Forum Non Conveniens
| Author | Stephen G.A. Pitel; Nicholas S. Rafferty |
| Pages | 114-144 |
CHAPTER
6
FORUM
NON
CONVENIENS
A.
INTRODUCTION
As
earlier
chapters
have
explained,
the
first
central
question
in
the
con
flict
of
laws
considers
whether
a
court
has
jurisdiction
to
resolve
a
dis
pute.
This
chapter
addresses
a
subsidiary
question.
It
is
quite
possible
to
have
a
legal
system
in
which
a
court
is
required
to
resolve
all
disputes
that
fall
within
its
jurisdiction.
But
it
is
equally
possible
to
allow
a
court
with
jurisdiction
to
decline,
in
certain
situations,
to
resolve
a
dispute.
On
this
approach,
which
has
been
adopted
in
Canada,
the
subsidiary
question
is
whether
the
court
will
exercise
its
jurisdiction.
As
a
matter
of
procedure,
the
obligation
rests
with
the
defendant
to
request,
by
motion,
that
the
court
decline
to
exercise
jurisdiction
and
that
it
accordingly
stay
the
proceedings.
1
Such
a
motion
can
be
brought
regardless
of
the
basis
on
which
the
court
has
taken
jurisdiction:
pres
ence,
submission,
or
service
ex
juris
based
on
a
presumptive
connecting
factor
with
the
forum.
It
is
not
only
available
to
defendants
who
have
been
served
abroad.
In
addition,
a
motion
for
a
stay
of
proceedings
can
be
brought
even
after
the
defendant
has
taken
steps
which
in
law
constitute
acceptance
of
the
court
’
s
jurisdiction,
such
as
defending
on
the
merits.
This
is
because
the
motion
is
not
a
challenge
to
the
court
’
s
1
Club
Resorts
Ltd
v
Van
Breda,
at
para
102
[Club
Resorts].
114
Forum
Non
Conveniens
115
jurisdiction.
Quite
the
opposite:
It
accepts
the
court
’
s
jurisdiction
but
requests
that
the
court
not
exercise
it.
2
B.
EVOLUTION
OF
THE
DOCTRINE
Historically,
the
ability
of
the
court
to
refuse
to
hear
a
dispute
falling
within
its
jurisdiction
flowed
from
its
inherent
power
to
prevent
an
abuse
of
process.
In
English
law,
the
courts
established
a
high
hurdle
for
defendants
seeking
a
stay
of
proceedings.
They
had
to
show
that
the
action
was
vexatious
or
oppressive.
3
In
part,
this
test,
which
made
it
hard
to
stop
proceedings
in
England,
reflected
the
judges
’
belief
in
the
superiority
of
English
procedural
and
substantive
law.
In
contrast,
courts
in
nineteenth-century
Scotland
were
considerably
more
will
ing
to
decline
to
exercise
jurisdiction.
Gradually,
the
Scottish
princi
ples
began
to
influence
English
law.
In
MacShannon
v
Rockware
Glass
Ltd,
the
court
accepted
that
English
proceedings
could
be
stayed
if
the
defendant
could
(1)
identify
another
forum
in
which
justice
could
be
done
between
the
parties
with
“
substantially
less
inconvenience
and
expense
”
and
(2)
establish
that
the
stay
would
not
deprive
the
plaintiff
of
a
“
legitimate
personal
or
juridical
advantage.
”
4
In
Scottish
law
this
doctrine
was
called
forum
non
conveniens,
meaning
“
not
a
convenient
forum.
”
This
name
is
something
of
an
over
simplification
since
the
court
’
s
concern
is
not
solely
with
convenience.
Rather,
under
this
approach
the
court
is
engaged
in
a
comparison
of
the
relative
merits
of
having
the
dispute
resolved
either
in
the
local
forum
or
in
another
forum.
If
the
court
concludes
that
it
should
decline
jurisdiction
in
favour
of
another
forum,
then
it
pronounces
itself
to
be
a
forum
non
conveniens
and
the
other
forum
is
the
forum
conveniens.
The
formulation
in
MacShannon
still
favoured
plaintiffs,
since
de
fendants
had
to
show
that
the
alternative
forum
would
involve
“
sub
stantially
less
”
inconvenience
and
expense
and
plaintiffs
were
not
to
be
deprived
of
legitimate
advantages
flowing
from
litigating
in
England.
But
within
a
decade
the
English
courts
abandoned
these
aspects
of
the
doctrine
and
accepted
the
more
neutral
Scottish
approach.
The
leading
case
is
Spiliada
Maritime
Corp
v
Cansulex
Ltd,
in
which
the
House
of
2
Notwithstanding
this
logic,
the
position
in
British
Columbia
has
been
that
a
de
fendant
who
attorns
cannot
seek
a
stay
of
proceedings:
O
’
Brien
v
Simard,
814.
This
may
be
changing:
see
Blazek
v
Blazek,
188.
3
Egbert
v
Short,
[1907]
2
Ch
205;
St
Pierre
v
South
American
Stores
Ltd,
at
398
(CA).
4
at
812
(HL),
Lord
Diplock
[MacShannonl.
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