Article 2 of the Convention requires a defendant domiciled in an EU member state to be sued in the courts of that state.

The English courts (and the courts of many other, mainly common law, countries) have, however, long recognised and exercised a discretionary power to stay proceedings brought before them in favour of the courts of another jurisdiction in circumstances where that alternative jurisdiction is established to be the more natural forum for the trial of the action (that is, forum conveniens). The discretion is viewed by the English courts, which are used to dealing with complex multi-jurisdictional disputes, as an important tool for the promotion of justice and harmony between nations.

The issue for the ECJ in Owusu v Jackson and others was whether or not this discretion to decide the forum conveniens was inconsistent with Article 2 where the jurisdictional contest lay between the courts of a member state and those of a non-member state (Case C-281/02). The question had never been answered, although a series of controversial decisions on related jurisdiction issues have shown the ECJ's increasingly hostile reaction to the internal discretionary powers of member states.

The English claimant brought proceedings in England against one English defendant and five Jamaican defendants for damages in respect of serious injuries he sustained while on holiday in Jamaica.

The defendants all sought to challenge the jurisdiction of the English courts, arguing that Jamaica had the most real and substantial connection with the dispute and was therefore the more appropriate forum in which to try the action.

The trial judge recognised that, if the English defendant had not been a party to the action, no issue would have arisen under the Convention. The claim would then have been one between an English claimant and Jamaican defendants and would be entirely outside the Convention's scope. The judge also agreed that Jamaica constituted a more appropriate forum than England for the trial of the action. However, he felt precluded from staying the proceedings as against the English defendant because of Article 2 and, as it would be inconvenient to have courts in two different jurisdictions trying the same factual issues on the same evidence, he held that he could not stay the proceedings against the Jamaican defendants either.

The defendants appealed and the Court of Appeal made a preliminary reference to the ECJ.

The ECJ ruled that Article 2 is a mandatory provision that precludes the English courts from declining jurisdiction in favour of the courts of a non-member state, even where the English court takes the view that the courts of that non-member state are the more appropriate forum. The ECJ accepted that the Convention only regulates jurisdiction where an "international element" is present. However, it ruled that this international element is not necessarily derived from the fact that the dispute involves two or more member states; it is sufficient that the dispute involves relationships between one single member state and one or more non-member states.

The ECJ was particularly concerned to protect Community principles of legal certainty for defendants domiciled within member states by ensuring that they know where they are likely to be sued. Of course, this ignores the fact that it is the defendant who raises the challenge to jurisdiction in the first place. Although the ECJ recognised that practical difficulties (from logistical complications to problems of enforcing judgments and cross-claims) will arise if the English courts are not entitled to determine jurisdiction in international disputes, it held that these concerns were not enough to call into question the mandatory nature of Article 2.

The English courts have developed an effective and flexible system of regulating jurisdiction in international disputes which, when exercised prudently, allows for a proper consideration of the practical interests of claimants and defendants alike and which provides a useful tool against forum-shopping by claimants.

The courts have now been deprived of that flexibility in favour of the less pragmatic rules of the Convention. Claimants will now be better able to force jurisdiction on the English courts by bringing proceedings against at least one party domiciled in England, regardless of the relative merits of the claim against that party or the strength of connecting factors with other countries. The English courts' ability to counter such abuses will be limited as they find themselves obliged to try cases which they genuinely feel would be more appropriately and effectively dealt with elsewhere.