"I did not persuade [JKN] to move to New York. We had been thinking about moving back home for some time. I attach a copy of an email dated 2nd February '08 from [JKN] to me showing that the move to New York was her idea. We agreed in the Spring of 2008 we would move later that year. I was hoping to secure a promotion of work which would move a permanent move to New York. [JKN] and the children moved first to settle in before the start of the term."
"[JCN], since [the eldest son] is not in any schools here and you are now Global Head, would consider all of us as a family and husband and wife moving back to New York this summer. I am not trying to trick you. It really offends me when you insinuate that it makes me really upset. I really do love you and I would not be so committed to try and get us back together and be together as a family, but what if we moved back and you worked out of New York for [D Bank] and did your travel etc based out of New York and have [C] manage London while you flew in and out. We have so much money and I really, really mean that. We could leave with all this money and the kids would have so much anyway. It would be better for them, for both of us too. What do you think? My option, it is a good one. [JKN]."
‘To accept the opposite view would therefore be tantamount to disregarding the intentions of the States which are parties to the Convention, as amended by the Accession Convention of 1978, and it is clear that those intentions were not subsequently departed from when the later accession conventions or Regulation No 44/2001 were adopted’
‘(11) The rules on jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well-defined situations…’
‘[38] Respect for the principle of legal certainty, which is one of the objectives of the Brussels Convention (see, inter alia,Case C-440/97 GIE Groupe Concorde and Others[1999] ECR I-6307 , paragraph 23, andCase C-256/00 Besix[2002] ECR I-1699 , paragraph 24), would not be fully guaranteed if the court having jurisdiction under the Convention had to be allowed to apply the forum non conveniens doctrine. [39] According to its preamble, the Brussels Convention is intended to strengthen in the Community the legal protection of persons established therein, by laying down common rules on jurisdiction to guarantee certainty as to the allocation of jurisdiction among the various national courts before which proceedings in a particular case may be brought (Besix, paragraph 25). [40] The Court has thus held that the principle of legal certainty requires, in particular, that the jurisdictional rules which derogate from the general rule laid down in Article 2 of the Brussels Convention should be interpreted in such a way as to enable a normally well-informed defendant reasonably to foresee before which courts, other than those of the State in which he is domiciled, he may be sued (GIE Groupe Concorde and Others, paragraph 24, and Besix, paragraph 26). [41] Application of the forum non conveniens doctrine, which allows the court seised a wide discretion as regards the question whether a foreign court would be a more appropriate forum for the trial of an action, is liable to undermine the predictability of the rules of jurisdiction laid down by the Brussels Convention, in particular that of Article 2, and consequently to undermine the principle of legal certainty, which is the basis of the Convention. [42] The legal protection of persons established in the Community would also be undermined. First, a defendant, who is generally better placed to conduct his defence before the courts of his domicile, would not be able, in circumstances such as those of the main proceedings, reasonably to foresee before which other court he may be sued. Second, where a plea is raised on the basis that a foreign court is a more appropriate forum to try the action, it is for the claimant to establish that he will not be able to obtain justice before that foreign court or, if the court seised decides to allow the plea, that the foreign court has in fact no jurisdiction to try the action or that the claimant does not, in practice, have access to effective justice before that court, irrespective of the cost entailed by the bringing of a fresh action before a court of another State and the prolongation of the procedural time-limits. [43] Moreover, allowing forum non conveniens in the context of the Brussels Convention would be likely to affect the uniform application of the rules of jurisdiction contained therein in so far as that doctrine is recognised only in a limited number of Contracting States, whereas the objective of the Brussels Convention is precisely to lay down common rules to the exclusion of derogating national rules.’
‘[44] The defendants in the main proceedings emphasise the negative consequences which would result in practice from the obligation the English courts would then be under to try this case, inter alia as regards the expense of the proceedings, the possibility of recovering their costs in England if the claimant's action is dismissed, the logistical difficulties resulting from the geographical distance, the need to assess the merits of the case according to Jamaican standards, the enforceability in Jamaica of a default judgment and the impossibility of enforcing cross-claims against the other defendants. In that regard, genuine as those difficulties may be, suffice it to observe that such considerations, which are precisely those which may be taken into account when forum non conveniens is considered, are not such as to call into question the mandatory nature of the fundamental rule of jurisdiction contained in Article 2 of the Brussels Convention, for the reasons set out above.’
"Is it consistent with the Brussels Convention …, where a claimant contends that jurisdiction is founded on Article 2, for a court of a Contracting State to exercise a discretionary power, available under its national law, to decline to hear proceedings brought against a person domiciled in that State in favour of the courts of a non-Contracting State: (a) if the jurisdiction of no other Contracting State under the 1968 Convention is in issue; (b) if the proceedings have no connecting factors to any other Contracting State?" 77. The ECJ decided that the answer to that question was: ".. the Brussels Convention precludes a court of a Contracting State from declining the jurisdiction conferred on it by Article 2 of that convention on the ground that a court of a non-Contracting State would be a more appropriate forum for the trial of the action even if the jurisdiction of no other Contracting State is in issue or the proceedings have no connecting factors to any other Contracting State." 78. The reasoning by which the ECJ arrived at that conclusion may be summarised as follows: i) The jurisdictional code contained in the Brussels Convention does not operate exclusively by reference to legal relationships involving Contracting States alone, but also takes effect where there is an international legal relationship between a contracting state and a non-Contracting State. ii) The Brussels Convention was concluded on the basis of Article 220 of the Rome Treaty (now Article 293 EC) specifically "to facilitate the working of the common market through the adoption of rules of jurisdiction for disputes relating thereto and through the elimination, as far as is possible, of difficulties concerning the recognition and enforcement of judgments in the territory of the Contracting States." (a) if the jurisdiction of no other Contracting State under the 1968 Convention is in issue; (b) if the proceedings have no connecting factors to any other Contracting State?" iii) Paragraph 34 of the judgment states: "… the consolidation as such of the rules on conflict of jurisdiction and on the recognition and enforcement of judgments, effected by the Brussels Convention in respect of cases with an international element, is without doubt intended to eliminate obstacles to the functioning of the internal market which may derive from disparities between national legislations on the subject." iv) Article 2 provides as follows: "
‘Give the wide range of non-Member State courts and non-Member State judicial procedures, the fact that the foreign proceedings may not be far advanced, and so on, a strict obligation to apply Article 27 by analogy would be quite inappropriate: Belgium may be one thing, but Burma and Burundi are quite another….In the one case to confront this issue directly, however, the judge concluded that Owusu prohibited any reference to a principle of forum non conveniens (for this would impair the principle of legal certainty); that Article 27 should not be applied reflexively in the sense that the prior seisen of a non-Member State should automatically mean that the English court had no jurisdiction (for this is not what Article 27 says, and in any event the court first seised would determine its jurisdiction by reference to its own law and not by the Regulation); and that therefore the existence of prior proceedings in a non-Member State would, unless these could be seen as an abuse of process, be entirely ignored. The judgment is regrettable and, given the manner in which it damages the legal rights of the defendant, one which ought to be re-considered very soon.’
‘the fact that the answer of the European Court [in Owusu] was expressed in terms of jurisdiction which had been founded on Article 2 is of no real importance; there is no basis for supposing that the answer would have been any different if the English Court had been given jurisdiction under another provision of the 1968 Convention or the Judgments Regulation.’
‘The Death of Harrods: forum non conveniens and the European Court’ [2005] LQR 535). In ‘The State of International Family Law Issues: A view from London’ [2009] IFL 35 HHJ Ian Karsten QC states ‘The time cannot be far off when an English judge will have to decide what the effect of Owusu is upon the power to stay divorce proceedings under the 1973 Act.’
‘The likelihood is that the ECJ, if asked by means of a preliminary reference to give an interpretative ruling on the point, would deny the possibility of any derogation from the principle enshrined in Article 3, except such as is expressly provided for by Article 7 (residual jurisdiction). The Regulation provides no exception in relation to forum non conveniens, at least in relation to matrimonial proceedings. It is highly probable that application, in a case such as has been conjectured, of the doctrine of forum non conveniens by means of the operation of a discretionary stay, would be deemed to undermine the desired objectives of certainty and predictability, which are inherent in the Regulation, as well as to jeopardise the legal protection of persons established in the European Community’
‘Maintenance obligations are excluded from the scope of this Regulation as these are already covered by Council Regulation No 44/2001. The courts having jurisdiction under this Regulation will generally have jurisdiction to rule on maintenance obligations by application of Article 5(2) of Council Regulation No 44/2001.’
“Accordingly, if the parties have agreed that a dispute shall be submitted to the exclusive jurisdiction of the courts of New York, an English court will be entitled to apply the relevant principles of English law to an application by the defendant for a stay of proceedings. There is no reason to believe that, only four years after this decision, the European Court in Owusu v Jackson had changed its mind.”
“The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised”
“shall have jurisdiction”
‘Finally as regards the Owusu contention is concerned, our attention was drawn to a decision of Barling J, Catalyst Investment Group v Lewinsohn[2009] EWHC 1964 . The question there was whether the court could stay proceedings in a case where the same point was being litigated between the same parties in the courts of a third country. He held that Owusu prevented that, essentially because the lis pendens rule is to some extent a facet of forum non conveniens. We do not have decide whether that was correct, though we note that, if he his right, there is this oddity: that there is a clear lis pendens rule, with associated court first seized rule, for parallel cases within the EU but none for parallel cases where one is running within an EU Member State and one without. What Barling J did not decide was that art 2 conferred extra-EU subject matter jurisdiction generally.’ (ii) The analysis by the Court of Appeal in Lucasfilm provides support for the husband’s submissions cautioning against the extension of Owusu in cases where there are parallel proceedings, in particular the possibility of inconsistent judgments and the consequences regarding recognition of judgments. Jacob LJ stated at para 111 – 112: “[111] Moreover although the Regulation has a clear lis pendens rule about parallel actions relating to the same alleged wrong in different Member States, there is no lis pendens rule for a similar situation concerning parallel actions in a court of a Member State and that of a third country. Nor could there be, for the EU could not legislate for third countries. So here, for instance, if Lucasfilm had sued Mr Ainsworth both in the US and here at the same time, the Regulation has no rule, "first seised" or otherwise, to deal with it. Both actions could proceed with the obvious possibility of inconsistent judgments. [emphasis added] [112] It is also noteworthy that if this far-reaching and important jurisdiction existed, no-one has noticed it from the time of the initial Brussels Convention in 1968 until now.” Does Owusu apply to BIIR? (iii) None of what I have termed the non-family cases considered Owusu in the context of BIIR. (iv) Whilst there is some force in the general proposition that Brussels I and BIIR are complementary it is important to consider their respective purpose and precise terms. Brussels I is essentially a commercial Regulation, although it does include maintenance obligations. Whilst BIIR does expressly refer (Recital 11) to Brussels I, it is no more than to acknowledge that maintenance obligations are excluded from BIIR and retained by Brussels I. There is no express connectivity between the two Regulations. (v) Whilst the court can look at Brussels I to interpret BIIR where the language is identical (e.g. seisin) the respective provisions of the Regulations are different in a number of material respects. In particular: (a) The difference in language in Article 2 of Brussels I and Article 3 of BIIR. The former is mandatory requiring the exercise of that jurisdiction once the court is seised; the latter facilitates jurisdiction with no corresponding obligation on a court to exercise that jurisdiction or on the applicant as to where he or she must bring proceedings. (b) The principle of legal certainty is not so central to BIIR as the Petitioner/Claimant could potentially choose between three Member States as to where proceedings are issued, whereas in Brussels I (central to the ratio in Owusu) it is the right of the Defendant to know in which court he is liable to be sued. (c) In BIIR the position of the parties, as in this case, will often respectively be Claimant and Defendant in whichever forum prevails, so the notion of protecting the position of the Defendant, which was an important part of the ratio in Owusu, disappears in the context of BIIR. (d) If Owusu does warrant a stark interpretation as only permitting a departure from Article 2 if expressly provided for in the Regulation the words “Subject to the Regulation” in the opening parts of Article 2 but absent from Article 3 become significant as their absence indicates a less restrictive approach. (e) There is no good reason for the lacuna which would operate if Owusu applied. BIIR provides in Article 19 a mechanism if there are competing divorce proceedings in another Member State; if jurisdiction is based on Article 7 national law provides the solution. If the jurisdiction is based on Article 3 and the other competing forum is a non– Member State there is no mechanism to deal with this. This can result in two sets of proceedings with the resulting consequences and increased cost. (f) Extending Owusu to BIIR is bound to have implications regarding Article 8 and jurisdiction in matters relating to parental responsibility. First, Article 15 provides a mechanism for a transfer of a case relating to parental responsibility between Member States where that is in the best interests of the child. There is no corresponding provision permitting a case to be stayed in favour of a non-Member State. There is no justification for depriving the courts of that power if it is in the best interests of the child to do so. Secondly,section 5(2) of the Family Law Act 1986 expressly empowers the court to grant a stay in favour of a non-Member State. Extending Owusu to BIIR would require the court to disapply the provisions of primary legislation which has been amended with the specific purpose of bringing the statute into conformity with BIIR. (vi) The reference to Owusu by the Supreme Court in Re I is, as Mr Marshall acknowledges, ‘oblique’
“The Council Regulation is directly effective in the United Kingdom and, consequently, the changes effected by these Regulations are limited to those necessary to amend inconsistent provisions of national law.”