Jurisdiction case law Flashcards
(94 cards)
1
Q
British South Africa Co v Companhia de Moçambique
(Jurisdiction - EXCLUDED JURISDICTION: FOREIGN IMMOVABLE PROPERTY AND FOREIGN REGISTERED
INTELLECTUAL PROPERTY - The Mozambique rule)
A
Facts: claim for trespass to land tied to dispute about whether the land (mine) was in Mozambique or South Africa.
Law: Mozambique rule: the English courts do not have jurisdiction over claims relating to foreign immovable property (title to foreign land, possession of foreign land, or recovery of damages for trespass to foreign land)
2
Q
Hesperides Hotels v Aegean Turkish Holidays
(Jurisdiction - EXCLUDED JURISDICTION: FOREIGN IMMOVABLE PROPERTY AND FOREIGN REGISTERED
INTELLECTUAL PROPERTY - The Mozambique rule)
A
Facts: claim against English travel agent for inviting tourists to book hotel in Northern Cyprus occupied by Turkish troops.
Law: this was in reality a claim about trespass to foreign immovable property disguised as a conspiracy to trespass claim, so the Mozambique rule applied - NB this was overturned by the Civil Jurisdiction and Judgments Act.
3
Q
Hamed v Stevens
(Jurisdiction - EXCLUDED JURISDICTION: FOREIGN IMMOVABLE PROPERTY AND FOREIGN REGISTERED
INTELLECTUAL PROPERTY - Exception for personal obligations)
A
Facts: the claimant paid money to the defendant for a property in Egypt but the title was not transferred to him.
Law: the Mozambique rule did not apply - the issue was unjust enrichment, and the issue of title only arose collaterally. The claimant was seeking damages not title to the property. The Mozambique rule only applies where proceedings directly relate to the issue of title to foreign property.
4
Q
Re Duke of Wellington
(Jurisdiction - EXCLUDED JURISDICTION: FOREIGN IMMOVABLE PROPERTY AND FOREIGN REGISTERED
INTELLECTUAL PROPERTY - Exception for administration of a trust, will or divorce)
A
Facts: dispute over the passing of property through a Spanish will to the Duke of Wellington.
Law: the Mozambique rule does not apply to claims regarding the ownership of foreign immovable property under wills, trusts or divorces.
5
Q
Lucasfilm Ltd v Ainsworth
(Jurisdiction - EXCLUDED JURISDICTION: FOREIGN IMMOVABLE PROPERTY AND FOREIGN REGISTERED
INTELLECTUAL PROPERTY - Foreign IP)
A
Facts: the English defendant kept a Stormtrooper helmet mould he got from working on the set and sold copies in the US. Lucasfilm claimed this was copyrighted.
Law: the Mozambique rule does not apply to non-registered foreign IP like copyright (registered IP = patents, trademarks).
6
Q
GW Pharma Ltd v Otsuka Pharmaceutical Co. Ltd
(Jurisdiction - EXCLUDED JURISDICTION: FOREIGN IMMOVABLE PROPERTY AND FOREIGN REGISTERED
INTELLECTUAL PROPERTY - Foreign IP)
A
Facts: a Japanese company sued two UK companies for royalties under a contract. The royalties were derived from foreign patents, which the defendants argued were invalid.
Law: the Mozambique rule did not apply because the claim was principally about breach of contract not the validity of foreign patents. In principle, however, the rule applies to registered foreign IP (e.g. patents).
7
Q
Williams & Glyn’s Bank v Astro Dinamico
(Jurisdiction - SUBMISSION)
A
Facts: the defendant appeared in the English courts to dispute jurisdiction and seek a stay of the English proceedings.
Law: in doing this, the defendant had not submitted to the jurisdiction.
8
Q
Esal (Commodities) Ltd v Mahendra Pujara
(Jurisdiction - SUBMISSION)
A
Facts: the defendant was served out of the jurisdiction. They acknowledged service, gave notice of an intention to defend, and attended a preliminary hearing regarding a protective order. They then tried to challenge jurisdiction.
Law: by taking steps in the litigation without informing the court that they were challenging jurisdiction, the defendant had accepted jurisdiction.
9
Q
LLC v Surinam Airways
(Jurisdiction - SUBMISSION)
A
Facts: the defendant did not tick the ‘I intend to challenge jurisdiction’ box when acknowledging service, and applied for an EoT to serve their defence.
Law: by doing this, the defendant was taken to accept the court’s jurisdiction.
10
Q
High Commissioner for India v Ghosh
(Jurisdiction - SUBMISSION)
A
Facts: the India High Commissioner brought a claim for breach of contract against an Indian student in England who did not return to India after his studies. The student then counterclaimed for slander.
Law: a foreign claimant who brings a claim in the English courts submits to the jurisdiction for related counterclaims but not unrelated ones (like this one).
11
Q
Apollo Ventures Co Ltd v Manchanda
(Jurisdiction - SUBMISSION)
A
Facts: the claimant brought a claim against the defendant and multiple others. The defendant failed to challenge jurisdiction and served his defence. The claims against the other defendants were then struck out as they successfully challenged jurisdiction. The defendant then sought a stay of proceedings.
Law: very exceptionally, jurisdiction can be revoked after the defendant submits.
12
Q
Colt Industries v Sarlie (No 1)
(Jurisdiction - SERVICE WITHOUT THE PERMISSION OF THE COURT - Presence)
A
Facts: the claimants, a US company, served a claim form on the defendant, who was neither a citizen nor resident of England, while he was staying in London for a few days to attract the jurisdiction of the English courts, since he did not have any assets in New York where judgment had been obtained.
Law: presence is enough to establish jurisdiction, even if only present fleetingly. A hypothetical exception would be where the defendant was fraudulently induced to enter the country.
13
Q
Maharanee of Baroda v Wildenstein
(Jurisdiction - SERVICE WITHOUT THE PERMISSION OF THE COURT - Presence)
A
Facts: the French defendant was served while visiting England for the ascot races. The claim concerned a painting sold to the French claimant in France by the defendant.
Law: presence establishes jurisdiction, no matter how fleeting. Service during a fleeting visit does not give rise to a presumption that the proceedings are oppressive.
14
Q
Teekay Tankers Limited v STX Offshore & Shipping Co
(Jurisdiction - SERVICE WITHOUT THE PERMISSION OF THE COURT - Presence)
A
Facts: a claim was brought by a company incorporated in the Marshall Islands against a Korean company in relation to a shipping dispute by serving the claim form on the defendant’s UK place of business, even though this place of business had no connection to the case.
Law: a foreign company can be served at the address of its UK establishment even if there is no link between the case and the UK establishment.
15
Q
Re Oriel Ltd
(Jurisdiction - SERVICE WITHOUT THE PERMISSION OF THE COURT - Presence)
A
Facts: A property manager company registered in the Isle of Man acquired four garages in England and charged them to a petrol company. The question was whether this company could be served at these sites.
Law: it was not until trading in the company’s name took place at these sites that they became “established place of business in England“ for the purposes of service. The place of business must be a place where the defendant regularly carries out its business, and is recognisable to the public as such.
16
Q
Cleveland Museum of Art v Capricorn Art International SA
(Jurisdiction - SERVICE WITHOUT THE PERMISSION OF THE COURT - Presence)
A
Facts: the dispute was between a company registered in Panama and a museum in the US about an artwork being stored in London before shipment. The question was whether service could be effected at the place the artwork was being stored - a house with no signage, which kept the art in the basement.
Law: the absence of signage wasn’t decisive. The important question was whether the house was in fact where business was carried out. In establishing place of business, look at the reality, not necessarily what it appears like to the general public.
17
Q
Adams v Cape Industries Plc
(Jurisdiction - SERVICE WITHOUT THE PERMISSION OF THE COURT - Presence)
A
Facts: the claimant sought to enforce a default judgment made against the defendants bv a Texas court.
Law: the English court refused to enforce the judgment since the defendants were not present in the foreign jurisdiction and had not submitted to the foreign jurisdiction.
18
Q
Rakusens v Baser
(Jurisdiction - SERVICE WITHOUT THE PERMISSION OF THE COURT - Presence)
A
Facts: the claimant tried to serve the claim form on the foreign defendant’s UK-based agent. The agent was a sales representative which helped with advertising etc but had no authority to bind the defendant (enter into contracts on its behalf).
Law: service was invalid since the agent’s address was not the company’s “place of business”. It was significant that the agent did not have the authority to conclude business for the company.
19
Q
Bitar v Banque Libano-Francaise S.A.L.
(Jurisdiction - SERVICE WITHOUT THE PERMISSION OF THE COURT - Proceedings brought by English parties in consumer or employment claims)
A
Facts: the claimant opened a bank account with the defendant (a Lebanese bank). The claimant brought a claim for breach of contract in the English courts. The question was whether the bank had “directed its activities” towards the UK for the purpose of the consumer right to sue in England.
Law: the defendant had “directed its activities” towards the UK since documents showed its intention to do business with consumers in the UK. It had a webpage in English and provided GBP-Lebanese currency exchange. It was not necessary for the trader to have specifically contacted the consumer, but merely having a website accessible in the UK was not sufficient.
20
Q
Soleymani v Nifty Gateway LLC
(Jurisdiction - SERVICE WITHOUT THE PERMISSION OF THE COURT - Proceedings brought by English parties in consumer or employment claims)
A
Facts: the consumer contract between the parties stated that disputes between the parties had to be arbitrated in New York. The claimant consumer tried to bring a claim in the English courts.
Law: if the consumer contract provides for foreign arbitration, the statutory right to jurisdiction for consumers does not apply. However, the court will carefully scrutinise whether the arbitration clause is fair for the consumer.
21
Q
Goldman Sachs International v Novo Banco SA
(Jurisdiction - SERVICE OUTSIDE THE TERRITORY: CIVIL PROCEDURE RULES, PRACTICE DIRECTION 6B)
A
Facts: not important.
Law: the “good arguable case” test for the application of the gateways requires only a “plausible evidential basis” for the gateway applying.
22
Q
KAEFER Aislamientos SA de CV v AMS Drilling Mexico SA de CV
(Jurisdiction - SERVICE OUTSIDE THE TERRITORY: CIVIL PROCEDURE RULES, PRACTICE DIRECTION 6B)
A
Facts: not important
Law: interpreting Goldman Sachs to mean that if both parties are presenting contested evidence about the facts, the court must take a view on whether the material establishes a “good arguable case”, and if this cannot be determined, the court must apply a unilateral test to see if the claimant has offered a “plausible evidential basis”
23
Q
Morgan v Sydney Charles Financial Services Ltd
(Jurisdiction - SERVICE OUTSIDE THE TERRITORY: CIVIL PROCEDURE RULES, PRACTICE DIRECTION 6B - Branch, agency or other establishment)
A
Facts: the claimant sought permission to serve out on the foreign defendant, on the basis that the dispute related to the defendant’s administrator, who lived in and worked remotely from England, through the “branch, agency or other establishment” gateway.
Law: the court refused permission, finding that mere permanence was insufficient, and a centre of operations was required (the private residence of someone working from home does not meet this requirement).
24
Q
BP Exploration Co (Libya) v Hunt
(Jurisdiction - SERVICE OUTSIDE THE TERRITORY: CIVIL PROCEDURE RULES, PRACTICE DIRECTION 6B - contract)
A
Facts: the parties entered into an agreement in London in relation to the exploitation of an oil concession in Libya. The claimant sought compensation for frustration after their interest in the concession was nationalised and obtained permission to serve out on the defendant Texas. The defendant challenged jurisdiction.
Law: the defendant’s challenge was dismissed - although the only connection with England was that the defendant had come to England to sign the contract, this was enough for the English courts to accept jurisdiction under the contract gateway.
25
Conductive Inkjet Technology Ltd v Uni-Pixel Displays Inc
(Jurisdiction - SERVICE OUTSIDE THE TERRITORY: CIVIL PROCEDURE RULES, PRACTICE DIRECTION 6B - contract)
Law: it is possible for the court to consider that a contract was made in two places, and that if one of these places is England, the contract gateway is met. This might occur where parties engage in a long process of negotiation so that constructing an offer and acceptance analysis would be artificial, or where the negotiation was concluded over the phone or by post.
26
Sharab v Prince Al-Waleed
(Jurisdiction - SERVICE OUTSIDE THE TERRITORY: CIVIL PROCEDURE RULES, PRACTICE DIRECTION 6B - contract)
Facts: the claimant reached an agreement with a representative of the defendant for the sale of an aircraft to the president of Libya. The terms of the agreement were later varied over the phone. The claimant sued for failure to pay commission. The question was whether the contract was made in the country for the purposes of the contract gateway.
Law: the court had jurisdiction to hear the claim as enough of the agreement has been made in London to create a binding contract, and the later phone conversation was merely a variation rather than a new agreement. If the varied contract was a completely new arrangement which replaced the earlier contract, the court would not have had jurisdiction.
27
Cherney v Deripaska
(Jurisdiction - SERVICE OUTSIDE THE TERRITORY: CIVIL PROCEDURE RULES, PRACTICE DIRECTION 6B - contract)
Facts: not relevant.
Law: the phrase ‘in respect of’ a contract in the contract gateway should be interpreted broadly - the claim does not need to be for breach of contract, it just needs to relate to a contract. This claim concerned a constructive trust which arose out of a contract, which fell within the gateway.
28
ABCI v Banque Franco-Tunisienne
(Jurisdiction - SERVICE OUTSIDE THE TERRITORY: CIVIL PROCEDURE RULES, PRACTICE DIRECTION 6B - Tort and other non-contractual claims)
Facts: the claimant alleged that the defendants had conspired with another bank to fraudulently induce it to invest in that bank, and sought to set aside settlement agreements it claimed it entered into under duress.
Law: the courts refused jurisdiction by interpreting the tort gateway narrowly to not include financial loss suffered by the claimant in England.
29
Cooley v Ramsey
(Jurisdiction - SERVICE OUTSIDE THE TERRITORY: CIVIL PROCEDURE RULES, PRACTICE DIRECTION 6B - Tort and other non-contractual claims)
Facts: the respondent was a British citizen who was injured in an RTA in Australia by the applicant. After spending 8 months in Australia recovering, the respondent returned to England, where he needed lifetime care and had no earning capacity. The applicant sought a stay for lack of jurisdiction.
Law: the court held that the English courts had jurisdiction as the respondent suffered economic loss (loss of a source of income) in England, and this counted as damage for the purpose of the tort gateway.
30
FS Cairo (Nile Plaza) LLC v Brownlie
(Jurisdiction - SERVICE OUTSIDE THE TERRITORY: CIVIL PROCEDURE RULES, PRACTICE DIRECTION 6B - Tort and other non-contractual claims)
Facts: the respondent was seriously injured and her husband and daughter killed during a driving tour arranged by a hotel in Egypt. She claimed in contract and tort, and was given permission to serve out. The applicant sought a stay on the basis that the respondent had not suffered loss in England, as required for the tort gateway.
Law: the court (in a 3-2 majority) held that “damage” should be read broadly to cover any actionable harm, direct or indirect, physical or financial, caused by the wrongful act. The exception is probably pure economic loss. Therefore, the gateway applied. The minority considered that this was too broad since it would mean that any English person who went abroad and then returned home for treatment or suffered further loss there could bring a claim in England. When the case came back up to the SC they responded to this by highlighting the role of the discretionary element of jurisdiction.
31
Ashton Investments Ltd v OJSC Russian Aluminium (Rusal)
(Jurisdiction - SERVICE OUTSIDE THE TERRITORY: CIVIL PROCEDURE RULES, PRACTICE DIRECTION 6B - Property)
Facts: the claimant alleged that the respondent had hacked into the claimant's computer system in London to view confidential and privileged information relating to ongoing litigation. C claimed for breach of confidence under the property gateway. The respondent contested the court's jurisdiction.
Law: the court found that the property gateway covers confidential information where the information was located within the jurisdiction, and that information contained in digital form on a server in London was located within the jurisdiction.
32
Multinational Gas and Petrochemical v Multinational Gas and Petrochemical Services
(Jurisdiction - SERVICE OUTSIDE THE TERRITORY: CIVIL PROCEDURE RULES, PRACTICE DIRECTION 6B - Additional party)
Facts: the dispute arose out of the collapse of a corporate group, bits of which sued each other. The claimant relied on a first English party to be D1 so proceedings could be commenced based on presence (anchor defendant). Then they tried to bring in other defendants. The anchor defendant was insolvent and had no assets and it was argued that the sole reason for suing them was to join the other defendants.
Law: it is fine to use an insolvent anchor defendant, so long as the claimant has a genuine claim and cause of action against that defendant. It doesn’t matter that it would in practice be unenforceable.
33
Barings plc v Coopers & Lybrand
(Jurisdiction - SERVICE OUTSIDE THE TERRITORY: CIVIL PROCEDURE RULES, PRACTICE DIRECTION 6B - Additional party)
Facts: case arose out of the collapse of a bank in the 1990s due to a rogue trader. The auditors/creditors of the bank were sued for failing to detect the fraud. The claim was brought against C&L in relation to the auditing of the English accounts on the basis of presence, and they sought to add C&L Singapore, which they argued should have audited the Singapore accounts.
Law: the court held that for the "necessary or proper party" gateway there just has to be a commonality of underlying facts. This was satisfied because both claims concerned the same underlying fraud and whether it should have been detected.
34
ID v LU
(Jurisdiction - SERVICE OUTSIDE THE TERRITORY: CIVIL PROCEDURE RULES, PRACTICE DIRECTION 6B - Additional party)
Facts: not relevant
Law: you cannot use a party as an anchor defendant if that party has submitted to the jurisdiction.
35
Eurasia Sports Ltd v Aguad
(Jurisdiction - SERVICE OUTSIDE THE TERRITORY: CIVIL PROCEDURE RULES, PRACTICE DIRECTION 6B - Additional claim)
Facts: a contract claim was brought against a defendant, and then a related tort claim was brought as an additional claim (the tort didn’t happen in England and didn't pass the tort gateway). The claimant then added extra defendants to the tort claim.
Law: this was allowed. You can add extra defendants after adding an extra claim, but you can’t add extra claims after adding extra defendants.
36
Webb v Webb
(Jurisdiction - COMPARATIVE APPROACHES - Exclusive (and excluded) jurisdiction)
ECJ decision
Law: under Brussels I Recast, for the exclusive jurisdiction rule on immovable property to apply, the claim must be based on property rights (about ownership of property) not contractual rights (about money owed in relation to property) or merely linked with immovable property
37
GAT
(Jurisdiction - COMPARATIVE APPROACHES - Exclusive (and excluded) jurisdiction)
ECJ decision
Law: under Brussels I Recast, for the exclusive jurisdiction rule on patents etc. to apply, the claim must be for the validity of the patent, not for breach of the patent.
38
Mallory v. Norfolk Southern Railway
(Jurisdiction - COMPARATIVE APPROACHES - Consensual jurisdiction)
US decision
Facts: a Pennsylvania law required foreign corporations to register with the state before it could do business in Pennsylvania. By registering, the corporations submitted to the jurisdiction of the Pennsylvania courts.
Law: the US Supreme Court held that this was not unconstitutional. By registering in the state, the corporation submitted to the jurisdiction of the state courts. This is an expansive approach to consent based jurisdiction - consent based on statute rather than the express word of the parties.
39
Young v Anglo American South Africa Ltd
(Jurisdiction - COMPARATIVE APPROACHES - General jurisdiction)
Facts: C was born at D’s mine in Botswana and claimed damages for medical negligence which led to her suffering a disability. C claimed that D’s “central administration” was England as its parent company was in England.
Law: to determine a company's domicile for the purpose of Article 4 Brussels I Recast, “central administration” means the place where the company takes its essential management decisions. In this case, D did all its business in South Africa.
40
Goodyear Dunlop Tires Operations, S. A. v Brown
(Jurisdiction - COMPARATIVE APPROACHES - General jurisdiction)
US decision
Law: the domicile of a company is where it may fairly be considered "at home". A court may assert general jurisdiction over foreign corporations when their affiliations with the State are so “continuous and systematic” as to render them essentially at home in the forum State.
41
Daimler AG v Bauman
(Jurisdiction - COMPARATIVE APPROACHES - General jurisdiction)
US decision
Facts: the defendant company did business continuously and (arguably) systematically in every state.
Law: the defendant was not subject to the jurisdiction of the courts of every state. in a lot of different states. The court still needs to look for where the company is at home e.g., where its HQ is.
42
Definitely Maybe Touring Ltd v Marek Lieberberg GmbH
(Jurisdiction - COMPARATIVE APPROACHES - Special jurisdiction)
Facts: C supplied the services of the band Oasis to D, a Germany company promoting two Oasis concerts in Germany. C brought a claim for breach of contract against D as D refused to pay the full contract price on the ground that one of the Gallagher brothers did not perform.
Law: the court applied article 7 of Brussels I (D should be sued in the place of performance of the contractual obligation). It held that D’s obligations to arrange and market the concerts under the contract had arisen in Germany, so the German courts had jurisdiction.
43
Besix SA v Wassereinigungsbau Alfred Kretschmar GmbH & Co KG (Case C-256/00) [2002] ECR I-1699
(Jurisdiction - COMPARATIVE APPROACHES - Special jurisdiction)
ECJ decision
Law: Article 7(1) is not applicable where the place of performance of the contractual obligation in question cannot be determined because it consists in an undertaking not to do something which is not subject to any geographical limit. In such a case, jurisdiction can be determined only by application of the general criterion laid down in Article 4 - place of domicile.
44
Bier v Mines de Potasse
(Jurisdiction - COMPARATIVE APPROACHES - Special jurisdiction)
ECJ decision
Law: where the court has to determine "the place where the harmful event occurred" in for the Brussels I tort place of jurisdiction, and the act and the damage occurred in different places, then article 7 must be interpreted as granting an option upon the plaintiff to sue in the courts of either place.
45
Henderson v Jaouen
(Jurisdiction - COMPARATIVE APPROACHES - Special jurisdiction)
Facts: C (an English citizen) suffered injury in a car accident caused by D in France. Damages were awarded to C in the French courts, and the court told C that he would be able to claim further damages if his injuries got worse. C’s injuries got worse in England, and C argued that the English courts had jurisdiction over this claim as the harmful event (i.e., the further damage) had occurred in England.
Law: the English courts rejected this argument, finding that the harmful event was the original act and damage, and that the deterioration in his condition was not a fresh wrong. For the purposes of EU law, "damage" had to be interpreted narrowly.
46
Bristol-Myers Squibb v Superior Court of Cal., San Francisco Cty., 582 U.S. ___ (2017)
(Jurisdiction - COMPARATIVE APPROACHES - Special jurisdiction)
US decision
Law: the US distinguishes between general jurisdiction (which can be exercised over the defendant even if the case has nothing to do with the state of the court, and is established by the defendant's domicile) and specific jurisdiction (which can only be exercised where and to the extent that there the claim relates to the defendant's activity within the state)
47
Ford Motor Co. v Montana Eighth Judicial District (2021)
(Jurisdiction - COMPARATIVE APPROACHES - Special jurisdiction)
US decision
Facts: claims were brought against Ford in Montana. The vehicles were not bought in Montana but the accidents happened in Montana, allegedly due to manufacturing faults. The question was whether the claim related to Ford’s activities in Montana.
Law: the court found that it had jurisdiction. Specific jurisdiction covers defendants less intimately connected with a State than general jurisdiction, but only as to a narrower class of claims. The connection between the defendant and the state must be a result of their own choice and not “random, isolated, or fortuitous.” Proof of causation (i.e., that the defendant's conduct within the state caused the harm claimed) is not required to establish specific jurisdiction.
48
Club Resorts Ltd. v Van Breda, 2012 SCC 17
(Jurisdiction - COMPARATIVE APPROACHES - Canadian law)
Canadian decision
Law: there must be a "real and substantial connection" between the forum and the claim. We cannot rely on discretionary court decisions on a case-by-case basis to flesh out this rule - there need to be categories. In tort, presumptive connecting factors are domicile, residence, location of the tort, related contract made in the province. If no factor applies, the court will not assume jurisdiction. If one does, the court will assume jurisdiction and it falls to the defendant to rebut this.
49
The Spiliada
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens)
Facts: D (Canadian) used C's (Liberian) ship to transport sulphur. C alleged that the sulphur had been wet and damaged the ship. Another case about a different ship (the Cambridgeshire) and parties but with the same facts and counsel and expert evidence was ongoing in the English courts.
Law: the court found that it had jurisdiction because of the Cambridgeshire litigation. It confirmed that the test is which forum "the case may be tried more suitably for the interests of all the parties and for the ends of justice", and this has two stages: (1) the defendant must show there is another more appropriate forum, (2) if so, the claimant must show that justice requires the case to be heard in England. FC is the same except the claimant has to prove (1) and (2).
50
VTB Capital Plc v Nutritek International Corp
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens)
Facts: not relevant here
Law: for FC, the test should be seen as one stage, requiring the claimant to show that England is clearly the most appropriate forum. The same considerations as the two-stage FNC test apply. The appellate court should be slow to interfere with the lower court's assessment.
51
Vedanta Resources PLC v Lungowe
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens)
Facts: Zambian group claim against UK parent and Zambian subsidiary for pollution from copper mine.
Law: in both FC and FNC cases we should consider the test as involving one question, as the proper place and substantial justice questions are not separate.
52
Bourlakova v Bourlakov
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens)
Facts: the first C and D were ex-husband and wife, domiciled in Monaco. They had various disputes related to their divorce. C obtained permission to serve out on D and several other defendants in various jurisdictions. Some time later, the Ds argued FNC.
Law: it is possible for FC and FNC to arise in the same case, but FNC would only be upheld if there had been a "material change in circumstances" since the original grant of permission, which there was not in this case.
53
The Spiliada
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - First stage – appropriateness)
Facts: as above
Law: “conveniens” does not simply mean convenient, it more properly means appropriate. This includes consideration of the forum “with which the action had the most real and substantial connection”, including convenience, expense, where the parties reside or carry on business, and the applicable law. Whether C would get more damages in England or the foreign forum is irrelevant.
54
FS Cairo (Nile Plaza) LLC v Brownlie
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - First stage – appropriateness)
Facts: see above
Law: even if a claim has passed through one of the gateways, the claimant still has to prove that there is a strong connection between the claim and the forum. The gateways only establish a potential connection. Also, FNC and FC are the discretionary parts of the jurisdiction test, but the courts do not have unlimited discretion – they are guided by case law.
55
Amin Rashid v Kuwait Insurance Co
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - First stage – appropriateness)
Facts: C, a Liberian company, insured their vessel with D, a Kuwaiti company. The policy was based at Lloyd’s standard form in English, but provided that Kuwait was the place of issue. The policy did not state the law governing the contract. C claimed for the total constructive loss of the vessel after the crew was detained.
Law: HoL refused permission to serve out, holding that although there was a ground for jurisdiction (English law was the proper law of the contract), C had not discharged their burden to prove FC. The court should exercise its discretion to hear a case with caution if there is an alternative forum where the case could be heard. The court should not compare the procedures or reputation of the courts in each forum - it is not for the court to characterise a foreign court’s ability to apply English law as inferior to its own.
56
King v Lewis
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - First stage – appropriateness)
Facts: claim concerned defamation in England arising from an online US publication read in England and the US. Key question was whether the dispute was connected with England.
Law: the dispute doesn’t have to be narrowly defined to the claim being brought. In this case, the dispute was the lawfulness of the publication in general terms, not whether C's English reputation was damaged. Otherwise, it would be easy for Cs to make the English court appropriate by framing the claim as damage to their English reputation. The court must approach the question broadly to decide which court is actually best.
57
Sharab v Prince Al Waleed
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - First stage – appropriateness)
Facts: as above
Law: the first instance court found that there was not an available alternative forum. The defendant appealed and undertook to submit to the Libyan courts. The CoA said this was too late, as an appellate court is not remaking the decision of a trial court, it is deciding whether the trial judge’s decision was right according to the facts at the time.
58
Colt Industries v Sarlie (No 1)
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - First stage – appropriateness)
Facts: D fled to England with artworks, meaning that the English courts could be confident that D had assets in England. It was not clear where else D’s assets were.
Law: this favoured the English courts assuming jurisdiction.
59
EI Du Pont de Nemours v Agnew
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - First stage – appropriateness)
Facts: Du Post produced medication which they sold in the US. They were sued for negligence in manufacturing due to side effects. In the New York proceedings, there had been a large punitive damages award against them. They sought to claim against their insurance for this award. The insurance contract was governed by English law. The question was whether the English or New York courts should hear the case against the insurer.
Law: the contract was under English law and the legal issue was a really important one: can you get insurance against punitive damages? If you could, this would reduce the power of punitive damages as a matter of public policy. Therefore, the English courts were much better placed to resolve the question.
60
Limit Ltd v PDV Insurance Co Ltd
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - First stage – appropriateness)
Facts: insurance claim under English law arising out of an oil spill in Venezuela.
Law: the real issues in the case were not legal issues - e.g., there wasn’t a dispute about the interpretation of the insurance contract. The real issues were what actually happened and what measures were put in place to stop the oil spill (questions of fact). There was therefore no reason the English courts were best placed to make that judgment - the Venezuelan courts were. Further, the claim involved multiple parties and would give rise to further claims by/against reinsurers in Venezuela. It was desirable to consolidate all these claims.
61
Petroleo Brasiliero SA v Mellitus Shipping Inc
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - First stage – appropriateness)
Facts: P brought an action against M concerning the quality of cargo on board M’s vessel. M issued Part 20 proceedings against F and SA to join them to the proceedings, and gained permission to serve out on SA (a Saudi Arabian company). SA asked the court to set aside the Part 20 claim.
Law: the CoA found that although the claim against SA was more closely connected with Saudi Arabia, it refused to set aside the claim because of the convenience of all the claims being heard together and because the law of Saudi Arabia did not recognise the right to contribution. Normally, mere differences in applicable law don’t raise considerations of justice - but in this case the court said that since the whole cause of action isn't recognised, M would in effect be denied justice.
62
Vedanta Resources PLC v Lungowe
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - First stage – appropriateness)
Facts: as above
Law: the risk of irreconcilable judgments is one factor to take into account in limb 1, but it ceases to be a trump card in circumstances where the risk arises from the claimants' trial strategy.
63
Amin Rasheed v Kuwait Insurance Co
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - Second stage – Access to justice for the claimant)
Facts: as above
Law: the court is not supposed to embark on a comparison or evaluation of the foreign court’s procedures or the rules it would apply. It’s not enough that the foreign court would take a different approach. However, the claimant may argue that if the litigation happens in the foreign court, justice could not be obtained - or could only be obtained at excessive cost, delay or inconvenience - because of factors relating to the claimant themselves or the foreign court and its procedures.
64
Roneleigh Ltd v Mii Exports Inc
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - Second stage – Access to justice for the claimant)
Facts: R (an English company) contracted with M (a New Jersey corporation) to buy scrap steel for export to Turkey. R claimed for breach of contract and obtained permission to serve out on the ground that the contract was made within the jurisdiction. M applied to set aside service.
Law: the court found that while New Jersey was the appropriate forum, the claimant succeeded on the second limb of Spiliada. They would have to enter into a CFA in NJ and would lose a large percentage of their damages to their lawyers. The court accepted that was an injustice because the claimant wouldn’t be fully compensated for their loss. This is an outlier and may be critiqued as it is hard to distinguish this case from a case where the foreign court would give half the amount of damages.
65
The Vishva Ajay
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - Second stage – Access to justice for the claimant)
Facts: the parties’ vessels collided in an Indian port. C arrested a sister ship of D’s in England and thereby founded jurisdiction against D. D argued FNC.
Law: the court held that although India was the natural forum, justice required the refusal of the grant of a stay because (i) a successful litigant in India would have to bear a substantial proportion of the litigation costs himself and (ii) a trial in India would be delayed for many years, creating extra costs and making the evidence of witnesses less reliable.
66
Banco Atlantico v British Bank of Middle East
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - Second stage – Access to justice for the claimant)
Facts: BA (a Spanish bank) issued proceedings against BBME (a bank incorporated in England) in relation to an agreement made between a Spanish citizen and a UAE citizen for the sale of shares. BBME applied for an FNC stay, arguing that the courts of the UAE were the appropriate forum. The stay was granted and that decision was appealed by BA.
Law: the CoA found that the lower court had erred in finding that the applicable law was UEA law when in fact it was Spanish law. The court was faced with a choice of appropriate forum between the UAE, which would apply UAE law, and England, which would apply Spanish law. The court found that it was not material that one option involved a court applying its own law and the other applying foreign law. Further, the evidence was the courts of the UAE wouldn’t recognise the doctrine of frustration of illegality. This was an inadequacy which meant the claimant would be denied justice in the foreign court.
67
Herceg Novi v Ming Galaxy
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - Second stage – Access to justice for the claimant)
Facts: following a collision between two vessels, HN and MG, off Singapore, in which HN sank, the owners of MG commenced proceedings in Singapore and the owners of HN commenced proceedings in England. There were two international conventions dealing with recovery from ship collisions (an older one Singapore was a party to and a newer one the UK was a party to). The Singapore convention had a lower limit on damages than the UK convention. MG sought a stay of the English proceedings on FNC grounds.
Law: the court granted a full stay. It found that the difference in applicable law (the different limits of damages in the two Conventions) did not cause injustice such that it could be relied upon by HN to justify proceedings in England, which was not the natural forum. There was nothing to be preferred between the two Conventions in terms of abstract justice. The court did not accept HN's argument that the old convention was out of date, or that the new convention represented justice, since many states had not signed up to it. The court suggested that if the majority of states signed up to an international convention, that could set a standard of justice which could be relied upon.
68
The Pioneer Container
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - Second stage – Access to justice for the claimant)
Privy Council (Hong Kong) case
Facts: P contracted with a company for the carriage of goods from Taiwan to HK. The company subcontracted to D, the shipowners. The ship sank with the loss of all cargo and P commenced proceedings against D in HK. D applied for a stay as an exclusive jurisdiction clause provided that any dispute would be determined in Taiwan.
Law: the court found that P was bound by the jurisdiction clause and the fact that limitation had expired in Taiwan was not a good reason for refusing to grant a stay. P had created this problem by forum shopping (suing in the most advantageous forum not the natural forum) and failing to protect their rights in Taiwan by commencing and staying proceedings there. Indeed, P had deliberately allowed the time limit to expire in Taiwan.
69
Citi-March v Neptune Orient Lines Ltd
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - Second stage – Access to justice for the claimant)
Facts: N shipped clothing to C in London pursuant to an agreement with an exclusive jurisdiction clause in favour of Singapore. C sued N and other Ds in England and obtained permission to serve out on N in Singapore. The time limit had expired in Singapore and C had not issued protective proceedings. N applied to set aside service.
Law: the court found that although Singapore was the natural forum, whether an omission to issue protective proceedings was unreasonable would depend on all the circumstances of the case, and it was not unreasonable where there was a strong case for English jurisdiction (in this case the risk of conflicting judgments against the different Ds, some of whom were English). Therefore, it would be unjust to stay the claim. The court focused on whether the claimant had acted reasonably in the circumstances and whether their conduct indicated they were forum shopping for an advantage.
70
Connelly v RTZ
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - Second stage – Access to justice for the claimant)
Facts: claim by Scottish man injured working at mine in Namibia, brought against the English parent company of the operator of the mine, RTZ. RTZ sought a stay on FNC grounds. The claimant argued that he would not obtain justice in Namibia because he could not fund his case. In England, he had legal aid. However, the CoA found that the availability of legal aid could not determine the appropriate forum. The claimant's sols then offered to take his case on under a CFA.
Law: the HoL overturned the CoA's decision on legal aid. Though Namibia was the natural forum, the claimant would not obtain justice there. The unavailability of CFAs in Namibia was also a relevant factor. The court held that in general where the foreign court is more appropriate C has to take that court as they find it and it does not matter if its less advantageous. However, if C can show the lack of financial assistance would be an obstacle to them obtaining justice at all, the English courts might exercise jurisdiction on that basis.
71
Lubbe v Cape Plc
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - Second stage – Access to justice for the claimant)
Facts: group claim brought against Cape Plc, the English parent company of a South African subsidiary, for asbestos exposure.
Law: the court found that while SA was the more appropriate forum, there was a real risk the Cs would not obtain justice in SA. This is because there was a strong probability that the Cs would be unable to obtain legal representation (due to the absence of legal aid and CFAs in SA) or expert evidence; the SA courts wouldn't be able to deal with some of the complexities of the case; and there were no established procedures to deal with multi-party actions in SA. The SA government intervened to argue that the SA courts could not hear the case because they wanted the Cs to recover damages against the English company to use for their healthcare.
72
Morgan v Sydney Charles Financial Services Ltd
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - Second stage – Access to justice for the claimant)
Facts: C’s deceased husband entered into life insurance policies with D, a financial services company located in Guernsey. C commenced proceedings for breach of contract, negligence and breach of duty against D as her husband had not been insured for death by natural causes. C sought permission to serve out.
Law: the court found that the unavailability of third party funding in Guernsey (the litigation funder was only prepared to fund litigation in England) and the unlawfulness of CFAs in Guernsey meant that C could not afford to bring the claim in Guernsey and should therefore be permitted to bring it in England. This raises the concerning possibility that third party funders can influence jurisdiction decisions through their policies.
73
Cherney v Deripaska
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - Second stage – Access to justice for the claimant)
Facts: the C sought to serve proceedings out of the jurisdiction on D in Russia in relation to a long-running commercial dispute.
Law: the court found that the risk of interference with the judicial process in Russia by D was a relevant factor in finding that, although Russia was the natural forum, the claimant would not obtain justice in Russia. C would have to travel to Russia to appear in proceedings and would be at risk of assassination. It held that allegations of a kind that impugned the integrity of a friendly foreign state were not to be made lightly or accepted without the support of positive and cogent evidence (which was available in the present case).
74
The Spiliada
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - Practical applications of forum conveniens test)
Facts: as above
Law: FNC is primarily a matter for the trial judge. Submissions should be made in a matter of hours and not days. An appeal should be rare and the appellate court slow to interfere.
75
VTB Capital plc v Nutritek International Corp
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - Practical applications of forum conveniens test)
Facts: not relevant here
Law: FNC hearings should not involve masses of documents, long witness statements, detailed analysis of the issues or long argument. This creates a danger that rich parties will use such proceedings to wear down poor parties. It is also disproportionate to spend so much money and time on such a hearing. The court can only form preliminary views on most relevant legal issues and does not need to be (and cannot be) certain. The courts can exercise case management powers to ensure that the evidence and argument are kept within proportionate bounds.
76
Tugushev v Orlov
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - Practical applications of forum conveniens test)
Facts: not relevant here
Law: the applicants “generated a depressingly vast amount of material”. One party served 19 witness statements and 5 expert reports, and their costs were in the region of £4m.
77
Lungowe v Vedanta Resources plc
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - Practical applications of forum conveniens test)
Facts: as above
Law: there have been frequent judicial pronouncements on the requirements of proportionality in jurisdiction appeals which have been ignored once again. There may be costs consequences for this kind of behaviour.
78
Soriano v Forensic News LLC
(The discretion to exercise jurisdiction - forum conveniens and forum non conveniens - A special rule for defamation?)
Facts: C was an Israeli national with British citizenship living in England. He brought a libel claim against various US-based journalists and a California-based news outlet, and was given permission to serve out part of his claim. The Ds appealed this and C cross appealed in respect of the remainder of the claim.
Law: the court dismissed the appeal and allowed the cross appeal in part. It held that s. 9 reduces the presumption that England is the natural forum in respect of a publication in England. If C is better known outside of England or has a global reputation, they are likely to find it hard to show that England is clearly the most appropriate jurisdiction. The courts must look at the whole dispute i.e., everywhere the statement has been published, even if C is only claiming in relation to publications in England.
79
The Eleftheria
(The discretion to exercise jurisdiction - EXCLUSIVE AND NON-EXCLUSIVE JURISDICTION AGREEMENTS - General approach)
Facts: the dispute concerned a contract under which the parties had agreed that disputes should be decided in and by the law of the country of the carrier’s principal place of business (Athens). The Ds sought a stay of English proceedings on this basis.
Law: the court will generally stay proceedings where there is an exclusive jurisdiction clause favouring a foreign jurisdiction, unless C can show a strong case for not doing so (burden of proof on party seeking to overcome JA). In bringing proceedings, C is breaking their contractual promise. C failed to make out such a case.
80
The El Amria
(The discretion to exercise jurisdiction - EXCLUSIVE AND NON-EXCLUSIVE JURISDICTION AGREEMENTS - General approach)
Facts: the ship was owned by an Egyptian company and transported potatoes to Liverpool. The potatoes had deteriorated by the time of arrival and the receivers sued. The agreement between the parties stated that disputes should be submitted to the Egyptian courts. The shipowners applied for a stay on this basis. The receivers brought a second claim against their own contractors.
Law: the court refused to grant a stay on the basis that the relevant evidence was in England and there was a risk of irreconcilable judgments if the two claims were held in different jurisdictions. This was sufficient to justify departing from the strong prima facie case in favour of a stay due to the JA.
81
The Nile Rhapsody
(The discretion to exercise jurisdiction - EXCLUSIVE AND NON-EXCLUSIVE JURISDICTION AGREEMENTS - General approach)
Facts: the parties chartered a vessel and a dispute arose as to the amount payable under the contract. C served on D in England and D had the claim stayed on the basis of an oral agreement that Egypt had jurisdiction.
Law: the CoA found that the oral agreement was valid, and that the claims of delays in the Egyptian judicial system of 3/4 years, substantial differences in interest payable in Egypt, and costs not being recoverable in Egypt were “wholly insufficient to tip the scales away from Egypt”. If the parties have chosen a particular court in a JA, they cannot complain that certain features of that court would make litigating there inconvenient or unjust e.g., delay, cost, location of witnesses or evidence.
82
The Pioneer Container
(The discretion to exercise jurisdiction - EXCLUSIVE AND NON-EXCLUSIVE JURISDICTION AGREEMENTS - General approach)
Facts: as above
Law: one reason why the HK court stayed proceedings was that there was an exclusive JA in favour of Taiwan. C couldn't argue the time bar in Taiwan was an injustice because when they entered into the JA they accepted the time bar rules. This was an extra reason why there was no injustice in applying the time bar rules.
83
Carvalho v Hull Blyth (Angola) Ltd
(The discretion to exercise jurisdiction - EXCLUSIVE AND NON-EXCLUSIVE JURISDICTION AGREEMENTS - General approach)
Facts: in 1973, an Angolan resident, C, agreed to sell shares to HB, an English company established in Angola. Their contract provided that disputes would be resolved in Angola. In 1975, the Portuguese regime in Angola was overthrown and Angola was promised independence. HB failed to make a payment and C brought proceedings in England.
Law: the court rejected HB’s application to stay proceedings on the ground that the court when the contract was made was not now the same court due to the change in government. There was no longer final appeal to Lisbon, the judges were selected differently, and there was a new constitution under which the law might be changed at any time. This had the effect of frustrating the JA.
84
Citi-March v Neptune Orient Lines Ltd
(The discretion to exercise jurisdiction - EXCLUSIVE AND NON-EXCLUSIVE JURISDICTION AGREEMENTS - General approach)
Facts: see above
Law: the benefits of hearing the cases against all Ds in the same jurisdiction was found to outweigh the benefits of adhering to the JA in favour of Egypt.
85
Donohue v Armco
(The discretion to exercise jurisdiction - EXCLUSIVE AND NON-EXCLUSIVE JURISDICTION AGREEMENTS - General approach)
Facts: A, a group of companies incorporated in the US and Singapore, brought a claim against D and others in the New York courts for fraud. D obtained an anti suit injunction in the English courts restraining the proceedings in NY on the grounds that the contract between the parties contained an English jurisdiction clause. A appealed this decision.
Law: an exclusive JA should be given effect unless there are very good reasons not to, which might include consideration of the interests of parties not bound by the JA and the likelihood of parallel proceedings. The lower court had wrongly allowed D to join the other Ds to the English case, and since this was wrong, if the case against D went ahead in England there would very likely be parallel proceedings in NY. This was particularly undesirable in a conspiracy case. It was best that the matter be dealt with by an individual tribunal and this could only be achieved in NY.
86
Motacus Constructions Ltd v Paolo Castelli SpA
(not in note but in handout - discretion to exercise jurisdiction - JAs - Hague Convention)
Facts: D, an Italian contractor, engaged C, a UK subcontractor, to carry out works in England. The contract between the parties contained an exclusive jurisdiction clause in favour of the French courts. A piece of UK legislation provided that UK adjudication provisions applied to the contract regardless of the clause. C obtained a UK adjudication decision against D and applied for summary judgment to enforce it.
Law: the court found that the JA did not apply to interim measures like summary judgment applications under article 7 of the Hague Convention. It also determined that the threshold for proving “manifest injustice” or “manifestly contrary to public policy” under article 6(c) of the Hague Convention was high, and not met in this instance.
87
Fiona Trust v Privalov
(The discretion to exercise jurisdiction - ARBITRATION AGREEMENTS)
Facts: FT (a ship owner) began proceedings against P (charterers) in relation to the rescission of charter agreements. The agreements contained a jurisdiction clause providing that any party could elect to have any dispute arising under the charter referred to arbitration. P obtained a stay on the basis that the issue should be determined by arbitration rather than a court. FT appealed, arguing that the dispute (whether the charters were procured through bribery) did not arise under the charters.
Law: the court found that unless the language of an arbitration clause made it clear that certain questions were intended to be excluded from the arbitrator's jurisdiction, it was to be assumed that the parties, as rational businessmen, were likely to have intended any dispute arising out of the relationship into which they had entered, including disputes over the validity of their agreement itself, to be decided by the arbitrator rather than by a court.
88
Republic of Mozambique v Privinvest Shipbuilding SAL (Holding)
(The discretion to exercise jurisdiction - ARBITRATION AGREEMENTS)
Facts: RoM had borrowed money to finance the purchase of equipment and services from P and others. The supply contracts contained Swiss arbitration agreements. RoM claimed to be the victim of conspiracy, bribery and fraud involving all the defendants including P. RoM commenced proceedings in England. P applied for a stay under the arbitration clauses.
The court refused to stay the proceedings on the basis that the dispute did not fall within the scope of the clauses. This was because RoM’s claims did not require an examination of the validity of the supply contracts. The defence that the contracts were valid was not a defence to bribery etc.
89
Owusu v Jackson
(The discretion to exercise jurisdiction - ALTERNATIVE APPROACHES TO JURISDICTIONAL DISCRETION - The Brussels I Regulation)
ECJ decision
Facts: not relevant
Law: the effect of Brussels I is that the English courts cannot invoke FNC to refuse jurisdiction over a UK-domiciled defendant in favour of the court of a non-EU member state.
90
Gulf Oil Corp. v Gilbert 330 U.S. 501 (1947)
(The discretion to exercise jurisdiction - ALTERNATIVE APPROACHES TO JURISDICTIONAL DISCRETION - Other common law approaches)
US case
Law: the US courts apply the principle of forum non conveniens, which leaves much to the discretion of the court. The relevant factors are similar to English law i.e., "practical problems that make trial of a case easy, expeditious, and inexpensive" and "relative advantages and obstacles to fair trial". The plaintiff should not vex, harass or oppress the defendant with their choice, but the plaintiff's decision should rarely be disturbed. Additionally, and contrary to the English approach, the court considers public policy e.g., administrative overburdening of courts, need for juries to hear cases with connection to their locality. Applicable law and enforcement of judgments is also relevant.
91
Piper Aircraft Co. v Reyno 454 U.S. 235 (1981)
(The discretion to exercise jurisdiction - ALTERNATIVE APPROACHES TO JURISDICTIONAL DISCRETION - Other common law approaches)
US case
Law: the plaintiff's choice of forum should rarely be disturbed, but it may be where it is oppressive or vexatious, or inappropriate because of the court's administrative problems. Plaintiffs may not defeat an FNC motion simply by showing that the substantive law in the foreign forum is less favourable to them.
92
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
(The discretion to exercise jurisdiction - ALTERNATIVE APPROACHES TO JURISDICTIONAL DISCRETION - Other common law approaches)
Australia case
Law: proceedings should only be stayed where they are vexatious, oppressive or an abuse of process - not merely where on balance another jurisdiction is more appropriate. The "more appropriate forum" spiliada test is beneficial for ensuring that the claim is heard in the most appropriate forum. However, it leads to lengthy jurisdiction challenges and does not reflect the fact that there are often multiple appropriate fora. A "clearly inappropriate forum" test should be preferred. This also limits judgment of the foreign forum by focusing on the advantages and disadvantages of litigating in the chosen forum.
93
Amchem Products Inc v British Columbia Workers Compensation Board [1993] 1 SCR 897
(The discretion to exercise jurisdiction - ALTERNATIVE APPROACHES TO JURISDICTIONAL DISCRETION - Other common law approaches)
Canadian case
Law: any juridical advantage to the C or D is one of the factors to be taken into account. If a party seeks out a jurisdiction simply to gain a juridical advantage rather than by reason of a real and substantial connection to the jurisdiction, that is "forum shopping". On the other hand, a party whose case has a real and substantial connection with a forum has a legitimate claim to the advantages that that forum provides.
94
Club Resorts Ltd. v Van Breda 2012 SCC 17
(The discretion to exercise jurisdiction - ALTERNATIVE APPROACHES TO JURISDICTIONAL DISCRETION - Other common law approaches)
Canadian case
Law: first jurisdiction must be established, then the defendant can raise FNC. FNC is a one-stage, discretionary test - D must show that there is another forum with a more "real and substantial connection" with the claim than the chosen court. There is no set list of relevant factors - the guiding principles are fairness and efficiency. It is one messy discretionary test.
