Academic journal article Texas International Law Journal

Not in the Public Interest? Lubbe V. Cape PLC

Academic journal article Texas International Law Journal

Not in the Public Interest? Lubbe V. Cape PLC

Article excerpt

I. INTRODUCTION

The work of Fritz Juenger did much to enlighten us on a topic, which, to use his words, "has a bad name," namely "forum shopping."1 However, as Professor Juenger so ably argued:

[N]ot all forum shopping merits condemnation. Some clearly does, such as the "pennoyering" of casual travelers and, worse yet, the kidnapping of hapless children. But can anyone blame the solicitors who retained American attorneys, instead of the barristers with whom they normally deal, to litigate the Paris aircrash cases? Far from doing anything legally or morally reprehensible, the solicitors simply served their clients well.2

The point of Juenger's argument is both that most systems of jurisdiction in civil matters offer parties a fair degree of choice of forum in cases that are connected with more than one country and that it is utopian to posit the notion that there is one forum that is the right one.

The choice of available fora is likely to be greater when jurisdiction can be taken on what are sometimes called exorbitant grounds-personal transient presence of the defendant within the jurisdiction ("tag" jurisdiction),3 "minimum contacts"4 (or in the view of some, "minimal contacts"),5 the nationality of the plaintiff6 or the defendant,7 the mere presence of assets within the jurisdiction8 and so on. But choices are not eliminated even within the context of a legal regime that specifically excludes supposedly exorbitant bases of jurisdiction. The most well-known example of such a regime is probably the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 1968, as amended.9 In that context, there are plenty of examples of cases where such choices have been held to exist10 and where, perhaps, a choice has been made for largely tactical reasons.11

Traditionally, English courts did little to discourage litigants from choosing to litigate in England, when the case was brought there consistent with English jurisdictional rules. In a classic statement of the early common law on staying English actions, Lord Justice Scott had this to say:

(1) A mere balance of convenience is not a sufficient ground for depriving a plaintiff of the advantages of prosecuting his action in an English court if it is otherwise properly brought. The right of access to the King's court must not be lightly refused.

(2) In order to justify a stay two conditions must be satisfied, one positive and the other negative:

(a) the defendant must satisfy the court that the continuance of the action would work an injustice because it would be oppressive or vexatious to him or would be an abuse of the process of the court in some other way; and

(b) the stay must not cause an injustice to the plaintiff. On both, the burden of proof is on the defendant.12

Lord Denning extended an even more generous welcome to foreign litigants:

No one who comes to these courts asking for justice should come in vain. The right to come here is not confined to Englishmen. It extends to any friendly foreigner. He can seek the aid of our courts if he desires to do so. You may call this 'forum-shopping' if you please, but if the forum is England, it is a good place to shop in both for the quality of the goods and the speed of service.13

Additionally, litigation before English courts may be seen as an economic asset of benefit to the national economy:

Although there has been considerable judicial condemnation of the practice of forum shopping, it appears in the past that the more the claimant had to gain from this practice the more likely he was to be allowed to continue his action in England. This may seem curious but it has to be borne in mind that there is a public interest in allowing trial in England of what are, in essence, foreign actions. When foreigners litigate in England this forms valuable invisible export, and confirms judicial pride in the English legal system. …

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