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6 The Right to a Fair Trial and Jurisdiction under National Rules

James J. Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah

From: Human Rights and Private International Law

James Fawcett, Máire Ní Shúilleabháin, Sangeeta Shah

Content type:
Book content
Product:
Private International Law [PRIL]
Series:
Oxford Private International Law Series
Published in print:
23 June 2016
ISBN:
9780199666409

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 01 February 2023

Subject(s):
Family law — EU Rules — Traditional rules — Judgments and orders

This chapter explores the impact of Article 6(1) ECHR on national rules of jurisdiction. The greatest impact of right to a fair trial concerns can be seen in those civil law jurisdictions which have introduced a forum necessitatis rule into their national rules as a general ground of jurisdiction. In contrast, the effect on the English national rules of jurisdiction has been very limited. There is no forum necessitatis rule in England and generally there has been a lack of judicial support for Article 6(1) ECHR having such an effect. Thus, there has been a noticeable lack of impact of the right to a fair trial on the discretionary element under English law, although the argument has been raised on occasion that using discretionary powers to deny access to the English courts would result in a breach of Article 6(1) ECHR.

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