Forum Non Conveniens

• Author: Stephen G.A. Pitel/Nicholas S. Rafferty
• Profession: Faculty of Law, University of Western Ontario/Faculty of Law, University of Calgary
• Pages: 115-140

115

CHAP TER 6

FORUM NON

CONVENIENS

A. I NTRODUC TION

As earlier chapters have ex plained, the f‌irst centr al question in the con-

f‌lict of laws considers whether a court h as jurisd iction to resolve a dis-

pute. This chapter addresses a subsid iary question. It is quite possible

to have a legal system in which a court is re quired to resolve all dis -

putes which fall within its jurisdiction. But it is equally possible to al-

low a court with juris diction to decline, in certain situations, to resolve

a dispute. On this approach, which has been adopted in Canada, t he

subsidiary question is whether the court will exercise its juri sdiction.

As a matter of procedure, the obligation rests w ith the defendant to

request, by motion, that the court decline to exerci se jurisdiction and

that it accordingly stay the proceedings. Such a motion can be brought

regardless of the basi s on which the court has ta ken jurisdiction: pres -

ence, submission, or service ex juris based on a real and substanti al

connection to 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 juris diction, such as defending on

the merits. This is bec ause the motion is not a challenge to the court’s

jurisdiction. Quite the opposite: it accepts the court’s jurisd iction but

requests that it not exercise it.

CONFLICT OF LAWS

116

B. EVOLUTION OF THE DOCTRINE

Historically, the ability of the court to refuse to hear a dispute falling

within its jur isdiction f‌lowed from its inherent power to prevent an

abuse of process. In English law, the courts est ablished a high hurdle

for defendants seeking a stay of proceedings. They had to show that

the action was vexatious or oppressive.1 In part this test, wh ich 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 willing

to decline to exercise juri sdiction. Gradually, the Scottish principles

began to inf‌luence English law. In MacShannon v. Rockware Glass Ltd.,

the court accepted that English proceedi ngs could be stayed if the de-

fendant could (a) identify another forum in which justice could be

done between the parties w ith “substantial ly less inconvenience and

expense” and (b) establish t hat the stay would not deprive the plainti ff

of a “legitimate personal or juridical advantage.”2

In Scottish law this doct rine was called for um 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

aforum non convenie ns 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 Eng-

land. But within a decade the English courts abandoned the se aspects

of the doctrine and accepted the more neutral Scottish approach. The

leading case i s Spiliada Marit ime Corp. v. Cansulex Ltd., where the

House of Lords held that the doctrine of forum non convenie ns had two

elements, or limbs.3 Under the f‌irst limb, the court has to be satisf‌ied

that there is some other available forum in which t he case could be re-

solved more suitably for the interests of all of the parties and the ends

of justice. This inquir y involves more of a pure balancing of the merits

1Egbert v. Short, [1907] 2 Ch. 205; St. Pierre v. South American Stores Ltd., [1936] 1

K.B. 382 at 398 (C.A.).

2 [1978] A.C. 795 at 812 (H.L.), Lord Diplock [MacShannon].

3 [1987] A.C. 460 (H.L.) [Spiliada].