On May 4, 2021, the European Commission expressed its opposition to UK’s accession to the Lugano Convention, treaty to which the UK was until recently a party via its EU membership. NGOs, academics and experts strongly criticise the Commission’s stance as prohibiting the UK to re-join the convention may have adverse consequences for victims of corporate human rights abuses seeking justice in the UK.
Lugano Convention and forum non conveniens
The Lugano Convention, a treaty between the EU and EFTA/EEA countries (Iceland, Norway, and Switzerland), sets jurisdiction, recognition, and enforcement rules in civil and commercial judgments. Mirroring EU’s rules on those matters, the convention establishes mandatory jurisdiction of courts of the State party where the defendant is domiciled (Article 2).
Therefore, the Lugano Convention overcomes the forum non conveniens doctrine according to which the defendant can argue that the claim against itself should be heard before a more appropriate court due to the location of the parties, witnesses, evidence, and familiarity with the (local) law applying to the case.
Brexit and potential consequences on access to remedy
In 2019, a European Parliament DROI committee report noted that the forum non conveniens doctrine “might well be reintroduced in the UK in cases involving domiciled defendants following Brexit”.
Reintroduction of this doctrine would constitute an important set back for victims of corporate abuses abroad, and notably when abuses occur in developing countries that are unwilling (due to fear of losing foreign direct investment) or unable (due to underdeveloped justice system, weak enforcement mechanisms, corruption, etc.) to hold companies accountable.
NGOs, academics and experts stress that such reintroduction would come at a time where UK courts are beginning to recognise claims against UK companies for abuses abroad (see Shell v Okpabi and Lungowe v Vedanta), therefore nipping progress in the bud.
EU Commission’ stance
The Commission recalled the nature of the Lugano Convention, “a flanking measure for the EU’s economic relations with the EFTA/EEA countries” based on the, at least partly, participation in the EU’s internal market, including the free movement of goods, services, capital and persons of EFTA/EEA countries. As a non-EFTA/EEA country, the UK is a third country with an ordinary Free Trade Agreement “facilitating trade but not including any fundamental freedom and policies of the internal market”. Therefore, cooperation in the field of civil judicial cooperation is governed by the 2005 Hague Choice of Court Convention and the 2019 Hague Judgements Convention.
The Commission concluded “the United Kingdom is a third country without a special link to the internal market. Therefore, there is no reason for the European Union to depart from its general approach in relation to the United Kingdom”. Put simply, the UK should not be treated different as other third countries.
Going backward or moving foward?
As it is unlikely that the UK will access the Lugano Convention (at least in the coming months), some scholars (see here and here) suggest reforming the forum non conveniens doctrine to impose on the defendant the burden of proving that the UK is the clearly inappropriate forum. This shift would thus facilitate victims’ access to justice as it would make it more difficult for companies to argue that the claim should be heard by courts other than English ones.
Which path will English courts follow?
To be continued.