of the ECHR in breach of Article 6 when such
State’s courts refuse to try a case on the grounds that they do not have
international jurisdiction according to the relevant applicable international
jurisdiction rules?
ECtHR
Rulings
In Principal
• The ECtHR has maintained that IN
PRINCIPAL a member state’s international
jurisdiction rules can violate Article 6 of the
ECHR.
In Practice
• IN PRACTICE, however, the ECtHR has
involved certain “peculiarities” or
circumstances to deny that a breach of
Article 6 occurred.
•These findings appear criticizable for being
grounded on reasoning of a political nature
Article 6 – International
Jurisdiction
The following are ECtHR cases in which
the member state’s jurisdiction rules were
approved.
These cases are covered to present a
systematic reconstruction of the
principals emphasized by the ECtHR
that are relevant to whether exclusive
jurisdiction rules violate the right of
access to courts
Article 6 – International
Jurisdiction
The following are ECtHR cases in
which the member state’s
jurisdiction rules were approved.
These cases are covered to
present a systematic
reconstruction of the principals
emphasized by the ECtHR that are
relevant to whether exclusive
jurisdiction rules violate the right
of access to courts.
The first two
cases deal
with a right of
access to
court of a
State’s citizen
Article 6 – International
Jurisdiction
Bayrak v. Germany, App. No. 27937/95 Eur. Ct. H.R. (2000)
A dual
Turkish and
German
citizen
Breach of
Contract
Germany
An Iraqi Bank
Sued
Cause of Action
Place of Court
Defendant
Plaintiff
In
For
Article 6 – International
Jurisdiction
Bayrak v. Germany, App. No. 27937/95 Eur. Ct. H.R. (2000)
Court
German Court
Holding
No Jurisdiction
Reasoning
German nationality
of Plaintiff does not
provide sufficient
link for jurisdiction
to hear the case
Article 6 – International
Jurisdiction
Bayrak v. Germany, App. No. 27937/95 Eur. Ct. H.R. (2000)
Question
for ECtHR -
Court
Does German
Court’s holding
violate German
citizen’s right of
access to court?
German
Court
Holding
NO
JURISDIC
TION
Reasoning
German
nationality of
Plaintiff does
not provide
sufficient link for
jurisdiction to
hear the case
Article 6 – International
Jurisdiction
Bayrak v. Germany, App. No. 27937/95 Eur. Ct. H.R. (2000)
ECtHR – German
Court decision
DOES NOT violate
German citizen’s
right of access to
court
Right of access to court “does not
imply an unlimited right to
choose the competent court”
Germany’s international
jurisdiction rule is not arbitrary,
but rather is established by law
Article 6 – International
Jurisdiction
Hans-Adam II v. Germany, App. No. 42527/98 Eur. Ct. H.R.
Plaintiff
Prince HansAdam II of
Liechtenstein
Defendant
Municipality
of Cologne
Place of Court
Germany
Cause of Action
Requested painting that
Colonge had borrowed
painting from Czech
Repbulic be turned over
to him.
Claimed the painting had
been illegally confiscated
from his father by the
government of the former
Czechoslovakia in 1946
Article 6 – International
Jurisdiction
Hans-Adam II v. Germany, App. No. 42527/98 Eur. Ct. H.R.
Court
German Court
Holding
No Jurisdiction
Reasoning
Although Prince was
German citizen and
painting in German
territory, statute
precluded German
courts from reviewing
measures carried out
against German citizens
for reparation of war
damages.
Article 6 – International
Jurisdiction
Hans-Adam II v. Germany, App. No. 42527/98 Eur. Ct. H.R.
Question
for ECtHR -
Court
Does German
Court’s holding
violate German
citizen’s right of
access to court?
German
Court
Holding
NO
JURISDIC
TION
Reasoning
Although Prince was
German citizen and
painting in German
territory, statute
precluded German
courts from reviewing
measures carried out
against German citizens
for reparation of war
damages.
Article 6 – International
Jurisdiction
Hans-Adam II v. Germany, App. No. 42527/98 Eur. Ct. H.R.
ECtHR – German
Court decision
DOES NOT violate
German citizen’s
right of access to
court
The limitation on access to court had a legitimate aim
as it was:
•“a consequence of the particular status of Germany
under public international law after the Second World
War” and
•it aimed at realizing “the vital public interest in
regaining sovereignty and unifying Germany.”
Additionally, the limitation was proportionate to the
aim pursued:
Despite earlier holdings that this condition was only
met if reasonable alternative means were available,
the ECtHR found that this case presented
“peculiarities” that excluded the application of such a
restriction
Article 6 – International
Jurisdiction
The following are ECtHR cases in
which the member state’s
jurisdiction rules were approved.
These cases are covered to
present a systematic
reconstruction of the principals
emphasized by the ECtHR that are
relevant to whether exclusive
jurisdiction rules violate the right
of access to courts.
Cases dealing
with a citizen’s
right of access
to court
In a third series of
cases, the ECtHR
dealt with rules
granting immunity
from jurisdiction to
States and
International
Organizations
Article 6 – International
Jurisdiction
Most of the ECtHR
cases regarding a
State’s immunity
from jurisdiction
involved either:
Tort claims related to
employment in a foreign
diplomatic mission
Tort claims for personal injuries
sustained from “state acts”
amounting to torture
Article 6 – International
Jurisdiction
Most of the
ECtHR cases
regarding a
State’s
immunity
from
jurisdiction
involved
either:
Tort claims
related to
employment in
a foreign
diplomatic
mission
Tort claims for
personal
injuries
sustained from
“state acts”
amounting to
torture
In these cases, the
ECtHR paid particular
attention to:
-Whether the State
immunity rules had
a legitimate aim
AND
-Whether the rule
was proportional
to that aim
Article 6 – International
Jurisdiction
Most of the
ECtHR
cases
regarding a
State’s
immunity
from
jurisdiction
involved
either:
Tort claims
related to
employment
in a foreign
diplomatic
mission
Tort claims
for personal
injuries
sustained
from “state
acts”
amounting
to torture
In these cases, the
ECtHR paid particular
attention to:
-Whether
-Whether the
the State
State
immunityrules
ruleshad
hada
immunity
a legitimateaim
aimAND
legitimate
AND
-Whether the rule
was proportional
to that aim
Here, the Court
determined that it
pursues a
legitimate aim if
the aim is “to
promote comity
and good
relations between
States through
the respect of
another State’s
sovereignty
Article 6 – International
Jurisdiction
Most of the
ECtHR
cases
regarding a
State’s
immunity
from
jurisdiction
involved
either:
Tort claims
related to
employment
in a foreign
diplomatic
mission
Tort claims
for personal
injuries
sustained
from “state
acts”
amounting
to torture
In these cases, the
ECtHR paid particular
attention to:
-Whether the State
immunity rules had a
legitimate aim AND
-Whether the rule
was proportional
to that aim
Here, the Court
has recognized
that rules which
“reflect generally
recognised rules
of public
international law
on State immunity
cannot in
principal be
regarded as
imposing a
disproportionate
restriction on the
right of access to
Court”
Article 6 – International
Jurisdiction
The other relevant immunity cases involve immunity
from jurisdiction for international organizations
The most relevant case on this point is Waite v.
Germany
Article 6 – International
Jurisdiction
Waite v. Germany
The
Plaintiffs
Two BRITISH citizens
who worked and
resided in
GERMANY
While they worked for a British company, they had
been placed at the disposal of the European Space
Agency (ESA) to perform services at the European
Space Operations Center in Germany
Article 6 – International
Jurisdiction
Waite v. Germany
Upon learning that the British company planned to
terminate their employment, the employees/plaintiffs
instituted proceedings against the ESA before a German
Labor Court.
Article 6 – International
Jurisdiction
Waite v. Germany
Arguments
German Labor Court
The
Plaintiffs/Employees
claimed that
pursuant to the
German Provision of
Labor (Temporary
Staff) Act, they had
acquired the status
of employees of the
ESA
The ESA
responded that
its IMMUNITY as
an international
organization
impeded the
exercise of
jurisdiction by the
German Courts
Holding
The German
Court found
that the ESA
had rightly
relied on
immunity and
refused to
exercise
jurisdiction
Article 6 – International
Jurisdiction
Holding
German Labor
Court
The German
Court found
that the ESA
had rightly
relied on
immunity and
refused to
exercise
jurisdiction
Question
for ECtHR -
Does this
violate the
workers’ right
of access to
court?
Article 6 – International
Jurisdiction
The immunity rule for international
organizations has a legitimate aim: the
ECtHR – German
Court decision
DOES NOT violate
workers’ right of
access to court
“attribution of privileges and immunities to
international organizations is an essential
means of ensuring the proper function of such
organizations free from unilateral interference
by individual governments
The rule also was proportional to the aim:
while individuals must have “effective”
“reasonable alternative means” of protecting
their rights under the convention,“ it was
possible to presume that all legal systems,
including the German one, are “in principal”
open to workers seeking redress from the firms
that have employed them and hired them out
(namely the British company)
Article 6 – International
Jurisdiction
Questions 1: Is a Member State
of the ECHR in breach of Article 6 when such
(Review)
State’s courts refuse to try a case on the grounds that they do not have
international jurisdiction according to the relevant applicable international
jurisdiction rules?
General Rule
Limitations
• A domestic court must adjudicate a case,
even when it would not generally do so
according to its international procedure
norms, when its declining of jurisdiction
would violate the right of access to a court.
•Article 6 obliges Member States, in
principle, to grant access to their courts
whenever a case is sufficiently and not
fortuitously linked to the forum state.
• However, Member States can restrict right
of access to their courts but only when the
following four requirements are met:
•Restrictions are established by law
and sufficiently clear
•Pursue a legitimate aim, which is only
the case when they comply with public
international law.
•Proportionate to the aim pursued
•The applicant can protect his or her
rights through the use of other
reasonable and effective alternative
means of recourse.
Article 6 Restriction
Question 2: With respect to the requirement of reasonable
and alternative means of recourse, the question arises
whether this requirement should be read as an alternative
in a third state/international organization or only within the
forum State declining jurisdiction?
Article 6 - Restrictions
Question 2: With respect to the requirement of reasonable and alternative
means of recourse, the question arises whether this requirement should be
read as an alternative in a third state/international organization or only within
the forum State declining jurisdiction?
It is the argument of this presentation that the requirement of
reasonable and efficient means of recourse should be interpreted to
mean access within the forum state, not third states/international
organizations:
Inconsistency
in ECtHR
decisions
Systematic
stricto sensu
interpretation
of Article 6.1
and Article 14
of ECHR
Systematic
teleological
interpretation
of Article 6.1
Systematic lato
sensu
interpretation
of Article 6.1
and
international
jurisdiction
rules
Article 6 – Exclusive Jurisdiction
Question 3: The final question is whether the right of
access to courts can be improperly restricted by
international jurisdiction norms that establish exclusive
jurisdiction in certain fora?
Article 6 – Exclusive Jurisdiction
Question 3: The final question is whether the right of access to courts can be
improperly restricted by international jurisdiction norms that establish
exclusive jurisdiction in certain fora?
All the conclusions
reached with respect to
all other general
international jurisdiction
rules apply, mutatis
mutandis, to exclusive
jurisdiction rules.
No reasons can be
invoked to proscribe this
application.
THUS, exclusive jurisdiction VIOLATES the right of access to courts
because, by their proper nature, they restrict access when the case
does not enter into the exclusive jurisdiction of the state, although it
meets all the requirements necessary to consider the restrictions in
question improper.
Application of forum necessitatis to Voda, Lucasfilm,
and GAT
Voda
Forum Necessitatis
Lucasfilm
(Court of
Appeals)
Violation of
public
international
law
GAT
The public international law rules of forum necessitatis/“jurisdiction by
necessity” will now be applied to exclusive jurisdiction rules in the Voda,
Lucasfilm (Court of Appeals), and GAT cases to show that these decision
violate public international law.
Application of forum necessitatis and doctrine of
Fundamental Right of Access to Court
To demonstrate that exclusive
jurisdiction rules with respect to
adjudication of IPRs violates forum
necessitatis and the fundamental right
of human access to a court, each of
these doctrines will be applied to the
decisions of Voda, Lucasfilm, and GAT.
Because the basis for the decisions in Lucasfilm (Court of Appeals) and Gallo are so similar, only
Lucasfilm will be addressed but the findings are equally applicable to the Gallo decision.
Forum Necessitatis - Voda
1) “proximity”
Both parties were domiciled
in the U.S.
Connections to the U.S.
The case involved
infringement of U.S. and
foreign patents that all
stemmed from the same
invention
Forum Necessitatis - Voda
2) “inefficient”/“unreasonableness”
Voda –
infringement
suits
U.S.
U.K.
France
Germany
Canada
• The U.S. Court of Appeals for the Federal Circuit held that Voda was
required to bring its claims to the courts of each of the foreign States
where the patent had been granted.
• In so holding, the U.S. Court of Appeals required that Voda should
duplicate its proceedings, which was “unreasonable and ineffective,” and
thereby met the second requirement of the denial of justice/forum
necessitatis rule because
Forum Necessitatis – Lucasfilm
(Court of Appeals)
In the Lucasfilm case, the denial of justice was even more
apparent than in Voda.
1) “proximity”
Connections to
the U.K.
The defendants
were domiciled in
the U.K.
The infringing acts
were perpetrated
from the U.K.
Forum Necessitatis-Lucasfilm
(Court of Appeals)
2) “inefficient”/“unreasonableness”
Exclusive
Jurisdiction
U.K. Court
Won’t
enforce
judgment
U.S. Court
Inefficient and unreasoanble
•
•
According to the U.K. Court of Appeal, the United States had exclusive jurisdiction to address the
infringement of U.S. copyrights, but the U.K. court would not enforce the judgment.
By refusing to enforce the judgment of the ordinary competent court, the court rendered access to that
U.S. tribunal ineffective with respect to the United Kingdom and therefore constituted a legal obstacle to
effectively exercise the right of access to U.S. courts.
Forum Necessitatis - GAT
1) “proximity”
Both GAT and LuK were
companies established in
Germany
Connections to Germany
The company to which GAT
was hoping to sell its
potentially infringing springs
was also based in Germany
Forum Necessitatis – GAT
2) “unreasonableness” / “inefficiency”
ECJ
German
Court
Validity
Infringement
French
Court
Following the GAT decision, the German Court had to stay its proceeding while it referred to
the French Court the issue of the French patents’ validity, and after the French Court’s
decision on the validity of the patents, the German Court had to resume the case and
examine the infringement claims, which would have produced a duplication of disputes.
Access to Court - Voda
In the Voda case, the exclusive jurisdiction rules not only impeded Voda’s access to
the U.S. Court with respect to its foreign patent infringement claims, but also
restricted Voda’s fundamental human right of access to the U.S. Courts.
The restriction is improper for the
following reasons
sufficient and
non-fortuitous
link between
case and U.S.
not established
by sufficiently
clear law, but
based on
“implicit” PIL
did not pursue
a legitimate
aim, because
actually illegal
under PIL
not proportionate
– didn’t involve
immunity or
recognized
peculiarities
Access to Court – Lucasfilm (Court
of Appeals)
In Lucasfilm (Court of Appeals), the violation of the right of access to
courts was even more apparent .
The restriction is improper for the
following reasons
sufficient and
non-fortuitous
link between
case and U.K.
not established
by sufficiently
clear law, but
based on
“implicit” PIL
did not pursue
a legitimate
aim, because
actually illegal
under PIL
not proportionate
– while an
alternative means
of recourse in a
third country
(U.S.), it was
clearly ineffective
Access to Court - GAT
Likewise, in the GAT case, the application of exclusive jurisdiction rules
would have impeded access to the German Court and restricted LuK’s right
of access to courts.
The restriction is improper for the
following reasons
sufficient and
non-fortuitous
link between
case and
Germany
not established by
sufficiently clear law –
Art. 16.4 of Brussels
Conv. was not explicit
on this point and
prior decisions
indicated more
restrictive treatment
did not pursue
a legitimate
aim, because
actually illegal
under PIL
not proportionate –
no alternative
means of recourse in
Germany, and
recourse in third
country would mean
duplication of
proceedings
Avoiding violation of public
international law
To avoid violating public international law, States
should follow three different, concurrent
approaches, each of which leads to the same
results.
Avoiding denial of justice and safeguarding
right of access to courts (cont’d)
1) From a De
Lege Ferenda
perspective,
States must
- overrule their explicit
exclusive jurisdiction
provisions, and
-also revisit their case law
according to which exclusive
jurisdiction rules are implicitly
imposed by public
international law.
Avoiding denial of justice and safeguarding
right of access to courts (cont’d)
1) From a De Lege
Ferenda perspective,
states must overrule
their explicit
exclusive jurisdiction
provisions and revisit
case law.
2) From a de
lege lata
perspective
States must
adopt the PIL
solution
- States must search for other PIL
rules that are different and prevailing
over the rules that would otherwise
lead to the declining of jurisdiction.
-Then, States must find these rules in
forum necessitatis, which is a PIL rule
and a general principle of law
- Finally, States must adopt this
forum and thus exercise jurisdiction
by necessity despite exclusive
jurisdiction provisions.
Avoiding denial of justice and safeguarding
right of access to courts (cont’d)
1) From a De Lege
Ferenda perspective,
states must overrule
their explicit
exclusive jurisdiction
provisions and revisit
case law.
2) From a de
lege lata
perspective
States must
adopt the PIL
solution
3) From a De Lege
Lata perspective,
States must adopt
the “human rights
solution.”
- States must recognize the right of access
to courts as a general principle of law, and
this right’s primacy over other international
and domestic rules on exclusive jurisdiction
- Then, the States must recognize that to
decline jurisdiction would constitute a
breach of the right of access to a court.
- Furthermore, States must refer to this
violation “as the ground for not so acting.”
- Finally, States must exercise jurisdiction
despite exclusive jurisdiction provisions.