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How to Write a First Class Law Dissertation

Complete Guide
by WardBlawg on November 18, 2010


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Protection of the Right to a Fair Trial and Civil Jurisdiction: Permitting Delay, Restricting Access
and Recognising Incompatible Judgments.

Below is my honours law dissertation together with tips and a very special video from an ex-
Cambridge professor at the end. Enjoy! If you have any academic material you would like to post that
may help others, please get in touch and I can talk you through some of the best ways to get your
message and your name promoted online.

Also I provide private tuition/mentoring for undergraduate LLB study in Glasgow at a reasonable rate.
Please contact me here. All the best with your legal dissertation.

How to write a first class legal dissertation: Content and Structure

Three tips can be suggested to get you started on the right foot:

First, research the subject in which you are most interested in writing about for your dissertation, then
choose a sufficiently narrow angle to approach the subject or choose something that hasnt been
discussed much before.

Second, collect, or print out or photocopy all relevant materials which discuss that narrow subject.

Third, plan rough headings for sub-topics within the main subject. While the contents below were
finalised towards the end of the writing process, the rough structure was formulated at an early point
in the writing process. This is how many academics write their books: they provide themselves with
lots of headings and subheadings, then chip away at the work, bit by bit until complete.

Examples contents for Protection of the Right to a Fair Trial and Civil Jurisdiction: Permitting Delay,
Restricting Access and Recognising Incompatible Judgments are as follows:-



2.1. Substantive Elements

2.2. Procedural Operation: Direct and Indirect Effect
2.3. The Human Rights Act 1998


3.1. Introduction
3.2. Framework under Article 6
3.3. Conflict with Lis Pendens: Erich Gasser
3.3.1. Delay in the Italian Court
3.3.2. A Clash of Treaties
3.3.3. Future Application
3.4. Conflict with Forum non Conveniens
3.4.1. General Operation
3.4.2. First Limb of Spiliada
3.4.3. Second Limb of Spiliada
3.5. Conclusions


4.1. Operation in Article 6

4.2. Anti-Suit Injunctions
4.3. Exclusive Jurisdiction Agreements and Waiving Convention Rights
4.4. Limitations on Jurisdiction
4.5. Conflict with Forum non Conveniens
4.6. Owusu v Jackson
4.7. Conclusions


5.1. Recognition of Contracting State Judgments

5.2. Recognition of Non-Contracting State Judgments
5.2.1. European Court of Human Rights
5.2.2. House of Lords
5.4. Conclusions



7.1. Table of Cases

7.2. Table of Legislation
7.3. Table of Conventions
7.4. Textbooks
7.5. Articles

Writing your introduction

Together with the conclusion, the introduction is one of the most significant pieces of a dissertation
that you have to get right. A well-written introduction can make all the difference between a first class
and an upper second.

If you take just one thing away from this series of posts, it is this. You can develop a better stream of
communication with your reader, forming a better relationship, if you tell them what you are going to
say (introduction), say it (main body), then tell them what you have said (conclusion).

So, to the introduction, set the scene as fast as possible then tell the reader what you are going to say,
but dont be so amateurish as to write I am going to discuss X, Y and Z. Be more indirect. Suggest,
for instance, that there are problems with the law that need to be resolved.


Long since inevitable initial encounters, human rights concerns, particularly regarding the
right to a fair trial under Article 6 of the European Convention of Human Rights (ECHR),
have been accelerating in todays civil jurisdiction and judgments arena in the United
Kingdom, a notable consequence of the passing of the Human Rights Act (HRA) 1998.
More than six years from the Acts coming into force, it is now imperative to reach
conclusions which reflect the importance attaching in todays world and in current
international thinking and jurisprudence to the recognition and effective enforcement of
individual human rights, as Mance LJ (as he then was) has noted. This necessity is reflected
in the recent extensive consideration of the right to a fair trial in key works of some of the
most authoritative conflict lawyers in the United Kingdom, including Sir Lawrence Collins,
Professor Adrian Briggs and, most significantly, Professor James Fawcett.

Tweet Methods of protecting the right to a fair trial and thus of avoiding a breach of Article 6 are
irrelevant to the European Court of Human Rights (ECtHR); the Court is not concerned with
reviewing under the Convention in abstracto the law complained of, but rather the
application of that law. There is therefore a large amount of discretion afforded to the
courts regarding techniques to avoid infringement of the Convention. In the context of civil
jurisdiction and judgments, various methods of avoiding infringement, or indeed enabling
Share protection, of the right to a fair trial exist. However, the extent to which these have been
used in practice, both by the UK courts and the ECJ, has been limited, a result of various
factors, the most striking of which being the wrongful application of the ECHR and even
the conscious decision to ignore it.

Before analysing specific fair trial concerns in detail, it is necessary to examine the general
structure and operation of Article 6 as it applies to civil jurisdiction and judgments.

Chapter 1: Setting the scene

Depending on the nature of your dissertation, you may need to set the scene further. In a legal
dissertation, by scene is meant the bits of law that are relevant to set up key arguments in the main
body of the dissertation. With this example dissertation, the target readership was, for various reasons,
international private law experts. Because human rights law was a key part of the debate, the relevant
law had to be set out in such detail that the chapters following it could discuss, for instance, the right
to a fair trial and the doctrines of direct and indirect effect without any need for constant repetitive


2.1. Substantive Elements

Article 6(1) ECHR provides inter alia that [i]n the determination of his civil rights and
obligationseveryone is entitled to a fair and public hearing within a reasonable time by
an independent and impartial tribunal established by law. The ECtHR has reverberated
that the right to a fair administration of justice holds such a prominent place that Article
6 should not be interpreted restrictively. Instead, the seemingly distinct provisions of
Article 6 are not discrete, but are rights which are distinct but stem from the same basic
idea and which, taken together, make up a single right not specifically defined in the
narrower sense of the term. This single right is the title of Article 6: the right to a fair

This right comprises two particularly significant elements important in the context of civil
jurisdiction and judgments. First, the right to a trial within a reasonable time. Expressly
stated in Article 6(1), this right may be pertinent where proceedings are stayed in favour of
a foreign court. Second, access to a court, an inherent element of Article 6(1). This may
have relevance where access is denied to the UK courts through, for example, staying
proceedings, or restraining foreign proceedings.

2.2 Procedural Operation: Direct and Indirect Effect

Article 6 can operate through a number of mechanisms in the civil jurisdiction and
judgments context, which must be distinguished for analytical purposes.

First, through direct effect, where there is direct protection of a partys right to a fair trial in
the domestic courts themselves. Such protection is strong and somewhat easier to obtain
because there is no test for the seriousness of the breach. Such infringement may occur
through a refusal of access to the UK courts, which refusal may emanate from, inter alia, an
exclusion of jurisdiction or stay of proceedings.

Second, through indirect effect, where a person is transferred to another country where his
right to a fair trial may be infringed in that country. In Soering v United Kingdom the
ECtHR emphasised that it was for Member States to secure Convention rights of persons
within their jurisdiction, but that this obligation did not extend to non-Contracting States,
nor should it seek to impose ECHR standards on such States. Thus, for example, in respect
of deportation of a person to the United States of America from England, there may be an
indirect breach of Article 6, but only where the transfer creates or risks creating a flagrant
Tweet breach of the claimants right to a fair trial in that other country. In presenting an argument
for the creation of such risk, it is axiomatic that a strong compilation of evidence is
essential, with reference to the circumstances of both the case and proceedings of the
court in question.

The difficulty with such an argument in the civil jurisdiction sphere is that stays of
Share proceedings concern transfers of actions abroad, not persons. Notwithstanding, arguments
for the application of the indirect effect doctrine in this context are still applicable because
the situations are essentially the same. Indeed, it could be argued that staying
proceedings amounts to a transfer of persons through effective compulsion. Nevertheless,
no authority exists for this argument and indeed the indirect effect doctrine itself has not
been successfully relied upon in an Article 6 context before the (former) Commission or

Third, through indirect effect where enforcement in a Contracting State of a judgment

from a foreign State, whether Contracting or non-Contracting, would breach Article 6
because that judgment itself breached Article 6 standards. It has been stated that such a
breach by the foreign court must also be a flagrant one. However, the reasoning
underlying this proposition is unclear and, as with many matters in the civil jurisdiction and
judgments sphere, there are concerns as to the extent to which the right to a fair trial can
be upheld in this respect.

2.3 The Human Rights Act 1998

The Convention rights, including Article 6, now have the force of law in the United
Kingdom under the HRA 1998. The Act places two initial express duties on the UK courts:
first, the duty to read and give effect to primary and subordinate legislation in a way
compatible with the Convention rights, if possible; second, the duty to take into account
inter alia any previous judgment of the ECtHR in determining proceedings which have a
Convention right element, insofar as it has relevance to those proceedings.

Moreover, under Section 6(1) of the HRA 1998, it is unlawful for a public authority,
including a court, to act in a way incompatible with a Convention right. This is a significant
duty on the courts, which indeed sparked considerable academic debate as to the Acts
impact on private commercial disputes. Thus, the courts have a duty to interpret and apply
the common law or any exercise of discretion compatibly with the right to a fair trial under
Article 6. Ultimately, this may amount to a positive duty to develop the common law,
extending beyond mere interpretation of the common law to conform to the Convention

Notwithstanding this rather stringent theoretical framework for the courts upholding the
right to a fair trial, there has been a lack of consistency in its practical impact in the field of
civil jurisdiction and judgments.


*Converting c300 footnotes on a Microsoft Word document to a WordPress post is not

feasible for this blawgger. They are, therefore, pasted below as endnotes. The full
dissertation is available in the Juridical Review, vol 1 of 2008 pp15-31

Delcourt v Belgium (1979-80) 1 EHRR 355, at [25]; indeed, the principles of due process
and the rule of law are fundamental to the protection of human rights (Clayton and
Tomlinson: 2000, p550,) just as a fair trial is a fundamental element of the rule of law (Ovey
and White: 2002, p139.)
Golder v. United Kingdom [1975] ECHR 1, at [28].
Ibid., at [36].
Such cases can be labelled domestic ones: Government of the United States of America v
Montgomery (No 2) [2004] UKHL 37, at [15], per Lord Bingham.
R (Razgar) v Special Adjudicator [2004] AC 368, at [42].
Soering v United Kingdom (1989) 11 EHRR 439.
Ibid., at [113]; this test has been followed subsequently: e.g. Einhorn v France (no.71555/01,
16 October 2001) at [32], Tomic v United Kingdom (no.17837/03, 14 October 2003) at [3].
Tweet Fawcett; 2007, p4.
Montgomery (n12); Drozd and Janousek v France and Spain (1992) 14 EHRR 745, p795; cf.
Pellegrini v Italy [2001] ECHR 480.
HRA 1998, s3(1).
Ibid., s2(1)(a); such previous decisions are not binding; notwithstanding, as Lord Slynn
Share observed in R (Alconbury Developments Ltd) v Secretary of State for the Environment
[2001] 2 WLR 1389 at [26]: [i]n the absence of some special circumstances it seems to me
that the court should follow any clear and constant jurisprudence of the [ECtHR].
Ibid., s6(3)(a).
Wade: 2000; Lester and Pannick: 2000.
Such discretion should be exercised with great caution and with close regard to the
overall fairness of the proceedings: R v Jones [2003] AC 1, at [6], per Lord Bingham.
HL Deb vol.583, p783 (24 November 1997); Grosz, Beatson and Duffy: 2000, para.4.56; cf..
Derbyshire CC v Times Newspapers Ltd [1992] QB 770.
Grosz, Beatson and Duffy: 2000, para.4.59.

Main Body Part 1

Next follows the first main chunk discussing and debating the title of the dissertation. To maintain
structure, even this sub-section of the dissertation has its own introduction, some degree of scene-
setting with Art 6 in the particular context of the chapter, argument through various levels and


3.1. Introduction

It has been stated that excessive delays in the administration of justice constitute an
important danger, in particular for the respect of the rule of law and for the legal certainty
of citizens. This importance is reflected in the express protection of the reasonable time
requirement in Article 6. There have been recent challenges in the civil jurisdiction context
on this ground, the most significant of which being raised in Erich Gasser GmbH v Misat
Srl, concerning conflict with lis pendens. A further instance, the common law doctrine of
forum non conveniens has been suggested to be so incompatible, which would therefore
have implications for the doctrine in its now very limited common law habitat.

3.2. Framework under Article 6

In civil cases, time starts to run when the proceedings are instituted and stops when legal
uncertainty has been removed, which normally requires that the final appeal decision has
been made or the time for making an appeal has expired. It is generally accepted that the
correct approach is to decide whether the overall delay is prima facie unreasonable for
the type of proceedings concerned and thereafter consider whether the State is able to
justify each period of delay. In assessing such justification, the limited guidelines indicate
that all the circumstances will be considered, with particular regard to the complexity of
the case and the conduct of the applicant and judicial authorities in addition to the
behaviour of other parties to the case and what is at stake in the litigation for the

Generally, where proceedings are stayed, there are three stages which must be
distinguished for determining delay. First, the proceedings before the domestic court. Any
unjustifiable delay at this point would amount to a direct breach of Article 6. Second, the
transfer of proceedings to the foreign court. Delay at this stage would be less justifiable
where, for instance, there was known to be a heavy backlog of cases. Notwithstanding, the
normal lapses of time stemming from the transfer of the cases are not to be regarded as
unjustified. Third, the proceedings before the foreign court. At the second and third stages,
although any unreasonable delay by the foreign court will amount to a direct breach by
that court, there could also be an indirect breach by the domestic court, but only to the
extent that the party suffered, or risked suffering, a flagrant breach.

Tweet Endnotes

Committee of Ministers of the Council of Europe, Resolution DH (97) 336, 11 July 1997.
Fabri and Langbroek: 2003, p3.
C-116/02 [2005] QB 1.
Opinion of AG Lger in Owusu v Jackson C-281/02 [2005] QB 801 at [270].
Share A sist by the Scottish courts through forum non conveniens can be made where jurisdiction
is founded on Art.4 of the Judgments Regulation or Convention: Collins et al: 2006,
para.12-023. Moreover, a sist can be made on the ground that the courts of England or
Northern Ireland are the forum conveniens, because intra-UK jurisdiction can be so settled:
Cumming v Scottish Daily Record and Sunday Mail Ltd, The Times, 8 June 1995; Collins:
Scopelliti v Italy (1993) 17 EHRR 493, at [18].
Vocaturo v Italy [1991] ECHR 34.
E.g. fewer than six years for a reparation action (Huseyin Erturk v Turkey [2005] ECHR 630.)
Clayton and Tomlinson: 2000, p654; Harris, OBoyle and Warbrick: 1995, p229.
Eckle v Germany (1983) 5 EHRR 1, at [80]; an obvious consideration being delay in
commencing proceedings.
Buchholz v Germany [1981] ECHR 2, at [49].
Foti v Italy (1982) 5 EHRR 313, at [61].
Zimmermann and Steiner v Switzerland [1983] ECHR 9; Guincho v Portugal [1984] ECHR 9;
cf. Buchholz (n36), at [61], where the backlog was not reasonably foreseeable; exceptional
circumstances were taken into account in Foti (n37) as a result of troubles in Reggio
Calabria, which impacted proceedings in the courts in Potenza, to which cases had been
Foti (n37), at [61].
Soering (n14) at [113].


Having set the scene, it is time to delve straight into comment and opinion, drawing on relevant facts
and law where required. Where possible, suggest ways in which events or decisions could have been
improved and do not be afraid to say that commentators, judges or even powerful institutions, like the
ECJ, got it wrong.

3.3. Conflict with Lis Pendens: Erich Gasser

Erich Gasser v MISAT concerned the validity of a choice-of-court agreement in favour of

the Austrian courts where one party had first seised the Italian courts by way of negative
declaration. Second seised, the Austrian Court sought a reference from the ECJ on, inter
alia, whether it must stay its proceedings under lis pendens where the proceedings in the
court first seised generally take an unreasonably long time, such that there may be a
breach of Article 6.

Both the claimant and the intervening UK Government invoked the ECHR, arguing that
Article 21 of the Brussels Convention should be interpreted in conformity with Article 6
ECHR to avoid excessively protracted proceedings, given that proceedings in Italy were
likely to take an unreasonably long time. Through this interpretation, it was argued that
Article 21 should not be applied if the court first seised had not determined its jurisdiction
within a reasonable time.

In a very short response, the ECJ effectively said that the ECHR did not apply because first,
it is not expressly mentioned in the Brussels Convention and second, there is no room for it
in a collection of mandatory rules underpinned by mutual trust between Contracting

3.3.1. Delay in the Italian Court

However, it may be seen that the stay de facto risked at least a standard breach in the
Italian court. The Italian courts have been held in breach of Article 6 a staggering number
of times because of unreasonable slowness. The existence of these breaches amounted to
Tweet a practice incompatible with the ECHR and produced the notoriety of the Italian legal
system as the land that time forgot. Indeed, the practice of seising the Italian courts first
by way of negative declaration has become known as instituting an Italian torpedo, which
may succeed in delaying proceedings substantially even where the Italian courts have no

Share It has already been noted that evidence is crucial in determining a real risk of a breach of
Article 6. Instead, in Gasser, human rights arguments were based upon a general breach of
the reasonable time requirement in Italian courts. Moreover, no ECtHR case law was relied
upon when so arguing, nor was mention made of previous breaches. Therefore, a very
weak argument, if any, was laid before the ECJ in respect of a risk of a breach. In effect, the
ECJ was being asked something tantamount to whether there should be an exception to
Article 21 in respect of certain Member States, a question justifiably answered in the
negative. However, if the arguments had been more focussed, concentrating on the
present case, with evidence to show the likelihood of breach in the Tribunale civile e
penale di Roma, then the ECJ may have been more persuaded by Article 6 considerations,
as Fawcett suggests.

Notwithstanding previous delays, efforts have been made to reduce the backlog of cases.
This is somewhat owing to Article 13 ECHR, which requires Contracting States to provide
persons with an effective national remedy for breach of a Convention right. Such domestic
remedies assist in reducing further breaches and ultimately reduce the need for the
indirect effect doctrine. Thus, the Italian Pinto Act was passed, providing a domestic legal
remedy for excessive length-of-proceedings cases. The existence of this remedy may have
gone towards justifying application of Article 21, which indeed was one of the questions
referred to the ECJ by the Austrian Court, although unanswered.

3.3.2. A Clash of Treaties

Nevertheless, given that the ECJ so held that Article 6 considerations were irrelevant, there
may be further legal implications, particularly for the Austrian Court which was required to
stay its proceedings under the Brussels Convention. If this stay created or risked creating a
flagrant breach of the reasonable time requirement in the Italian Court, Austria may itself
have breached Article 6 indirectly.

Such an indirect breach is clearly not justifiable on the ground that Austria is party to the
Brussels Convention or Regulation made under the European Treaties. Hence, the
judgment may lead to a clash between the ECHR and Brussels Convention or Regulation.
This in turn raises the questions of how and to what extent the Brussels Convention or
Regulation could have been interpreted to give effect to Article 6.

Formerly Article 57 of the Brussels Convention, Article 71 of the Brussels Regulation

provides inter alia that (1) [t]his Regulation shall not affect any conventions to which the
Member States are parties and which in relation to particular matters, govern jurisdiction
or the recognition of judgments. Although the ECHR is not prima facie a Convention
governing jurisdiction, all Member States are party to it and Article 6 contains the inherent
right of access to a court. Thus, as Briggs and Rees argue, this may have application where
a court with jurisdiction is prevented from exercising that jurisdiction in a manner
compatible with the ECHR.

Therefore, in Gasser Article 71 may have been applied to allow Austria to act in accordance
with its obligations under the ECHR. This approach is complemented by Article 307 (ex
234) EC such that Article 21 or 27 of the Brussels Convention or Regulation respectively can
be overridden by a Convention previously entered into, including the ECHR. Further, this
conclusion is even more realistic in light of the jurisprudence of the ECJ, which is peppered
with notions of protection for fundamental rights, and the express protection of these
rights in Article 6(2) EC.
Instead of even contemplating such an outcome, the ECJ showed that it was prepared to
ignore a significant international convention. Perhaps, in addition to mutual trust between
Contracting States, mutual recognition of international conventions should have been
Tweet considered, especially due to the express provisions permitting such consideration.


Those having a duration of over three years: Gasser (n28), at [59].

At [71]-[73].
Share See Ferrari v Italy [1999] ECHR 64, at [21].
Ferrari (n46), at [21]; Article 6 imposes on the Contracting States the duty to organise their
judicial systems in such a way that their courts can meet the requirements of the provision
(Salesi v Italy [1993] ECHR 14, at [24].)
Briggs and Rees: 2005, Preface to the Fourth Edition, p.v.
Messier-Dowty v Sabena [2000] 1 WLR 2040.
Franzosi: 1997, p384.
Transporti Castelletti v Hugo Trumpy, C-159/97, [1999] ECR I-1597.
Supra p4.
Opinion of A.G. Lger in Gasser, at [88].
When Gasser came before the ECJ, there was already a delay in Italian proceedings of 3
years in determining jurisdiction.
Fawcett: 2007, p15.
Kudla v Poland [2000] ECHR 512.
Fawcett: 2007, p4.
Law no.89 of 24 March 2001.
However, even this has breached Article 6(1): Riccardo Pizzati v Italy [2006] ECHR 275, at
[66]; Mance suggests that the Act only partially solved if not repatriated the ECtHRs
overwhelming number of claims in this respect (Mance: 2004b, p357.) Notwithstanding,
since 1999, there has been a trend of continuous breach, the ECtHR having adopted more
than 1,000 judgments against Italy (Riccardo Pizzati, at [66].)
As Briggs and Rees note, the ECHR might as well have been part of the law of Mars for all
the impact it had. (Briggs and Rees:2005, para.2.198.)
Soering (n14), at [113].
Matthews v United Kingdom [1999] ECHR 12.
Hartley: 2005b, p821 n35; the most important example of a conflict of treaties: Hartley:
2001, p26.
Briggs and Rees: 2005, para.2.38.
An approach recognised by both Mance (Mance: 2004a, paras.6-7) and Hartley (Hartley:
2005a, p383.)
ERT v DEP C-260/89 [1991] ECR I-2925, at [41]; Bosphorus Airways v Ireland (2006) 42
EHRR 1,at [73]; particularly for Article 6: Philip Morris International Inc v Commission of the
European Communities [2003] ECR II-1, at [121].

Tip: Suggest Improvements for the Future

It may be that, in the course of the research for your dissertation, you discover previous decisions and
actions that may happen again in the future. You may want to suggest that there is such a risk in the
future and that there are ways in which that risk can be guarded against. You may also want to state
challenges with implementing such safeguards. For instance, in the below section, there is comment
that the ECJ is, sometimes, so myopic that its stance wont budge.

3.3.3. Future Application

The ECtHR has held that a failure by a national court to make a preliminary reference to the
ECJ could be a breach of Article 6 ECHR in certain circumstances. Thus, it is arguable that
where similar facts to Gasser arise again, the domestic court may have to make a reference
to the ECJ, and in doing so, show cogent evidence of the risk of a flagrant breach, unlike
that presented to the ECJ in Gasser. In this context, the ECJ will have another chance to
take human rights seriously, with the opportunity to apply Article 307 EC complementing
Article 71 of the Brussels Regulation and jurisprudence both of the ECJ and ECtHR.
Notwithstanding, given the ECJs swift dismissal of human rights concerns in Gasser in
favour of the inflexible system of lis pendens, it appears unlikely that it would permit
exception in the future. For the ECJ legal certainty under the Brussels regime is clearly more
Tweet significant than legal certainty either through party autonomy under jurisdiction
agreements or through the right to a fair hearing within a reasonable time. As Merrett
notes, [t]he ECJ simply does not see questions of jurisdiction as being concerned with
private rights at all, a stance which will need to change, particularly in light of the pressing
atmosphere of todays human rights culture.

Share Endnotes

Soc Divagsa v Spain (1993) 74 DR 274.

Legal certainty is perhaps more significant under the Brussels Regulation, particularly
illustrated by the addition of Article 30.
Cf. A.G. Lger in Gasser, at [70].
Merrett: 2006, p332. Hartley notes that this is perhaps not surprising given that the ECJ is
more concerned with public law, and as such, should be expected to give more weight to
State interests, rather than the interests of private parties (Hartley: 2005b, pp814-815.)

Take a proposition that has never been discussed and debate it

Another thing that truly separates a first class dissertation from a second class one is discussion of
ideas and issues that have never before been discussed. The following is an example of such a
proposition and discussion, all of which stemmed from one footnote in an academic article that said a
certain proposition had never been discussed before in the courts of the UK. Finding this loophole
was essential to the dissertations success.

3.4. Conflict with Forum non Conveniens

An export of Scots law, forum non conveniens was accepted into English law in Spiliada
Maritime Corporation v Cansulex Ltd, becoming indistinguishable from Scots law. Under
the Spiliada test, there are two stages: first, the defendant must show that there is some
other available forum which is clearly more appropriate for the trial of the action, upon
which a stay will ordinarily be granted; second, upon the first stage being satisfied, it is for
the claimant to show, through cogent evidence, that justice requires that a stay should not
be granted.

Advocate General Lger has suggested explicitly that the forum non conveniens doctrine,
as operating under this Spiliada test, may be incompatible with Article 6, given that the
steps involved for the claimant in its application have a cost and are likely considerably to
prolong the time spent in the conduct of proceedings before the claimant finally has his
case heard. Although the UK courts have never discussed this proposition, there is a
potential that forum non conveniens is indeed incompatible with the reasonable time
requirement in Article 6.

3.4.1. General Operation

Since the place of trial is decided through the exercise of judicial discretion, it is axiomatic
that additional cost and time will be incurred in the domestic court, which may appear
somewhat inappropriate in light of the parties having to litigate in order to determine
where they shall litigate. Notwithstanding, given that the same forum will rarely be in the
best interests of all parties, particularly highlighted by different choice of law rules, choice
of forum is of crucial importance and rightfully so contested. In this respect alone, the time
and cost involved may be justified. Moreover, it should be noted that it is the defendant
who asks for a stay, thus incurring additional expenses, which expenses he might be
expected to pay.

Application for a stay is usually, and perhaps ought to be, made early. Procedural time-
limits are set for such an application, despite the court retaining its discretionary power to
stay proceedings. Notwithstanding, the longer an application is left, the greater the threat
of the proceedings not being aborted as a matter of judicial reluctance. Moreover, if Lord
Templemans view that submissions should be measured in hours not days with the rarity
of appeals holds true, such time and expense should be contained to a minimum. This can
be contrasted with the American experience of the doctrine, where forum non conveniens
can produce forum battles that can last for years, such that the doctrine may even be
Tweet labelled a delaying tactic.

3.4.2. First Limb of Spiliada

As noted, there are various circumstances which can justify delay under Article 6. In
assessing the complexity of a case, consideration is given to the number of witnesses , the
need for obtaining expert evidence and the later intervention of other parties. It can be
seen that these factors mirror the appropriateness factors considered under the first limb
of the Spiliada test.

Thus, in Lubbe v Cape Industries Plc the emergence of over 3,000 new claimants gave
greater significance to the personal injury issues, the investigation of which would involve a
cumbersome factual inquiry and potentially a large body of expert evidence, such that
South Africa was rightfully identified as the most appropriate forum under the first limb of

Moreover, in Spiliada, similar litigation had already taken place over another vessel, the
Cambridgeshire, such that the proceedings would be more appropriate in England. Termed
the Cambridgeshire factor, it is persuasive where advantages of efficiency, expedition
and economy would flow naturally from the specialist knowledge gained by the lawyers,
experts and judges in the related proceedings. However, successful use of this factor has
been extremely rare.

Although conveniens means appropriate, not convenient, considerations of

convenience and expense are still relevant. Thus, in both The Lakhta and The Polessk , a
stay was granted because the dispute could be resolved more appropriately in the Russian
Court at far less expense and far greater convenience for those involved, in light of, inter
alia, the availability of witnesses and other evidence.

Further, speed of a trial itself may be decisive in balancing appropriateness factors. For
example, in Irish Shipping Ltd v Commercial Union, although the courts of both England
and Belgium were appropriate, the dispute could be resolved more quickly in the English
court given the more complex position of the plaintiffs title to sue under the governing
law in Belgium; therefore a stay of the English proceedings was refused. Moreover, the
availability of an early trial date is material in determining the most appropriate forum ;
indeed, speedy justice is usually better justice.

It can therefore be seen that the factors considered in the first limb of the Spiliada test
reflect the justifications for delay under the reasonable time requirement of Article 6(1) and
indeed consideration of these factors may result in an overall speedier trial. Hence,
determining whether or not to apply the forum non conveniens doctrine is more than
justifiable. Further, it is worth considering whether delay by the foreign court itself can be


Sim v Robinow (1892) 19 R 665.

[1987] AC 460.
Crawford and Carruthers: 2006, pp157-158.
Spiliada (n13), pp474-477.
Opinion of A.G. Lger in Owusu (n29), at [270]. Hare perceives that paragraph 42 of Owusu
is strangely reminiscent of A.G. Lgers suggestions: Hare: 2006, p172 n.96.
Fawcett; 2007, p9.
Slater: 1988, p554; Robertson: 1987, p414; Zhenjie: 2001, p157.
Cf. Spiliada (n72), p464 per Lord Templeman.
Crawford and Carruthers: 2006, p157.
Bell: 2002, paras.2.40-2.42, 2.58.
Svantesson: 2005, pp411-412.
Briggs and Rees: 2002, p220.
Despite potential for re-application: Owens Bank Ltd v Bracco [1992] 2 AC 433, p474.
E.g. in England, CPR Part 11.
Tweet Ibid., r.3.1(2)(f).
Briggs and Rees: 2005, pp324-325.
Spiliada (n72), p465.
E.g. Lacey v Cessna Aircraft (1991) 932 F.2d 170.
Green: 1956, p494.
Supra p8.
Share Andreucci v Italy [1992] ECHR 8.
Wemhoff v Germany (1968) 1 EHRR 55.
Manieri v Italy [1992] ECHR 26.
[2000] 1 WLR 1545.
[2000] 2 Lloyds Rep. 383, p391; however, a stay was not granted because substantial
justice could and would not be done in the South African forum under the second limb of
Spiliada, see infra p25.
Spiliada (n72), p469.
Ibid., p486.
Collins et al: 2006, para.12-030 n.34.
The Atlantic Star [1974] AC 436, p475; Spiliada (n72), pp474-475.
Hill: 2005, para.9.2.23; wastage of cost is an important consideration in granting a stay,
whether under forum non conveniens or not (Carel Johannes Steven Bentinck v Lisa
Bentinck [2007] EWCA Civ 175.)
[1992] 2 Lloyds Rep 269.
[1996] 2 Lloyds Rep 40.
[1991] 2 QB 206.
Ibid., p246.
Xn Corporation Ltd v Point of Sale Ltd [2001] I.L.Pr. 35.
Ibid., at [14]

Develop that new debate and get creative

As noted in the previous post, one of the most important breakthroughs in writing your dissertation
can come from spotting a gap where something has not yet been discussed. Once writing to fill that
gap, it may be helpful to ask yourself what other angles there are to the debate. Or think about if the
matter went to an official debate or, for law dissertations, to court. Think about creative arguments
that an advocate might run and try to develop them yourself. Such development can lead to your
getting a first rather than a 2:1.

3.4.3. Second Limb of Spiliada

Delay in the foreign forum is a fundamental consideration when determining the interests
of justice at the second limb of the Spiliada test and may even be decisive if the
anticipated delay is excessive. An example pertinent to justification under Article 6(1) is The
Jalakrishna, where a delay of five years was anticipated if the case was tried in India, such
that the claimant would be prejudiced given his need for financial assistance in light of his
critical injuries in an accident. Thus, a stay was not granted, showing respect for both a
potential delay itself and what was at stake for the claimant.

Notwithstanding, such cases are rare. For example, in Konamaneni v Rolls-Royce Industrial
Power (India) Ltd, Collins J (as he then was) recognised that the Indian legal system had
made attempts to reduce its backlog of cases, such that in the absence of sufficient
evidence of an anticipated delay, it would indeed be a substantial breach of comity to
stigmatise the Indian legal system in that way, somewhat reflecting the principle that the
claimant must take [the appropriate] forum as he finds it.

Indeed, one of the major advantages of the forum non conveniens doctrine is that it
offsets the judges tendency to grab as many cases as he can and it respects the valuable
international private law principle of comity. As Lord Diplock stated in The Abidin Daver,
judicial chauvinism has been replaced by judicial comity. However, the interests of States
cannot always be reconciled with private party rights. When considering whether to stay
proceedings, in light of Article 6, the interests of States should yield to the interests of
private parties. Thus, if evidence is sufficient to show a real risk of a flagrant breach in the
foreign forum, as was not presented in Gasser, a stay should not be permitted.
Again mirroring reasonable time justifications under Article 6, additional considerations of
what is at stake in the litigation may arise and authorities may have to exercise exceptional
diligence in the conduct of certain cases. An ECtHR case, X v France shows that where a
person sought compensation following infection with the AIDS virus, what was at stake was
of crucial importance in determining the reasonableness of the length of proceedings.
Share What is at stake will be relevant and probably decisive following a stay of proceedings
under forum non conveniens, as The Jalakrishna shows. Notably, in Owusu v Jackson,
where forum non conveniens was not permitted, what was at stake for Owusu was
significant as he was rendered tetraplegic through his accident.

It can therefore be seen that forum non conveniens takes a pragmatic approach to
preventing foreseeable unreasonable delays under the second limb of Spiliada. Not only
does this further justify operation of the doctrine under Article 6(1) through direct effect, it
also greatly restricts, if not eliminates, the possibility of an indirect breach by the domestic
court, given that the risk of a flagrant breach of the right to a fair trial is a fundamental
factor of the interests of justice.

Notwithstanding, herein there are still concerns in light of Professor Fawcetts suggestion
that a hybrid human rights/international private law approach should be taken such that
Article 6 concerns should be identified first, taking into account ECtHR jurisprudence, and
thereafter it should be for the flexible second limb of Spiliada to apply to resolve these
issues. Fawcett concedes that the same result will be achieved in most cases, yet suggests
that there may be borderline cases where this solution would work better and human
rights concerns will have been taken more seriously.

However, this need for procedural restructuring of judicial reasoning is arguably not wholly
convincing, particularly given that the indirect effect doctrine under Soering requires a
flagrant breach of Article 6, not merely a standard breach; it is therefore difficult to imagine
the existence of any borderline cases as such. Moreover, in the cases of potential flagrant
breaches, the interests of justice principle has been shown to be flexible enough to prevent
stays which may breach Article 6 indirectly, regardless of the classification of the delay as a
breach of human rights or otherwise. In this respect, it is arguable that the international
private law case law could be adequately relied upon. Nevertheless, initial consideration of
ECtHR jurisprudence may have more importance than in providing a mere procedurally
attractive measure; it may guide and influence those who fail to see the pressing
importance of human rights today and will at least effect compliance with the Section 2 of
the HRA 1998 which demands that such jurisprudence be considered wherever Convention
rights are in issue.


The Vishva Ajay [1989] 2 Lloyds Rep 558, p560; Chellaram v Chellaram [1985] 1 Ch 409,
pp435-436; cf. The Nile Rhapsody [1992] 2 Lloyds Rep 399,pp413-414, where Hirst J gave
minimal weight to the delay factor upon direction by the appellate courts.
[1983] 2 Lloyds Rep. 628.
Hill: 2005, para.9.2.38.
[2002] 1 WLR 1269.
Ibid., at [177].
Connelly v RTZ Corpn plc [1998] AC 854, p872.
[1984] AC 398.
Ibid., p411.
A and others v Denmark [1996] ECHR 2, at [78].
[1992] ECHR 45.
[1983] 2 Lloyds Rep.628.
Notwithstanding, the ECJs taking 2 years to produce its judgment did not go towards
acknowledging the express request by the English Court of Appeal to provide reasonably
quick compensation. Of course, time taken for a required preliminary reference from the
ECJ is entirely justified under Article 6 (Pafitis v Greece (1999) 27 EHRR 566, at [95].)
Fawcett: 2007, pp36-37.
Tweet Such that length-of-proceedings cases (see supra pp.7-8) should be consulted in the
context of unreasonable delay.

Put your foot in the icy water: Dont be afraid to come to powerful conclusions

A dissertation that is written with balanced conclusions is a boring one. Reasoned opinion is
important. Nothing would get done in this world if we said X is right, but Y is equally right, so lets
just leave things the way they are. Sitting on the fence may well get you a good upper second class
award but there is little chance of it getting you a first. A certain English teacher, Sandra MacCallum, at
Kyle Academy once taught that, sometimes, youve got to put your foot into the icy water. Dont be
afraid to come to powerful conclusions. Hopefully the below example, with a reasonable, opinionated
attack on the ECJs lack of respect for the common law principles of the Scottish export doctrine forum
non conveniens, illustrates the significance of this suggestion.

3.5. Conclusions

It is perplexing that in Owusu Advocate General Lger, and perhaps indirectly the ECJ,
suggested that applying forum non conveniens may be incompatible with the reasonable
time requirement of the right to a fair trial under Article 6(1), whereas analysis of its
proper operation shows that it is compatible and may even be a useful tool in providing
faster and more economic litigation.

Although it is at least somewhat refreshing to see ECHR arguments being acknowledged in

an international private law context without encouragement, it is nevertheless peculiar that
Article 6 concerns have been identified in relation to forum non conveniens, one of the
most civilised of legal principles as Lord Goff of Chieveley put it, when the ECJ did not
properly apply or even consider Article 6 in Gasser, where the need for its recognition was
much more significant. The ECHR is not an optional instrument that can be applied to
justify a course of reasoning, however misguided, on the one hand and dismissed when
apparently greater considerations require it on the other; careful legal analysis is required
for its operation, which analysis does not appear to have been applied or even respected
by the ECJ.

A fresh perspective

Separating a dissertation into manageable chunks from the initial stages of structural planning gives
you freedom to start afresh to write about a different but related topic once concluding another
section. Access to a court, for instance, is a separate right from the right for a trial to be heard and
decided within a reasonable time. It, thus, merits a separate chapter with its own introduction,
subsections and conclusions.


4.1. Operation in Article 6

The fair, public and expeditious characteristics of judicial proceedings expressed in Article 6
would be of no value at all if there were no judicial proceedings. Thus, referring to the rule
of law and avoidance of arbitrary power, principles which underlie much of the ECHR, the
ECtHR has held that the right of access to a court is an element inherent in Article 6(1).
Although this right is not absolute, any limitation must not restrict access to such an extent
that the very essence of the right is impaired, provided that a legitimate aim is pursued
with proportionality between the limitation and that aim. The potential for this right to
arise in the civil jurisdiction context is high, given the intrinsic nature of the operation of
jurisdiction rules.

4.2. Anti-Suit Injunctions

A denial of access to a foreign court and, therefore, a potential Article 6 violation will occur
through the grant of an anti-suit injunction, which seeks to restrain foreign proceedings.
This issue arose in The Kribi, where the claimants sought an anti-suit injunction to restrain
Belgian proceedings brought in contravention of an exclusive jurisdiction agreement.
Aikens J held that Article 6does not provide that a person is to have an unfettered
Tweet choice of tribunal in which to pursue or defend his civil rights . Moreover, Article 6does
not deal at all with where the right to a [fair trial] is to be exercised by a litigant. The crucial
point is that civil rights must be determined somewhere by a hearing and before a tribunal
in accordance with the provisions of Article 6.

Therefore, a court granting an anti-suit injunction, in the very limited circumstances in

Share which it can now do so, would not be in breach of Section 6 of the HRA 1988 where
another available forum exists. Contrastingly, Article 6 challenges remain for the single
forum cases, where there is only one forum of competent jurisdiction to determine the
merits of the claim, despite the cases already being treated differently. In such a case, the
exemplary approach of Aikens J would easily resolve such human rights issues.

Ultimately, in a commercially welcome judgment, human rights arguments were made and
received properly. Moreover, Aikens J logically dealt with the human rights points first.
Hence the case is a working model for Fawcetts hybrid approach where human rights
should be considered first before international private law principles. Contrasting with
stays producing concerns of unreasonable delays, in this context of access to a court there
is more impetus to follow Fawcetts model, particularly given that such denial of access can
constitute a direct breach of Article 6, thus producing a more realistic threat of
contravention of Section 6 of the HRA 1998.

4.3. Exclusive Jurisdiction Agreements and Waiving Convention Rights

Another instance pertinent to Article 6 is where a person has no access to the courts of the
UK because of the enforcement of an exclusive jurisdiction agreement. Convention rights
can, in general, be waived, including the right of access to a court under Article 6, which
can occur where a jurisdiction agreement or agreement to arbitrate is valid and
enforceable, but not where a person entered into the agreement without voluntary

Generally, rights will be waived under a jurisdiction agreement meeting the requirements
of Article 23 of the Brussels Regulation. However, as Briggs and Rees note, there may be
instances, somewhat unattractive, where a party is bound by such a jurisdiction agreement
without voluntary consensus as such, such that his right of access to a court may not have
been waived, reflecting the more prudent stance taken towards compulsory alternative
dispute resolution. Notwithstanding, Article 6 will be upheld provided there is another
available court.

4.4. Limitations on Jurisdiction

It is axiomatic that limitations on jurisdiction may restrict access to a court. The ECtHR has
held that limitation periods are generally compatible with Article 6, particularly for reasons
of legal certainty, provided that they are not applied inflexibly. This compatibility should
encompass a stay under forum non conveniens for a forum barred by limitation, which is
granted only where the claimant was at fault by acting unreasonably in failing to
commence proceedings in the foreign court within the applicable limitation period.

Contrastingly, blanket limitations are a more difficult species. An example of a blanket

exclusion on jurisdiction is the English common law Moambique rule, which provides that
title to foreign land should be determined only at the situs of the land. This may conflict
with Article 6 because of a denial of access to an English court. Although this proposition
may be unfounded, particularly where access to a court is available somewhere, the
exclusion on jurisdiction may still be challenged on Article 6 grounds if disproportionate its

Such proportionality concerns were considered in Jones v Ministry of the Interior of the
Kingdom of Saudi Arabia. Following Al-Adsani v United Kingdom , a blanket limitation on
jurisdiction was accepted because the grant of sovereign immunity, which restricted access
to a court, pursued the legitimate aim of comity through compliance with international law
and was proportionate. Notwithstanding, underpinning this reasoning is an inevitable
tension between the interests of States and private parties, such that Mance LJ (as he then
was) in the Court of Appeal produced his judgment in light of ECHR considerations, taking
Tweet a more flexible approach supportive of human rights.

Mark v Mark also illustrates such inflexibility and proportionality considerations. The
limitation in that case prevented access to the English courts, which may have been the
only available courts, through a particular rule of public policy. This rule was therefore seen
by Thorpe LJ to be incompatible with Article 6 and hence the HRA 1998. Contrastingly, in
Share the House of Lords, Baroness Hale affirmed the decision on different grounds, dismissing
ECHR considerations, such that she perhaps did not take human rights concerns entirely

Although access to some court will be available following most limitations, the few cases
where access would be denied to the only available court under a limitation warrant special
attention in light of protection of the right to a fair trial. Such attention has been properly
given on occasion, as demonstrated by both Mance and Thorpe LJJ. However, this
approach is not consistently followed, shown by the dangerous approach of Baroness Hale.

4.5. Interaction with Forum non Conveniens

In Lubbe v Cape Industries Plc, the defendant asked for a stay of proceedings. After
identifying South Africa as the natural forum, the Court was faced with the argument that
the stay would breach Article 6 because the complexity of the case and lack of funding
were such that the claimant could not sue in that foreign court.

After applying the Spiliada principles, which provided that a stay should be refused
because the claimant could not obtain justice in the foreign court, Lord Bingham then
turned to the Article 6 arguments and noted simply that I do not think article 6 supports
any conclusion which is not already reached on application of Spiliada principles.
Although the right to a fair trial was acknowledged and indeed protected under the refusal
to grant a stay, the procedure in reasoning lowered the importance of human rights as the
Spiliada principles took precedence to application of Article 6. Thus, if the Lubbe approach
was followed in the future and a stay was granted to a foreign court in which there was a
risk of a flagrant breach, the court may indirectly breach Article 6 in addition to Sections 2
and 6 of the HRA 1998.

Similar techniques to that employed by Lord Bingham have been used in other forum non
conveniens cases. For example, in The Polessk, the extent to which evidence showed the
right to a fair trial in the St. Petersberg Court was considered under the second limb of the
Spiliada test. Moreover, as discussed, reasonable delay has been considered consistently,
although somewhat effectively, within this second stage of Spiliada.

As noted, these latter instances show a sufficient degree of reconciliation with at least the
indirect effect of Article 6, regardless of the characterisation of the breach as one of Article
6 or otherwise, particularly because it is difficult to imagine borderline cases amounting
to flagrant breaches of Article 6, as Fawcett suggests. This analysis can be applied equally
to the facts of Lubbe where access to the foreign court clearly did not exist, such that a
stay would unequivocally produce a flagrant breach. It may be suggested that other cases
are not so easy to evaluate, such as in determining whether access to a court exists
through lack of legal aid, as Santambrogio v Italy illustrates. Nevertheless, surely if the
decision is a difficult one to make, then the breach cannot be flagrant and, as such, there
cannot be an indirect breach of Article 6. However, as noted, a procedural shift in judicial
reasoning will have undoubted procedural benefits, if at the very least it effects compliance
with Section 2 of the HRA 1998.


Golder v. United Kingdom [1975] ECHR 1, at [35].

Ibid., at [34]-[35].
Ibid., at [36]; this includes the right to a determination of proceedings on the merits
(Gorbachev v Russia, No. 3354/02, 15 February 2007.)
Ibid., at [38].
Winterwerp v The Netherlands [1979] ECHR 4, at [60], [75].
Ashingdane v United Kingdom [1985] ECHR 8, at [57].
Tweet OT Africa Line Ltd v Hijazy (The Kribi) [2001] Lloyds Rep 76; now overruled on the specific
point for decision (Turner v Grovit and Others [2005] AC 101).
The Kribi (n131), at [42].
Ibid., at [42].
Following Turner v Grovit (n131), a court cannot grant an anti-suit injunction against a
party who has commenced an action in a Brussels Convention State.
Share British Airways v Laker Airways [1983] AC 58,at [80].
The Kribi, (n131),at [41].
Fawcett: 2007, pp36-37.
Pfeiffer and Plankl v Austria (1992) 14 EHRR 692; cf. Loucaides: 2003, pp48-50.
Deweer v Belgium (1979-80) 2 EHRR 439; indeed, this is a natural consequence of [the
parties] right to regulate their mutual relations as they see fit. (Axelsson v. Sweden,
no.11960/86, 13 July 1990.)
Malmstrom v Sweden (1983) 38 DR 18.
Cf. under the common law (The Pioneer Container [1994] 2 AC 324); Briggs and Rees: 2005,
E.g. a person not party to a bill of lading bound by a jurisdiction agreement between
shipper and carrier.
Briggs and Rees: 2005, pp18-19.
See generally Schiavetta: 2004, paras.4.2-4.21.
Stubbings v United Kingdom [1996] ECHR 44, at [51].
Briggs and Rees: 2005, p20 n.101.
Spiliada (n72), pp483-484.
British South Africa Co v Companhia de Moambique [1893] AC 602; for Scotland, Hewits
Trs v Lawson (1891) 18 R 793.
Briggs and Rees: 2005, para.4.06.
[2006] UKHL 26.
34 EHRR 273.
Cf. Markovic v Italy [2006] ECHR 1141, which held that although there was no blanket
limitation on jurisdiction through sovereign immunity and that access to a court had been
afforded, access was nevertheless limited in scope, such that the applicants could not
receive a decision on the merits.
[2005] QB 699.
[2004] EWCA Civ 168, at [40].
[2006] AC 98.
Fawcett: 2007, p34.
[2000] 1 WLR 1545.
Lubbe (n157), p1561.
Further, no relevant decisions of the ECtHR were relied upon in the judgment e.g. Airey v
Ireland [1979] ECHR 3 where representation costs were very high and the procedure was
too complex and would evoke emotions too great for the applicant to present her case. Cf.
Santambrogio v Italy [2004] ECHR 430 (post-Lubbe), where legal aid was deemed
unnecessary in the circumstances.
Fawcett: 2007, p.11.
(n102), p51.
Supra pp.17-19.
Supra p.19.

Get creative!

Creative argument is essential if youre going to get a first. Perhaps only unless your tutor or professor
doesnt know the topic well can you get away rehashing old argument and ideas that have been
discussed thousands of times before. Having worked with academia in trying to commercialise
intellectual property rights (IP), through, for instance, spin-off companies, it is clear that innovation is
crucial for the business models of universities. It goes something like this: University teaches its
students; Students produce research in which they and/or the university have IP, such as copyrights or
patents; Student and/or university commercialises that IP by selling or licensing it to journals or other
entities, such as companies. Money, then, gets reinvested into the system or society, which gets to
work with the new innovation or improvement. The below argument is example of how such creativity
can light up your dissertation, add value to your University and get you a better mark overall.

4.6. Owusu v Jackson

Further relevance of Article 6 can be seen in the context of the ECJs analysis of forum non
conveniens in Owusu v Jackson. Fundamentally wrong, the ECJ believed that a defendant
would not be ablereasonably to foresee before which other court he may be sued.
However, it is the defendant who asks for a stay and thus his foreseeability of a stay in this
respect is secured.

Article 6 is underpinned by the principle of legal certainty. Although legal certainty has
specific provision in some articles of the ECHR, it is not confined to those articles; the
specific provisions require domestic law to be compatible with the rule of law, a concept
inherent in all the articles of the Convention. Legal certainty comprises the particularly
significant aspect of foreseeability. In this regard, the ECtHR has noted that: a norm
cannot be regarded as a law unless it is formulated with sufficient precision to enable the
citizen to regulate his conduct: he must be ableto foresee, to a degree that is reasonable
in the circumstances, the consequences which a given action may entail. It is at least
arguable that this would encompass procedural certainty emanating from rules of

If the forum non conveniens doctrine permitted stays without the defendants asking, the
defendant would have such little legal certainty that there may even be an arguable
infringement of his right to a fair trial under Article 6, not only incompatible with the
higher test of legal certainty of jurisdictional rules under the Brussels regime. This would
result from the defendants lack of foreseeability as to where proceedings against him
would take place. Contrastingly, cogent arguments can be made against forum non
conveniens, inter alia, because of the uncertainty for the claimant. Notwithstanding, it
could be said that his rights under Article 6(1) are upheld through his right of access to a
court somewhere else. Moreover, he would have much more legal certainty than that of
the defendant under the ECJs interpretation of forum non conveniens because stays under
proper operation of forum non conveniens are granted, to some extent, within the confines
of regulated and foreseeable discretion.

It can therefore be seen that the ECJ had analysed something which would be incompatible
not only with Scottish and English law, but also with the ECHR and HRA 1998. Although a
proper analysis of forum non conveniens would probably not have altered the outcome of
Owusu, it would have been much more respectable to the common law, already set to be
dismantled through an inevitable course of Europeanization, not to knock down, to some
extent, a straw man.

4.7. Conclusions

It is clear that there are disparate approaches to the right of access to a court, perhaps
emanating in part from varying attitudes to the importance of human rights. Most civil
jurisdiction cases will involve access being denied to one court, while access to another is
still available. These will generally not breach Article 6 since there is no right of preference
of court under Article 6 as Aikens J held in The Kribi, a judgment fully respectable of
human rights. Contrastingly, in the limited number of cases which do yield Article 6
concerns, respect for human rights has been inconsistent, a worrying position particularly
in light of the recognition of new, potential Article 6 challenges, such as in the areas of
exclusive jurisdiction agreements and limitations on jurisdiction. Notwithstanding, such
concerns may be unfounded, given the flexibility of international private law rules, such as
the demands of justice under the second limb of Spiliada, which can effectively prevent
indirect breaches of Article 6.

Except in exceptional circumstances: Collins et al: 2006, para.12-006 n.20.
E.g. Articles 5 and 7.
Reed and Murdoch: 2001, para.3.33.
Tweet Amuur v France [1996] ECHR 20, at [50].
Reed and Murdoch: 2001, para.3.36.
Sunday Times (No1) v United Kingdom [1979] ECHR 1, at [49].
Harris: 2005, p939; despite a lack of express mention by the ECJ in Owusu (n29); cf. Opinion
of AG Leger in Owusu, at [160].
Hartley: 2005b, pp824-828; cf. Mance: 2007.
Share (n72).

Add Another New Topic

The following is a different slant on the fundamental theme of the dissertation.


5.1. Recognition of Contracting State Judgments

An indirect breach of Article 6 may occur where a court recognises and thus enforces a
judgment obtained in foreign proceedings contrary to the requirements of Article 6. Little
challenge is presented where that judgment is obtained in a court of a State party to the
ECHR; in such a case, recognition can be refused through Article 6 which is a facet of public
policy under Article 27(1) of the Brussels Convention.

Notably, Article 34(1) of the Brussels Regulation provides that the recognition must be
manifestly contrary to public policy, implying a higher threshold than in Article 27(1). The
difference in wording is uncertain, but it is hoped that it will not be used to sweep mere
procedural defects under the rug. Indeed, the importance of the right to a fair trial to the
rule of law cannot be underestimated and thus it is arguable that any breach of Article 6
will be manifestly contrary to public policy. Notwithstanding, if the phrases manifestly
contrary to public policy and a flagrant breach of the ECHR were to be compared, it may
be just as arguable that a manifest breach of Article 6, not a standard one, is required for
the operation of Article 34(1) of the Brussels Regulation. However, this may not be
unwarranted in the context of judgments of Contracting States, as noted.

Through Krombach v Bamberski , the housing of Article 6 under public policy effectively
creates a hierarchical system, whereby EC rules have precedence over human rights rules,
particularly because of the ignorance of the indirect effect doctrine. However, this may not
be wholly unwelcome in light of the potential existence of a common EC public policy,
somewhat emanating from the harmonisation through the ECHR in 1950. Moreover, as
Meidanis suggests, the ECJ appears to see the protection of human rights as the common
core of the European public policy and is prepared to sacrifice the basic principle of the
free movement of judgments of the Brussels Convention to ensure protection of human
rights. Notwithstanding, as noted, in other contexts, the ECJ does not so respect human
rights, particularly highlighted by its emphatic rejection of Article 6 in Gasser. Although the
flexibility through the public policy exception does not extend to the rules relating to
jurisdiction, there are other mechanisms for protecting human rights within the Brussels
Convention and, especially, the Brussels Regulation.

5.2. Recognition of Non-Contracting State Judgments

More difficulty arises with recognition of a judgment obtained in a non-Contracting State.

5.2.1. European Court of Human Rights

Such recognition was permitted without reference to Article 6 in Drozd and Janousek.
However, in Pellegrini v Italy, the ECtHR held that the Italian court could not recognise a
judgment obtained in a Vatican City court in contravention of Article 6 standards. This was
so despite a Concordat between Italy and the Vatican requiring such recognition. Pellegrini
can be considerably demarcated from the Soering/Drozd line of cases, which requires a
flagrant breach to have occurred in the non-Contracting State, the underpinning theory
being the reduced effect of public policy. Instead, Pellegrini requires full compliance with
Article 6 standards as if the foreign court were party to the ECHR, such that failure to
review a judgment against which standards is a risky practice.
Notwithstanding, the actual breach of Article 6 standards in Pellegrini was flagrant, despite
the courts omission of this, and therefore the judgment may not represent such a large
departure from Drozd. Moreover, the reduced effect of public policy approach of Drozd
was followed eight days prior to Pellegrini in Prince Hans-Adam II of Liechtenstein v
Germany. However, it is difficult to distinguish Hans-Adam II on its facts particularly given
Share the sweeping reasoning in Pellegrini. Thus, as it stands, Pellegrini is the leading authority,
prescribing the need for a review of foreign judgments against full Article 6 standards,
ensuring full protection for the right to a fair trial. It is nevertheless hoped by some that the
case will be revisited, perhaps with the preference of a variable standard.

Further, a dictum in Pellegrini may have the effect of requiring such review only where the
judgment emanates from the courts of a State not party to the Convention. Hence, as
Kinsch submits, an a contrario reading may be imputed, such that review of Article 6
standards is optional where the judgment emanates from a Contracting State. However,
this may not be wholly unwelcome given that the Member States of the EU are party to the
ECHR in addition to the Brussels Convention and Regulation, which seek to limit the power
of public policy from preventing recognition of judgments.

5.2.2. House of Lords

In stark contrast to Pellegrini, the House of Lords in Montgomery required a flagrant

breach in the United States, a non-Contracting State, for the judgment not to be
recognised. Such a flagrant breach was not created in the United States and hence
recognition of a judgment breaching regular Article 6 standards was permitted.

In its judgment, the House of Lords attempted to distinguish Pellegrini through the
existence of the Concordat between Italy and the Vatican City, which required Italy to
ensure that the Vatican courts procedure complied with the fundamental principles of
Italian legal system, one being Article 6. However, this is hard, if not impossible, to
understand, particularly since it assumes that the Concordat of 1929, as amended, could
incorporate ECHR standards, when the Vatican City deliberately refused to subscribe to the
ECHR. Further, the ECtHR in Pellegrini did not suggest in its judgment that the relationship
between Italy and the Vatican was material to its decision. Therefore, Montgomery is seen
to be wrong in so distinguishing Pellegrini.

Briggs and Rees further suggest that the House of Lords applied the wrong test in
Montgomery because of the analysis of deportation cases, such as Soering. In such a case,
a prediction is required, whereas in Montgomery, or indeed in any case concerning
recognition, there was no need for such a prediction as the foreign judgment could already
be seen to have breached Article 6. However, Soering requires that the person has
suffered or risks suffering a flagrant denial of a fair trial (emphasis added.) If he has
already suffered a breach, there is no need for a prediction to be made; instead, the reason
for the standard of flagrancy is based on the reduced effect of public policy theory, an
approach followed in Drozd, as noted.

The reasoning of Briggs and Rees in this respect is akin to that of the Court of Appeal in
Montgomery where Lord Woolf CJ stated that the reference in [Soering at [113]] to a
future flagrant breach of Article 6 was no more than a dicta which should not be applied to
the enforcement of a court order of a non-Contracting State. However, Drozd, which was
not cited to, or considered by, the Court of Appeal, expressly requires such a flagrant
breach of Article 6 if enforcement of a court order of a non-Contracting State is to be
denied, which clearly has nothing to do with making predictions.

Instead, as Briggs and Rees indeed note, the reason why the House of Lords applied the
wrong test in Montgomery is that Pellegrini, the leading ECtHR authority which overrides
Drozd, was wrongly distinguished and therefore permitted recognition of a judgment in
contravention of ECHR jurisprudence. It may be argued that this was not a case of human
rights not being taken seriously, but was merely a case of wrongful interpretation of
human rights law, yet this could only be accepted upon an assumption of the
incompetence of the House of Lords.

Tweet 5.3. Conclusions

The leading authority of the ECtHR on operation of the indirect effect doctrine with respect
to recognising foreign judgments, Pellegrini demands a review of full compliance with
Article 6 standards of foreign judgments, perhaps limited to those emanating from non-
Contracting State courts. Through this, the right to a fair trial can be fully upheld in
national courts and, in the UK, breach of Section 6 of the HRA 1998 can be avoided.
Notwithstanding, the House of Lords effectively got human rights wrong, thus paving the
way forward for reduced protection of Article 6 in the UK. However, this area is not devoid
of hope; to effect compliance with this framework, Montgomery must be overturned,
which does not appear too remote a possibility given the extensive criticism of the case.

How to conclude a first class law dissertation

The conclusion to your dissertation is, arguably, the most important part and is, therefore, potentially
a major differentiator between a first class dissertation and a second class one.

There are three things which you should bear in mind:-

1. A well-written dissertation, thesis, essay or, indeed, any story should have three main parts to it: an
introduction; a main body; and a conclusion. It reflects any good piece of oratory: say what youre
going to say, say it, then say what youve said. In your conclusion, you are, thus, trying to tell the
audience what youve said throughout your dissertation. If the word limit is 10,000 words, 800-1000
words should, ideally, be used on your conclusion;

2. Dont be afraid to put your foot into the icy water. As stated in an earlier section you should not be
afraid to come to powerful conclusions even if they challenge the views of other academics,
practitioners or even the general public, provided that your views can be fairly and reasonably
supported. Which brings us to the third and most important aspect of any conclusion;

3. A well drafted conclusion should refer back to your analysis throughout your dissertation to support
your suggested conclusions; it should not allow you to raise new arguments or thoughts which you
havent already considered. Think about it like a civil proof in court: you conduct an examination-in-
chief in which you ask open questions to get evidence from your witness; your opponent then cross-
examines your witness to test their evidence; you then get a chance to re-examine the witness but you
do NOT get a chance to raise anything new that was not covered in cross.

The conclusion to my dissertation, different from my Juridical Review version, is as below. Given the
recent Supreme Court criminal law decision of Cadder v HMA, for which see the ScotsLawBlog Cadder
article, the final words on getting human rights right attract even greater significance.


The right to a fair trial has produced much concern in the conflict of laws arena today, a
particular result of the evolution of a more stringent human rights culture in the United
Kingdom. In the field of civil jurisdiction, the right to a trial within reasonable time and the
right of access to a court, two of the most fundamental substantive rights of Article 6
ECHR, have emerged; in the sphere of recognition and enforcement of foreign judgments,
the indirect effect doctrine, a key procedural element of the ECHR, which protects the right
to a fair trial indirectly but nevertheless just as significantly, has arisen.

International private law mechanisms exist for the reconciliation of Article 6 with the sphere
of civil jurisdiction and judgments. The extent to which these can be utilised to protect the
right to a fair trial is undoubtedly immense. At the most extreme end of protection,
Fawcetts hybrid model could provide great procedural legal certainty, such that human
rights concerns will be identified first, using ECtHR jurisprudence, following which
international private law mechanisms can resolve these concerns with their inherent
This strict approach is not unwarranted, particularly where judges fail to see the function or
even importance of human rights. Pertinent examples include the misapplication of human
rights by the House of Lords in Montgomery , which indeed must be rectified, and other
Tweet approaches not confined to the courts of the United Kingdom; for instance, the
embarrassingly misguided approach of the ECJ in Gasser , where it refused to recognise
human rights concerns in its myopic pursuit of the objectives of the Brussels regime,
unyielding with respect for concerns of private parties, when there were measures available
for reconciliation. This appears even more inadequate in light of Advocate General Lgers
later suggestions that forum non conveniens may actually be incompatible with Article 6,
Share when the doctrine is more than justifiable as it seeks to produce faster and more economic
litigation, through both the first and second limbs of Spiliada.

Notwithstanding, the need for Fawcetts model is more questionable in other situations; for
instance, in those cases involving potential indirect breaches of Article 6 when transferring
actions abroad, flexible international private law mechanisms appear to have been applied
in a manner sufficiently compliant with the ECHR, regardless of the characterisation of the
breach as one of Article 6 or simply of the demands of justice. For example, the second
limb of Spiliada has effectively prevented stays where there is a real risk of a flagrant
breach abroad, as is the Soering threshold for such an indirect breach, whether regarding
unreasonable delay or lack of access to a court. Fawcett concedes that the overall result of
many cases will remain unchanged but suggests that borderline cases may exist which
pose as pitfalls for the courts. However, the requirement of flagrancy, as he correctly
applied at the beginning of his analysis, makes the existence of such cases difficult, if not
impossible, to imagine in practice. In this respect, Fawcett appears to be advocating an
approach extending beyond avoiding breaching Article 6; instead, he is actively aiming at
protection of a fair trial beyond the Article 6 threshold.

However, this is not unwelcome; the importance of Article 6 is so great that it is worth
adopting the strict approach. The consistent use of ECHR jurisprudence at the outset will,
at the very least, prevent a breach of Section 2 of the HRA 1998; further, it may assist those
judges who are misguided or fail to see the importance of human rights today. Ultimately,
a strict approach may provide for considerable legal certainty in a fast and growing area of
law which demands firm, human rights orientated answers.

How to write a bibliography to conclude your first-class dissertation

There are three stages for completing an abundant and competent bibliography. First, go into the
footnotes on your document, select all, copy and paste to the foot of your article, then separate into
different categories. Then, second, go back through the materials which you have read and add them.
Finally, third, sort alphabetically using Word or Excel.



A and others v Denmark [1996] ECHR 2

AG of Zambia v Meer Care and Desai [2005] EWHC 2102 (Ch), appeals dismissed [2006]
EWCA Civ 390
Airbus Industrie GIE v Patel [1999] 1 AC 119
Airey v Ireland [1979] ECHR 3
Al-Bassam v Al-Bassam [2004] EWCA Civ 857
Amuur v France (1996) 22 E.H.R.R. 533
Andreucci v Italy [1992] ECHR 8
Ashingdane v United Kingdom [1985] ECHR 8
Att. Gen. v Arthur Anderson & Co [1989] ECC 224
Axelsson v. Sweden, no.11960/86, 13 July 1990
Bensaid v United Kingdom (2001) 33 EHRR 10
Berghofer v. ASA SA Case 221/84 [1985] ECR 2699
Berisford Plc v New Hampshire Insurance [1990] 2 QB 631
Bock v. Germany [1989] ECHR 3
Boddaert v Belgium (1993) 16 EHRR 242
Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi(Bosphorus Airways) v Ireland
(2006) 42 EHRR 1
Bottazzi v. Italy [1999] ECHR 62
Tweet Brazilian Loans (PCIJ Publications, Series A, Nos. 20-21, p.122)
Bristow Heliocopters v Sikorsky Aircraft Corporation [2004] 2 Ll Rep 150
British Airways v Laker Airways [1983] AC 58
British South Africa Co v Companhia de Moambique [1893] AC 602
Buchholz v Germany [1981] ECHR 2
Carel Johannes Steven Bentinck v Lisa Bentinck [2007] EWCA Civ 175
Share Ceskoslovenska Obchodni Banka AS v Nomura International Plc [2003] IL Pr 20
Chellaram v Chellaram [1985] 1 Ch 409
Connelly v RTZ Corpn plc [1998] AC 854
Credit Agricole Indosuez v Unicof Ltd [2004] 1 Lloyd.s Rep 196
Cumming v Scottish Daily Record and Sunday Mail Ltd, The Times June 8, 1995
Darnell v United Kingdom (1993) 18 EHRR 205
Delcourt v Belgium (1979-80) 1 EHRR 355
Derbyshire CC v Times Newspapers Ltd [1992] QB 770
Deweer v Belgium (1979-80) 2 EHRR 439
Di Mauro v. Italy ECHR 1999-V
Drozd and Janousek v France and Spain (1992) 14 EHRR 745
Eckle v Germany (1983) 5 EHRR 1
Elderslie Steamship Company v Burrell (1895) 22 R 389
Elefanten Schuh GmbH v Jacqmain (Case 150/80) [1981] ECR 1671
Erich Gasser GmbH v Misat Srl, C-116/02 [2005] QB 1
ERT v DEP C-260/89 [1991] ECR I-2925
F v Switzerland [1987] ECHR 32
Ferrari v Italy [1999] ECHR 64
Foti v Italy (1982) EHRR 313
Fritz and Nana v France, 75 DR 39
Golder v. United Kingdom [1975] ECHR 1
Gorbachev v Russia, No. 3354/02, Judgment of 15 February 2007.
Government of the United States of America v Montgomery (No 2) [2004] UKHL 37
Guincho v Portugal (1984) 7 EHRR 223
H v France (1990) 12 EHRR 74
Hesperides Hotels Ltd v Aegan Turkish Holidays Ltd [1979] AC 508
Hewits Trs v Lawson (1891) 18 R 793.
Huseyin Erturk v Turkey [2005] ECHR 630.
Irish Shipping Ltd v Commercial Union [1991] 2 QB 206.
Iveco Fiat v Van Hool Case 313/85 [1986] ECR 3337
Jones v Saudi Arabia [2004] EWCA Civ 1394
JP Morgan Europe Ltd v Primacom [2005] EWHC 508
Katte Klitsche de la Grange v Italy (1994) 19 EHRR 368
Klockner Holdings GmbH v Klockner Beteiligungs GmbH [2005] EWHC 1453
Konamaneni v Rolls-Royce Industrial Power (India) Ltd [2002] 1 WLR 1269
Konig v Federal Republic of Germany (1978) 2 EHRR 170
Krombach v Bamberski Case C-7/98 [2001] QB 709
Kudla v Poland [2000] ECHR 512
Lacey v Cessna Aircraft (1991) 932 F.2d 170
Ledra Fisheries Ltd v Turner [2003] EWHC 1049
Lubbe v Cape Industries Plc [2000] 2 Lloyds Rep. 383
Malone v United Kingdom (1985) 7 EHRR 1
Malstrom v Sweden (1983) 38 Decisions and Reports 18
Manieri v Italy [1992] ECHR 26
Margareta and Roger Andersson v Sweden (1992) 14 EHRR 615.
Markovic v Italy [2006] ECHR 1141
Maronier v Larmer [2003] QB 620
Matthews v United Kingdom [1999] ECHR 12.
Messier-Dowty v Sabena [2000] 1 WLR 2040
Netherlands 6202/73 1975 1 DR 66
OT Africa Line Ltd v Hijazy (The Kribi) [2001] Lloyds Rep 76
Owens Bank Ltd v Bracco [1992] 2 AC 433
Owners of the Atlantic Star v Owners of the Bona Spes (The Atlantic Star and The Bona
Spes) [1974] AC 436
Tweet Owusu v Jackson and Others C-281/02 [2005] QB 801
Pafitis v Greece (1999) 27 EHRR 566
Pfeiffer and Plankl v Austria (1992) 14 EHRR 692
Philip Morris International Inc v Commission of the European Communities [2003] ECR II-1
Prince Hans-Adam II of Liechtenstein v Germany ECHR 2001-VIII.
R (Razgar) v Special Adjudicator [2004] 1 AC 368
Share R v Jones [2003] 1 AC 1
R. (Alconbury Developments Ltd) v Secretary of State for the Environment [2001] 2 WLR
R. (on the application of Ullah) v Special Adjudicator [2004] UKHL 26
Riccardo Pizzati v Italy [2006] ECHR 275
Robins v United Kingdom (1998) 26 EHRR 527
Salesi v Italy [1993] ECHR 14
Salotti v RUWA Case 23/76 [1976] ECR 1831
Santambrogio v Italy [2004] ECHR 430
Scopelliti v Italy (1993) 17 EHRR 493
Sim v Robinow (1892) 19 R 665
Soc Divagsa v Spain (1993) 74 DR 274.
Soering v United Kingdom (1989) 11 EHRR 439
Spiliada Maritime Corporation v Cansulex Lid [1987] 1 AC 460
Standard Steamship Owners Protection and Indemnity Association v Gann [1992] 2 Lloyds
Rep 528
Stogmuller v Austria (1979) 2 EHRR 155
Stubbings v United Kingdom [1996] ECHR 44
Sunday Times v United Kingdom (1979-80) 2 EHRR 245
The Al Battani [1993] 2 Lloyds Rep 219
The Benarty [1984] 2 Lloyds Rep 244
The Fehmarn [1958] 1 WLR 159
The Jalakrishna [1983] 2 Lloyds Rep. 628
The Lakhta [1992] 2 Lloyds Rep 269
The Nile Rhapsody [1992] 2 Lloyds Rep 399
The Pioneer Container [1994] 2 AC 324
The Polessk [1996] 2 Lloyds Rep 40
The Vishva Ajay [1989] 2 Lloyds Rep 558
Toepfer International G.M.B.H. v. Molino Boschi Srl [1996] 1 Lloyds Rep. 510
Trendex v Credit Suisse [1982] AC 679
Turner v Grovit and Others [2005] 1 AC 101
Union Alimentaria SA v Spain (1990) 12 EHRR 24
Vocaturo v Italy [1991] ECHR 34.
Wemhoff v Germany (1968) 1 EHRR 55
Winterwerp v The Netherlands [1979] ECHR 4
X v France [1992] ECHR 45
Xn Corporation Ltd v Point of Sale Ltd [2001] I.L.Pr. 35
Z and Others v. United Kingdom (2002) 34 EHRR 3
Zimmermann and Steiner v Switzerland [1983] ECHR 9


European Union

EC Treaty
Art 6(2)
Art 307

Council Regulation 44/2001 (Brussels Regulation)

Art 2
Art 4
Art 27
Art 28
Art 30
Art 34(1)
Tweet Art 34(2)
Art 35(3)
Art 71


Share Law no.89 of 24 March 2001 (the Pinto Act).

United Kingdom

Civil Jurisdiction and Judgments Act 1982

Civil Procedure Rules 1998

Part 11
r 3.1(2)(f)

Human Rights Act 1998 (HRA 1998)



Brussels Convention on Jurisdiction and Judgments in Civil and Commercial Matters

(Brussels Convention)
Art 21
Art 22
Art 57

European Convention on Human Rights (ECHR)

Art 5
Art 6
Art 7
Art 13


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Private Tuition / Mentoring

I provide private tuition/mentoring for undergraduate LLB study in Glasgow at a reasonable rate.
Please contact me at or through the contact section of my website to request
a call back.

Further excellent tips on a 1-hour-long YouTube video from ex-Cambridge professor Alan MacFarlane

Some reections on writing - especially disser...


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