Forum necessitatis e flessibilità dei criteri di giurisdizione nel Diritto internazionale privato nazionale e dell'Unione Europea

Abstract

In many European and non-European legal systems it is possible for the internal courts to assume jurisdiction when, with regard to a specific claim, it would be impossible or unreasonable to resort to a court of another State, and a denial of justice would be likely to occur. Such a possibility on the one hand requires the rules of jurisdiction to be to a certain extent flexible, on the other hand is the consequence of the unilateral character of that rules. These are not two typical features of the European judicial area. The European institutions have set, in fact, through regulations, uniform rules of jurisdiction regarding certain fields, applicable in every Member State. And the European Court of justice, to the purpose of protecting the legal certainty principle, has precluded a flexible application of these rules. As far as the relations between member States are concerned, the forum necessitatis has, thus, a very narrow leeway. On the contrary, it takes much more importance in range of the relations between Member States and third States, as it comes out from the Green Paper on review of Regulation 44/2001 and from article 7 of the Regulation 4/2009 on maintenance obligations.