A comparison between the jurisdictional rules in the EU and the US in the light of the Arrest Convention and the possibility to shop for forum

Abstract

Abstract

The 1952 Arrest Convention was created in order to unify the rules relating to arrest of ships around the world. Before the Convention, the rules relating to arrest of ship were governed by the different countries national rules of law. This created problems for the shipping industry as a ship could be arrested in relation to any claim whatsoever if it was permitted by the domestic law of the country where the ship was. Also considering that many countries have exorbitant jurisdictional rules and sometimes on very loose grounds claim jurisdiction, this was a problem. Shipping is a very special kind of business as it involves movable property that often has a great value and suddenly can enter jurisdictional territory and a claimant can get hold of security he could not have counted on. These exorbitant jurisdictional rules made the shipping business insecure and something needed to be done about it. Therefore the Arrest Convention was created. The Convention regulates for what claims a ship can be arrested and therefore gives the claimant and the defendant an ability to foresee when there is a claim in relation to which it is possible to get an arrest. If the Convention had had the effects one wanted one would only have to know about the rules in the Convention and not about the numerous other national jurisdictional rules in the ports or the territorial waters that the ship may enter on its journey. However, the Convention, even though probably having made some applications of law easier, it has not been a pervading effect. Firstly, as with many international conventions the Arrest Convention has not been ratified by all countries although it has been ratified by many in comparison with a lot of other international conventions. Secondly, there are some questions on when the Convention shall apply before national rules and when it shall not. This has been especially clear in relation to the Brussels Convention on Jurisdiction and Enforcement of Judgements . Even though the Arrest Convention prevails there is still confusion in reality when applying the Conventions. Within the EU the uncertainty becomes even greater as one has to consider both the jurisdictional rules in the Arrest Convention, the rules in the Brussels Convention and the national rules relating to arrest. This makes the possibility to foresee what rules will govern a case even more difficult. However, these uncertainties can be used by forum shoppers that are trying to find loopholes through which to avoid one jurisdiction and get the case taken on by another, more favourable, jurisdiction. The Arrest Convention’s rules on jurisdiction can be used by a claimant to claim jurisdiction in a country where he might not have had jurisdiction if the Convention had not been in force. The same goes for the Brussels Convention. There being uncertainties in the relation between the Conventions and the Conventions and national law is a great incentive for a plaintiff or a defendant to try and stretch the rules in his favour. Sometimes the outcome of a case can be completely different from one jurisdiction to another. Forum shopping, which is the common term when choosing jurisdiction because of more favourable law rules, is used within all types of law having some kind of international connection and there are different opinions about it. The reason behind it is always to get the best outcome possible in a lawsuit, but what is the best possible outcome? In order to shop you also need to know what you are shopping for and where to find it. In international maritime law, being governed by many international conventions not always being signed by the same countries and sometimes having different application depending on if other relating conventions have been signed by the same countries, the best country in which to sue is not always obvious at a first glance. Consequently in order to make a sound decision on where to sue in order to get the most out of a lawsuit you have to look at the jurisdictional rules in order to find out where you can sue and you have to look at the procedural and substantial rules in order to see where you will get the decision you are looking for.