Forum non conveniens
Encyclopedia
Forum non conveniens (FNC) is a (mostly) common law
legal doctrine
whereby courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties. As a doctrine of the conflict of laws
, forum non conveniens applies between courts in different countries and between courts in different jurisdictions in the same country.
A concern often raised in applications of the doctrine is forum shopping
, or picking a court merely to gain an advantage in the proceeding. This concern is balanced against the public policy of deferring to a plaintiff's choice of venue in claims where there may be more than one appropriate jurisdiction. The underlying principles, such as basing respect given to foreign courts on reciprocal respect or comity
, also apply in civil law
systems in the form of the legal doctrine of lis alibi pendens
.
Forum non conveniens is not exclusive to common law nations: the maritime courts of the Republic of Panama, although not a common law jurisdiction, also have such power under more restrained conditions.
, 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. If one or more of the parties resides outside the territorial jurisdiction
or there are other factors which might make another forum more appropriate, the question of jurisdiction must be settled.
. FNC thus may ultimately have a civil law origin, as has been asserted by several writers, since admiralty law is based in civil law concepts.
The doctrine of FNC originated in the United States
in Willendson v Forsoket 29 Fed Cas 1283 (DC Pa 1801) (No 17,682) where a federal district court in Pennsylvania
declined to exercise jurisdiction over a Danish
sea captain who was being sued for back wages by a Danish seaman, stating that "[i]f any differences should hereafter arise, it must be settled by a Danish tribunal." In Scotland
, the concept is first recorded in MacMaster v MacMaster (Judgment of 7 June 1833, Sess, Scot 11 Sess Cas, First Series 685.)
, the United Kingdom
signed the Brussels Convention. The Civil Jurisdiction and Judgments Act (1982) as amended by the Civil Jurisdiction and Judgments Act (1991)) states:
The case of Owusu v Jackson and Others before the European Court of Justice
, was concerned with the relationship between Article 2 of the Brussels Convention and the scope of FNC within the European Community. In Owusu, the English Court of Appeal
asked the ECJ whether it could stay a matter brought to it under Article 2 Brussels Convention pursuant to the English FNC rules. The Court held that the Brussels Convention was a mandatory set of rules designed to harmonise and so produce a predictable system throughout the EU. If states were able to derogate from the Convention using their domestic rules of civil procedure, this would deny a uniform result to proceedings based on forum selection. Hence, at 46. the ECJ held:
However, some UK commentators argue that the FNC rules may still apply to cases where the other proceedings are not in a Member state but this remains uncertain. What is certain is that a Scottish Court may sist its proceedings in favour of the Courts of England or Northern Ireland on the ground of FNC, since this is settling intra-UK jurisdiction.
refused to adopt the "most suitable forum" approach and instead devised its own "clearly inappropriate forum" test. Nevertheless, the Australian courts balanced the foreign and local factors, and a dismissal would only be granted if the defendant could show that he was "oppressed" or "harassed" by the plaintiff's choice of Australia for legal action. This retained the rationale of the traditional doctrine, making it impossible for Australian defendants to obtain a dismissal from their own courts on FNC grounds. In Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491, the High Court affirmed the "clearly inappropriate forum" 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 "clearly inappropriate" forum for hearing the matter.
However, with the advent of the Civil Procedure Act (2005), this common law position in Australia has changed.
Convenience is weighed, using a multi-factored test that includes elements such as: the connection between the plaintiff's claim and the forum, the connection between the defendant and the forum, unfairness to the defendant by choosing the forum, unfairness to the plaintiff in not choosing the forum, involvement of other parties to the suit (i.e. location of witnesses), and issues of comity
such as reciprocity and standard of adjudication.
The Supreme Court has underlined that FNC inquiries are similar to but distinct from the "real and substantial connection" test used in challenges to jurisdiction. The most important difference is that applying FNC is a discretionary choice between two forums, each of which could legally hear the issue.
The law of the province of Quebec, Canada is slightly different. The Quebec Civil Code 1994, at art. 3135 c.c.q., provides:
The practical effects are identical to any other jurisdiction but the wording used by the code is different. For decisions applying art. 3135 c.c.q., see H.L. Boulton & Co. S.C.C.A. v. Banque Royale du Canada (1995) R.J.Q. 213 (Quebec. Supr. Ct.); Lamborghini (Canada) Inc. v. Automobili Lamborghini S.P.A. (1997) R.J.Q. 58 (Quebec. C.A.); Spar Aerospace v. American Mobile Satellite (2002) 4 S.C.R. 205, and Grecon Dimter Inc. v. J.R. Normand Inc. (2004) R.J.Q. 88 (Quebec. C.A.)
Generally, a corporation sued in the jurisdiction of its headquarters is not entitled to seek an FNC dismissal. Thus if an American
corporation is sued in an area where it only transacts business but not where it has its headquarters, and the court dismisses based upon FNC, the plaintiff may refile the action in the jurisdiction of the corporation’s headquarters.
In deciding whether to grant the motion, the court considers:
Additional factors include:
The determination of the court may not be arbitrary or abusive as this is a drastic remedy to be applied with caution and restraint.
As for the transfer of a trial to a jurisdiction outside of the U.S., courts will only grant the transfer if a foreign court is “more appropriate”, and there may be a real opportunity to obtain justice there.
In New York, for example, there is a strong presumption in favor of the plaintiff’s choice of forum. See Gulf Oil v. Gilbert, 330 U.S. 501, 508 (1947); R. Maganlal & Co., 942 F.2d 164, 167 (2nd Cir. 1991); WIWA v. Royal Dutch Petroleum Co., 226 F.3d 88, 101 (2d Cir. 2000); and Maran Coal Corp. V. Societe Generale de Surveillance S.A., No. 92 CIV 8728, 1993 US.Dist. LEXIS 12160 at *6 (S.D.N.Y. September 2, 1993). A defendant must show compelling evidence in order to disturb the choice of forum. The burden of proof is on the defendant: Strategic Value Master Fund, Ltd. v. Cargill Fin. Serv. Corp., 421 F.2d 741, 754 (S.D.N.Y. 2006). The court must also consider the defendant’s vast resources compared with the plaintiff’s limited resources as an aggrieved individual: See Guidi v. Inter Continental Hotels Corp., 95 CIV 9006, 2003 U.S.Dist. LEXIS 85972 (S.D.N.Y. November 29, 2009) [NOTE: there is no support for a "2003 U.S. District LEXIS" cite dated November 29, 2009), and WIWA: “defendants have not demonstrated that these costs [of shipping documents and witnesses] are excessively burdensome, especially in view of defendant’s vast resources”. Also, Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F.Supp.2d 289 (S.D.N.Y. 2003) at 341: “A countervailing factor is the relative means of the parties”.
In 2006, the 2nd Circuit Federal Court in New York issued a decision in the famous Coca Cola case. Coca Cola took over assets of Jews expelled from Egypt in the 1950s and was sued in New York. Bigio v. Coca Cola Company, 448 F.3d 176 (2d Cir. 2006), certiorari to Sup. Ct. denied. In that case, the plaintiffs were Canadians and non‐residents of New York. The court denied Coca Cola’s FNC motion and the U.S. Supreme Court denied certiorari. The 2nd Circuit stated that the fact that the New York court would need to apply “modest application” of Egyptian law was not a problem because “courts of this Circuit are regularly called upon to interpret foreign law without thereby offending the principles of international comity”. Also, the fact that there were witnesses abroad was not a problem either. They could be flown into the U.S. or Letters Rogatory could be issued to the Egyptian courts to collect their testimony. Further, it was held that in an FNC scenario, a court applies the balance of conveniences, but preference (and weight) must be given to the fact that plaintiffs chose this particular forum for “legitimate reasons”. The fact that plaintiffs could sue in Canada was not relevant because Coca Cola was a U.S. company and it was “perfectly reasonable to sue in the US”.
There have been efforts by State legislatures to limit the availability of the doctrine to make local jurisdictions more plaintiff‐friendly. In Texas
, for example, parties in product liability
cases may not invoke the rule.
(see Articles 21-23 Brussels Convention). The civil law jurisdictions generally base jurisdiction on the residence of the defendant and on choice of law
rules favouring the habitual residence
of the parties, the lex situs
, and the lex loci solutionis
(applying actor sequitur forum rei). This reflects an expectation that a defendant should be sued at his "own" courts, modified to reflect different priorities in certain types of case. As an example of this expectation, Article 2 Brussels I Regulation provides:
But this is subject to the substantial exceptions contained in Articles 3-6, the limitations on insurance actions in Articles 7-12, and consumer contracts in Articles 13-15. Article 16 also grants exclusive jurisdiction
to specified jurisdictions as the lex situs of immovable property and a res, and for the status of companies, the validity of public registers with particular reference to the registration and validity of patents, and the enforcement of judgments. Subsequent articles allow forum selection clause
s and other forms of agreement between the parties to confer jurisdiction on a given forum. The Brussels Regime therefore represents a harmonised set of rules for the determination of all questions of jurisdiction throughout the EU excluding FNC.
with a domicile
in New York State, in a court of that latter state for breach of contract
. The contract was for the performance of construction
services in Israel
, the loss alleged to flow from the breach was sustained in Israel, all the potential witnesses live in Israel, the proper law
is Israeli law, and all relevant documentation is in Hebrew. Although the New York court could base jurisdiction on the defendant's domicile and residence, it might apply FNC, reasoning that an Israeli court would be a more convenient forum. It is alleged that a key factor will be whether the defendant has any assets in Israel. If not, the case will have to return to New York as a foreign judgment for enforcement. This need to return to New York in any event might persuade the New York court to accept the initial jurisdiction.
In reality, a New York defendant would rarely make an FNC motion seeking voluntarily to send the case to a foreign country. This would mean that the defendant would have to travel to Israel for pretrial conferences every time his affidavits must be cross-examined, rather than take the subway. He would also have to hire foreign lawyers, which means less control over their work because of language and communication problems, lack of familiarity with the foreign system, less physical access to legal advice, and also taking a risk that the foreign systems contain unpredictable legal pitfalls. In addition, a foreign court might show favoritism to the foreign plaintiff and against the New York defendant. Thus, in reality a New York defendant would almost always prefer to defend the case on familiar turf. One mechanism is to ask the New York Court to instruct the Israeli plaintiff to deposit a bond to secure costs and fees to secure recovery if the case is unsuccessful. Also, the availability of future recovery in a foreign Court is not a critical factor in the FNC analysis, as foreign judgments can be returned to New York for domestication under the principle of comity by making a motion in lieu of complaint to recognize the foreign judgment.
s and because of the international nature of the law of the sea
and maritime trade. Despite several different convention
s dealing with aspects of international trade, jurisdictional disputes are common. Moreover, in some instances, a case in the United States
may be initiated under U.S. state law when Admiralty law (which is a Federal jurisdiction) would be the more appropriate forum. If this occurs, the case may be removed to the Federal Courts or to the courts of another state on FNC grounds.
For example, suppose that a container ship comes into port in Miami, Florida
, USA. The ship, which is Liberian-registered, is wanted as security for various debts incurred by its Master while in Denmark
. Made aware of the ship's presence, a local lawyer
moves to impose a lien
which involves a form of arrest by means of de novo
proceedings in rem. The local Federal district sitting in Admiralty determines that the ship's Master had ostensible authority as an agent to pledge the credit of the ship's owners (who are English
). It also determines that neither the ship nor its owners have violated American law in any way, and the local court is not in a good position to hear witnesses who are all resident in other states. Further, major liability in demurrage
to the innocent charterers, forwarders, etc. will be incurred if the ship is detained without just cause, so it would not be unreasonable for the Federal Court to decline jurisdiction. Whether there is subsequent litigation in another state will depend on the tactics of the creditors. Without a lien over the ship or the ability to obtain some form of control over the assets of the debtor, making a claim for money owing may not be cost-effective. But if there have already been proceedings on the issue of liability before a court of competent jurisdiction in another state so that the action in Miami is purely by way of enforcement
, the Miami jurisdiction, whether it be state or federal would be the forum conveniens because the ship is physically within the jurisdiction.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
legal doctrine
Legal doctrine
A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows...
whereby courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties. As a doctrine of the conflict of laws
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...
, forum non conveniens applies between courts in different countries and between courts in different jurisdictions in the same country.
A concern often raised in applications of the doctrine is forum shopping
Forum shopping
Forum shopping is the informal name given to the practice adopted by some litigants to get their legal case heard in the court thought most likely to provide a favorable judgment...
, or picking a court merely to gain an advantage in the proceeding. This concern is balanced against the public policy of deferring to a plaintiff's choice of venue in claims where there may be more than one appropriate jurisdiction. The underlying principles, such as basing respect given to foreign courts on reciprocal respect or comity
Comity
In law, comity specifically refers to legal reciprocity—the principle that one jurisdiction will extend certain courtesies to other nations , particularly by recognizing the validity and effect of their executive, legislative, and judicial acts...
, also apply in civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
systems in the form of the legal doctrine of lis alibi pendens
Lis alibi pendens
The principle of lis alibi pendens applies both in municipal law, public international law, and private international law to address the problem of potentially contradictory judgments. If two courts were to hear the same dispute, it is possible they would reach inconsistent decisions. To avoid...
.
Forum non conveniens is not exclusive to common law nations: the maritime courts of the Republic of Panama, although not a common law jurisdiction, also have such power under more restrained conditions.
Explanation
A country, state, or other jurisdiction enacts laws which are interpreted and applied through a system of courts. The laws applied by a particular system of courts or legal system are termed the lex foriLex fori
Lex fori is a legal term used in the conflict of laws used to refer to the laws of the jurisdiction in which a legal action is brought...
, or law of the forum. As a matter of civil procedure
Civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits...
, courts must decide whether and in what circumstances they will accept jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
over parties
Party (law)
A party is a person or group of persons that compose a single entity which can be identified as one for the purposes of the law. Parties include: plaintiff , defendant , petitioner , respondent , cross-complainant A party is a person or group of persons that compose a single entity which can be...
and subject matter when a lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
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. If one or more of the parties resides outside the territorial jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
or there are other factors which might make another forum more appropriate, the question of jurisdiction must be settled.
Historical origin
Scholars and jurists seem to find a Scottish origin prior to the first American use of the concept. Some writers see the doctrine of FNC as having developed from an earlier doctrine of forum non competens ("non-competent forum"). Many early cases in the U.S. and Scotland involving FNC were cases under admiralty lawAdmiralty law
Admiralty law is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans...
. FNC thus may ultimately have a civil law origin, as has been asserted by several writers, since admiralty law is based in civil law concepts.
The doctrine of FNC originated in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
in Willendson v Forsoket 29 Fed Cas 1283 (DC Pa 1801) (No 17,682) where a federal district court in Pennsylvania
Pennsylvania
The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
declined to exercise jurisdiction over a Danish
Denmark
Denmark is a Scandinavian country in Northern Europe. The countries of Denmark and Greenland, as well as the Faroe Islands, constitute the Kingdom of Denmark . It is the southernmost of the Nordic countries, southwest of Sweden and south of Norway, and bordered to the south by Germany. Denmark...
sea captain who was being sued for back wages by a Danish seaman, stating that "[i]f any differences should hereafter arise, it must be settled by a Danish tribunal." In Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
, the concept is first recorded in MacMaster v MacMaster (Judgment of 7 June 1833, Sess, Scot 11 Sess Cas, First Series 685.)
United Kingdom
The doctrine has limited application in most civil law jurisdictions which prefer lis alibi pendens, although the principle behind FNC is acknowledged. As a member of the European UnionEuropean Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
, the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
signed the Brussels Convention. The Civil Jurisdiction and Judgments Act (1982) as amended by the Civil Jurisdiction and Judgments Act (1991)) states:
- "Nothing in this Act shall prevent any court in the UK from staying, sisting [staying or stopping a process, or summoning a party], striking out or dismissing any proceedings before it on the ground of forum non conveniens or otherwise, where to do so is not inconsistent with the 1968 [Brussels] Convention or, as the case may be, the Lugano Convention."
The case of Owusu v Jackson and Others before the European Court of Justice
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
, was concerned with the relationship between Article 2 of the Brussels Convention and the scope of FNC within the European Community. In Owusu, the English Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
asked the ECJ whether it could stay a matter brought to it under Article 2 Brussels Convention pursuant to the English FNC rules. The Court held that the Brussels Convention was a mandatory set of rules designed to harmonise and so produce a predictable system throughout the EU. If states were able to derogate from the Convention using their domestic rules of civil procedure, this would deny a uniform result to proceedings based on forum selection. Hence, at 46. the ECJ held:
- the Brussels Convention precludes a court of a Contracting State from declining the jurisdiction conferred on it by Article 2 of that convention on the ground that a court of a non-Contracting State would be a more appropriate forum for the trial of the action even if the jurisdiction of no other Contracting State is in issue or the proceedings have no connecting factors to any other Contracting State.
However, some UK commentators argue that the FNC rules may still apply to cases where the other proceedings are not in a Member state but this remains uncertain. What is certain is that a Scottish Court may sist its proceedings in favour of the Courts of England or Northern Ireland on the ground of FNC, since this is settling intra-UK jurisdiction.
Australia
In the jurisdictions where the FNC rule survives, a court will usually dismiss a case when the judge determines that the dispute would be better adjudicated in a different forum. Courts have been split in their applications of the rule. In Oceanic Sun Line Special Shipping Co v Fay (1988) 165 CLR 197 and Voth v Manildra Flour Mills (1990) 171 CLR 538 the High Court of AustraliaHigh Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
refused to adopt the "most suitable forum" approach and instead devised its own "clearly inappropriate forum" test. Nevertheless, the Australian courts balanced the foreign and local factors, and a dismissal would only be granted if the defendant could show that he was "oppressed" or "harassed" by the plaintiff's choice of Australia for legal action. This retained the rationale of the traditional doctrine, making it impossible for Australian defendants to obtain a dismissal from their own courts on FNC grounds. In Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491, the High Court affirmed the "clearly inappropriate forum" 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 "clearly inappropriate" forum for hearing the matter.
However, with the advent of the Civil Procedure Act (2005), this common law position in Australia has changed.
Canada
The doctrine of FNC in Canada was considered in Amchem Products Inc. v. British Columbia Worker's Compensation Board, [1993] 1 S.C.R. 897. The Court held that the test for striking out a claim for FNC is where "there is another forum that is clearly more appropriate than the domestic forum." If the forums are both found to be equally convenient, the domestic forum will always win out.Convenience is weighed, using a multi-factored test that includes elements such as: the connection between the plaintiff's claim and the forum, the connection between the defendant and the forum, unfairness to the defendant by choosing the forum, unfairness to the plaintiff in not choosing the forum, involvement of other parties to the suit (i.e. location of witnesses), and issues of comity
Comity
In law, comity specifically refers to legal reciprocity—the principle that one jurisdiction will extend certain courtesies to other nations , particularly by recognizing the validity and effect of their executive, legislative, and judicial acts...
such as reciprocity and standard of adjudication.
The Supreme Court has underlined that FNC inquiries are similar to but distinct from the "real and substantial connection" test used in challenges to jurisdiction. The most important difference is that applying FNC is a discretionary choice between two forums, each of which could legally hear the issue.
The law of the province of Quebec, Canada is slightly different. The Quebec Civil Code 1994, at art. 3135 c.c.q., provides:
- "Even though a Quebec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide."
The practical effects are identical to any other jurisdiction but the wording used by the code is different. For decisions applying art. 3135 c.c.q., see H.L. Boulton & Co. S.C.C.A. v. Banque Royale du Canada (1995) R.J.Q. 213 (Quebec. Supr. Ct.); Lamborghini (Canada) Inc. v. Automobili Lamborghini S.P.A. (1997) R.J.Q. 58 (Quebec. C.A.); Spar Aerospace v. American Mobile Satellite (2002) 4 S.C.R. 205, and Grecon Dimter Inc. v. J.R. Normand Inc. (2004) R.J.Q. 88 (Quebec. C.A.)
United States
The defendant may move to dismiss an action on the ground of FNC. Invoking this doctrine usually means that the plaintiff properly invoked the jurisdiction of the court, but it is inconvenient for the court and the defendant to have a trial in the original jurisdiction. The court must balance convenience against the plaintiff’s choice of forum. In other words, if the plaintiff’s choice of forum was reasonable, the defendant must show a compelling reason to change jurisdiction. If a transfer would simply shift the inconvenience from one party to the other, the plaintiff’s choice of forum should not be disturbed.Generally, a corporation sued in the jurisdiction of its headquarters is not entitled to seek an FNC dismissal. Thus if an American
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
corporation is sued in an area where it only transacts business but not where it has its headquarters, and the court dismisses based upon FNC, the plaintiff may refile the action in the jurisdiction of the corporation’s headquarters.
In deciding whether to grant the motion, the court considers:
- The location of potential witnesses. The defendant must make a full and candid showing, naming the potential witnesses for the defense, specifying their location, specifying what their testimony may be and how crucial it is for the defense, and setting forth how exactly they may be inconvenienced by having to testify in the court chosen by plaintiff.
- The location of relevantRelevantRelevant may refer to:* Relevant operator, a concept in physics, see renormalization group* Relevant, Ain, a commune of the Ain département in France* Relevant Magazine, an American religious publication...
evidenceEvidence (law)The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
and records. The defendant must identify the records; explain who is in charge of the records; address necessity, language, and translation problems; address the volume of such records; address the law governing these records; and rule out the existence of duplicate records in the jurisdiction chosen by the plaintiff. The mere fact that records need to be translated is not sufficient grounds to invoke FNC. - Possible undue hardship for the defendantDefendantA defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
. The defendant must explain what the hardship is and how material the costs are. If there are costs involved, they need to be spelled out. If there is a difficulty in getting witnesses out of a foreign court and into the original court, this needs to be revealed to the court. The defendant must explain why the use of letters rogatory or other judicial reciprocity tools are not sufficient and cannot replace actual transfer of the case. The standard that the defendant must meet is “overwhelming hardship” if they are required to litigate in the forum’s State. - Availability of adequate alternative forums for the plaintiff. Merely pointing out that the plaintiff could have sued somewhere else is not sufficient to succeed on an FNC motion.
- The expeditious use of judicial resources. In practice, this is just boilerplate language that comes along with the application. However, sometimes the court chosen by the plaintiff may be logistically or administratively unfit or ill‐equipped for the case; for example, a case may involve a large number of torts.
- The choice of lawChoice of lawChoice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states , or provinces...
applicable to the dispute. If all other factors weigh in favor of keeping the case in the jurisdiction where it was filed, then the court may choose between application of local law (lex fori) or relevant foreign law. Thus, the mere fact that foreign law may apply to the event, circumstances, accident, or occurrence is not a strong reason to dismiss the case on FNC grounds. - Questions of public policyPublic policy (law)In private international law, the public policy doctrine or ordre public concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change...
. In analyzing the factors, the subject matter of the complaint may touch on a sensitive issue that is important to the laws of either the original jurisdiction or the alternative forum. Those public policy issues must be pinpointed, analyzed and briefed in a way that makes it clear why this issue overrides the other factors. For example, an employee suing a foreign corporation in a state of employment, may enjoy the public policy to protect local employees from foreign abusers. See the Federal Employers Liability ActFederal Employers Liability ActThe Federal Employers Liability Act , 45 U.S.C. § 51 et seq. , is a United States federal law that protects and compensates railroaders injured on the job.-Background:...
(FELA) for further reference.
Additional factors include:
- The location where the cause of action arose. In most states, defendant must usually show that the cause of action arose outside of the jurisdiction.
- The identities of the parties. Who is suing whom? Is the plaintiff suing an individual defendant or a small company without financial means as a method to oppress the defendant with financial and legal costs by litigating in a remote court? Is the defendant a conglomerate making the FNC application simply to force the plaintiff to bear expensive costs of travel and retainer of foreign lawyers? A plaintiff who is a resident in the state where action was filed is normally entitled to have his case heard in his home state.
- Vexatious motive. Where there is no evidence that the plaintiff had improper intent in bringing the case specifically in a particular forum, courts usually deny the FNC motion.
- Jurisprudential development and political conditions at the foreign forum. Is the court going to send the plaintiff to a land where the law is underdeveloped, uncivilized, or where there is no equal protection or due processDue processDue process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
? Is the court going to send the plaintiff to another court in a country where violence is rampant or in the middle of a war? A suit will not be dismissed if the foreign court does not permit litigation of the subject matter of the complaint, no live testimony of the plaintiff is required by appearance, or if the foreign law is otherwise deficient in its protocols or procedures.
The determination of the court may not be arbitrary or abusive as this is a drastic remedy to be applied with caution and restraint.
As for the transfer of a trial to a jurisdiction outside of the U.S., courts will only grant the transfer if a foreign court is “more appropriate”, and there may be a real opportunity to obtain justice there.
In New York, for example, there is a strong presumption in favor of the plaintiff’s choice of forum. See Gulf Oil v. Gilbert, 330 U.S. 501, 508 (1947); R. Maganlal & Co., 942 F.2d 164, 167 (2nd Cir. 1991); WIWA v. Royal Dutch Petroleum Co., 226 F.3d 88, 101 (2d Cir. 2000); and Maran Coal Corp. V. Societe Generale de Surveillance S.A., No. 92 CIV 8728, 1993 US.Dist. LEXIS 12160 at *6 (S.D.N.Y. September 2, 1993). A defendant must show compelling evidence in order to disturb the choice of forum. The burden of proof is on the defendant: Strategic Value Master Fund, Ltd. v. Cargill Fin. Serv. Corp., 421 F.2d 741, 754 (S.D.N.Y. 2006). The court must also consider the defendant’s vast resources compared with the plaintiff’s limited resources as an aggrieved individual: See Guidi v. Inter Continental Hotels Corp., 95 CIV 9006, 2003 U.S.Dist. LEXIS 85972 (S.D.N.Y. November 29, 2009) [NOTE: there is no support for a "2003 U.S. District LEXIS" cite dated November 29, 2009), and WIWA: “defendants have not demonstrated that these costs [of shipping documents and witnesses] are excessively burdensome, especially in view of defendant’s vast resources”. Also, Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F.Supp.2d 289 (S.D.N.Y. 2003) at 341: “A countervailing factor is the relative means of the parties”.
In 2006, the 2nd Circuit Federal Court in New York issued a decision in the famous Coca Cola case. Coca Cola took over assets of Jews expelled from Egypt in the 1950s and was sued in New York. Bigio v. Coca Cola Company, 448 F.3d 176 (2d Cir. 2006), certiorari to Sup. Ct. denied. In that case, the plaintiffs were Canadians and non‐residents of New York. The court denied Coca Cola’s FNC motion and the U.S. Supreme Court denied certiorari. The 2nd Circuit stated that the fact that the New York court would need to apply “modest application” of Egyptian law was not a problem because “courts of this Circuit are regularly called upon to interpret foreign law without thereby offending the principles of international comity”. Also, the fact that there were witnesses abroad was not a problem either. They could be flown into the U.S. or Letters Rogatory could be issued to the Egyptian courts to collect their testimony. Further, it was held that in an FNC scenario, a court applies the balance of conveniences, but preference (and weight) must be given to the fact that plaintiffs chose this particular forum for “legitimate reasons”. The fact that plaintiffs could sue in Canada was not relevant because Coca Cola was a U.S. company and it was “perfectly reasonable to sue in the US”.
There have been efforts by State legislatures to limit the availability of the doctrine to make local jurisdictions more plaintiff‐friendly. In Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
, for example, parties in product liability
Product liability
Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause...
cases may not invoke the rule.
European Union
The doctrine of FNC gained little footing in the civil law world, which prefers the approach of lis pendensLis pendens
Lis pendens is Latin for "suit pending." This may refer to any pending lawsuit or to a specific situation with a public notice of litigation that has been recorded in the same location where the title of real property has been recorded...
(see Articles 21-23 Brussels Convention). The civil law jurisdictions generally base jurisdiction on the residence of the defendant and on choice of law
Choice of law
Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states , or provinces...
rules favouring the habitual residence
Habitual residence
In conflict of laws, habitual residence is the standard used to determine the law which should be applied to determine a given legal dispute. It can be contrasted with the law on domicile, traditionally used in common law jurisdictions to do the same thing....
of the parties, the lex situs
Lex situs
The term lex situs refers to the law of the place in which property is situated for the purposes of the conflict of laws. For example, property may subject to tax pursuant to the law of the place of the property or by virtue of the domicile of its owner...
, and the lex loci solutionis
Lex loci solutionis
The lex loci solutionis is the Latin term for "law of the place where relevant performance occurs" in the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are...
(applying actor sequitur forum rei). This reflects an expectation that a defendant should be sued at his "own" courts, modified to reflect different priorities in certain types of case. As an example of this expectation, Article 2 Brussels I Regulation provides:
- Subject to the provisions of this Convention, persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that State.
- Persons who are not nationals of the State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that State.
But this is subject to the substantial exceptions contained in Articles 3-6, the limitations on insurance actions in Articles 7-12, and consumer contracts in Articles 13-15. Article 16 also grants exclusive jurisdiction
Exclusive jurisdiction
In civil procedure, exclusive jurisdiction exists where one court has the power to adjudicate a case to the exclusion of all other courts. It is the opposite situation from concurrent jurisdiction, in which more than one court may take jurisdiction over the case.Exclusive jurisdiction is typically...
to specified jurisdictions as the lex situs of immovable property and a res, and for the status of companies, the validity of public registers with particular reference to the registration and validity of patents, and the enforcement of judgments. Subsequent articles allow forum selection clause
Forum selection clause
A forum selection clause in a contract with a conflict of laws element allows the parties to agree that any litigation resulting from that contract will be initiated in a specific forum...
s and other forms of agreement between the parties to confer jurisdiction on a given forum. The Brussels Regime therefore represents a harmonised set of rules for the determination of all questions of jurisdiction throughout the EU excluding FNC.
Hypothetical
An Israeli businessman sues an American nationalNationality
Nationality is membership of a nation or sovereign state, usually determined by their citizenship, but sometimes by ethnicity or place of residence, or based on their sense of national identity....
with a domicile
Domicile (law)
In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave...
in New York State, in a court of that latter state for breach of contract
Contract (conflict)
In the conflict of laws, the validity of a contract with one or more foreign law elements will be decided by reference to the so-called "proper law" of the contract.-History:...
. The contract was for the performance of construction
Construction
In the fields of architecture and civil engineering, construction is a process that consists of the building or assembling of infrastructure. Far from being a single activity, large scale construction is a feat of human multitasking...
services in Israel
Israel
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
, the loss alleged to flow from the breach was sustained in Israel, all the potential witnesses live in Israel, the proper law
Proper law
The Doctrine of the Proper Law is applied in the choice of law stage of a lawsuit involving the conflict of laws.-Explanation:In a conflicts lawsuit, one or more state laws will be relevant to the decision-making process. If the laws are the same, this will cause no problems, but if there are...
is Israeli law, and all relevant documentation is in Hebrew. Although the New York court could base jurisdiction on the defendant's domicile and residence, it might apply FNC, reasoning that an Israeli court would be a more convenient forum. It is alleged that a key factor will be whether the defendant has any assets in Israel. If not, the case will have to return to New York as a foreign judgment for enforcement. This need to return to New York in any event might persuade the New York court to accept the initial jurisdiction.
In reality, a New York defendant would rarely make an FNC motion seeking voluntarily to send the case to a foreign country. This would mean that the defendant would have to travel to Israel for pretrial conferences every time his affidavits must be cross-examined, rather than take the subway. He would also have to hire foreign lawyers, which means less control over their work because of language and communication problems, lack of familiarity with the foreign system, less physical access to legal advice, and also taking a risk that the foreign systems contain unpredictable legal pitfalls. In addition, a foreign court might show favoritism to the foreign plaintiff and against the New York defendant. Thus, in reality a New York defendant would almost always prefer to defend the case on familiar turf. One mechanism is to ask the New York Court to instruct the Israeli plaintiff to deposit a bond to secure costs and fees to secure recovery if the case is unsuccessful. Also, the availability of future recovery in a foreign Court is not a critical factor in the FNC analysis, as foreign judgments can be returned to New York for domestication under the principle of comity by making a motion in lieu of complaint to recognize the foreign judgment.
Shipping
The issue of FNC arises in shipping cases since different parties may be involved as charterers or consigneeConsignee
In a contract of carriage, the consignee is the person to whom the shipment is to be delivered to whether by land, sea or air.-A brief statement of law:...
s and because of the international nature of the law of the sea
Admiralty law
Admiralty law is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans...
and maritime trade. Despite several different convention
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
s dealing with aspects of international trade, jurisdictional disputes are common. Moreover, in some instances, a case in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
may be initiated under U.S. state law when Admiralty law (which is a Federal jurisdiction) would be the more appropriate forum. If this occurs, the case may be removed to the Federal Courts or to the courts of another state on FNC grounds.
For example, suppose that a container ship comes into port in Miami, Florida
Miami, Florida
Miami is a city located on the Atlantic coast in southeastern Florida and the county seat of Miami-Dade County, the most populous county in Florida and the eighth-most populous county in the United States with a population of 2,500,625...
, USA. The ship, which is Liberian-registered, is wanted as security for various debts incurred by its Master while in Denmark
Denmark
Denmark is a Scandinavian country in Northern Europe. The countries of Denmark and Greenland, as well as the Faroe Islands, constitute the Kingdom of Denmark . It is the southernmost of the Nordic countries, southwest of Sweden and south of Norway, and bordered to the south by Germany. Denmark...
. Made aware of the ship's presence, a local lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
moves to impose a lien
Lien
In law, a lien is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation...
which involves a form of arrest by means of de novo
Trial de novo
In law, the expression trial de novo means a "new trial" by a different tribunal...
proceedings in rem. The local Federal district sitting in Admiralty determines that the ship's Master had ostensible authority as an agent to pledge the credit of the ship's owners (who are English
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
). It also determines that neither the ship nor its owners have violated American law in any way, and the local court is not in a good position to hear witnesses who are all resident in other states. Further, major liability in demurrage
Demurrage
The term demurrage originated in vessel chartering and refers to the period when the charterer remains in possession of the vessel after the period normally allowed to load and unload cargo . By extension demurrage refers to the charges that the charterer pays to the shipowner for its extra use of...
to the innocent charterers, forwarders, etc. will be incurred if the ship is detained without just cause, so it would not be unreasonable for the Federal Court to decline jurisdiction. Whether there is subsequent litigation in another state will depend on the tactics of the creditors. Without a lien over the ship or the ability to obtain some form of control over the assets of the debtor, making a claim for money owing may not be cost-effective. But if there have already been proceedings on the issue of liability before a court of competent jurisdiction in another state so that the action in Miami is purely by way of enforcement
Enforcement of foreign judgments
In law, the enforcement of foreign judgments is the recognition and enforcement in one jurisdiction of judgments rendered in another jurisdiction...
, the Miami jurisdiction, whether it be state or federal would be the forum conveniens because the ship is physically within the jurisdiction.
External links
- www.jus.uio.no - The Brussels Convention
- Forum Non Conveniens Dismissal: The Quieter Side of Section 1782 Discovery