CYIL vol. 14 (2023)

MARIANNA NOVOTNÁ CYIL 14 (2023) The inclusion of specific provisions regarding jurisdiction within the Vienna Convention leads to a potential conflict with the provisions outlined in the Brussels I Regulation, whereas the two legal acts overlap in their scope on these issues. A twofold conflict arises in this context: firstly, a conflict between the two sources of legal authority, namely the Vienna Convention and the Brussels I bis Regulation; and secondly, a conflict concerning the content of the provisions governing jurisdiction rules. 38 Let us first turn our attention to the pertinent provisions of these two legal instruments that govern the jurisdiction of courts. According to the Article XI(1) of the Vienna Convention, the competence to deal the actions on compensation of nuclear damage have those courts where the nuclear incident occurred. This rule shall be applicable if the nuclear incident occurred in the territory of a State that is a party to the Vienna Convention. There is not any possibility for the contracting member states to modify the exclusive jurisdiction established by the Vienna Convention. 39 If a plaintiff would sue a claim on a court of another contracting State, that court would not be able to decide the case because of lack of competence. 40 In contrast to the characteristic exclusive jurisdiction found in nuclear liability legislation, the Brussels I bis Regulation allows also for alternative delineation of jurisdictions. Article 4 of the Brussels I bis Regulation specifies the general rule for jurisdiction which means that persons domiciled in a Member State shall be sued in the courts of that Member State, 41 whatever their nationality. The Brussels I bis in Article 7(2) also regulates the alternative jurisdiction. According to this rule, in matters relating to tort, delict, or quasi delict, 42 a person domiciled in a Member State may be sued in another Member State in the courts for the place where the harmful event occurred or may occur. The case law of EU courts interprets the term place where the harmful event occurred as a place where the damage occurred and at the same time the place where the event, of which consequence is the damage, occurred. 43 The aforementioned analysis elucidates, that application of the Brussels I bis jurisdiction rules enables the injured party to select among multiple courts within the Member States. This discretionary framework inherently carries the risk of forum shopping , whereby injured parties strategically choose a court that is perceived to be more favourable to their interests. The concept of forum shopping raises concerns within the legal community, as it can undermine the principles of fairness, equality, and predictability in the adjudication process. The ability to cherry-pick a jurisdiction may result in disparate outcomes and a lack of 38 NOVOTNÁ, M. VARGA, P., HANDRLICA, J. Strengthening of nuclear liability regime on national, international and European level: a tool to enhance nuclear new build (RW&W Science & New Media 2015) p. 78. 39 HANDRLICA, J. – NOVOTNÁ, M. The Vienna convention on civil liability for nuclear damage revisited: challenges for updating the Czech and Slovak legal framework (2013) 4 The Lawyer Quarterly , p. 301. 40 MAGNUS, U. Jurisdiction and Enforcement of Judgements under the current nuclear liability regimes within the EU member states in PELZER, N. (ed.) Europäisches Atomhaftungsrecht im Umbruch (Nomos Verlag 2010) p. 111. 41 For the operators of the nuclear equipment who are natural persons, the domicile is on the territory of a Member State where is the registered seat, central administration or main place of business. 42 See the judgment of the CJEU from 27. 9. 1988, 189/87, Athanasios Kalfelis v Banque Schröder, Münchmeyer, Hengst & Co. and others ; judgment from 25. 11. 2011, C-509/09 a C-161/10, eDate Advertising GmbH v X and Olivier Martinez and Robert Martinez v MGN Ltd . 43 See the judgment of the CJEU C-21/76 Biera Reinwater v Mines de Potasse d’Alcase.

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