Policy Considerations Underlying the Rules on Jurisdiction – A Focus on Torts

The author of this post is Etienne Farnoux, who is a professor of law at the University of Strasbourg. He has recently published his doctoral thesis on the policy considerations that underlie the rules of international jurisdiction, with a special focus on torts (Les considérations substantielles dans le règlement de la compétence internationale des juridictions – Réflexion autour de la matière délictuelle).

The thesis proposes to question the classical locational or proximity-based analysis of international adjudicatory jurisdiction in tort disputes. It is a commonplace idea – one that can be found both in European and national (French) private international law – that the rules of international jurisdiction are based on the geographical localization of the dispute, also known as the principle of proximity. If one thinks of international adjudicatory jurisdiction as being a question of territorial limitation of a State’s adjudicatory authority, it makes sense to rely on the localization of the dispute (or elements thereof) to organize it in a neutral way. The specific jurisdiction rule in matters relating to tort based on the location of the harmful event (art. 7 para. 2 of Brussels I recast regulation) perfectly embodies this locational approach to international judicial jurisdiction.

However, this proximity-based approach is faced with dire difficulties, namely the growing virtualization of entire swathes of human activities and the rise in crossborder private relations. More fundamentally, the vision of international jurisdiction as being based on the principle of proximity pays little attention to the notion that international jurisdiction is an organization by the State of its duty to render justice, be it with regards to crossborder private relations. The thesis opposes the locational analysis with a new approach to international jurisdiction that puts forward the substantive considerations specific to the underlying issue of the dispute, considerations that have remained at least partly hidden until now. In this perspective, the rules of international jurisdiction should reflect policy considerations which can be observed at two levels: at the level of procedural justice and at the level of substantive justice. It is the goal of this work to study the influence of these policy considerations on the rules of international jurisdiction with regards to crossborder tort cases.

As the subtitle indicates, the demonstration focuses on tort matters. Indeed, international litigation relating to civil liability, such as actions for damages against international polluters, transnational corporations responsible for human rights violations, corporations issuing securities on the financial markets, as well as cyber-torts, highlight in a particularly striking manner the need to base jurisdiction on something other than the location of the material elements of the dispute. Although the demonstration focuses particularly on the rules of jurisdiction in tort, it is not limited to them: it allows itself more general incursions into the system of jurisdiction in civil and commercial matters (in French, American and European Union private international law).

The thesis is articulated in two parts: the demonstration of the inadequacy of proximity as a basis for international jurisdiction (first part) leads to an outline of a concept of international jurisdiction based on substantive considerations (second part).

A Critical Assessment of the Principle of Proximity

The first part is devoted to a critical approach of the principle of proximity both from a historical point of view and a functional point of view. It examines each of the objectives pursued by the jurisdiction rules, based on the principle of proximity: evidential effectiveness; foreseeability; administrability of solutions. The weaknesses of the objectives of evidential efficiency and predictability leads to doubts about the role of the location operation in determining international jurisdiction. A study of the case law of the European Court of Justice on the subject of article 7(2) of the Brussels I bis Regulation reveals an instrumentalization of the location of the material elements of the dispute. This instrumentalization can be observed from the very beginnings of European case law on torts in the solutions given for complex torts with monolocalized harm (hypothesis of the Mines de Potasse judgment) and plurilocalized harm (hypothesis of the Fiona Shevill judgment) and for torts with continuous harm (hypothesis of the Dumez, Marinari and Kronhofer judgments). In all these cases, territorial location is manipulated, for purely argumentative purposes, so as to arrive at a solution which is not in any way dictated by location. This phenomenon is further accentuated by the growing immateriality of human activities, which can be observed in economic matters and through the figure of cyber-crimes. The loss of materiality of at least part of the elements of the dispute reveals the artificiality of the territorial localization operation and brings to light the balancing of interests at the heart of the jurisdictional question, between the interests of the alleged victim and those of the alleged perpetrator of the harm.

Substantive Considerations Underlying Rules of Jurisdiction

The second part is devoted to the study of this balancing of interests, apprehended through the notion of substantive considerations and made possible by the deconstruction of the principle of proximity. These considerations can be considered at two levels: that of procedural justice and that of truly substantive justice.

At the level of procedural justice, the most striking phenomenon is the decline of the traditional objective of jurisdictional protection of the defendant, around the principle of forum rei, and its progressive reversal in favor of the plaintiff, resulting in the rise of forum actoris. This phenomenon is complex and sometimes ambiguous because of the contradictory orientations adopted, as shown by the contradictory case law interpreting Article 7(2), as well as the difficult question of the regime of international jurisdiction, and in particular the forum non conveniens. At the level of substantive justice, the rise of the promotion of the interests of the plaintiff can be understood when set against the traditional normative and remedial functions of civil liability, both of which militate in favor of the alleged victim (which presupposes the exclusion of actions denying liability). As the case law of the Court of Justice still explicitly refuses to recognize such a protective function to forum delicti, this clarification is necessary and allows to look realistically at avenues for reform.

Looking prospectively, the risk of giving in without restraint to this favor for the claimant, seen in substantive terms as the alleged victim, is to open the way to anarchic forum shopping. A middle way would be to abolish the forum delicti and open a forum victimae instead, the jurisdiction of the alleged victim’s domicile. This forum can be envisaged in two ways. It could be constructed as an ordinary forum in tort, provided that a plausibility check on the alleged victim’s claims is introduced to combat procedural harassment. If this proposal were to be considered too bold, given the persuasive force that the consideration of the defendant’s jurisdictional protection continues to exert, it is possible to conceive of this forum victimae as a forum for the protection of the allegedly weak party. To a certain extent, this seems to be the path taken, albeit implicitly, by the case law of the Court of Justice, notably in the eDate and Kolassa judgments.

This substantive reading of the rule of jurisdiction is transversal and not exclusive of more occasional and more salient incursions of a substantial interest of the forum which will make the rule of jurisdiction subject to the pursuit of a substantive policy. This substantive interest of the forum may take the form of legislative policies (loi de police) or fundamental values (public policy) of the forum. To study the influence of overriding mandatory provisions on the rules of jurisdiction, it is necessary to go beyond the dogma of the independence of legislative and judicial jurisdictions, affirmed in a Monster Cable decision by the French Cour de Cassation. The outcome may be twofold. It may open the possibility, in some cases, of a purposeful correspondence between legislative competence and jurisdictional competence. It also militates in favor of the imperative nature of adjudicatory jurisdiction when an overriding mandatory rule is applicable. However, mandatory rules are not the only substantive elements that have an influence on the determination of international jurisdiction. The fundamental values of the forum are also likely to leave their mark on the rules of jurisdiction. The emergence of the forum of necessity is a cross-cutting example as it concerns access to justice, but other fundamental rights may be affected, notably personal freedom. The violation of such a right could give French courts universal civil jurisdiction to entertain a possible action for damages.

Finally, the thesis moves to draw the consequences of the demonstration beyond the rules of direct international jurisdiction, in the relations between the jurisdictional organizations of different States. In this perspective, the substantive approach to the rules of jurisdiction calls into question the international fungibility of courts, a precondition to a jurisdictional system such as the Brussels system. Whether this fungibility really exists or not is open to debate, and the ambiguous role of the forum delicti – merely justified by location but playing the part of a tool of protection of the claimant – should be put in this context. In this perspective the substantial approach to jurisdiction also helps to conceptualize the debate around the universalization of the Brussels system and the coexistence of several systems of jurisdiction for a single judicial system (Brussels I and national law), as well as the meaning and relevance of the control of indirect jurisdiction.

Some of the conclusions of this thesis have been summarized in English in an article entitled ‘Delendum est Forum Delicti? Towards the jurisdictional protection of the alleged victim in cross-border torts’ published in B. Hess, K. Lenaerts and V. Richard (ed.), The 50th anniversary of the European law of civil procedure, Baden-Baden: Nomos 2020, (259) p. 263 et seq.