Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.

Forum non conveniens


Published on

  • Be the first to like this

Forum non conveniens

  2. 2. <ul><li>The FORUM NON CONVENIENS is a latin phrase which simply means Inappropriate forum . </li></ul><ul><li>It is a Common law legal doctrine that is most often used when the Jurisdiction chosen by the Plaintiff is inconvenient to the witnesses and causes an undue hardship to the Defendant. </li></ul><ul><li>Forum non conveniens 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. </li></ul><ul><li>It is an important organizing principle in the field of Private International law. </li></ul>
  3. 3. <ul><li>Corporate law suits are often filed in the corporate head quarters location. In this case, the doctrine may be invoked to move the lawsuit to the place of business. </li></ul><ul><li>‘ A’ is a company having its head quarters in Singapore. ‘A’ does business with ‘B’, a company in India. ‘A’ files a lawsuit against the said ‘B’ in Singapore. ‘B’ invokes the doctrine contending the inconvenience of the forum as the place of business and presence of witnesses and evidences are in India and hence inconvenient. (Although both the Countries have jurisdiction to entertain the suit, the more appropriate forum convenient to the parties and witnesses are taken into account as the witnesses and the Defendant are constrained to travel to Singapore). </li></ul><ul><li>A law suit is instituted in Delhi, the Corporate Head quarters; but all the witnesses and the subject property of the suit is in Kolkatta. In this instance the court may conclude that it is more convenient to litigate the case in Kolkkata than in Delhi. </li></ul>
  4. 4. <ul><li>The Doctrine of forum non conveniens is a common law doctrine and has civil law origin . </li></ul><ul><li>According to scholars and jurists the Doctrine forum non conveniens seem to have originated in Scotland prior to the first American use of this concept. Some writers are of the opinion that this doctrine has developed from the doctrine of forum non competens (&quot;non-competent forum&quot;). </li></ul><ul><li>Many early cases in the U.S and Scotland involving this doctrine were cases under admiralty law. Thus this Doctrine may ultimately have the Civil law origin, since according to several writers and jurists, the admiralty law is based on civil law concepts. </li></ul>
  5. 5. <ul><li>The doctrine is used both internationally and domestically. Several countries, including Countries with overlapping, parallel or exclusive courts such as the United States and Canada and Australia use the doctrine of forum non conveniens. </li></ul><ul><li>Although the principle behind the doctrine is acknowledged, this Doctrine has limited application in most civil law jurisdictions which prefer lis alibi pendens (Pending Parallel litigation). </li></ul><ul><li>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. </li></ul>
  6. 6. <ul><li>A court may deny jurisdiction if it concludes that another forum will be the most convenient and will best serve the interests of justice. Convenience and interests of justice are the utmost factors that would be looked into by the court in which a suit is instituted to serve better if the case were brought in most suitable forum. </li></ul><ul><li>A range of other factors may be taken into account by a court in its forum non conveniens analysis. These include: </li></ul><ul><ul><li>the strength of the plaintiff’s case </li></ul></ul><ul><ul><li>possible undue hardship for the defendant </li></ul></ul><ul><ul><li>the relative cost and convenience of proceedings in each of the available fora </li></ul></ul><ul><ul><li>the location and availability of witnesses and relevant evidence </li></ul></ul>
  7. 7. <ul><ul><li>… . Contd </li></ul></ul><ul><ul><li>the state of any related proceedings in other jurisdictions </li></ul></ul><ul><ul><li>availability of adequate alternative forum for the plaintiff </li></ul></ul><ul><ul><li>the expeditious use of judicial resources </li></ul></ul><ul><ul><li>whether all issues may be disposed of in one proceeding </li></ul></ul><ul><ul><li>whether the law to be applied is the lex fori ( the choice of law applicable to the dispute) </li></ul></ul><ul><ul><li>whether any judgment can be enforced </li></ul></ul><ul><ul><li>whether the defendant genuinely would prefer the proceedings to be heard in another forum </li></ul></ul><ul><ul><li>whether the defendant’s objections are merely “tactical.” </li></ul></ul>
  8. 9. <ul><li>The English Courts underpinned the importance of establishing the “natural forum” in Spiliada Maritime v. Cansulex , [1987] AC 460. </li></ul><ul><li>The “natural forum” is that forum with which the proposed action has the “most real and substantial connection”. In other words, it is the forum best suited to try the case for the interest of all the parties and ends of justice. </li></ul><ul><li>Relevant factors in determining this most real and substantial connections are those concerning convenience of the parties, expenses, governing law, details about the transactions etc. </li></ul><ul><li>Cherney v. Deripaska [2008] EWHC 1530 (Comm) (03 July 2008) </li></ul><ul><li>The principles of a leading case on forum non conveniens in English law Spiliada Maritime v. Cansulex , [1987] AC 460 were summarized in Cherney v. Deripaska. </li></ul>
  9. 10. <ul><li>… . Contd </li></ul><ul><li>In cases where the English Jurisdiction is in dispute, the plaintiff must establish that English Courts are “Clearly the appropriate forum”. </li></ul><ul><li>The English Courts will proceed with the matter if the “natural forum” is England and if the “most real and substantial connection” is well established. </li></ul><ul><li>If England is the natural forum, then it will also be “clearly the appropriate forum”, and English Courts will proceed with the matter. However, even if England is not the natural forum, English Courts will proceed with the matter on the presumption that the actual natural forum is such that “justice cannot be achieved there”. </li></ul>
  10. 11. <ul><li>… Contd </li></ul><ul><li>This legal position emerges from reading Spiliada along with decisions in </li></ul><ul><li>The Abidin Daver , [1984] AC 398 and more recently in Alberta Inc. v. Katanga Mining , [2008] EWHC 2679). </li></ul><ul><li>INFERENCE: </li></ul><ul><li>If England is the natural forum, then it will also be “clearly the appropriate forum”. </li></ul><ul><li>The natural forum which is to be found on the basis of the most real and substantial connection is presumed to be clearly the most appropriate forum; but this presumption does not hold if the actual natural forum is one where justice cannot be achieved. </li></ul>
  11. 12. <ul><li>The High Court of Australia refused to adopt the &quot;most suitable forum&quot; approach and instead devised its own &quot;clearly inappropriate forum&quot; test. </li></ul><ul><li>The Australian courts balanced the foreign and local factors, and a dismissal would only be granted if the defendant could show that he was &quot;oppressed&quot; or &quot;harassed&quot; by the plaintiff's choice of Australia for legal action. </li></ul><ul><li>These were concluded in </li></ul><ul><li>Oceanic Sun Line Special Shipping Co v Fay (1988) 165 CLR 197 </li></ul><ul><li>and </li></ul><ul><li>Voth v Manildra Flour Mills (1990) 71 CLR 538 </li></ul>
  12. 13. <ul><li>… Contd </li></ul><ul><li>Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491 </li></ul><ul><li>The High Court affirmed the &quot;clearly inappropriate forum&quot; 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 &quot;clearly inappropriate&quot; forum for hearing the matter. </li></ul><ul><li>INFERENCE: </li></ul><ul><li>Australian courts 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. </li></ul>
  13. 14. <ul><li>The Forum Non Conveniens principle is used when there is a foreign party involved in the suit instituted either by him or against him and the same would be brought before the federal court. It is also used in state court when there is a want of transfer to another state's court and from one district to another in federal court. </li></ul><ul><li>The determination of the court may not be arbitrary or abusive as this is a drastic remedy to be applied with caution and restraint. </li></ul><ul><li>As for the transfer of a trial to a jurisdiction outside of the United States, the U.S courts will only grant the transfer if a foreign court is “more appropriate” and there exists a real opportunity to obtain justice in the alternative forum. </li></ul>
  14. 15. <ul><li>… Contd </li></ul><ul><li>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. </li></ul><ul><li>Despite many different conventions dealing with aspects of international trade, jurisdictional disputes are common. </li></ul><ul><li>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 rmoved to the Federal Courts or to the courts of another state on the ground of forum non conveniens . </li></ul>
  15. 16. <ul><li>… Contd </li></ul><ul><li>The Principle forum non convenience is entertained only when there is a foreign party involved and that another foreign court is more suited to deal with the case. </li></ul><ul><li>Within a domestic system a ‘transfer’ is the only possible option available for domestic parties. </li></ul><ul><li>The principle of forum non conveniens will be invoked only when there are events giving rise to the international claims, and there is an apprehension of lower liability in a foreign court. </li></ul>
  16. 17. <ul><li>The principal of forum non convenience is widely accepted and used in trans- national litigation ( India and other foreign forum), but using the same in domestic litigation especially when governed by Code of Civil procedure dealing with jurisdiction stirs up issues. </li></ul><ul><li>Whether this Doctrine can be used in the context of domestic litigation in India? </li></ul><ul><li>If those jurisdictional requirements are met, can a Court choose not to exercise jurisdiction? </li></ul>
  17. 18. <ul><li>Horlicks v. Heinz  India Delhi High Court [Division Bench], decided in October 2009): </li></ul><ul><li>The decision arose in the context of whether an Indian Court could choose to not exercise jurisdiction on the basis of the doctrine of forum non-conveniens when the second Court was also an Indian Court. </li></ul><ul><li>The conclusions reached by the Court were: </li></ul><ul><li>The principle of forum non conveniens applies to foreign forums; and Indian courts can apply the principle either vis-a-vis foreign forums or while exercising jurisdiction under Article 226 of the Constitution. </li></ul>
  18. 19. <ul><li>… Contd </li></ul><ul><li>The principle of forum non conveniens will not apply in the case of civil suits in India which are governed by the Code of Civil Procedure. </li></ul><ul><li>The proper remedy for an aggrieved party when faced with two equivalent domestic Courts having jurisdiction is not to plead forum non conveniens, but to approach the Supreme Court under Section 25 of the Code for transfer. </li></ul><ul><li>INFERENCE: </li></ul><ul><li>The principle forum non convenience has no place in domestic litigation. </li></ul><ul><li>The Indian Courts can apply it only when the “appropriate forum” is a foreign forum </li></ul>
  19. 20. <ul><li>Possible Options : </li></ul><ul><li>The Decision on Convenient forum/Jurisdiction, Choice of law, in case of any future dispute, must be decided while entering into an agreement. While doing so, the burden on deciding the forum and execution of Judgment/ award passed could be avoided. </li></ul>
  20. 21. <ul><li>THANK YOU </li></ul>