Gonzaga Journal of International Law Volume 9, Issue 2
Limitations Of Access At The National Level: Forum Non Conveniens
Written by Binda Sahni
Gonzaga University721 N. Cincinnati StSpokane, WA 99202Phone 800 986 9585
Cite as: Binda Sahni, Limitations of Access at the National Level: Forum Non Conveniens, 9 Gonz. J. Int'l L. 118 (2006), available at http://www.gonzagajil.org/.
Limitations Of Access At The National Level: Forum Non Conveniens
Binda Sahni*
I. Introduction
National courts provide a possible venue to assess transnational corporate ("TNC") liability for personal injuries and death to consumers, employees, and community members. The absence of diplomatic protection as a pre-requisite for forum accessibility allows standing to individuals and companies as parties to legal actions. [1] Therefore, individuals serve as complainants, and defendant corporations may be held directly accountable for injuries caused by defective products ("product liability" [2]) and from the use of negative managerial policies, plant equipment, and technology ("process liability"). [3]
Limitations of access to the plaintiff may arise if the domestic forums of the plaintiff and the corporate defendant differ. This situation ensues where the plaintiff seeks to assert that a parent company is responsible for the injurious acts of a subsidiary corporation in a Host State. Framing TNC accountability entails the satisfaction of two criteria. First, the victim must establish that the subsidiary corporation is acting on behalf of the parent company and thus is not an independent entity in practice. [4] This enables the complainant to pursue proceedings in the local courts with jurisdiction over the parent company. At this level, the court is required to assert jurisdiction under procedural rules of "court-access," e.g. personal, legislative, and/or subject matter jurisdiction. [5] Second, the plaintiff must refute a possible application of forum non conveniens by the defendant. Forum non conveniens is a discretionary doctrine common law courts apply when declining to exercise jurisdiction and dismissing judicial proceedings in favour of an alternative forum. [6] For example, a parent company may plead that it would incur financial and administrative disadvantages from an action in the original forum, specifically if the jurisdiction is neither where the injury occurred nor where the factual and scientific evidence is located. If the court approves the removal of proceedings to a forum where the harm and evidence are located, then the subsidiary company-as the direct perpetrator of the plaintiff's injury-has a closer nexus with the venue. In this way, the parent company can utilise the forum non conveniens principle to minimise its liability. Therefore, the defendant's capacity to displace valid or existing jurisdiction with the flexible tactic of forum non conveniens demonstrates that in the transnational context the assessment of forum non conveniens assumes significance over the issue of jurisdiction-or at the very least, the analysis of both doctrines is perceived as being interrelated. For example, "[t]he American federal courts often use forum non conveniens to virtually replace personal or legislative jurisdiction analyses when foreign plaintiffs seek redress for injury inflicted abroad." [7] This statement also applies to other national courts and is illustrated in the discussion of English, Australian, and Canadian cases in this article.
The development of forum non conveniens has not been uniform in all common law jurisdictions. Yet, the underlying aim of each approach has been to avoid "forum shopping," the undue disadvantage placed on a defendant when a plaintiff "bypasses" his natural forum and brings an action in a foreign court to obtain further relief or benefits. [8] In England, the test for determining stays of actions is set forth in Spiliada Maritime Corporate v. Cansulex Limited. [9] The defendant must prove the availability of a forum that is "clearly or distinctly" more appropriate to hear the dispute than the English courts. The court will grant a stay unless the plaintiff identifies circumstances whereby justice requires the proceedings to continue in an English forum. In Australia, Voth v. Manildra Flour Mills [10] identifies a "clearly inappropriate forum" for dismissal of a suit. In Canada, Amchem Products, Inc. v. British Columbia (Worker's Comp. Bd.) [11] incorporates the "more appropriate forum" threshold. In the United States, the leading case is Piper Aircraft Co. v. Reyno, [12] which emphasises the convenience of the parties according to private and public policy interests.
These legal systems employ forum non conveniens in admiralty and commercial litigation, as well as personal injury actions. Therefore, it is necessary to consider the development of forum non conveniens from these perspectives to assess the doctrine's applicability to TNC liability for human injury and death.
II. The Development of Forum Non Conveniens in the United Kingdom
A. Common Law Interpretation of the Doctrine
English courts are authorised to stay proceedings on the ground of forum non conveniens under section 49 of the Civil Jurisdiction and Judgments Act 1982, as amended by the Civil Jurisdiction and Judgments Act 1991, Sch. 2, para. 24. [13] Section 49 states that: "[n]othing in this Act shall prevent any court in the United Kingdom from staying, sisting, striking out or dismissing any proceedings before it, on the ground of forum non conveniens or otherwise, where to do so is not inconsistent with the 1968 Convention." [14]
The judicial interpretation of forum non conveniens derives from Scottish and English case law. The current tenets of the doctrine are based upon Scottish principles. First, the term "forum non conveniens" refers to the "appropriate" rather than the "convenient" forum. [15] The aim is to consider the interests of the parties objectively. [16] Second, a court will approve a stay only if it "is satisfied that another tribunal with competent jurisdiction exists, in which the case may be tried more suitably for the interests of all the parties and for the ends of justice." [17] The House of Lords upheld these rationales in Spiliada Maritime Corporate v. Cansulex Limited. [18]
Prior to Spiliada, the plaintiff emphasised his or her interests in an application for a stay of proceedings. Cohen v. Rothfield [19] instructed that the onus was on the defendant to satisfy the court that the plaintiff would not be deprived of an advantage in the foreign legal procedure that he would otherwise be entitled to use in the English courts. Lord Scott clarified this approach in St. Pierre v. South American Stores (Gath & Chaves) Ltd. He stated that:
The true rule about a stay under section 41 [of the Supreme Court of the Judicature (Consolidated) Act, 1925] ... may I think be stated thus: (1) A mere balance of convenience is not a sufficient ground for depriving a plaintiff of the advantages of prosecuting his action in an English court if it is otherwise properly brought. The right of access to the King's court must not be lightly refused. (2) In order to justify a stay two conditions must be satisfied, one positive and the other negative: (a) the defendant must satisfy the court that the continuance of the action would work an injustice because it would be oppressive or vexatious to him or would be an abuse of process of the court in some other way; and (b) the stay must not cause an injustice to the plaintiff. These propositions are, I think, consistent and supported by the following cases: McHenry v. Lewis (1882) 22 Ch. D. 397; Peruvian Guano v. Bockwoldt (1883) 23 Ch. D. 225; Hyman v. Helm (1883) 24 Ch. D. 531; Thornton v. Thornton (1886) 11 P.D. 176; and Logan v. Bank of Scotland (No. 2) [1906] 1 K.B. 141, 150-151. [20]
The practicality of the "vexatious and oppressive" threshold was examined in The Atlantic Star. [21] The Atlantic Star was a maritime dispute that arose when two Dutch owned vessels collided in Belgian waters, resulting in two deaths. The plaintiffs invoked the jurisdiction of the Admiralty Court in England to bring an action in rem against the defendants' vessels. [22] The defendants sought a stay of action in favour of the Belgian forum.
The issue before the House of Lords was whether forum non conveniens could be granted if the sole connecting factor between the English forum and the dispute was jurisdiction as of right. The Court provided a stay of proceedings, observing that the words "vexatious" and "oppressive" could have a flexible construction to assess the plaintiff's conduct toward the defendant. [23] It was not necessary for the defendant to show that the plaintiff was wrongly motivated in selecting the forum. [24] The Court suggested that the terms be applied in the future with a liberal interpretation. [25]
Further modifications of the St. Pierre test were considered in MacShannon v. Rockware Glass Ltd. [26] The fact pattern and issues raised in MacShannon are akin to those concerning the liability of TNCs for human injury and death. MacShannon was an industrial action for personal injury claims. The defendant company was registered in England but situated in Scotland. [27] Four employees claimed damages for workplace accidents resulting from the employer's failure to...
