Comparative Forum Non Conveniens and the Hague Convention on Jurisdiction and Judgements

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I. INTRODUCTION

The doctrine of forum non conveniens is one part of a complex web of issues relating to the ability of courts to decline jurisdiction in cases connected to more than one legal system.1 While the Latin term was first used in Scotland in the late nineteenth century, the doctrine is generally agreed to have its genesis in earlier Scottish cases of the seventeenth century. Both the doctrine and the term appear in most common law systems following the British model, but there often are important differences in the focus and effect of the doctrine from country to country. At base, the doctrine allows a court that has jurisdiction to stay or dismiss proceedings where there is a more appropriate forum for the litigation.

The doctrine of forum non conveniens generally is unknown in legal systems following the continental civil law model. Rather than search for the most appropriate forum, most civil law states opt for what is considered to be greater predictability in the rules of jurisdiction, and apply a lis alibi pendens analysis when the possibility of parallel litigation in multiple forums arises. This approach emphasizes the plaintiffs choice of forum when forum shopping is possible, placing the focus on where the case is first filed rather than on the appropriateness of one forum as compared to others that are available.

These differences in approach have been the subject of a carefully crafted compromise in the work of the Special Commission of the Hague Conference on Private International Law, which for nearly a decade has been working on a Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters. That compromise reflects elements of both the common law approach to forum non conveniens and the civil law approach to lis alibi pendens.

This article begins with a discussion of the application of the forum non conveniens doctrine in four common law legal systems. It then briefly notes related concepts applied in the courts of two civil law systems. This discussion is followed in Part IV by a brief history of the negotiations at the Hague Conference on Private International Law for a Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters and a review of Articles 21 and 22 of the Interim Text of that Convention created at the June 2001 portion of the Diplomatic Conference.3 This review allows conclusions dealing with both the role of the forum non conveniens doctrine in contemporary transnational litigation and the effort to bring traditional common law and civil law approaches to parallel litigation closer together.

II. FORUM NON CONVENIENS IN COMMON LAW SYSTEMS

A. Scotland and England

While Scotland is a part of the United Kingdom, its legal system developed separately, with significant French civil law influence. Despite this influence, Scotland is credited with generating the concepts that now underlie the common law doctrine of forum non conveniens and with giving the doctrine its name.

Scottish cases from as early as the seventeenth century applied the plea of forum non competens to go beyond mere claims of lack of jurisdiction and encompass cases in which jurisdiction was clear under the law, but the parties were alien and trial in Scotland was deemed to be inconvenient.4 This application increasingly became common practice in Scottish cases in the nineteenth century, when forum non competens "was available both where the court lacked jurisdiction and where it was not expedient for the due administration of justice to hear the case."5 In the mid-nineteenth century, Scottish cases recognized that the question was one on the merits, and discussed the concept of "inconvenient forum."7 Later nineteenth century courts replaced the term forum non competens with forum non conveniens, recognizing that only a question of discretion, and not of jurisdiction, was involved.8

The first step in the application of the doctrine became the presence of an alternative forum:

[T]he plea can never be sustained unless the court is satisfied that there is some other tribunal, 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. …