Forum (Non) Conveniens in England: Past, Present, and Future

by Ardavan Arzandeh, Paul Beaumont (Editor)

Overview

The forum (non) conveniens doctrine provides the basis for the discretionary exercise of jurisdiction by English courts in private international law disputes. London's pre-eminence as a centre for international commercial litigation has led to its frequent deployment in proceedings where parties disagree over where a case should be heard. The doctrine's significance is not limited to England but extends to many Commonwealth jurisdictions which have embraced it. This is the first book-length study devoted entirely to examining the forum (non) conveniensdoctrine's past, present, and future from the perspective of the law in England. By offering a meticulous and critical analysis of relevant historical and contemporary sources in England and elsewhere, it seeks to fill gaps in relevant knowledge of the English forum (non) conveniens doctrine, and challenge certain views concerning its operation that have come to be regarded as representing the orthodoxy. In this respect, the book attempts to refine our understanding of the doctrine's historical development, evaluate its application in the years following its formal recognition in England, and examine the case for revising it, given the changing nature of international commercial litigation in recent decades. The book's ultimate objective is to act as an authoritative and comprehensive reference point for those with an interest in the forum (non) conveniens doctrine, more specifically, and cross-border private litigation, more generally.

Product Details

ISBN-13:	9781509945023
Publisher:	Bloomsbury Academic
Publication date:	02/25/2021
Series:	Studies in Private International Law
Pages:	184
Product dimensions:	6.14(w) x 9.21(h) x 0.39(d)

About the Author

Ardavan Arzandeh is Senior Lecturer in Law at the University of Bristol.

Table of Contents

Series Editors Preface v

Preface vii

Table of Cases xiii

Table of Legislation xxiii

1 Introduction 1

I The English Forum (Non) Conveniens Doctrine 1

II The Objectives of the Book 5

III The Structure and Main Contentions of the Book 7

2 Locating the Place of Forum (Non) Conveniens in the English National Jurisdiction Rules 11

I Introduction 11

II Jurisdictional Values and Their Significance in Allocating Jurisdiction 12

III The Doctrinal Measures for Promoting Jurisdictional Values Under the English National Jurisdiction Rules 14

A Promoting Party Autonomy: Stay of Action Brought in Breach of an Exclusive Jurisdiction Clause 14

B Promoting Connectedness: The English Courts' Refusal to Exercise Jurisdiction in 'Non-Justiciable' Cases 15

C Promoting Connectedness: Stay of Actions Under the Forum Non Conveniens Doctrine 17

D Avoiding Parallel Proceedings: Stay of Proceedings Under the Lis Alibi Pendens Doctrine 19

E Promoting Connectedness: The English Courts' Service-out Jurisdiction and the Forum Conveniens Doctrine 20

F Promoting Party Autonomy and/or Connectedness: Anti-Suit Injunctions 21

IV Conclusion 23

3 Forum (Non) Conveniens - The Past 24

I Introduction 24

II The Emergence and Development of the Practice of Discretionary (Non-)Exercise of Jurisdiction in England in the Nineteenth Century 26

A The Discretionary Jurisdiction to Serve Proceedings on Defendants Not Present in England 28

B Stay of Proceedings Brought in England as of Right Under the Vexatious-and-Oppressive Test in Lis Alibi Pendens Cases 30

III The Developments at the Beginning of the Twentieth Century: The Flowering of a 'British' Approach to Discretionary Non-Exercise of Jurisdiction 35

A Lagan v Bank of Scotland (No 2) 35

B The Decisions in Egbert v Short and In re Norton's Settlement 37

IV The Developments in the Middle Third of the Twentieth Century: The Emergence in England of a Plaintiff-Centric Approach to Staying of Proceedings 40

A The Immediate Build-up to the English Courts' Change of Approach 41

B The Court of Appeal's Ruling in St Pierre 43

C Stay of Proceedings in England after St Pierre 44

D Murmurs of a Need to Depart from the St Pierre Approach 46

V Developments in England in the 1970s and 1980s: The Gradual Departure horn St Pierre 50

A The Problematic Implications Arising from the Narrow Application of the St Pierre Test 50

B The House of Lords' Ruling in The Atlantic Star: The Law's Return to the Pre-St Pierre Position 53

C MacShannon v Rockware Glass Ltd: The Next Step Away from the St Pierre Test 57

D Staying of Proceedings in England Immediately after the introduction of the MacShannon Test 61

E The Ruling in The Abidin Daver: A Further Step Closer to the Outright Adoption of For urn Non Conveniens in England 63

F Spiliada Maritime Corporation v Cansulex Ltd: The Adoption of Forum Non Conveniens in England 66

VI Conclusion 69

4 Forum (Non) Conveniens - The Present 72

I Introduction 72

II Post-Spiliada Doctrinal Developments 74

A Stay of As-of-Right Proceedings 74

B Service-out Cases 79

III The Spiliada Doctrine's Global Influence 83

A The Approach in Commonwealth Jurisdictions before Spiliada 84

B The Approach in Commonwealth Jurisdictions after Spiliada: An Overview 85

C The Approach in Commonwealth Jurisdictions after Spiliada: Australia 87

D The Approach in Commonwealth Jurisdictions after Spiliada: Canada 90

IV The Spiliada Doctrine's Scope of Application 92

A Spiliada's Conceptual Scope 92

B Spiliada's Scope of Application in the Face of Intervening Legal Developments 97

V Conclusion 104

5 Forum (Non) Conveniens - The Future 107

I Introduction 107

II A Brief Outline of the Spiliada Test 110

III The Spiliada Test's Positive Reception 112

IV Problems with the Application of the Spiliada Test 115

A Recent Decisions 116

B Problems Exposed in the Recent Decisions 118

C Similar Problems in Earlier Decisions 121

V The Case for Revising Spiliada's Second Limb 123

VI The Way Forward 125

A Should Spiliada's Second Limb Be Completely Abolished? 126

B ECHR, Art 6(1) (as Applied in Expulsion Cases) as the Basis for Refining Spiliada's Second Limb 129

C The Refined Spiliada Test and its Application 132

VII Conclusion 135

6 Conclusions 137

Selected Bibliography 144

Index 149