Forum Non Conveniens Under Common Law

The Doctrine of Forum Non Conveniens is a common law discretionary power that allows a court to decline the existing jurisdiction upon a plaintiff's action. The prerequisite for the doctrine is that the convenience of the parties involved, including the cost of the parties, the availability of the evidence and witnesses, e.t.c, may be better served if the action can be brought and tried in an alternative forum. Therefore, a judge may declare the forum to be non vonveniens (inconvenient) and refuse to exercise the jurisdiction despite the jurisdiction already exists.The Doctrine of Forum Non Conveniens is originated from the Scotland in 18th century, which provided for dismissal of actions under the term of forum non competens (which means the court is lack of competence). By the end of the 19th century, the Scottish court had developed the doctrine into Forum Non Conveniens to balance undue hardship arising out of arrestment ad fundandam jurisdiction. The Doctrine of Forum Non Conveniens has two approaches: abuse of process approach (also called oppressive or vexatious approach) and most suitable forum approach. Abuse of process approach is adopted in early times, which means the Doctrine of Forum Non Conveniens can only be applied when there exists the oppressive or vexatious conditions and the abuse of process may led to injustice. With the development of the law, most suitable forum approach is becoming more and more popular. The Doctrine of Forum Non Conveniens shall be applied only when an alternative forum with the jurisdiction exists and the interests of the parties are better served in that alternative forum. America The Doctrine of Forum Non Conveniens is a very important doctrine in American law. In 1929, Paxton Blair published his famous article "the Doctrine of Forum Non Conveniens in Anglo-American Law" in Columbia Law Review, which represents the theoretical recognition of Forum Non Conveniens in U.S. law. Two leading cases, Gulf Oil Corp. v. Gilbert in 1947 and Piper Aircraft v. Reyno in 1981 by US Supreme Court mean the American court have officially applied Forum Non Conveniens into the court practice. The Supreme Court adopts two-step criteria to determine whether to apply Forum Non Conveniens: a. Whether there exists a proper alternative forum; b. Thecourt must consider many factors, such as the applied law, citizenship and a balance of interests if the alternative forum exists. The court should balance the private interests and the public interests. Only when the result of the balance of interests are strongly in favor of the Defendant, the judge can exercise its discretion to decline the jurisdiction of the court.The Doctrine of Forum Non Conveniens can limit the excessive jurisdiction and the forum shopping; reduce the workload of the court and choose the most suitable forum to hear the case. However, the Doctrine of Forum Non Conveniens also has some disadvantages, such as giving the judge too much discretionary powers, making new delays and encumbering the foreign plaintiff to bring a legal action in US. EnglandThe Doctrine of Forum Non Conveniens is not widely recognized in England, whereas the court in England has refused to apply the Doctrine of Forum Non Conveniens in a very long time. Before 1906, the court in England exercised discretionary power to decline the jurisdiction by serving a writ out of jurisdiction pursuant to Lis Alibi Pendens Doctrine (concurrent jurisdiction or parallel proceedings). In leading case "St. Pierre V. South American Stores Ltd., 1936", Justice Scott proclaimed that only when there exists oppressive or vexatious conditions the court can stay a proceeding. In 1973, the House of Lords refused to apply the Doctrine of Forum Non Conveniens in the lead case "The Atlantic Star". It only made a wider explanation to the principles established by Justice Scott in the case "St. Pierre V. South American Stores Ltd.". In the lead case "McShannon V. Rockware Glass Ltd.", 1978, Lord Diplock res...