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Every sports fan knows about the home court advantage. Lambeau Field, Fenway Park, Yankee Stadium � none of these places are particularly welcoming to visiting teams. Athletes aren’t the only ones who understand the power of playing at home. Litigators also know that if you have to be sued somewhere, it’s best to be sued in your own back yard. Unfortunately for American defendants, the European back yard just got a little bit bigger. Earlier this year, the European Court of Justice (ECJ) sharply limited the ability of English courts to rely on the doctrine of forum non conveniens to decline jurisdiction over certain disputes involving potentially significant connections to other nations. As a result, many more American businesses � including those that provide goods and services entirely within the United States � may be required to have their disputes heard in Europe, rather than in their own country. Owusu v. Jackson involved a case brought by Andrew Owusu, a British national living in England. In 1997, while on vacation in Jamaica, Owusu suffered a diving accident that left him paralyzed. Owusu brought an action against an individual, also a resident of England, as well as several Jamaican companies that provided him with lodgings or amenities in Jamaica. The defendants challenged the jurisdiction of the English court, claiming, among other things, that Jamaica was a more proper venue for this dispute and seeking to have the suit stayed under the doctrine of forum non conveniens. The English concept of forum non conveniens, which was propounded by the House of Lords in Spiliada Maritime Corp. v. Cansulex Ltd., gives English courts the discretion to stay proceedings while the parties pursue resolution of the dispute in a more “appropriate” forum. American lawyers are familiar with the concept of forum non conveniens, since the principle is virtually the same in the United States. Under Spiliada, an English court has the discretionary power to consider factors such as convenience, availability of the witnesses, the law governing the relevant transaction, and the places where the parties reside or conduct business when deciding which forum has the most real and substantial connection to the dispute. EUROPEAN TWIST Normally, Spiliada would require the Owusu proceedings in England to be stayed, since Jamaica appeared to have a more real and substantial connection to the dispute than England did. When the United Kingdom joined the European Community, however, it passed a statute requiring English courts to consider the impact of European law on domestic principles of law. In Owusu, the English court based its jurisdiction on Article 2 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, which gives jurisdiction to any court where any defendant resides. But only one of the defendants was domiciled in England. The trial court, recognizing a conflict between the Brussels Convention and the English common law, ruled that the convention superseded the Spiliada principles and held that the proceedings should not be stayed. The defendants took the case to the English Court of Appeal, which sought a preliminary ruling from the ECJ, as permitted under European law. The Court of Appeal wanted to know if it could rely on forum non conveniens to decline to hear a case involving an English resident where no state that had signed the Brussels Convention could be said to have jurisdiction or indeed any other connection to the dispute. The ECJ replied that the English court could not stay the case and instead had to hear the matter, even if another forum (in this case, Jamaica) might have closer or more significant ties to the dispute. BEYOND THE EU What makes Owusu extraordinary is its application beyond the confines of the European Union. The Jamaican defendants argued that the Brussels Convention could not be applied to them because Jamaica is not a contracting state under the convention. The ECJ, however, held that even though there has to be an international element before the Brussels Convention can apply to a dispute, there is no requirement that the international element must involve parties from two contracting states, at least for purposes of Article 2 jurisdiction (the ECJ admitted that other articles of the convention might require two contracting states). Normally, under international law, a state may not be bound by an international agreement unless it has expressly consented to it. The Owusu case raised some concerns because of its extraterritorial application. The ECJ, though, distinguished between a rule that places an obligation on a party and a rule that merely affects a party. The ECJ claimed that its ruling only places an obligation on contracting states and thus did not violate international law, even though the decision affects entities outside the European Union. The ECJ bolstered its analysis by focusing on how its decision furthers Brussels Convention goals of providing legal certainty regarding questions of jurisdiction and protecting EU residents from suits in unanticipated jurisdictions. The ECJ also expressed concern about equal treatment in different European member states. The doctrine of forum non conveniens is a common law mechanism that is typically unavailable in European civilian jurisdictions. Allowing English courts to have recourse to this principle would mean that residents of different member states would be treated differently under the law. Such a result would violate the fundamental principles of European law and the Brussels Convention’s purpose of creating a highly predictable jurisdictional regime. Owusu now forbids English courts from applying the doctrine of forum non conveniens in cases where jurisdiction is based on Article 2 of the Brussels Convention. From now on, when one of several defendants is domiciled in the United Kingdom, any defendants whose claims cannot logically be severed from the dispute with the British defendant will have to remain under the jurisdiction of the English court, even if they do not reside in the United Kingdom. While Owusu involved the hospitality industry, the principles apply to a wide range of commercial pursuits, including the provision of other types of goods and services on American soil. Although this decision will affect defendants in many contexts and from many nations, it does not apply to every lawsuit filed in the United Kingdom. The Brussels Convention applies only to civil and commercial matters with an international element, and Owusu applies only to matters where the court’s jurisdiction is based on Article 2 of the convention. Article 4 of the convention allows jurisdiction to be based on aspects of national law other than those relating to domicile. For example, under English law, a court can claim jurisdiction over a defendant who is only temporarily present in England or a defendant who consents to jurisdiction. In addition, English courts may obtain jurisdiction over a defendant pursuant to statute or when the court gives permission to a claimant for “service out,” meaning service of the claim form that initiates legal proceedings outside England. Owusu does not apply to those cases. Nevertheless, clients and their counsel must consider how to defend against an unwanted lawsuit in the United Kingdom now that their most logical weapon � the motion to stay based on forum non conveniens � has been taken away in cases where jurisdiction is based on Article 2 of the Brussels Convention. The best defense actually lies in the hands of transactional lawyers. Under Article 17 of the Brussels Convention, parties can select a forum for dispute resolution. If an American entity does not want a dispute heard outside the United States, it should negotiate an explicit provision to that effect, since contractual provisions drafted in accordance with Article 17 should be upheld despite the judgment in Owusu. Alternatively, a U.S. company could decide to rely on arbitration rather than litigation, since the convention does not apply to arbitrations. If there is no forum-selection clause in place and a dispute appears imminent, we, as litigators, have a few remaining tactical options, such as filing for a declaratory judgment in another jurisdiction as a pre-emptive move. Our clients would be far better served, however, by our ensuring that their agreements contain reliable dispute resolution clauses. If Owusu teaches anything, it is that parties must take the time when drafting their contracts to consider how and where their disputes will be resolved, even if the parties expect the vast majority of their disputes to be subject to the jurisdiction of U.S. courts. We litigators must therefore take the lead in advising our clients and our transactional colleagues on the importance of using forum-selection clauses in every transaction. We are the ones who will be litigating these disputes, and we are the ones who know what it’s like to have the home court advantage. If we want to keep that advantage, we have to make sure that we preserve our clients’ rights early on, before the transaction has even closed. Otherwise, we may find ourselves playing on someone else’s home turf. Stacie I. Strong is counsel in the Chicago office of Baker & McKenzie. Qualified as both a U.S. lawyer (New York and Illinois) and an English solicitor, Strong advises clients on a wide range of international commercial disputes.

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