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

CHAPTER 6

FORUM NON

CONVENIENS

A. INTRODUCTION

As earlier chapters have ex plained, the f‌irst centr al 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 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, the

subsidiary question is whether the court will exercise its jurisdiction.

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

request, by motion, that the court decline to exercise jurisdiction and

that it accordingly stay the proceedings. 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 real and substantial

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 jurisdiction, such as defending on

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

jurisdiction. Quite the opposite: it accepts the court’s jurisdiction 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 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.1 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 willing

to decline to exercise jurisdiction. Gradually, the Scottish principles

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

the court accepted that English proceedings could be stayed if the de-

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

done between the parties with “substantially less inconvenience and

expense” and (b) establish that the stay would not deprive the plaintiff

of a “legitimate personal or juridical advantage.”2

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

aforum 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 Eng-

land. 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., where the

House of Lords held that the doctrine of forum non conveniens 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 the case could be re-

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

of justice. This inquiry 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].