Actions `in rem' and exclusive jurisdiction clauses

Abstract

It is my intention in the present Article to deal with one particular aspect of exclusive jurisdiction clauses. As a rule, the Courts have given effect to such clauses, independently of the point as to whether the jurisdiction of the Maltese Courts is thereby extended or derogated from. However, the point has arisen as to whether in the presence of such a clause, the Court still possesses a discretion to exercise jurisdiction, if it considers that the clause is being made use of in bad faith or, at least, in order to try to circumvent the rights of others. This particular point was discussed ex professo in a case 'Dr Edward Fenech Adami noe. vs. Arsemis Christos noe.' which was withdrawn on the 9th June, 1972 before the Court of Appeal as the parties had arrived at an amicable compromise. In the absence of the judgment of the Court of Appeal, it becomes doubly useful to examine in some detail the main points that were discussed in that case.