Forum Non Conveniens

AuthorStephen G.A. Pitel/Nicholas S. Rafferty
ProfessionFaculty of Law, University of Western Ontario/Faculty of Law, University of Calgary
Pages115-140
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].

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT