What is FORUM NECESSITATIS and why should I bother to know?

What is FORUM NECESSITATIS and why should I bother to know?
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Dic

WHAT IS FORUM NECESSITATIS

and

WHY SHOULD I BOTHER TO KNOW?

by

MARCO CALABRESE

There are cases in which the margin of appreciation in regulating the jurisdiction of Courts and the access of a person to Justice may lead to a total impairment of the rights of the same and, eventually, to a complete denial of justice. (1)

The denial of Justice is regulated by article 6 of ECHR which provides at the same time an entitlement (everybody is entitled to a fair trial …) and a procedural right (…within a reasonable etc. etc.).

The jurisdiction of national Courts is often regulated by factors like domicile, residence or by the habitual residence of the defendant, or by the presence of their assets in the Country.

Governments may require, depending on their internal regulations of international law, a stricter or looser connection of the claimant with the their territory, when the defendant is not domiciled on their territory.

In case of a person who has not yet established their connection with the jurisdiction that they have seized (see Bruxelles II bis, for instance: 1 year residence) the right of appeal may be denied, completely.

But… what happens when the competent jurisdiction cannot (or would not) guarantee the fundamental rights of the ECHR? Just to make a clear example see the case of Dr Hojou a Palestinian Doctor who had been tortured by Lybian Officers and had not yet fully established his residence elsewhere. In this case the Dutch Courts (District Court of the Hague 21 March 2012 400882/HA) acknowledged that the plaintiff had no tealistic expectations for his case to be heard by Lybian jurisdictions due to the current situation of civil war. Consequently the Dutch Courts recognized the jurisdiction of any Dutch Court over the case: this is called FORUM NECESSITATIS.

While Countries like Italy and France have no express provisions of Forum Necessitatis -their respective case law have admitted the existence of this forum as useful in order to avoid the “risque de deni de justice”.

Other European Countries instead, have moved much forward: like Spain and the Nederlands who have included the Forum Necessitatis in their Civil Procedure Codes.

Forum necessitatis may be applied with reference to any aspect of private law (family and matrimonial matters, successions, contracts) not necessarily human rights.

The conditions under which a Court can be seized based on the Forum Necessitatis are still shaping up, though. Recently the Grand Chamber of European Court of Human Rights in the case OF NAÏT-LIMAN v. SWITZERLAND (Application no. 51357/07) JUDGMENT STRASBOURG 15 March 2018 confirmed the decision of the Swiss Federal Court declining Jurisdiction over a case of torture having considered that the Claimant had no significant connection with Switzerland.

The outcome could have been different if the Petitioner had applied with a EU Court which provides other factors to establish the connection of an individual with the Jurisdiction of the Country: these factors apply also to the Forum Necessitatis.

(1) For a thorough exam of the matter see: Mariangela La Manna THE ECTHR GRAND CHAMBER’S JUDGEMENT IN THE NAIT LIMAN CASE: AN UNNECESSARY CLARIFICATION OF THE REACH OF FORUM NECESSITATIS JURISDICTION? in Rivista Trimestrale di Diritto e Procedura Civile Anno LV 2/2019 pp. 319 et seq. from this long academic study this article has been summarized without merits.