Common use of Under the 1999 Montreal Convention Clause in Contracts

Under the 1999 Montreal Convention. The 1999 Montreal Convention, after keeping the four fora agreed upon in the 1929 Warsaw Convention, and the two adopted in the 1961 Guadalajara Convention,191 established one additional jurisdiction known as the ‘fifth jurisdiction’.192 This newcomer193 permits, under limited conditions, to bring action in a territory where, at the time of the accident, the passenger holds principal and permanent residence. The United States strongly advo- cated for such an additional jurisdiction, arguing, among others things, that it would bring passengers further legal certainty.194 During the 1999 Montreal Conference, the delegate for Egypt noted that a fifth jurisdiction was not needed, explaining that: In the case of an accident, a carrier could be subjected to appear before many courts in different jurisdictions, […].195 The delegate for France highlighted that the coexistence of parallel proceed- ings increased the risk of ending up with opposite decisions: […] rather than advancing the unification and internationalization of law with a view to ensuring the identical treatment of persons under a single worldwide legal system, the result would be the further fragmentation of international law.196 Intense discussions continued around the adoption of this new forum.197 There was a fear that a practice of forum shopping would develop. It was suggested that the doctrine forum non conveniens, a domestic procedure law standard in many common law jurisdictions, could mitigate this risk.198 191 See, section 4.2.1.2. 192 1999 Montreal Convention, Articles 33 and 46. 193 Although already discussed in the 1971 Guatemala City Protocol. 194 ICAO Doc 9775, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air), Montreal, 10 – 28 May 1999, volume II, Documents, Montreal 1999, p. 102: ‘The passenger’s home State is where most claimants are located, and that country’s courts would usually apply the laws and standards of recovery that would be anticipated by such passengers or claimants’. 195 ICAO Doc 9775, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air), Montreal, 10 – 28 May 1999, volume I, Minutes, Montreal 1999, p. 143. 196 Ibid., p. 105. 197 Ibid., p. 143-187, 205, 235. 198 See, Ibid., p. 108. The Chairman also wondered whether it would be appropriate to codify and incorporate such doctrine in the convention. See, Ibid., p. 148,149 and 158. The American delegate expressed concerns in this regard as it could raise ratification issues in jurisdictions where the doctrine was unknown. He also underscored that a codification might have altered existing jurisprudence. See, Ibid., p. 159. Practice shows that the application of this doctrine did not bring the anticipated enhanced certainty. In 2005, a West Caribbean Airways flight from Panama to Fort-de-France in the French West Indies crashed in Vene- zuela. Several actions were introduced before American jurisdictions, which denied competence on the grounds of the doctrine forum non conveniens and, in substance, referred the case to the Courts of Fort-de-France. The French Cour de cassation eventually held that, given that Article 33(1) of the 1999 Montreal Convention provided that the action had to be brought ‘at the option of the plaintiff’, the French jurisdictions were not competent insofar as they were not the claimants’ choice.199 Another example can be taken from litigations that followed the disap- pearance in 2014 of Malaysia Airlines flight MH370, which led to several actions being introduced in tandem before American and Malaysian Courts. As the action in Malaysia was said to be a protective measure in the event American jurisdictions denied competence, claimants requested to stay the Malaysian proceedings pending American litigation. With regards to the specific elements of the matter, the Court of Appeal of Malaysia considered that there was not sufficient grounds to justify putting the Malaysian suit on hold.200