Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter F.10: Forum non conveniens

Richard Fentiman

I. Introduction

In many, chiefly common law, legal systems, courts have a residual power to determine whether to exercise jurisdiction on the facts of a case. An element, normally the main element, in the exercise of that power is the doctrine of forum non conveniens, which gives shape to the considerations of efficiency and justice which inform the court’s evaluation. The doctrine p. 798builds on the distinction between the existence of a ground of jurisdiction, and the exercise of that jurisdiction, between generic grounds of jurisdiction, and the specific exercise of jurisdiction in particular cases. The ‘existence of jurisdiction is one matter, the exercise of the jurisdiction is another’ (Tehrani v Secretary of State for the Home Department [2007] AC 521 [25]). The exercise of adjudicatory discretion on this basis must be distinguished from a court’s power to dismiss proceedings which are frivolous, vexatious or oppressive (the doctrine of abuse of process), from any power to decline jurisdiction for lack of jurisdictional connection (the doctrine of forum non competens), and from any power to stay proceedings on case-management grounds which it would not be just or efficient to entertain.

II. Models of adjudicatory discretion

The doctrine of forum non conveniens may take several forms. It may be employed to qualify the exercise of jurisdiction where a ground of jurisdiction is established, or as an element in establishing jurisdiction that would not otherwise exist, or both. Alternatively, it may be seen as an independent procedural ground for dismissing proceedings, as in the →USA, where proceedings may be dismissed without the need to establish that the court has jurisdiction (Sinochem International Co., Ltd v Malaysia International Shipping Corporation, 549 U.S. 422 (2007)).

Conceptually, the doctrine may be driven by public interest factors, or by the interests of the parties, or both. It may either be a precondition for the exercise of jurisdiction, directed at whether the court seized is an appropriate forum, or a means of allocating proceedings between courts, directed at determining which court is the most appropriate forum. Where public interest factors are relevant, these may concern the degree of state interest a given court has in proceedings, or the extent to which judicial resources should be deployed in the service of foreign parties or foreign-related disputes. The relevant private interests are those of the parties in access to justice, and in having the dispute resolved in the most efficient manner in the most appropriate forum. In some legal systems, the exercise of determining the most appropriate forum is objective, favouring neither party, and assuming equality of arms between the parties. In others, there may be a presumption against staying proceedings where the defendant is present within the court’s jurisdiction, or in favour of the claimant’s choice of forum (→Choice of forum and submission to jurisdiction), and the relative economic strength of the parties may be taken into consideration. In some legal systems, the presumption against a stay may operate where the defendant is a corporation, or has a substantial connection with the court seized, but not where jurisdiction derives from the defendant’s transitory presence, while the claimant’s choice of forum may be privileged only if legitimate.

The practice of the US courts is to employ both private-interest and public-interest factors (Gulf Oil Corp v Gilbert, 330 U.S. 501 (1947)), and the doctrine has long been regarded as a means of reducing congestion in the courts (Paxton Blair, ‘The Doctrine of Forum Non Conveniens in Anglo-American Law’ (1929) 29 Colum.L.Rev. 1). Again, in some US jurisdictions, as in New York, there is a strong presumption in favour of giving effect to the claimant’s choice of forum (Wiwa v Royal Dutch Petroleum Co, 226 F.3d 88, 101 (2d Cir 2000)), at least where the claimant has legitimate reasons for its choice (Bigio v Coca Cola Company, 448 F.3d 176 (2d Cir 2006)), while consideration is given to the relative means of the parties (Presbyterian Church of Sudan v Talisman Energy, Inc, 244 F.Supp.2d 289 (SDNY 2003)).

In English law, the doctrine operates negatively, to justify a stay of proceedings in which jurisdiction is established against a defendant within the jurisdiction, and positively, to justify the exercise of jurisdiction against a defendant abroad. The approach in English law is directed solely at the joint, private interests of the parties, and the inquiry is orientated, where a stay is sought, towards locating the most appropriate forum (Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460). Perhaps because the doctrine is most commonly employed in commercial disputes, the economic standing of the parties is irrelevant, although an inability to finance litigation in the alternative court may cause the court to decline a stay (Lubbe v Cape plc (2000) 1 WLR 1545). Again, in English law →comity requires that the doctrine should be applied objectively, without a presumption in the claimant’s favour (Owners of the Las Mercedes v Owners of the Abidin Daver, The Abidin Daver [1984] AC 398). In →Australia, the substance of the test is similar to that in English law, but the test is differently structured. The courts have favoured an ‘inappropriate forum’ test, although in practice p. 799such an approach is inevitably conflated with a search for the most appropriate forum (Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491).

Invariably, the argument that the most appropriate forum is elsewhere is advanced by the defendant, and the doctrine is not invoked by the court of its own motion (Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460), although this is sometimes incorrectly assumed to be the case (Case C-302/02 Owusu v Jackson [2005] ECR I-1383).

Although the doctrine of forum non conveniens does not exist in civil law jurisdictions, some civil law courts have discretion to decline jurisdiction (Wendy Kennett, ‘Forum Non Conveniens in Europe’ (1995) 54 CLJ 552), particularly where congruent proceedings are pending in another forum. Such a discretionary approach to lis pendens (→Lis alibi pendens) exists in →France, where a court may decline to exercise jurisdiction, provided that proceedings in the same matter are pending in another forum, and any judgment obtained there would be recognized in a French court (Société Yaknoo, Cour de cassation, 19 février 2013, No de pourvoi: 11-28846). In such cases, however, the discretion is confined to establishing that the grounds for declining jurisdiction are established, without the broad evaluation associated with the forum conveniens doctrine, and that discretion is an aspect of the mechanism of declining jurisdiction in the event of lis pendens, and not directed at allocating the case to the most appropriate forum.

III. Adjudicatory discretion and jurisdiction agreements

In many legal systems, the court’s power to decline jurisdiction on general forum conveniensgrounds is related to, but distinct from, its power to decline jurisdiction on the ground that the parties have contractually agreed to a particular court’s jurisdiction. Typically, considerations of efficiency and justice are relevant in such cases, but the inquiry is rebalanced to ensure respect for party autonomy. In English law, for example, the effect of even an exclusive jurisdiction agreement is subject to the court’s overriding discretion, and a court may sometimes decline to give effect to such an agreement, but only in limited circumstances. There was formerly a tendency to regard such cases as subject to the general doctrine of forum non conveniens (Aratra Potato Co Ltd v Egyptian Navigation Co, The El Amria [1981] 2 Lloyd’s Rep 119). It is now clear, however, where the agreement is exclusive, that the court will not deny it effect merely because a court other than the designated court is regarded as the forum in which the dispute may most cost-effectively be resolved, unless the factors supporting that contention were unforeseeable at the time the agreement was concluded (British Aerospace plc v Dee Howard Co (1993) 1 Lloyd’s Rep 368). Where those factors are unforeseeable, however, a party will succeed in establishing that a court other than that designated is the most appropriate forum only when the effect of the relevant factors is overwhelming (Mercury Communications Ltd v Communication Telesystems International (1999) 2 All ER (Comm) 33). Where the factors relied upon are foreseeable, as they generally will be if the parties are sophisticated commercial entities (JP Morgan Securities Asia Private Limited v Malaysian Newsprint Industries Sdn Bhd [2002] ILPr 17), a court will decline to give effect to such an agreement only because justice so requires. They will do so only because a third party to the agreement would be prejudiced, or because the party relying on the clause has by its conduct waived or forfeited its rights under the agreement, or where it would be unjust to require a party to litigate in the agreed court (Donohue v Armco Inc [2001] UKHL 64). Where the agreement is non-exclusive, the forum conveniens doctrine applies, but parties to the agreement are precluded from denying that the named court is an appropriate forum unless the factors relied upon were unforeseeable at the time the agreement was concluded (BP Plc v AON Ltd [2005] EWHC 2554 (Comm)). Where they are unforeseeable, the threshold for establishing that the forum conveniens is elsewhere is high, but lower than in cases involving an exclusive jurisdiction agreement (BP plc v AON Ltd [2005] EWHC 2554 (Comm)).

Similarly, cases involving jurisdiction agreements receive distinct treatment in US state and federal law, and the operation of standard forum conveniens analysis is modified. In US federal law such agreements, where exclusive, are presumed to be effective, and will generally be enforced unless either the agreement is invalid, or to do so would be unreasonable and unjust (The Bremen v Zapata Off-Shore Co, 407 U.S. 1 (1972); Carnival Cruise Lines, Inc v Shute 499 U.S. 585 (1991)). The effect is that p. 800enforcement will be denied if the agreement was obtained by fraud or unequal bargaining power, or if enforcement would be contrary to public policy, or if a fair trial could not be obtained in the designated court, or if litigation there would be so inconvenient as to deny the party resisting enforcement of access to justice. Where the agreement is non-exclusive, normal forum conveniens considerations operate (Global Seafood Inc. v Bantry Bay Mussels Ltd., No 08-1358-cv (2d Cir 2011)). US state courts vary in their approach, and generally permit dismissal of proceedings pursuant to such agreements, often subject to the requirement that the resisting party must show strong reasons for non-enforcement (eg National Union Fire v Source One Staffing, 36 Misc 3d. 1224(A) NY Supp 2012). Where the designated court is a court in New York, statute regulates the circumstances in which proceedings in New York may be dismissed, requiring enforcement against a non-resident defendant only of agreements in contracts governed by New York law, where the value of the claim exceeds USD 1 million (N.Y. GOB. LAW § 5-1402: NY Code – Section 5-1402: Choice of forum).

It is common in commercial transactions for the parties to agree, or for the dominant party to insist, that no objection shall be taken to the jurisdiction of the designated court on forum conveniens grounds. The legal status of such waiver clauses is uncertain, given that they purport to oust a court’s power to determine the exercise of its jurisdiction (UBS AG v Omni Holding AG (2000) 1 WLR 916; UBS AG & UBS Securities LLC v HSH Nordbank AG [2009] EWCA Civ 585).

IV. Forum non conveniens and EU law

The doctrine of forum non conveniens cannot be invoked as a ground for staying proceedings in favour of the courts of a non-Member State where a national court’s jurisdiction derives from the EU jurisdiction regime (Case C-302/02 Owusu v Jackson [2005] ECR I-1383). The doctrine is not available as a general means of allocating jurisdiction between EU Member States, save perhaps where the jurisdiction of the alternative courts derives from national law (Ace Insurance SA-NV v Zurich Insurance Company [2001] EWCA Civ 173). Considerations similar to those employed pursuant to the doctrine may be relevant, however, to determining whether one EU national court should stay related proceedings in favour of the court of another such state under art 30 of Regulation (EU) No 1215/2012 (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Brussels I Regulation (recast), [2012] OJ L 351/1), where jurisdiction derives from the Regulation (Case C-129/92 Owens Bank Ltd v Fulvio Bracco [1994] ECR I-117, [74]-[79] (Opinion of AG Lenz)). A variant of the doctrine is imported by arts 33 and 34 of the Brussels I Regulation (recast), which provide that the courts of an EU Member State may stay proceedings, in favour of parallel proceedings in a non-Member State, if satisfied that a stay is necessary for the proper administration of justice, although the parameters of the court’s power, and its similarities to the doctrine of forum non conveniens, are presently unclear.

V. The private-rights model

The doctrine is frequently invoked in proceedings before the English courts, and the example of English law is instructive as a highly evolved example of the private-rights model of adjudicatory discretion. In English law, defendants may challenge the exercise of jurisdiction over a defendant within the jurisdiction, on the ground that a court elsewhere is the forum conveniens, and it is also a requirement for exercising jurisdiction over a defendant outside the jurisdiction that the English court is the proper form for trial (Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460). Unless the claimant would be denied access to justice, the court will not exercise jurisdiction if there exists another court ‘having competent jurisdiction, in which the case may be tried more suitably for the interests of all the parties and for the ends of justice’ (Sim v Robinow (1892) 19 R. 665, 668). In English law, cases involving the court’s power to decline jurisdiction on general forum conveniens grounds are related to, but distinct from, those where jurisdiction is declined in deference to a contractual agreement to another court’s jurisdiction (Donohue v Armco Inc [2001] UKHL 64). The power to decline jurisdiction on forum conveniens grounds must also be distinguished from the power to dismiss abusive claims (Maharanee of Baroda v Wildenstein [1972] 2 QB 283), and the power to case-manage the dispute in the interests of ‘justice and the efficient management of the case’ (Racy v Hawila [2004] p. 801EWCA Civ 209 [63]).

In English law, the doctrine of forum non conveniens evolved in response to two concerns. As an element in the test for exercising jurisdiction over foreign defendants it is an instrument of justice, and guards against the exercise of a potentially exorbitant jurisdiction (Amin Rasheed v Kuwait Insurance Co [1984] AC 50). As the basis for staying proceedings initiated against defendants within England it serves the principle of comity, by ensuring that whether proceedings in England should continue depends on locating objectively the most appropriate forum, without prizing the interests of either party, or assuming that proceedings in England are preferable (The Abidin Daver [1984] AC 398).

The doctrine has two elements in English law. Proceedings will be heard in the forum where the dispute can most cost-effectively be heard, subject to the condition that, if the optimal forum is foreign, a court will nonetheless exercise jurisdiction if the claimant would be denied access to justice in the foreign court (Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460; Richard Fentiman, International Commercial Litigation (2nd edn, OUP 2015) 13.10–13.30).

The forum conveniens is in principle the court in which the dispute can be tried most cost-effectively. This might be the case, for example, if the parties and the witnesses are domiciled within the jurisdiction of a foreign court whose law is also the substantive applicable law, and if difficult issues arise under that law. The mere fact that the applicable law is foreign is, however, immaterial (VTB Capital Plc v Nutritek International Corp [2013] UKSC 5, [46]). Nor does the inquiry generally concern the expertise of the foreign court, unless this significantly impacts on the efficiency and cost of proceedings, or the quality of justice available (Limit (No 3) Ltd v PDV Insurance Company [2005] Lloyd’s Rep IR 552, [66]). Instead, the inquiry involves an assessment of the relative cost of proceedings in each court. The factors to be taken into account may include: the language of the parties, the witnesses, or the documentation; the location of the parties; the location of factual witnesses; and, importantly, the cost of establishing the law of one country in the courts of another (Spiliada Maritime Corporation Ltd v Cansulex [1987] AC 460).

It is, however, doubtful that each of these familiar factors necessarily carries much weight in the context of modern litigation, at least when taken alone. Evidence is often given in translation, without difficulty. Nor may the location of the parties and witnesses be significant. In many cases the parties, or one of them, will have an English branch even if managed elsewhere. Mechanisms for taking evidence abroad may also diminish the significance of where eyewitnesses are located, as does the possibility of taking evidence by video link. In assessing the weight, if any, to be attached to such factors the court will consider the nature of the issues arising in any given case, and their complexity. If, for example, difficult questions of foreign law are involved, the additional cost and delay associated with taking expert evidence may ensure that proceedings in England are significantly less efficient than proceedings in the relevant foreign court. But the fact that the applicable law is foreign may be insignificant if the issues involved are straightforward (Amin Rasheed Shipping Corporation v Kuwait Insurance Company [1984] AC 50). Similar considerations are relevant if the question concerns the application of English law in a foreign court (Nima SARL v The Deves Insurance Public Company Ltd (2003) 2 Lloyd’s Rep 327).

Of particular relevance to the efficiency of cross-border proceedings is the problem of parallel litigation. This may involve the same parties, as where a claimant pursues the same (or related) claims in different courts, or where a defendant launches counter proceedings in a different court from that in which it was sued (The Abidin Daver [1984] AC 398). Or it may involve different parties, as where different claimants pursue identical claims against the same defendant in different courts, or where a single claimant initiates related actions against several defendants in one court (Citi-March Ltd v Neptune Orient Lines Ltd (1996) 1 WLR 1367). An English court will not automatically stay proceedings because parallel proceedings are in progress, even if the foreign proceedings commenced first, but the existence of parallel proceedings in another jurisdiction between the same parties is a ‘relevant, and frequently an important, or even decisive, factor in the determination of the appropriate forum’ (Pakistan v Zardari (2006) 2 C.L.C. 667 [139]).

The existence of parallel proceedings is significant only if they are sufficiently far advanced that it would be wasteful to re-launch, or duplicate, proceedings elsewhere (SNI Aerospatiale v Lee Kui Jak [1987] AC 871). The extent to p. 802which proceedings must be advanced was considered in an important English case, which suggests that English courts will automatically defer to pending proceedings abroad only in exceptional cases. In SNI Aerospatiale v Lee Kui Jak ([1987] AC 871) Lord Goff described a case in which the existence of foreign proceedings would justify a stay of English proceedings. He did not consider it relevant that the claimant’s lawyers in that case had embarked upon the (admittedly elaborate) process of pre-trial discovery. By contrast, he took as an example the earlier case of The Spiliada, in which the court had accepted jurisdiction because parallel proceedings had already commenced in England involving the same issue and the same defendant. The hearing in those earlier proceedings had been underway for a month at the time the stay was sought. Highly complex scientific questions arose in the case, involving extensive expert evidence, which itself relied upon original research.

It is evident that the threat of parallel litigation will, however, be overridden if justice to the claimant requires. An English court will not insist that a dispute is heard in a court where issues of English law, and thus the parties’ rights, could not be effectively determined (EI Du Pont de Nemours & Co v Agnew & Kerr (1987) 2 Lloyd’s Rep. 585). Nor will a court decline to exercise jurisdiction where to do so would deny a claimant access to justice. Jurisdiction has been exercised, and parallel proceedings permitted, where the foreign court would have applied a different substantive law from that applicable in English proceedings, denying the claimant an effective case. It has been held therefore that the undesirability of ignoring a contractual jurisdiction agreement – and presumably the claimant’s rights under the agreement – is more important than the mischief of parallel litigation (Akai Pty Ltd v People’s Insurance Co. Ltd (1998) 1 Lloyd’s Rep 90, 107). In principle, moreover, an English court may discount parallel proceedings commenced for tactical purposes, with the intention of pre-empting proceedings which might more appropriately be brought elsewhere. Proceedings ‘may be of no relevance at all, for example, if one party has commenced the proceedings for the purpose of demonstrating the existence of a competing jurisdiction’ (De Dampierre v De Dampierre [1988] AC 92 [108]).

Where related claims lie against several defendants the appropriate forum is likely to be that in which the claims may be consolidated (Erste Group Bank v JSC (‘VMZ Red October’) [2013] EWHC 2926 (Comm), [156]). Suppose that X has a claim against two co-defendants, Y and Z. Both Y and Z are subject to the jurisdiction of the English courts, but only Y is subject to the jurisdiction of the courts of Utopia. If an English court is asked to decline jurisdiction in favour of proceedings in Utopia it is likely, perhaps inevitable, that the court will accept jurisdiction. The appropriate forum is perhaps bound to be that in which both actions may be brought. The overriding effect of this consideration is underlined by reference to cases involving contractual jurisdiction agreements. Suppose in the above example that there exists a contract between X and Y which contains a submission of any disputes to the exclusive jurisdiction of the courts of Utopia. The principle of party autonomy argues strongly that the jurisdiction agreement should be enforced. But the English courts have consistently preferred to consolidate the possible claims in England rather than defend the parties’ agreement. Such agreements will, it seems, never be enforced if this would result in fragmented litigation in different jurisdictions (Citi-March Ltd v Neptune Orient Lines Ltd (1996) 1 WLR 1367). In such cases it is more efficient to consolidate all potential actions in a single, composite set of proceedings – and more just.

Exceptionally, the inquiry may focus on the effectiveness, not the cost, of proceedings. Certainly, there are cases which suggest that a court which is otherwise the most appropriate forum might be unable to apply foreign law effectively. The ineffectiveness of proceedings is intimately connected with efficiency. To litigate an issue in a forum where it cannot be effectively resolved is a waste of resources, for both the parties and the court concerned. It appears that the application of foreign law (→Foreign law, application and ascertainment) will be regarded as inappropriate when the effective determination of foreign law depends so much upon an intimate knowledge of foreign law, and in particular upon its underlying principles and assumptions, that only a court versed in the law in question could apply it accurately. In one case, for example, it was held that a court in Illinois would be unable to apply the English doctrine of public policy, however full the evidence, and however knowledgeable the experts (EI Du Pont de Nemours v Agnew (1987) 2 Lloyd’s Rep 585, 595–6). In another it was suggested that the fundamental concepts and reasoning techniques employed in Egyptian law made the case unsuitable for trial in England (Hamed el Chiaty & Co v Thomas Cook Group Ltd, The Nile Rhapsody p. 803(1992) 2 Lloyd’s Rep 399, 411).

The doctrine of forum conveniens contemplates that a court will exercise jurisdiction if otherwise the claimant would be denied access to justice in the alternative forum (Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, 856, 862). English courts assume that the most efficient forum is in principle the forum in which justice can best be achieved. But justice cannot be done if the claimant would be denied access to justice in the court which is otherwise the most cost-effective forum. An English court will therefore exercise jurisdiction, notwithstanding that a dispute can be resolved most cost-effectively in a foreign court, if the claimant can establish that it would be denied access to justice in that court. Principle suggests that a claimant would be denied access to justice if in practice it is unable to obtain effective redress in the foreign court. As Lord Templeman expressed it in Spiliada Maritime Corporation v Cansulex Ltd ([1987] AC 460, 465) ‘whatever reasons may be advanced in favour of a foreign forum, the plaintiff will be allowed to pursue an action which the English court has jurisdiction to entertain if it would be unjust to confine him to remedies elsewhere’.

This is most obviously the case where the foreign court lacks jurisdiction. Indeed, that there should be an alternative available forum abroad is normally regarded as an independent pre-condition for declining jurisdiction (Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460). But it would also be a denial of access to justice to decline to exercise jurisdiction where the claim is legally inadmissible in the foreign forum (perhaps because time-barred, or because prevented by local law or public policy), or where it is practically impossible (perhaps because the claimant can afford to sue only in the English court, or because the claimant would suffer a legal penalty by travelling to the foreign court) (Citi-March Ltd v Neptune Orient Lines Ltd (1996) 1 WLR 1367; Lubbe v Cape plc [2000] 1 WLR 1545 (HL)). Exceptionally, it may also be the case if the claimant can establish a risk of personal prejudice in the foreign court (Cherney v Deripaska [2008] EWHC 1530 (Comm)). But it is not a denial of access to justice that the claimant merely would suffer a relative disadvantage in the foreign court, such as the loss of higher damages, or a more generous limitation period, available in England.

It has been held that a claimant would be denied effective redress in the alternative forum in the following circumstances: (i) where the alternative forum lacks jurisdiction (Konamaneni v Rolls Royce Industrial Power (India) Ltd (2002) 1 WLR 1269); (ii) where no equivalent remedy lies in the alternative forum (Petroleo Brasiliero SA v Mellitus Shipping Inc (2001) 2 Lloyd’s Rep 203); (iii) where the foreign court is biased (Limit (No 3) Ltd v PDV Insurance Company [2005] Lloyd’s Rep IR 552); (iv) where the claim in the foreign court will fail (Baghlaf Al Zafer Factory Company v Pakistan National Shipping Company (2000) 1 Lloyd’s Rep. 1); (v) where the claim in the foreign court is practically impossible, as where it is unsafe for the claimant to appear in the foreign proceedings (Cherney v Deripaska (2009) 1 All ER (Comm) 333), or where the claimant may be unable to obtain representation in the foreign court for political or personal reasons (Askin v ABSA Bank Ltd [1999] ILPr 471), or to fund litigation in the foreign court, although it could do so in England (Lubbe v Cape plc (2000) 1 WLR 1545); (vi) where the effectiveness of the remedy is undermined, as where excessive delay in the foreign proceedings would amount to injustice to the claimant, on the basis that justice delayed is justice denied (The Vishva Ajay (1989) 2 Lloyd’s Rep 558), provided there is cogent evidence that such delay ‘is such as to deprive the claimants of any remedy at all’ (Konamaneni v Rolls Royce Industrial Power (India) Ltd (2002) 1 WLR 1269 [177]), or where the amount of damages recoverable is disproportionately small (The Vishva Abha (1990) 2 Lloyd’s Rep 312).

Exceptionally, it would be unjust to require a claimant to proceed in an inexperienced foreign court. The English courts have expressed reluctance to examine the accuracy of such an allegation, but it remains possible that a court would exercise jurisdiction if it could be established by cogent evidence that such inexperience would deny the claimant justice (Limit (No 3) Ltd v PDV Insurance Company [2005] Lloyd’s Rep IR 552).

VI. Forum non conveniens in principle

The exercise of adjudicatory discretion in any legal system begs three questions of principle: first, to what extent does the doctrine of forum non conveniens promote or hinder procedural efficiency; second, to what extent does the doctrine further or frustrate the interests of p. 804justice; and, third, to what extent does it respect or infringe the principle of comity? The nature of these issues may be illustrated by reference to English law, although they are of universal significance.

As the example of English law illustrates, promoting procedural efficiency is often a stated objective of the doctrine. The doctrine is intended to ensure that proceedings occur in the forum where, objectively assessed, they may most cost-effectively be determined. The doctrine may also promote the best use of legal resources, by ensuring that disputes are heard only where the court addressing the issue of appropriateness is the natural forum or, if it is not, if access to justice nonetheless requires that the case be heard there, thereby easing any concern that the resources of the English legal system should not be deployed in a case having foreign elements.

Concern is sometimes expressed that the cost and duration of disputes concerning the forum conveniens is itself inefficient (VTB Capital Plc v Nutritek International Corp [2013] UKSC 5). Certainly, such disputes can be expensive, and time-consuming, involving complex legal argument, and extensive evidence. Clearly, as in any legal proceedings concerning jurisdiction or the merits, the scale of a forum conveniens hearing may be disproportionate, but courts have the means to control such excess by their case-management powers. It is erroneous, however, to suppose that it is inherently inefficient to devote extensive resources to the hearing of a jurisdictional rather than substantive matter. Such disputes are of overriding importance to the parties, who are likely to settle once the jurisdictional contest between them is resolved. On that assumption, it may be preferable if settlement is reached against the background that proceedings will take place in the forum conveniens, without the distortions, and possibly unfairness, created if they occur in a non-optimal forum. Moreover, the forum conveniens inquiry itself serves as a mechanism for identifying the procedural and substantive parameters of any trial on the merits, thereby assisting the settlement process, which is itself the most efficient means of resolving any dispute.

VII. Justice and the forum conveniens

There are two distinct ways in which the doctrine of forum non conveniens may be said to comply with the requirements of procedural justice. First, the very purpose of the doctrine may be to ensure procedural justice, as in systems where it is stated to promote the ‘interests of the parties and of justice’ (Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, 474–5). Secondly, the doctrine, properly conceived, will embody safeguards which ensure that an order staying proceedings is not itself unjust.

Consider, for example, the requirement in English law that jurisdiction will not be exercised if the foreign court is the most cost-effective forum. The rationale is not merely that this is the most efficient outcome; it is that the most efficient outcome is in principle the just outcome. Neither party can legitimately complain that a trial is unjust if proceedings take place in the forum where they can most efficiently be heard. Moreover, inefficiency – in terms of cost and delay – inevitably benefits the stronger, better-funded party as the party better able to absorb the costs of inefficiency. To remove the stronger party’s advantage, by locating proceedings in the optimal forum, cannot achieve parity between the parties. But it may remove an avoidable disparity, by eradicating the ‘inefficiency dividend’ which favours the stronger party, thereby ensuring relative equality of arms. In particular, it avoids the unfairness which arises if a court asserts jurisdiction although it is a non-optimal forum. Again, any suggestion that a stay of proceedings is a denial of access to justice, is answered if the alternative forum is the optimal forum, insofar as it is inherently the forum in which justice can best be achieved, and if it is a precondition for a stay that a claimant would not be denied access to justice in the alternative forum. Indeed, by comparison with rules requiring the automatic dismissal of proceedings, such as a strict lis pendens rule (→Lis alibi pendens), the doctrine ensures that proceedings will not be dismissed in circumstances where a claimant would be denied access to justice in the alternative forum.

It has been suggested, however, that the forum non conveniens doctrine is incompatible with the requirements of art 6 of the ECHR (European Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221) (Case C-281/02 Owusu v Jackson [2005] ECR I-1383, para 270, Opinion of AG Léger), because merely to require a claimant to recommence proceedings, with the attendant cost and delay, is a denial of justice. The opposite view has been taken, however, by the English courts (Lubbe v Cape plc (2000) 1 WLR 1545 [32]). This difference reflects, however, a tension between an absolute p. 805theory of access to justice, whereby a claimant is entitled access to its preferred court, and a relative conception, whereby it is necessary only that it should have access to justice in the optimal forum, unless cogent evidence exists of some particular denial of justice.

VIII. Comity and forum non conveniens

Importantly, the evaluation of the most appropriate forum should not involve an assessment of the efficiency or competence of the foreign court by comparison with an English court (The Abidin Daver [1984] AC 398, 410). The question is whether the particular dispute in question can best be heard in one court or another. Difficulty arises, however, in two further situations. First, is it consistent with comity for a court to conclude that a claimant would be denied access to justice in the foreign court, perhaps because a foreign court would be biased against the claimant, or where foreign proceedings would be subject to unconscionable delay? It is uncertain, however, what objection could be taken to consideration of such matters, or to any finding that allegations are well-founded, when the objective is to ensure access to justice, and such findings are made only on the basis of cogent evidence (Konamaneni v Rolls Royce Industrial Power (India) Ltd (2002) 1 WLR 1269), and given that courts invariably assume a cognate power to deny effect to foreign judgments obtained in unfair circumstances.

Second, what if the foreign court has previously addressed whether it or the court before which the issue now arises is the most appropriate forum? Should the latter court defer to the foreign court’s finding on that issue? Principle suggests that the questions before each court are distinct. Superficially, the same process of comparison is involved, but when each court poses the question it does so for the purposes of deciding its own jurisdiction, necessarily a different issue from that before the other court, and one within its legitimate province. A different view, requiring deference to the foreign court’s conclusion, was, however, expressed by the Supreme Court of Canada in Amchem Products Inc v Workers Compensation Board of British Columbia (1993) 102 DLR (4th) 96, which held a court must respect a foreign court’s decision to exercise jurisdiction, provided the foreign court’s determination complies with established principles of due process, and in particular if it has concluded that it is the forum conveniens. The better view may be, however, that a court should defer to the foreign court if a defendant seeking a stay has previously litigated the issue of jurisdiction in another court and failed, and if the foreign court applied similar principles in arriving at that conclusion (Akai Ltd v Peoples Insurance Co (1998) 1 Lloyd’s Rep 90, 105).

IX. Forum non conveniens in the legal process

Cross-border disputes, especially substantial commercial disputes, invariably end in out-of-court settlement, and rarely go to trial, still less to judgment, on the merits. Such disputes almost always involve a contest as to the venue for the dispute, on which the balance of advantage between the parties will depend. Once that contest is determined, the parties are likely to settle on that basis, and any jurisdictional dispute will be strongly fought as each party seeks to optimize its position in settlement negotiations. The consequence is that any decision about the appropriate forum will in effect finally resolve the dispute (Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, 468), for which reason the parties devote considerable resources to contesting such proceedings (Deripaska v Cherney [2009] EWCA Civ 849 [7]‌).

The importance, scale and complexity of such proceedings create several difficulties, or perceived difficulties. First, their duration, cost and complexity may be disproportionate given their interlocutory nature (VTB Capital Plc v Nutritek International Corp [2013] UKSC 5 [82]). Second, a party may exploit those features to bring pressure on a less well-funded party to desist or settle (VTB Capital Plc v Nutritek International Corp [2013] UKSC 5 [83]). Where, however, the arguments and evidence deployed are disproportionate given the issues between the parties, as may occur in any legal proceedings (AK Investments CGC v Kyrgyz Mobil Tel Ltd [2011] UKPC [7]‌), a court can exercise its case-management powers to simplify the dispute, or its inherent power to prevent abusive proceedings. Nor is it inherently disproportionate to devote extensive resources to jurisdictional disputes, rather than to proceedings on the merits, as is sometimes suggested (Deripaska v Cherney [2009] EWCA Civ 849 [7]), given that the issue of venue is of paramount importance to the parties. If the parties are likely to settle once that issue p. 806is resolved, it is preferable that the settlement process occurs without the distortion and possible unfairness that might arise if the venue is a non-optimal forum. Indeed, by exposing the consequences of litigating in one court and not another, the forum conveniens inquiry facilitates the settlement process. Moreover, it is unclear why litigants should be discouraged from contesting strongly the issue which to them is of paramount importance (Mengiste v Endowment Fund for the Rehabilitation of Tigray [2013] EWHC 599 (Ch) [11]).

Of greater importance are two potential difficulties which expose the tension between proceedings which are in principle interim, but which are in principle final. First, the interlocutory nature of forum conveniens disputes means that issues relevant to a trial on the merits, such as the identity and content of the applicable law, must be addressed without full evidence, or full appreciation of the facts or legal issues. Legal systems such as English law respond to the difficulty of establishing jurisdictional facts by requiring that they be established to the standard of a good arguable case, not finally as at a trial on the merits (Bank of Baroda v Vysya Bank Ltd [1994] 2 Lloyds Rep 87). Again, it may be necessary to establish the legal framework applicable in the alternative forum for the purposes of the forum conveniens evaluation, perhaps to determine whether a claimant would have access to justice in that court. Such questions cannot be conclusively answered in the absence of a full hearing (The Polessk [1996] 2 Lloyd’s Rep 40), and the measure where injustice is alleged is that of ‘a real risk’ that justice will not be obtained (AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2011] UKPC 7 [95]). Such procedural devices resolve the practical difficulty in such cases, but what amounts to a determination of the final outcome of the parties’ dispute nonetheless depends on provisional findings made on an incomplete legal and factual basis. Second, although an appeal is possible on a trial court’s finding on forum non conveniens, such appeals ‘should be rare’ (Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, 465). The consequence is that the crux of the parties’ dispute may not be subject to review.

These difficulties must, however, be placed in context. The provisional standards of proof employed in such disputes are not trivial, and given that such matters are normally strenuously argued it is likely that such findings will be based on substantial evidence, notwithstanding their interlocutory status. Again, an appeal from a forum conveniens finding remains possible if the lower court makes an error of principle (Galaxy Special Maritime Enterprise v Prima Ceylon Ltd [2006] 2 Lloyd’s Rep 27 [30]), or where a matter of English law arises, as where a court’s determination of the applicable law is appealed (PT Pan Indonesia Bank Ltd TBK v Marconi Communications International Ltd [2007] 2 Lloyd’s Rep 72). An appeal is possible, therefore, on matters from which an appeal should be possible.

Richard Fentiman

Literature

  • Edward L Barrett, ‘The Doctrine of Forum Non Conveniens’ (1947) 35 Cal.L.Rev. 380;

  • Andrew Bell, Forum Shopping and Venue in Transnational Litigation (OUP 2003);

  • Paxton Blair, ‘The Doctrine of Forum Non Conveniens in Anglo-American Law’ (1929) 29 Colum.L.Rev. 1;

  • Ronald A Brand, ‘Comparative Forum Non Conveniens and the Hague Convention on Jurisdiction and Judgments’ (2002) 37 Tex.Int’l L.J. 467;

  • Ronald A Brand and Scott R Jablonski, Forum Non Conveniens, History, Global Practice, and Future under the Hague Convention on Choice of Court Agreements (OUP 2007);

  • Adrian Briggs and Peter Rees, Civil Jurisdiction and Judgments (5th edn, Informa 2009);

  • Donald Earl Childress, ‘Forum Conveniens: The Search for a Convenient Forum in Transnational Cases’ (2012) 53 Virginia J Intl L 157;

  • Lord Collins of Mapesbury and others (eds), Dicey, Morris and Collins on the Conflict of Laws (15th edn, Sweet & Maxwell 2012);

  • Richard Fentiman, International Commercial Litigation (OUP 2010);

  • Friedrich K Juenger, ‘Forum Shopping, Domestic and International’ (1988–89) 63 Tul.L.Rev. 553;

  • Wendy Kennett, ‘Forum Non Conveniens in Europe’ (1995) 54 CLJ 552;

  • Mary Keyes, Jurisdiction in International Litigation (Federation Press 2005);

  • Arthur T von Mehren, ‘Theory and Practice of Adjudicatory Authority in Private International Law: A Comparative Study of the Doctrine, Policies and Practices of Common- and Civil-Law Systems’ (2002) 295 Rec. des Cours 9, 431; David W Robertson, ‘The Federal Doctrine of Forum Non Conveniens: An Object Lesson in Uncontrolled Discretion’ (1994) 29 Tex.Int’l L.J. 353;

  • Linda J Silberman, ‘Developments in Jurisdiction and Forum Non Conveniens in International Litigation: Thoughts on Reform and a Proposal for a Uniform Standard’ (1993) 28 Tex.Int’l L.J. 501;

  • Anthony Slater, ‘Forum Non Conveniens: A View from the Shop Floor’ (1988) 104 LQR 554.