Forum non conveniens
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Forum non conveniens (Latin for "inconvenient forum" or "inappropriate forum") is a discretionary power of common law courts to refuse to hear a proceeding that has been brought before it. The courts will refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties.
The doctrine is also used both internationally and domestically. Countries with overlapping, parallel or exclusive courts such as the United States and Canada also use the doctrine to decide when a judgment from a neighboring court should be recognized and enforced. It is an important organizing principle in the field of Conflict of Laws.
The underlying principles, such as basing respect given to foreign courts on reciprocal respect or comity, also apply in civil law systems (lis alibi pendens).
A concern often raised in applications of the doctrine is forum shopping, or picking a court merely to gain an advantage in the proceeding.
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[edit] Explanation
A sovereign state enacts laws which are applied through a court system. The laws of the court are termed the lex fori, or law of the forum. As a matter of civil procedure, courts must decide whether and in what circumstances, they will accept jurisdiction over parties, and subject matter when a lawsuit begins. This decision will be routine, or not raised at all, if the relevant elements of the case are within the territorial jurisdiction of the court. If one or more of the parties reside outside the territorial jurisdiction or there are other factors which might make another forum more appropriate, the question of jurisdiction must be settled.
[edit] Historical Origin
The doctrine of forum non conveniens originated in the United States in Willendson v Forsoket 29 Fed Cas 1283 (DC Pa 1801) (No 17,682) where a federal district court in Pennsylvania declined to exercise jurisdiction over a Danish sea captain sued for back wages by a Danish seaman, stating that "[i]f any differences should hereafter arise, it must be settled by a Danish tribunal." In Scotland, the concept first appeared in MacMaster v MacMaster (Judgment of 7 June 1833, Sess, Scot 11 Sess Cas, First Series 685.)
[edit] UK law
The doctrine has limited application in most civil law jurisdictions which prefer lis alibi pendens, although the principle behind forum non conveniens is acknowledged. As a member of the European Union, the United Kingdom signed the Brussels Convention. The Civil Jurisdiction and Judgments Act 1982 as amended by the Civil Jurisdiction and Judgments Act 1991 states that,
- "Nothing in this Act shall prevent any court in the UK from staying, sisting, striking out or dismissing any proceedings before it on the ground of forum non conveniens or otherwise, where to do so is not inconsistent with the 1968 [Brussels] Convention or, as the case may be, the Lugano Convention."
The case of Owusu v Jackson and Others [1] before the European Court of Justice, was concerned with the relationship between Article 2 of the Brussels Convention and the scope of forum non conveniens within the European Community. In Owusu, the English Court of Appeal asked the ECJ whether it could stay a matter brought to it under Article 2 Brussels Convention pursuant to the English forum non conveniens rules. The Court held that the Brussels Convention was a mandatory set of rules designed to harmonise and so produce a predictable system throughout the EU. If one or more states were able to derogate from the Convention using their own domestic rules of civil procedure, this would deny a uniform result to proceedings based on forum selection. Hence, at 46. the ECJ held:
- the Brussels Convention precludes a court of a Contracting State from declining the jurisdiction conferred on it by Article 2 of that convention on the ground that a court of a non-Contracting State would be a more appropriate forum for the trial of the action even if the jurisdiction of no other Contracting State is in issue or the proceedings have no connecting factors to any other Contracting State.[2]
However, some UK commentators argue that the forum non conveniens rules may still apply to cases where the other proceedings are not in a Member state but this remains uncertain. What is certain is that a Scottish Court may sist its proceedings in favour of the Courts of England or Northern Ireland on the ground of forum non conveniens, since this is settling intra-UK jurisdiction: Cumming v Scottish Daily Record and Sunday Mail Ltd, The Times June 8, 1995; Collins: 1995
[edit] Australia
In the jurisdictions where the forum non conveniens rule survive, a court will usually dismiss a case where the judge determines that the dispute would be better adjudicated in a different forum. Courts have been split in their applications of the rule. In Oceanic Sun Line Special Shipping Co v Fay (1988) 165 CLR 197 and Voth v Manildra Flour Mills (1990) 71 CLR 538 the High Court of Australia refused to adopt the "most suitable forum" approach and instead devised its own "clearly inappropriate forum" test. Nevertheless, the Australian courts balanced the foreign and local factors, and a dismissal would only be granted if the defendant could show that he was "oppressed" or "harassed" by the plaintiff's choice of Australia for legal action. This retained the rationale of the traditional doctrine, making it impossible for Australian defendants to obtain a dismissal from their own courts on forum non conveniens grounds. In Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491, the High Court affirmed the "clearly inappropriate forum" test as Australian law, while stating that even where the law of a foreign country had to be applied to decide a case, Australia would not be a "clearly inappropriate" forum for hearing the matter (Lindell: 2002).
[edit] Canada
The doctrine of forum non conveniens in Canada was considered in Amchem Products Inc. v. British Columbia Worker's Compensation Board, [1993] 1 S.C.R. 897. The Court held that the test for striking out a claim for forum non conveniens is where "there is another forum that is clearly more appropriate than the domestic forum." If the forums are both found to be equally convenient, the domestic forum will always win out.
Convenience is weighed, using a multi-factored test that includes elements such as: the connection between the plaintiff's claim and the forum, the connection between the defendant and the forum, unfairness to the defendant by choosing the forum, unfairness to the plaintiff in not choosing the forum, involvement of other parties to the suit (i.e. location of witnesses), and issues of comity such as reciprocity and standard of adjudication.
The Supreme Court has underlined that forum non conveniens inquiries are very similar but distinct from "real and substantial connection" test used in challenges to jurisdiction. The most important difference is that applying forum non conveniens is a discretionary choice between two forums, each of which could legally hear the issue.
[edit] Quebec
Circumstances are slightly different in Quebec. The Quebec Civil Code 1994, at art. 3135 c.c.q., provides: "Even though a Quebec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide." For decisions applying art. 3135 c.c.q., see H.L. Boulton & Co. S.C.C.A. v. Banque Royale du Canada (1995) R.J.Q. 213 (Quebec. Supr. Ct.); Lamborghini (Canada) Inc. v. Automobili Lamborghini S.P.A. (1997) R.J.Q. 58 (Quebec. C.A.); Spar Aerospace v. American Mobile Satellite (2002) 4 S.C.R. 205, and Grecon Dimter Inc. v. J.R. Normand Inc. (2004) R.J.Q. 88 (Quebec. C.A.)
[edit] United States
The defendant may make a motion to dismiss an action on the ground of forum non conveniens. In deciding whether to grant the motion, the court reflects on the following factors:
- the location of potential witnesses and relevant evidence
- possible undue hardship for the defendant
- availability of adequate alternative forum for the plaintiff
- the expeditious use of judicial resources
- the choice of law applicable to the dispute
- questions of public policy.
As for the transfer of a trial to a jurisdiction outside of the U.S., courts will generally grant the transfer if a foreign court is "more appropriate."
There have been efforts by state legislatures to limit the availability of the doctrine, to make the jurisdiction more plaintiff-friendly. In Texas, for example, parties in product liability cases may not invoke the rule.
[edit] Forum Non Conveniens and EU law
The doctrine of forum non conveniens gained little footing in the civil law world, which prefers the approach of lis pendens (see Articles 21-23 Brussels Convention). The civil law jurisdictions generally bases jurisdiction on the residence of the defendant and on choice of law rules favouring the habitual residence of the parties, the lex situs, and the lex loci solutionis (applying actor sequitur forum rei). This reflects an expectation that a defendant should be sued before his or her "own" courts, modified to reflect different priorities in certain types of case. As an example of this expectation, Article 2 Brussels Convention provides:
- Subject to the provisions of this Convention, persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that State.
- Persons who are not nationals of the State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that State.
But this is subject to the substantial exceptions contained in Articles 3-6, the limitations on insurance actions in Articles 7-12, and consumer contracts in Articles 13-15. Article 16 also grants exclusive jurisdiction to specified jurisdictions as the lex situs of immovable property and a res, and for the status of companies, the validity of public registers with particular reference to the registration and validity of patents, and the enforcement of judgments. Subsequent Articles allow forum selection clauses and other forms of agreement between the parties to confer jurisdiction on a given forum. The Brussels Regime therefore represents a harmonised set of rules for the determination of all questions of jurisdiction throughout the EU excluding forum non conveniens.
[edit] An example
An Israeli businessman sues an American national with a domicile in New York State, in a court of that latter state for breach of contract. The contract was for the performance of construction services in Israel, the loss alleged to flow from the breach was sustained in Israel, all the potential witnesses live in Israel, the proper law is Israeli law, and all relevant documentation is in Hebrew. Although the New York court could base jurisdiction on the defendant's domicile and residence, it might apply forum non conveniens, reasoning that an Israeli court would be a more convenient forum. A key factor will be whether the defendant has any assets in Israel. If not, the case will have to return to New York as a foreign judgment for enforcement. This need to return to New York in any event might persuade the New York court to accept the initial jurisdiction.
[edit] Shipping and forum non conveniens
The application of forum non conveniens most commonly arises in shipping cases since many different parties may be involved as charterers or consignees and because of the international nature of the law of the sea and maritime trade. Despite many different conventions dealing with aspects of international trade, jurisdictional disputes are common. Moreover, in some instances, a case in the United States may be initiated under U.S. state law when Admiralty (which is a Federal jurisdiction) would be the more appropriate forum. If this occurs, the case may be removed to the Federal Courts or to the courts of another state on the ground of forum non conveniens.
For example, suppose that a container ship comes into port in Miami, Florida, USA. The ship, which is Liberian-registered, is wanted as security for various debts incurred by its Master while in Denmark. Made aware of the ship's presence, a local lawyer moves to impose a lien which involves a form of arrest by means of de novo proceedings in rem. The local Federal district sitting in Admiralty determines that the ship's Master had ostensible authority as an agent to pledge the credit of the ship's owners (who are English). It also determines that neither the ship nor its owners have violated American law in any way, and the local court is not in a good position to hear witnesses who are all resident in other states. Further, major liability in demurrage to the innocent charterers, forwarders, etc. will be incurred if the ship is detained without just cause, so it would not be unreasonable for the Federal Court to decline jurisdiction. Whether there is subsequent litigation in another state will depend on the tactics of the creditors. Without a lien over the ship or the ability to obtain some form of control over the assets of the debtor, making a claim for money owing may not be cost-effective. But, if there have already been proceedings on the issue of liability before a court of competent jurisdiction in another state so that the action in Miami is purely by way of enforcement, the Miami jurisdiction, whether it be state or federal would be the forum conveniens because the ship is physically within the jurisdiction.
[edit] External links
Text of the Brussels Convention [3]
[edit] References
- Lindell, Geoffrey. (2002). "Regie National des Usines Renault SA v. Zhang: choice of law in torts and another farewell to Phillips v Eyre but the Voth test retained for forum non conveniens in Australia." October, Melbourne Journal of International Law.
- Dakoutros, Andrew LLB LLM (2002) Forum non conveniens, forum shopping. Forum non conveniens
