I reported at the time on the General Court‘s decision in Dyson. The CJEU yesterday in Case -44/16P agreed, albeit in less prosaic terms than my earlier post, that the Court’s reasoning was wanting. The case now goes back to the General Court to reconsider those pleas made by Dyson which the Court considers to have been insufficiently answered.
Of most interest to readers of this blog is the argument re proof, science and procedure (at 72 ff): According to the Commission, Dyson does not explain in what way the development of a test with a loaded receptacle would have been more proportionate. The Commission submits that it was not obliged to show that no better test method could be developed, and that it was on the contrary for Dyson to prove that a more appropriate test method existed, which in the view of the General Court it failed to do.
The Court of Justice agrees that the General Court’s entertainment of this question is wanting – the particular parameter was required under the delegating Directive, alleged absence of a reliable test is not enough to ignore it. That is not to say, that upon reconsideration the eventual General Court’s answer may not be the same.
Geert.
Thank you Dentons for flagging 2016 ONCA 836 Cook v 1293037 Alberta Ltd, on the application of the forum of necessity or forum necessitatis doctrine in the Canadian courts. A doctrine which in some way or another allows a court to be used as court of last resort, should no other court be reasonably be available to plaintiff. Those States which do have it (Belgium, for instance: In Article 11 of its Statute; readers of the blog will also remember the EC suggested its introduction in the Brussels I Recast (Article 26 of COM(2010)748), but failed) all insist the jurisdictional trigger can only be exercised in the most exceptional of circumstance.
Cook v 129…Alberta is a good illustration of this exceptional nature. The Canadian Supreme Court set out the conditions in 2012 SCC 17 Van Breda v Village Resorts Ltd. Appellants had made a tactical decision not to bring their action in Alberta, the natural forum of the case. The limitation period for bringing the action in Alberta has now expired. They should under the circumstance not be allowed to bring the action in Ontario.
Does someone somewhere have an (undoubtedly slim) catalogue of those forum necessitatis actions which did succeed?
Geert.
(Handbook of) European private international law, 2nd ed.2016, Chapter 2, Heading 2.2.4 (p.68.)
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