Academic journal article Defense Counsel Journal

Foreign Corporations: Forum Non Conveniens and Change of Venue

Academic journal article Defense Counsel Journal

Foreign Corporations: Forum Non Conveniens and Change of Venue

Article excerpt

THE doctrine of forum non conveniens can have a profound impact on litigation in the United States involving foreign corporations. This article provides an overview of the doctrine and its applicability to the foreign corporation. The analysis begins with a look at forum non conveniens as a means of dismissal of a case to a foreign jurisdiction and emphasizes factors such as the degree of deference a U.S. court should give to the plaintiff's choice of forum. The article also considers arguments for and against domestic forum non conveniens transfer of venue pursuant to 28 U.S.C. [section] 1404(a) to a federal court where an action may have been brought originally.


The common law doctrine of forum non conveniens developed in Scotland in the early 19th century as a discretionary device designed to allow trial courts to decline to exercise jurisdiction when it appeared that the convenience of the parties and the interests of justice would best be served by trial of the action in another forum.(1) In two companion 1947 cases--Gulf Oil Corp. v. Gilbert(2) and Koster v. Lumbermen's Mutual Casualty Co.(3)--the U.S. Supreme Court established the framework for forum non conveniens analysis by setting forth the private and public interest factors to be considered in the discretionary application of the doctrine.

Historically, a presumption favoring a plaintiff's initial choice of forum operated to assure plaintiffs substantial latitude in choosing an advantageous jurisdiction.(4) Recent decades have seen a growing number of foreign plaintiffs seeking redress in U.S. courts because of the contingency fee system, the availability of jury trials and large damage verdicts, extensive pretrial discovery, lower filing fees, relatively prompt trial dates, liberal joinder rules and the minimal likelihood of having to pay the other party's expenses, including attorney's fees, in the event of a loss.(5)

In 1981, the U.S. Supreme Court addressed this increase in Piper Aircraft Co. v. Reyno(6) and refined the forum non conveniens test for actions brought by foreign plaintiffs. Piper Aircraft focuses on the degree of deference owed a foreign plaintiff's chosen forum and the weight to be given the fact that the substantive law in the alternative forum may be less favorable to the plaintiff.

A. Plaintiff's Choice of Forum

In Piper Aircraft, relatives of Scottish citizens killed in an aircraft accident in the United Kingdom commenced an action in the United States against the manufacturers of the aircraft and its propellers. The manufacturers were U.S. citizens and personal jurisdiction existed over them. The Supreme Court nevertheless affirmed forum non conveniens dismissal of the litigation because the real parties in interest, the wreckage and the witnesses were all located in the United Kingdom. The Court concluded that dismissal was appropriate even though the products liability law of the United Kingdom was less favorable to the plaintiffs than that of the United States.

The Piper Aircraft Court also held that although the plaintiffs' initial forum choice normally is given considerable weight, this presumption applies with less force when plaintiffs are foreign citizens,(7) stating:

When the home forum has been chosen [by the

plaintiff], it is reasonable to assume that this

choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable.

Because the central purpose of any forum

non conveniens inquiry is to ensure that the

trial is convenient, a foreign plaintiff's choice

deserves less deference.(8)

The Supreme Court also noted the potential problems that could arise if these criteria were not followed:

The Supreme Court also notedthe potential problems that could arise if these criteria were not followed: The American courts, which are already extremely attractive to foreign plaintiffs, would become even more attractive. …

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