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Forum non conveniens (FNC;Latin for 'an inconvenient forum')[1][2][3] is a mostlycommon lawlegal doctrine through which a court acknowledges that another forum or court where the case might have been brought is a more appropriatevenue for a legal case, and dismisses the case.Forum non conveniens may be used to dismiss a case, for example, to encourage parties to file a case in another jurisdiction within which an accident or incident underlying the litigation occurred and where all the witnesses reside.[4]
As a doctrine of theconflict of laws,forum non conveniens applies between courts in different countries and between courts in differentjurisdictions in the same country.Forum non conveniens is not applicable between counties or federal districts within a state.[5]
A concern often raised in applications of the doctrine isforum shopping, or picking a court merely to gain an advantage in the proceeding. This concern is balanced against the public policy of deferring to a plaintiff's choice of venue in claims where there may be more than one appropriate jurisdiction. The underlying principles, such as basing respect given to foreign courts on reciprocal respect orcomity, also apply incivil law systems in the form of the legal doctrine oflis alibi pendens.
Forum non conveniens is not exclusive to common law nations: the maritime courts of theRepublic of Panama, although not a common law jurisdiction, also have such power under more restrained conditions.[6]
Acountry, state, or other jurisdiction enacts laws which are interpreted and applied through a system of courts. The laws applied by a particular system of courts or legal system are termed thelex fori, or law of the forum. As a matter ofcivil procedure, courts must decide whether and in what circumstances they will acceptjurisdiction overparties and subject matter when alawsuit 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 resides outside the territorialjurisdiction or there are other factors which might make another forum more appropriate, the question of jurisdiction must be settled.
Scholars and jurists agree that the concept is of a Scottish origin.[7][8][9][10] Many early Scottish cases invoking FNC were underadmiralty law. FNC thus may ultimately have acivil law origin, as has been asserted by several writers, since admiralty law is based in civil law concepts.[citation needed] However, there is no equivalent in theFrench Civil Code orRoman law.[11]
InScotland, the concept was developed in the 18th century and was later incorporated intoEnglish common law. It was first adopted in Scotland in 1610, the case beingVernor v Elvies [1610] Mor 4788, as an extension offorum non competens; two English residents were tried in Scotland argued a Scottish trial would be inconvenient, the court ruling "The Lords will not find themselves Judges betwixt two Englishmen". It was expanded and applied in the 1860s (inClements v Macauley [1866] 4 S 224 andLongworth v Hope [1865] 3 S 1049), which led to its incorporation into English law. The pleading was used in situations where the competence of the court was unchallenged (unlikeforum non competens) but the court was asked to invoke its discretion.[11]
The doctrine had been applied in several jurisdictions under varying names; in the 1793 caseRobertson v Kerr, a Massachusetts court refused to apply jurisdiction in a case involving a foreign transaction between non-residents.[11]
According to the "parental function" ofSoviet law,[12] the 1964 R.S.F.S.R. code of civil procedure recognised the doctrine offorum non conveniens for civil procedures.[13]
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As a member of theEuropean Union, theUnited Kingdom signed theBrussels Convention. TheCivil Jurisdiction and Judgments Act 1982 as amended by theCivil Jurisdiction and Judgments Act 1991 states:
Nothing in this Act shall prevent any court in the UK from staying, sisting [staying or stopping a process, or summoning a party[14]], striking out or dismissing any proceedings before it on the ground offorum 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 ofOwusu v Jackson and Others[15] before theEuropean Court of Justice, was concerned with the relationship between Article 2 of the Brussels Convention and the scope of FNC within theEuropean Community. InOwusu, the EnglishCourt of Appeal asked the ECJ whether it could stay a matter brought to it under Article 2 Brussels Convention pursuant to the English FNC 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 states were able to derogate from the Convention using their 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.[16]
However, some UK commentators[according to whom?] argue that the FNC rules may still apply to cases where the other proceedings are not in a Member state but this remains uncertain. A Scottish Court may sist its proceedings in favour of the Courts of England or Northern Ireland on the ground of FNC, since this is settling intra-UK jurisdiction.[17]
In the jurisdictions where the FNC rule survives, a court will usually dismiss a case when the judge determines that the dispute would be better adjudicated in a different forum. After a period of split approach toforum non conveniens, theHigh Court adopted a consolidated application of the rule inVoth v Manildra Flourd Mills (1990) 171 CLR 538. This decision affirmed the judgement ofJustice Deane inOceanic Sun Line Special Shipping Co v Fay (1988) 165 CLR 197, whereby his Honour departed from the traditional test and articulated the "clearly inappropriate forum" test.[18]
InVoth, theHigh Court of Australia refused to adopt the "more appropriate forum" approach and instead affirmedJustice Deane's test.[19] This approach requires that continuation of proceedings in Australia would cause vexation or oppression on the defendant, to such an extent that it would amount to a serious injustice.[18] The court found that their approach retained the rationale of the traditional doctrine, while sparing them unduly time consuming considerations associated with the complex questions arising under the traditional test.[20]
Notable subsequent developments of the test include theZhang and theHenry cases. InRegie National des Usines Renault SA v Zhang (2002) 210 CLR 491, theHigh 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.[21] InHenry v Henry (1996) 185 CLR 571, the High Court found that it would beprima facie vexatious and oppressive to commence proceedings in Australia after proceedings for substantially the same subject matter were initiated in another jurisdiction.[22]
The doctrine of FNC in Canada was considered inAmchem 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 FNC 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 ofcomity such as reciprocity and standard of adjudication.
The Supreme Court has underlined that FNC inquiries are similar to but distinct from theReal and Substantial connection" test used in challenges to jurisdiction. The most important difference is that applying FNC is a discretionary choice between two forums, each of which could legally hear the issue.
The law of the province of Quebec, Canada is slightly different. 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.
The practical effects are identical to any other jurisdiction but the wording used by the code is different. For decisions applying art. 3135 c.c.q., seeH.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, andGrecon Dimter Inc. v. J.R. Normand Inc. (2004) R.J.Q. 88 (Quebec. C.A.)
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The defendant may move to dismiss an action on the ground of FNC. Invoking this doctrine usually means that the plaintiff properly invoked the jurisdiction of the court, but it is inconvenient for the court and the defendant to have a trial in the original jurisdiction. The court must balance convenience against the plaintiff's choice of forum. In other words, if the plaintiff's choice of forum was reasonable, the defendant must show a compelling reason to change jurisdiction. If a transfer would simply shift the inconvenience from one party to the other, the plaintiff's choice of forum should not be disturbed.
Generally, a corporation sued in the jurisdiction of its headquarters is not entitled to seek an FNC dismissal. Thus if anAmerican corporation is sued in an area where it only transacts business but not where it has its headquarters, and the court dismisses based upon FNC, the plaintiff may refile the action in the jurisdiction of the corporation's headquarters.
In deciding whether to grant the motion, the court considers:
Additional factors include:
The determination of the court may not be arbitrary or abusive as this is a drastic remedy to be applied with caution and restraint.
As for the transfer of a trial to a jurisdiction outside of the U.S., courts will only grant the transfer if a foreign court is “more appropriate”, and there may be a real opportunity to obtain justice there.
In New York, for example, there is a strong presumption in favor of the plaintiff's choice of forum. See Gulf Oil v. Gilbert, 330 U.S. 501, 508 (1947); R. Maganlal & Co., 942 F.2d 164, 167 (2nd Cir. 1991); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 101 (2d Cir. 2000); and Maran Coal Corp. V. Societe Generale de Surveillance S.A., No. 92 CIV 8728, 1993 US.Dist. LEXIS 12160 at *6 (S.D.N.Y. September 2, 1993). A defendant must show compelling evidence in order to disturb the choice of forum. The burden of proof is on the defendant: Strategic Value Master Fund, Ltd. v. Cargill Fin. Serv. Corp., 421 F.2d 741, 754 (S.D.N.Y. 2006). The court must also consider the defendant's vast resources compared with the plaintiff's limited resources as an aggrieved individual: See Wiwa at 107: “defendants have not demonstrated that these costs [of shipping documents and witnesses] are excessively burdensome, especially in view of defendant’s vast resources”. Also, Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F.Supp.2d 289 (S.D.N.Y. 2003) at 341: “A countervailing factor is the relative means of the parties”.
In 2006, the 2nd Circuit Federal Court in New York issued a decision in the famous Coca-Cola case. Coca-Cola took over assets of Jews expelled from Egypt in the 1950s and was sued in New York. Bigio v. Coca-Cola Company, 448 F.3d 176 (2d Cir. 2006),certiorari to Sup. Ct. denied. In that case, the plaintiffs were Canadians and non‐residents of New York. The court denied Coca-Cola's FNC motion and the U.S. Supreme Court deniedcertiorari. The 2nd Circuit stated that the fact that the New York court would need to apply “modest application” of Egyptian law was not a problem because “courts of this Circuit are regularly called upon to interpret foreign law without thereby offending the principles of international comity”. Also, the fact that there were witnesses abroad was not a problem either. They could be flown into the U.S. or Letters Rogatory could be issued to the Egyptian courts to collect their testimony. Further, it was held that in an FNC scenario, a court applies the balance of conveniences, but preference (and weight) must be given to the fact that plaintiffs chose this particular forum for “legitimate reasons”. The fact that plaintiffs could sue in Canada was not relevant because Coca-Cola was a U.S. company and it was “perfectly reasonable to sue in the US”.
The doctrine of FNC gained little footing in the civil law world, which prefers the approach oflis alibi pendens (see Articles 21-23 Brussels Convention). The civil law jurisdictions generally base jurisdiction on the residence of the defendant and onchoice of law rules favouring thehabitual residence of the parties, thelex situs, and thelex loci solutionis (applyingactor sequitur forum rei). This reflects an expectation that a defendant should be sued at his "own" courts, modified to reflect different priorities in certain types of case. As an example of this expectation, Article 2Brussels I Regulation (as well as the corresponding Lugano conventions) 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 grantsexclusive jurisdiction to specified jurisdictions as thelex situs of immovable property and ares, 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 allowforum 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 andEFTA (but not Liechtenstein) excluding FNC.
The issue of FNC arises in shipping cases since different parties may be involved as charterers orconsignees and because of the international nature of thelaw of the sea andmaritime trade. Despite several differentconventions dealing with aspects of international trade, jurisdictional disputes are common. Moreover, in some instances, a case in theUnited States may be initiated under U.S. state law whenAdmiralty law (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 FNC grounds.
For example, suppose that a container ship comes into port inMiami, Florida, United States. The ship, which is Liberian-registered, is wanted as security for various debts incurred by its Master while inDenmark. Made aware of the ship's presence, a locallawyer moves to impose alien which involves a form of arrest by means ofde novo proceedingsin rem. The local Federal district sitting in Admiralty determines that the ship's Master had ostensible authority as anagent to pledge the credit of the ship's owners (who areEnglish). 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 indemurrage 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 ofenforcement, the Miami jurisdiction, whether it be state or federal would be theforum conveniens because the ship is physically within the jurisdiction.
