Today, most parties to a dispute prefer legal suits in which they are involved to be heard and determined in a court that is likely to come up with a judgment that best suits their interests. The practice is commonly referred to as forum shopping (Wild, Weinstein & Riefa 2005). It is one of the most commonly used strategies by legal teams in relation to winning an international lawsuit. Some jurisdictions are believed to be partial. To this end, they are seen to favour either the defendant or the plaintiff if the legal issue in question is argued in a particular manner. As such, the issue of jurisdiction has in recent times become an important point of discussion, especially in matters to do with international contracts.
In this paper, the author will discuss the issue of forum non conveniens and how it is applied in the determination of cases touching on international maritime contracts. In addition, the author will seek to establish whether or not the forum is still applicable today among European Union (EU) member states. To this end, more emphasis will be put on the application of forum non conveniens within the EU. The existence of numerous legislations touching on the issue is one of the reasons why the region was selected for this study. A critical analysis of the concept reveals that there is still room for non conveniens in international maritime contracts.
A Critical Analysis of Forum Non Conveniens
A Brief Summary
In a speech made at Donald O’May Memorial lecture in 2007, Master of the Rolls, Sir Anthony Clarke, spoke in length about the issue of forum shopping (Magnus 2012). In his address, Clarke was of the view that parties to a dispute viewed the concept from different perspectives. For example, the strategy advocated for by the party that believes it has a good case is often different from that preferred by the side that feels its chances of winning the case are slim. The party that is convinced it has a good case on merits will agitate for a forum that pushes for a logical representation of the issues (Magnus 2012). The only concerns raised by those who prefer this strategy touch on reasonable time and cost as far as the determination is concerned. On its part, the party that feels its chances of winning the dispute on merit are limited would advocate for a channel where the case will be resolved based on alternative features. They support a strategy characterised by delays to make sure that the process does not focus on merits (Zekos 2008). In light of this, analysts have queried whether or not there is still room for the doctrine of forum non conveniens in international maritime contracts.
Forum non conveniens (FNC) is a Latin phrase. It refers to ‘forum not agreeing’. It is a legal doctrine used to describe a situation where a court deliberately refuses to take jurisdiction over a particular legal matter where it believes there is an alternative forum that is more appropriate to handle the dispute (Brand & Jablonski 2007a). The reason behind this is mainly conflicts between laws governing different jurisdictions. It is also important to note that FNC can apply to courts that are situated in different countries, as well as those with varying jurisdictions but within the same national borders. As is common practice, plaintiffs move to court to file a suit against defendants who they deem to have caused them losses through unfair means. In this case, it is the plaintiff who engages a particular court. In international contracts, the plaintiff and the defendant are often from different countries. Consequently, there may be conflicts with regards to the jurisdiction of the selected court and its suitability in handling the legal case. To deal with such a situation, the doctrine of FNC can be applied. Critics have raised concerns that FNC can be used as an avenue for forum shopping (Zbek 2011). The case applies especially among defendants who prefer to have a case heard in a court where they will be favoured.
Forum Non Conveniens and International Maritime Contracts
To better understand the concept of FNC, it is important to note that a state, a nation, or any other jurisdiction enacts laws that govern the conduct of individuals within its borders. The laws are interpreted and applied by the jurisdiction’s court system. The term lex fori is used to refer to those laws applied within a particular system of court (Brand & Jablonski 2007b). It is the decision of the court to determine when it can or cannot accept jurisdiction over a particular matter. In other cases, the court has to assess its jurisdiction over parties to the dispute. The decision is made at the beginning of the lawsuit (Brand & Jablonski 2007c). The judge presiding over the case may opt to raise the issue of jurisdiction as routine. In other cases, the issue may not be brought up at all when all the elements that are deemed relevant to the case are within the court’s territorial jurisdiction. Alternatively, the issue can be raised by the defence. The situation is most evident if one of the parties to the dispute does not reside within the territorial jurisdiction of the court.
There are a number of factors that may influence the decision of a court to exercise its discretionary power in declining to take jurisdiction over a matter even in cases where it fits the criteria required to settle the dispute. Most of these factors revolve around the issue of convenience. One of them entails the location of witnesses and evidence required to determine the case. Here, one court may feel that another sitting can deal with the dispute more conveniently as a result of its geographical location (Brand & Jablonski 2007a). Proximity of the court to witnesses and evidence makes it easier to conduct trial since expenses are reduced. At the same time, less time is spent on the case, especially in the transportation of the evidence and witnesses required to testify. Public policy is another major factor that is taken into consideration with regards to FNC doctrine. At times, courts may dismiss themselves from their jurisdiction when it comes to matters of national interest. In most cases, issues revolving around regional cooperation come into play. A court may feel that taking up a legal issue involving the citizens of another country may negatively affect relations between the two nations.
Another key issue that is taken into consideration when a court is deliberating on whether or not to dismiss a case under the FNC doctrine entails the system’s relative burden. In this case, the court in which the plaintiff has filed a lawsuit against another party may have multiple unresolved cases whose proceedings are ongoing. Taking up the new legal suit will translate to numerous delays. In such instances, the court may opt to decline handling the dispute since others with a lighter workload may be better suited to take care of it (Brand & Jablonski 2007b). The court also looks into the plaintiff’s choice of forum to determine whether or not it is best suited for a particular lawsuit. Finally, the court must evaluate the effects of changing the forum on the parties involved in a dispute (Brand & Jablonski 2007c). For example, it would be unfair to change the forum where there is reason to believe that doing so will result in denial of justice to either of the parties. However, the dismissal of a case by a court does not mean that the plaintiff does not have a right to re-file the matter in a forum that is more appropriate.
The Place of Forum Non Conveniens in International Maritime Contracts Today
The term maritime is used to refer to a wide range of activities related to the sea or marine environment. As such, maritime contracts are related to operations carried out on ships. They range from aspects to do with charter parties to employment of ship personnel, repair, maintenance, bill of lading, purchase, building, and management of vessels (Zbek 2011). Shipping is largely considered to be an international undertaking. As such, maritime contracts must put both national and international legal frameworks into consideration. Consequently, maritime law provides information on how international contracts should be managed. To reduce disputes between parties to such an engagement, the agreements are required to adhere to international standards. They can only achieve this by taking into consideration matters to do with international conventions.
The Brussels Convention and Regulation 44/2001 EC are good examples of international conventions. The former was recognised and adopted by members of the European Community in 1968. It was formulated with the aim of putting in place guidelines to be used in the determination of lawsuits brought before tribunals and courts. They are designed to make sure that such determination is recognised by all European Community’s member countries. The convention was to apply to civil and commercial matters. It excludes issues pertaining to administration, customs, and revenue. The terms of the convention state that individuals that are domiciled in either of the contracting states (European Community members) shall be sued within that jurisdiction regardless of their nationality (Zekos 2008). Under the same convention, it is stated that parties to an international maritime contract who are not considered to be nationals of the state in which they are domiciled should adhere to the rules governing the citizens of that jurisdiction (Kerameus 2007). Such individuals could also be sued in a court within another contracting state. As a result, the convention is seen to support the doctrine of FNC.
Over the years, the Brussels Convention has undergone a number of amendments. In 2001, EU members adopted Regulation 44/2001 EC (Magnus 2012). The regulation differed slightly from the convention. For example, it stated that the doctrine of FNC could only apply if none of the defendants was a resident of the state where the case has been filed. Today, Regulation 44/2001 EC has almost completely superseded the Brussels Convention. One of the reasons for the change is that member countries put foreign agendas before the welfare of their citizens. As a result, there have been numerous cases of FNC filed in a bid to please foreign governments. However, in cases whether none of the defendants resides in the state, the court is allowed to apply the doctrine of FNC (Hess 2008). As such, the plaintiff in a maritime contract case would be required to file the case in another jurisdiction where at least one of the defendants is a resident. The provision was put in place to ensure that the interests of the defendants were also looked into. In addition, it was aimed at discouraging forum shopping by plaintiffs. It is also important to note that the terms of the Brussels Convention still apply for countries that were EU member states before 2004. In this case, these countries continue to borrow from the convention on some issues, such as the doctrine of FNC.
Maritime contracts mainly involve international companies and entities. As such, they can be termed as international agreements. As a result, parties to the contract must adhere to conventions that govern international contracting. Such legislations include the Brussels Convention and Regulation 44/2001 EC. The issue of forum shopping is a common phenomenon in international legal suits. Consequently, courts are forced to decline some cases by employing the doctrine of FNC. The Brussels Convention fully supports the FNC doctrine. However, it has been superseded by Regulation 44/2001 EC, which is opposed to the doctrine. In spite of this, some members of EU, including the initial 15 states that constituted the European Community, still use the Brussels Convention. The convention allows them to use the FNC doctrine where none of the defendants is a resident of the jurisdiction served by the court.
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