Art. 4 della risoluzione dell’Institut de Droit International su Human Rights and Private International Law: il forum necessitatis come strumento volto a garantire il diritto di accesso alla giustizia

Article 4 of the resolution adopted by the Institute of International Law on Human Rights and Private International Law provides for forum necessitatis as a tool aiming to guarantee an effective access to justice. As noted by the author, many existing legislative provisions as well as the rules on forum necessitatis embodied in some of the EU regulations adopted in the field of judicial cooperation in civil matters tend to specify to some extent the sort of circumstances where the rule may be resorted to. The said rules contemplate, on the one side, cases where the entertainment of an action before a foreign court would be impossible and, on the other side, those where, though theoretically possible, such a course of conduct might not reasonably be expected of the claimant. The wording used in the Institute’s resolution refers instead to circumstances where the rules of jurisdiction may lead to a denial of justice. This may be due not only to a so-called negative conflict of jurisdictions, but may arise also in consideration of other circumstances, where a fair trial of the action would not be available before a foreign court. Lastly, the author comments on the requirement, present in most legislative provisions as well as in the EU rules on forum necessitatis, whereby in order for the court seized to exercise jurisdiction on such a basis a sufficient connection shall exist between the dispute and the court seized. In this respect, while an initial draft referred to the existence of a sufficient connection with the forum seized, the final text of the resolution adopts the same solution as provided by an earlier Institute’s resolution on Universal Civil Jurisdiction with regard to Reparation for International Crimes, without at the same time clarifying the mutualrelationships existing between the two grounds of jurisdiction.