Forum non conveniens (; Latin for 'an inconvenient forum') is a mostly common law legal doctrine through which a court acknowledges that another forum or court where the case might have been brought is a more appropriate venue for a legal case, and dismisses the case. Forum non conveniens may be used to dismiss a case, for example, to encourage parties to file a case in another jurisdiction within which an accident or incident underlying the litigation occurred and where all the witnesses reside.
As a doctrine of the conflict of laws, forum non conveniens applies between courts in different countries and between courts in different jurisdictions in the same country. Forum non conveniens is not applicable between counties or federal districts within a state.
A concern often raised in applications of the doctrine is forum shopping, or picking a court merely to gain an advantage in the proceeding. This concern is balanced against the public policy of deferring to a plaintiff's choice of venue in claims where there may be more than one appropriate jurisdiction. The underlying principles, such as basing respect given to foreign courts on reciprocal respect or comity, also apply in civil law systems in the form of the legal doctrine of lis alibi pendens.
Forum non conveniens is not exclusive to common law nations: the maritime courts of the Republic of Panama, although not a common law jurisdiction, also have such power under more restrained conditions.ARRUE MONTENEGRO, Carlos Alberto. Le forum non conveniens à l'assaut des compétences exorbitantes : l'expérience panaméenne, Panthéon-Assas University, 2006, p. 85. (http://catalogue.ppl.nl/DB=1/SET=1/TTL=1/SHW?FRST=2
Explanation A country, state, or other jurisdiction enacts laws which are interpreted and applied through a system of courts. The laws applied by a particular system of courts or legal system are termed the lex fori, or law of the forum. As a matter of civil procedure, courts must decide whether and in what circumstances they will accept jurisdiction over parties and subject matter when a lawsuit begins. This decision will be routine, or not raised at all, if the relevant elements of the case are within the territorial jurisdiction of the court. If one or more of the parties resides outside the territorial jurisdiction or there are other factors which might make another forum more appropriate, the question of jurisdiction must be settled.
Historical origin Scholars and jurists agree that the concept is of a Scottish origin. Many early Scottish cases invoking FNC were under admiralty law. FNC thus may ultimately have a civil law origin, as has been asserted by several writers, since admiralty law is based in civil law concepts. However, there is no equivalent in the French Civil Code or Roman law.
In ''Piper Aircraft Co. v. Reyno'' (1981), the U.S. Supreme Court established that while a domestic plaintiff's choice of forum is usually given strong deference, a foreign plaintiff's choice is entitled to less deference because the central focus of the doctrine is convenience rather than the plaintiff's preference.
In Scotland, the concept was developed in the 18th century and was later incorporated into English common law. It was first adopted in Scotland in 1610, the case being Vernor v Elvies Mor 4788, as an extension of forum non competens; two English residents were tried in Scotland argued a Scottish trial would be inconvenient, the court ruling "The Lords will not find themselves Judges betwixt two Englishmen". It was expanded and applied in the 1860s (in Clements v Macauley 4 S 224 and Longworth v Hope 3 S 1049), which led to its incorporation into English law. The pleading was used in situations where the competence of the court was unchallenged (unlike forum non competens) but the court was asked to invoke its discretion.
The doctrine had been applied in several jurisdictions under varying names; in the 1793 case Robertson v Kerr, a Massachusetts court refused to apply jurisdiction in a case involving a foreign transaction between non-residents.
According to the "parental function" of Soviet law,James L. Hildebrand, The Sociology of Soviet Law: The Heuristic and "Parental" Functions, 22 Case W. Rsrv. L. Rev. 157 (1971) the 1964 R.S.F.S.R. code of civil procedure recognised the doctrine of forum non conveniens for civil procedures.J. Alex Morton, Civil Procedure in the U.S.S.R., 7 Case W. Res. J. Int'l L. 211 (1975)
United Kingdom
As a member of the European Union, the United Kingdom signed the Brussels Convention. The Civil Jurisdiction and Judgments Act 1982 as amended by the Civil Jurisdiction and Judgments Act 1991 states:
The case of Owusu v Jackson and Others before the European Court of Justice, was concerned with the relationship between Article 2 of the Brussels Convention and the scope of FNC within the European Community. In Owusu, the English Court of Appeal asked the ECJ whether it could stay a matter brought to it under Article 2 Brussels Convention pursuant to the English FNC rules. The Court held that the Brussels Convention was a mandatory set of rules designed to harmonise and so produce a predictable system throughout the EU. If states were able to derogate from the Convention using their domestic rules of civil procedure, this would deny a uniform result to proceedings based on forum selection. Hence, at 46. the ECJ held:
However, some UK commentators argue that the FNC rules may still apply to cases where the other proceedings are not in a Member state but this remains uncertain. A Scottish Court may sist its proceedings in favour of the Courts of England or Northern Ireland on the ground of FNC, since this is settling intra-UK jurisdiction.Cumming v Scottish Daily Record and Sunday Mail Ltd, The Times June 8, 1995; Collins: 1995
Australia In the jurisdictions where the FNC rule survives, a court will usually dismiss a case when the judge determines that the dispute would be better adjudicated in a different forum. After a period of split approach to forum non conveniens, the High Court adopted a consolidated application of the rule in Voth v Manildra Flourd Mills (1990) 171 CLR 538. This decision affirmed the judgement of Justice Deane in Oceanic Sun Line Special Shipping Co v Fay (1988) 165 CLR 197, whereby his Honour departed from the traditional test and articulated the "clearly inappropriate forum" test.
In Voth, the High Court of Australia refused to adopt the "more appropriate forum" approach and instead affirmed Justice Deane's test.Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, 560. This approach requires that continuation of proceedings in Australia would cause vexation or oppression on the defendant, to such an extent that it would amount to a serious injustice. The court found that their approach retained the rationale of the traditional doctrine, while sparing them unduly time consuming considerations associated with the complex questions arising under the traditional test.Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, 559.
Notable subsequent developments of the test include the Zhang and the Henry cases. In Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491, the High Court affirmed the "clearly inappropriate forum" test as Australian law, while stating that even where the law of a foreign country had to be applied to decide a case, Australia would not be a "clearly inappropriate" forum for hearing the matter.Lindell: 2002 In Henry v Henry (1996) 185 CLR 571, the High Court found that it would be prima facie vexatious and oppressive to commence proceedings in Australia after proceedings for substantially the same subject matter were initiated in another jurisdiction.Henry v Henry (1996) 185 CLR 571, 587.
Canada The doctrine of FNC in Canada was considered in Amchem Products Inc. v. British Columbia Worker's Compensation Board, 1 S.C.R. 897. The Court held that the test for striking out a claim for FNC is where "there is another forum that is clearly more appropriate than the domestic forum." If the forums are both found to be equally convenient, the domestic forum will always win out.
Convenience is weighed, using a multi-factored test that includes elements such as: the connection between the plaintiff's claim and the forum, the connection between the defendant and the forum, unfairness to the defendant by choosing the forum, unfairness to the plaintiff in not choosing the forum, involvement of other parties to the suit (i.e. location of witnesses), and issues of comity such as reciprocity and standard of adjudication.
The Supreme Court has underlined that FNC inquiries are similar to but distinct from the Real and Substantial connection" test used in challenges to jurisdiction. The most important difference is that applying FNC is a discretionary choice between two forums, each of which could legally hear the issue.
The law of the province of Quebec, Canada is slightly different. The Quebec Civil Code 1994, at art. 3135 c.c.q., provides:
The practical effects are identical to any other jurisdiction but the wording used by the code is different. For decisions applying art. 3135 c.c.q., see H.L. Boulton & Co. S.C.C.A. v. Banque Royale du Canada (1995) R.J.Q. 213 (Quebec. Supr. Ct.); Lamborghini (Canada) Inc. v. Automobili Lamborghini S.P.A. (1997) R.J.Q. 58 (Quebec. C.A.); Spar Aerospace v. American Mobile Satellite (2002) 4 S.C.R. 205, and Grecon Dimter Inc. v. J.R. Normand Inc. (2004) R.J.Q. 88 (Quebec. C.A.)
United States
The defendant may move to dismiss an action on the ground of FNC. Invoking this doctrine usually means that the plaintiff properly invoked the jurisdiction of the court, but it is inconvenient for the court and the defendant to have a trial in the original jurisdiction. The court must balance convenience against the plaintiff's choice of forum. In other words, if the plaintiff's choice of forum was reasonable, the defendant must show a compelling reason to change jurisdiction. If a transfer would simply shift the inconvenience from one party to the other, the plaintiff's choice of forum should not be disturbed.
Generally, a corporation sued in the jurisdiction of its headquarters is not entitled to seek an FNC dismissal. Thus if an American corporation is sued in an area where it only transacts business but not where it has its headquarters, and the court dismisses based upon FNC, the plaintiff may refile the action in the jurisdiction of the corporation's headquarters.
In deciding whether to grant the motion, the court considers: The location of potential witnesses. The defendant must make a full and candid showing, naming the potential witnesses for the defense, specifying their location, specifying what their testimony may be and how crucial it is for the defense, and setting forth how exactly they may be inconvenienced by having to testify in the court chosen by plaintiff. The location of relevant evidence and records. The defendant must identify the records; explain who is in charge of the records; address necessity, language, and translation problems; address the volume of such records; address the law governing these records; and rule out the existence of duplicate records in the jurisdiction chosen by the plaintiff. The mere fact that records need to be translated is not sufficient grounds to invoke FNC.