Forum Non Conveniens
| Author | François Larocque |
| Profession | University of Ottawa Faculty of Law |
| Pages | 209-235 |
CHAPTER
SIX
Forum
Non
Conveniens
“
[T]he
court
must
exercise
its
jurisdiction
unless
there
are
very
clear
and
weighty
grounds
for
refusing
to
do
so.
”
—
Lord
Kinear
1
A.
INTRODUCTION
A
shared
feature
of
common
law
systems,
2
the
doctrine
of
forum
non
conveniens
raises
important
questions
and
represents
a
significant
op
portunity
for
judicial
restraint
in
the
context
of
transnational
human
rights
litigation.
Pursuant
to
the
doctrine,
courts
may
exceptionally
decline
jurisdiction
they
otherwise
possess
if
it
is
determined
that
another
forum
exists
in
which
the
action
can
be
more
appropriately
adjudicated
if
the
interests
of
the
parties
and
the
ends
of
justice
so
re
quire.
To
quote
Lord
Kinear
’
s
classic
statement
of
the
rule
in
Sim
v.
Rob
inow.
“
the
plea
can
never
be
sustained
unless
the
court
is
satisfied
that
there
is
some
other
tribunal,
having
competent
jurisdiction,
in
which
the
case
may
be
tried
more
suitably
for
the
interests
of
all
the
parties
1
Sim
v.
Robinow
(1892),
19
R.
665
at
669
(Ct.
Sess.)
[Sim].
2
Spiliada
Maritime
Corp
v.
Cansulex
Ltd,
at
474
(H.L.)
[Spihoda].
The
doctrine
also
forms
part
of
the
civil
law
of
Quebec:
see
Civil
Code
of
Quebec,
S.Q,
1991,
c.
64,
art.
3135
[C.C.Q.J;
Paxton
Blair,
“
The
Doctrine
of
Forum
Non
Conve
niens
in
Anglo-American
Law
”
(1929)
29
Colum.
L.
Rev.
1;
John
Greenwood
Collier,
Conflict
of
Laws,
3d
ed.
(Cambridge:
Cambridge
University
Press,
2001)
at
84-94.
See
also
Spar
Aerospace
Ltd.
v.
American
Mobile
Ltd.,
[Spar].
209
210
CIVIL
ACTIONS
FOR
UNCIVILIZED
ACTS
and
for
the
ends
of
justice.
”
3
Though
UK,
Canadian,
and
US
courts
dif
fer
in
their
appreciation
of
certain
factors,
all
three
jurisdictions
apply
a
version
of
the
doctrine
predicated
upon
the
requirement
that
actions
be
tried
in
the
forum
to
which
they
are
most
genuinely
connected.
This
chapter
will
first
describe
the
doctrine
in
general
terms
as
de
veloped
under
UK,
Canadian,
and
US
law
(Section
B)
before
examining
the
manner
of
its
application
in
civil
proceedings
for
extraterritorial
violations
of
international
law
(Section
C).
In
this
connection,
ATCA/
TVPA
(Section
C(i))
and
non-ATCA/TVPA
(Section
C(2))
claims
will
be
discussed
separately.
B.
THE
DOCTRINE
OF
FORUM
NON
CONVENIENS
i)
United
Kingdom
and
Canada
The
leading
English
case
on
forum
non
conveniens
is
Spiliada
Maritime
Corp.
v.
Cansulex
Ltd
(1987).
Tracking
closely
the
principle
in
Sim
v.
Robi
now,
the
House
of
Lords
articulated
a
two-step
analysis
that
Lord
Goff
summarized
in
the
following
terms:
the
court
will
look
first
to
see
what
factors
there
are
which
point
in
the
direction
of
another
forum,
i.e.
connecting
factors
which
indicate
that
it
is
with
the
other
forum
that
the
action
has
its
most
real
and
substantial
connection.
This
is
the
first
stage.
However,
even
if
the
court
concludes
at
that
stage
that
the
other
forum
is
clearly
more
appropriate
for
the
trial
of
the
action,
the
court
may
nevertheless
decline
to
grant
a
stay
if
persuaded
by
the
plaintiff,
on
whom
the
burden
of
proof
then
lies,
that
justice
requires
that
a
stay
should
not
be
granted.
This
is
the
second
stage.
4
The
rule
in
Spiliada
has
been
adopted
in
Canadian
law
in
Amcbem
(1993).
5
In
the
first
stage
of
the
test,
aimed
at
determining
whether
a
compet
ing
forum
is
more
genuinely
connected
to
the
claim,
UK
and
Canadian
3
Sim,
above
note
1
at
668.
4
Connelly
v.
R.T.Z.
Corporation
Pic.,
at
871-72
(H.L.)
[Connelly];
Spiliada,
above
note
2
at
476.
5
Amchem
Products
Inc.
v.
British
Columbia
(Workers
’
Compensation
Board),
[1993]
1
S.C.R.
897
at
916-21
[Amcbem
1993].
See
also
Frymerv.
Brettschneider
(1994),
19
O.R.
(3d)
60
at
para.
52
(C.A.);
John
Terry,
“
Taking
Filártiga
on
the
Road:
Why
Courts
outside
the
United
States
Should
Accept
Jurisdiction
over
Actions
Involving
Torture
Committed
Abroad
”
in
Craig
Scott,
ed.,
Torture
as
Tort:
Comparative
Perspectives
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