I. Introduction
“Justice should be served” was the initial motto behind the establishment of the legal doctrine forum non conveniens (“doctrine”). It was a discretionary power given to the courts to decline jurisdiction based on its ‘appropriateness’. But is justice really being served, or is it just a way of abusing the process of the court? Forum shopping is a strategic practice of choosing a certain court or forum that has laws advantageous to one filing the suit. Both these concepts are similar in the sense that they allow one to choose a forum that suits them well or better. This piece argues that the doctrine drifted from objective convenience to subjective appropriateness, making it unpredictable.
II. The Doctrine’s Origins
A. The Scottish Interest of Justice
The doctrine originates from Scottish decisions where the courts could decline cases for the ‘interest of justice’ in cases of wrong jurisdictions. The doctrine could be seen to be exercised and acknowledged in Longworth v. Hope of 1865 in Scottish courts, however not without some limited scope. The Scottish doctrine accepted the importance of the plaintiff’s choice of forum and convenience. La Société du Gaz de Paris v. La Société Anonyme de Navigation “Les Armateurs Français,” a case brought before the House of Lords in 1926, established the ‘better or more appropriate forum’ as the basis for the doctrine. The House of Lords used substantial evidence, domicile, and cause of action to find a balanced test for determining the appropriate forum. This case established that the doctrine does not need to consider the convenience of a party but rather needs to delve into the matter of meeting the ends of justice.
B. The English Oppression Test
At the same time, English courts focused on determining whether the new forum would be a strategic abuse of process that can be oppressive and vexatious for the defendant. This test of oppression and vexation was established in the 1906 case of Logan v. Bank of Scotland and was substantively applied with the discretionary powers of the courts in several English cases.
III. Spiliada and the Turn to Appropriateness
The Spiliada Maritime Corp v. Cansulex Ltd case laid down a more liberal test for courts to exercise their powers of declining jurisdiction under the doctrine, which was adopted by English law at large. The plaintiffs, Liberian ship owners, filed a suit for damages against the defendants for the loss of their vessels caused by the sulphur that was loaded as cargo, in the courts of England. The defendants were in the business of sulphur exports in British Columbia and had their sulphur cargo carried in the plaintiff’s vessel, Spiliada. A separate but similar litigation for damages to another vessel, Cambridgeshire, was already being tried before Staughton J. The defendants in the present case contested that England is not an appropriate forum for the case and it should rather be British Columbia. The case further went before the House of Lords on appeal, and their Lordships laid down a certain number of private interest factors apart from expenses and conveniences that considered England a better forum than British Columbia. The Spiliada test is a two-stage test, wherein, in the first stage, the defendant is to prove that there is a better forum suited for the case and that forum would be ready to assume jurisdiction. The claimant, in the second stage, is to produce evidence as to why the new forum would not lead to injustice for the other party. One thing to note is that all the above cases revolve around the principle ‘interest of justice’ and justice should be twofold, i.e. none of the parties should face injustice at the expense of the other. The Spiliada case did away with the idea of mere convenience and subjectively focused on ‘appropriateness’ in a legal sense. As a result of this development, the effect of the plaintiff’s advantage in forum shopping has been largely reduced. The test established in the case is no longer a matter of law but a matter of fact.
IV. The American Divergence
The implementation of the doctrine in the United States historically originated with the discretionary dismissal of cases based on incorrect jurisdiction. The doctrine in the US was for the very first time noticed in 1801 in Wilendson v. Forsoket where the federal court refused to hear the case on grounds of injustice. Initially, the concept was restricted to admiralty and equity cases only. It was in the early twentieth century that it moved beyond those, as seen in Slater v. Mexican National R. R. Co.
A. Gulf Oil and the Two Sets of Factors
With the case of Gulf Oil Corp. v. Gilbert, the United States Supreme Court was faced for the first time with the issue of whether the lower courts have discretionary power to dismiss cases under the doctrine and, if yes, whether this power was abused. The plaintiff was a Virginia domiciliary, and the defendant was a corporation of Pennsylvania having businesses both in New York and Virginia. Gilbert, the plaintiff, filed a suit in the New York court against Gulf Oil Corp for the damages arising from the defendant’s negligence resulting in fire and explosion consuming plaintiff’s warehouse. The defendants invoked the doctrine, claiming that Virginia is a better forum as it is where the cause of action arose, the plaintiff lives, the defendant has business, and the witnesses reside. The court opined that though forum shopping matters for the plaintiff, it must not be exercised deliberately to harass the defendant. The court concluded that the district court did not act out of bounds in dismissing the case based on the doctrine. The court also established private and public interest factors in deciding the matters under the doctrine. The private interest factors would include the personal expenses, conveniences, distance from the forum, availability of witnesses, and availability of proof. For the public interest, the court may consider administrative issues. The Gilbert and Koster cases formed the foundations of the current approach of the doctrine in the United States. Koster v. (American) Lumbermen Mutual Casualty Co, decided at the same time as the Gilbert case, involved the issue of the relation between the forum and the party. It established that though choice of forum is an important principle for the plaintiffs, it can’t be prioritised before the ends of justice.
B. Piper Aircraft and Unfavourable Law
The dismissal of the cases should be allowed even if the new forum has laws which would be less favourable to the plaintiffs. In Piper Aircraft Co. v. Reyno, the plaintiffs, Scottish residents, commenced proceedings in California against two American corporations for wrongful death caused by a plane crash. The plaintiffs admitted to forum shopping to gain certain advantages over the action suit and laws for recovery of damages. The defendants claimed transfer under the doctrine. The court used the test of public and private interest factors of Gilbert’s case to arrive at the most appropriate forum for the case. Scotland was concluded as the better and more appropriate forum even though the Scottish laws would be less favourable to the plaintiff. The US analysis of the doctrine is a two-staged one, where the first stage involves identifying the existence of an alternative forum, and the second involves determining whether the private and public interest factors favour dismissal of that forum.
V. Points of Convergence and Departure
The US doctrine nonetheless does originate and evolve from Scottish and English doctrine of forum non conveniens, and hence it has basic similarities to both these jurisdictions. There should be the existence of an alternative forum, and the onus of proving that the alternative forum is better lies on the defendant, and the onus switches once the same is proven. The doctrine is a discretionary power of the trial courts and provides limited scope for higher courts to interfere in the exercise of this power. Apart from this, both jurisdictions accept private interest factors in determining the validity of the alternative forum. One additional difference that sets both of these apart is that the consideration of public interest factors in determining the better forum is only done in the United States. The English courts have exclusively written off the use of public interest factors under the doctrine.
VI. Conclusion
Forum non conveniens as a concept started with the notion of objective justice as ‘better and convenient forums’ and ended with subjective justice as ‘substantially more suited forums’. Eventually, the courts interpreting the doctrine analysis tests deviated from the notion of justice and focused on the circumstances of the cases, which has made it variable and impossible to predict. I propose two solutions to the issue before us: one being the incorporation of choice of court agreements in the contracts and the second being the need for uniformity in the international implementation and application of the doctrine, which would make it easier to predict these conflicts.
Radhika is a second-year LLB (Hons) student at Jindal Global Law School. Her areas of interest are International law, Constitutional law, Human Rights and Contracts law.
