| Forum necessitatis has been widely accepted in the judicial practice of the main countries and regions of the two legal systems.As a newly developing jurisdictional theory and practice,forum necessitatis is developing at a rapid pace.Its early legislative basis originates from the interpretation of "the right to a fair trial" in article 6(1)of the ECHR.Due to human rights protection has gradually become a consensus,people have realized that "the right of access to justice" plays an important role in the human rights protection system.To prevent denial of justice,this right requires that plaintiffs can bring their lawsuit in an impartial forum and can obtain effective judicial relief.Under the concept of safeguarding the right of access to justice,forum necessitatis encourages courts to invoke this theory to provide additional judicial relief for who is unable to bring his lawsuit in a foreign court.Forum necessitatis has therefore become an effective tool to resolve negative conflicts of jurisdiction.On the whole,to apply forum necessitatis,two requirements must be met.The first one is that there are some obstacle preventing the plaintiff from bringing proceedings abroad.The second one is that there are some connection with the forum state.However,these two conditions differ in the specific text expression and judicial cognizance.The original intention of forum necessitatis is to provide judicial relief,thus,we must clarify conditions and situations of forum necessitatis to preventing it from becoming the theoretical basis for implementing "excessive jurisdiction".At the same time,on the question of legal value,forum necessitatis emphasizes the protection of "human rights" and "justice" and may have an impact on "order".Therefore,scholars are concerned about whether forum necessitatis will harm the interests of the international jurisdiction order.Besides,in China,we didn’t completely build a system of forum necessitatis and have only roughly stipulated it in the field of foreign marriage action through the provisions of Articles 13 and 14 of the Interpretation of the Civil Procedure Law.We should attach importance to the construction of forum necessitatis and make up its rules,to protect Chinese plaintiffs when he is faced with negative conflicts of jurisdiction. |
