ESSAY No. 06 ESSAY (FORUM NON CONVENIENS)

When we are dealing with ‘non-convenience of forum’, it becomes complicated to determine jurisdiction.

In some situations like when the English courts don’t have any authority to assert it, it gets contentious.

Usually, the early stages of a proceedings is the time when ‘Forum Non-Conveniens’ takes place. When a court ’s jurisdiction is emphasized by the dispute, it gets more importance but its mostly concerned with the topic of the cases. Usually, the provisions discussed in the contract are implemented which suggests the fact that regardless of the nature of the dispute they will always have jurisdiction if the contract specifies the English courts. However, if this hasn’t been done and the other members of the contract reside in another state then in this case ‘performance of contract’ will occur in another jurisdiction. The issue regarding the jurisdiction is required to be addressed in conditions when there exists an absence of a governing law clause or there exists a lack of agreement between the parties or in case there is lack of clarity in the clause in the contract. In situations when the ‘paper forum’ isn’t given and there is no presence of choice or law, generally the point of jurisdiction is addressed. Here, we have argued upon the way the concept of ‘forum non conveniens’ is used by the English Courts and we have also discussed the issues concerned with it.

If we go back in the past, we observe that the English courts used to express a considerable amount of reluctance when it came to awarding stay on the grounds of ‘Forum Non Conveniens’. In the view of the English judges, there exists a strong bond between the courts in the United Kingdom and the state’s economy and the courts have strengthened the country’s economy. This perspective was clearly defended by ‘Lord Denning’ who went on to say "ours was a good forum to shop in". But as time passed by we observed an obvious change in the way judges thought and behaved. During the case ‘Abidin Daver’, ‘Lord Diplock’ was of the view that the ‘judicial comity has finally substituted the ‘judicial chauvinism’.

Commonly, the term ‘Forum Non Conveniens’ refers to the situations when ‘court forum isn’t convenient’. Any party that is involved in a dispute has the right to request permission from the courts to move the concerned proceedings to another suitable court and this is possible by the virtue of ‘Forum Non Conveniens’. In the United Kingdom, the practicing of this concept began in the 1960s but it was developed initially in the 19th century in Scotland. Just like any other doctrine, this also have some limits. Under normal conditions, the cases are transferred. Restrictions are applied on this doctrine in situations such as when the case isn’t just or the doctrine is leading towards to a misuse of court. The application of this concept was defined and demonstrated by ‘Lord Goff’ during the case ‘Spilliada Maritime Corp v Cansulex Ltd’. The concept of ‘Forum Non Conveniens’ becomes useable the moment a court is assure of the fact that another court has jurisdiction which is as compared to the current court is better in terms of the proceedings of the case and both the parties and is more appropriate as the parties are expected to be treated on merit. Hence, both the parties are treated in a just way. While explaining the doctrine further, Lord Goff said that if a party from the dispute has the right concerning the jurisdiction, they can use Forum Non Conveniens it to suspend the proceedings. Therefore, it means that when the court is available and thinks that stay of proceedings is in favor of justice, they grant it.

Commonly, the term ‘Forum Non Conveniens’ refers to the situations when ‘court forum isn’t convenient’. Any party that is involved in a dispute has the right to request permission from the courts to move the concerned proceedings to another suitable court and this is possible by the virtue of ‘Forum Non Conveniens’. In the United Kingdom, the practicing of this concept began in the 1960s but it was developed initially in the 19th century in Scotland. Just like any other doctrine, this also have some limits. Under normal conditions, the cases are transferred. Restrictions are applied on this doctrine in situations such as when the case isn’t just or the doctrine is leading towards to a misuse of court. The application of this concept was defined and demonstrated by ‘Lord Goff’ during the case ‘Spilliada Maritime Corp v Cansulex Ltd’. The concept of ‘Forum Non Conveniens’ becomes usable the moment a court is assure of the fact that another court has jurisdiction which is as compared to the current court is better in terms of the proceedings of the case and both the parties and is more appropriate as the parties are expected to be treated on merit. Hence, both the parties are treated in a just way. While explaining the doctrine further, Lord Goff said that if a party from the dispute has the right concerning the jurisdiction, they can use the forum non conveniens it to suspend the proceedings. Therefore, it means that when the court is available and thinks that stay of proceedings is in favor of justice, they grant it.

The concept of the ‘Forum Non Conveniens’ has a very broader scope. In order to evaluate the ‘availability and justice’, a double stage assessment is done. The doctrine permits the court the authority to modify the usual treatment and implement it in a number of ways. Later on, this fact was considered in the cases “The Abidin Daver and Sim v Robinow (1892)” and this test is applicable in both the United Kingdom and the United States.

As far as we are concerned with the appropriate forum, a number of factors are to be determined such as the setting of local and international, context to find out if the host country is appropriate to deal with the concerned issue. The standards for selecting forums are laid down in both ‘The El Amria (1981)’ case and ‘Eleftheria (1969)’ case. However, Lord Bingham gave the test during Donoghue v Armco (2002). It laid down the foundation of a less rigid approach and it got authenticated during ‘British Aerospace v Dee Howard (1993)’ suggesting that the approach regarding the forum has become less rigid and more logical with the addition of a few restrictions while choosing a forum.

The court has to be very careful in cases when the jurisdiction is from the United Kingdom. The courts have to address factors like ‘applicable law, convenience, and some extra evidence as well. These factors sometimes result in making the matter much more complicated. It should be noted that the court, during the case Import Export Metro Ltd & Anor v Compania Sud Americana De Vapores (2003), appraised the applicable law of England while refusing to permit jurisdiction of the case for Chile. In the same way, there are various matters that consider the selection of the forum. The claimant who was working in Kuwait wanted to sue a person residing in England in the case Muhammad v Bank of Kuwait (1996). Here in this case, the rule of ‘legal aid’ won’t be granted. This factor led the court to decide on the proceedings.

Ease of proceedings is also a factor that is to be contemplated to grant forum e.g. “The case of European Asian Bank AG v Punjab and Sind Bank (1982)”. The Rockware Glass Ltd v MacShannon (1978) is another case of the same nature where the court went on to use the same method of ‘ease of court’ and investigated the casualties or the injuries of the witnesses. The case got shifted to the Scottish courts. However, during the case ‘Trendtex Trading Corporation v Credit Suisse’ regardless of the two alternatives as per jurisdiction, the court still believed that England is an applicable forum. The matter of discretion was justified during Connelly v RTZ Corp. However, this issue even emerged during Askin v Absa Bank as well. But regardless of all of this, the approach still remains elastic. The court decided to grant remedies to the claimant and their decision also resulted in making the parent companies liable due as per the tort in the case ‘Lubbe v Cape’.

In situations when there exists the event of a clause granting jurisdiction to a foreign court, the courts sustain the previously used way of selection. Things became complicated during the case of ‘Eleftheria’ after the court stated that staying the proceedings is in its authority. The party who opposes this is the party upon which lies the burden of proof. Brussels I Regulation led to additional complications in it. In case of exclusive jurisdiction, discretion of the judges when concerned with forum selection decreased due to the regulation. Later on, it was established that the European Rules are mandatory when concerned with jurisdiction and this led to the point that for deciding issues, the courts have limited authority (Owusu v Jackson).

But still the approach that emerged during the case ‘Spillada’ has a great significance. After the exit of the United Kingdom from the European Union it’s significance has increased much more. Regarding the agreement clause, the approach that is used by the English courts i.e. staying the proceedings, is not satisfactory especially in cases when there is an inclusion of a foreign jurisdiction.