Study On The Doctrine Of Forum Non Conveniens

The doctrine of forum non conveniens is a basic principle of declining the jurisdiction of the common law countries. Early in Britain and the United States, and in Australia now, applicable standard of the doctrine of forum non conveniens is "abuse of process". The court can decline the jurisdiction only when the proceedings are "vexation and oppressive", seriously inconvenient to the defendant, and suspending the proceedings will bring about unfairness to the plaintiff. Now in Britain and the United States, the "most appropriate court" standards is that if the alternative Court is more appropriate, the court of suit can suspend the proceedings on grounds of the doctrine of forum non conveniens. For a particular proceeding, a more appropriate court in other country does not necessarily mean that the local court is to be a serious inconvenience.The doctrine of forum non conveniens has encountered a number of problems in the theory and practice. First, the doctrine of forum non conveniens has been almost unanimous rejected in the civil law countries. The strict structure of jurisdiction of the civil law country determines that there is no space for the uncontrolled judgment from the original legislation on. The civil law countries think that they have taken account of the facts involved in the doctrine of forum non conveniens in their jurisdictions, so their jurisdictions can be said to be reasonable. The constitutional constraint is the most important. In many civil law countries the constitutions provide that the court shall not be a denial of justice.In addition, the doctrine of forum non conveniens is abused in practice and becomes the tool of the Judiciary protectionist.To protect the interests of the defendant, the court of the U.S. established barriers to the foreign plaintiff by the doctrine of forum non conveniens. It virtually shields the defendant of the U.S. by the nominal international comity. For example, in the Delgado v. Shell Oil Co. case and the well-known Bhopal case, the court help the companies of the U. S. to escape strict tort liability effectively by declining jurisdiction, which is stricter in the U. S. than in developing countries.The doctrine of forum non conveniens indeed has many problems in the theory and practice, so we need to reflect on it.First, we should reflect on the positive conflict on jurisdictions of the international civil and commercial litigation. In fact, in these positive conflicts, one is the actual positive conflict and the other is the potential positive conflict.In normal circumstances, the appearance and existence of the doctrine of forum non conveniens only refer to the potential positive conflict. The potential positive conflict is not the real conflict, but the possibility of the conflict. It needs to prevent the potential positive conflict from converting into actuality, which is not "solving" a conflict but "avoiding" or "preventing" a conflict at most.Even in the actual positive conflict, the doctrine of forum non conveniens aim at the convenience of the parties and the court. It is not applied to solve the positive conflict. The solving of the conflict is the subsidiary function of the doctrine at most. The conflict can be resolved through Recognition Prognosis.We need to reflect further on the more complex and fundamental basic theories of the international civil and commercial jurisdiction. The international civil and commercial jurisdiction is the power of the court to judge on the disputes and the natural extension of the sovereignty in the field of the international civil and commercial litigation. The country must maintain the own interests. It is not surprising that the court, as the integral part of the country,protects the country and the citizen interests by expanding or declining the jurisdiction in the international civil and commercial proceedings.Built on such basic theory, how can the doctrine of forum non conveniens be expected to realize the equity and justice in the international civil and commercial litigation? We must change the international civil and commercial jurisdiction fundamentally."The proper law doctrine"was first used in Private International Law (Conflict of Laws) by the British scholar in the early 19th century. The developed"The proper doctrine"is a principle, a standard and a method of the law application to determine"the applicable law". It seeks to improve and enhance the appropriateness of the applicable law. The important characteristic of"the proper doctrine"is sufficient flexibility."The proper doctrine"started from the field of the contract, and then expanded to the tort and other areas."The proper doctrine"is also applied to resolve the issues of the civil and commercial jurisdiction."The proper doctrine"is open and in pursuit of the equity and justice in each international civil and commercial case,therefore it should and can be applied to resolve the issues of the civil and commercial jurisdiction. To change the disadvantageous position of the doctrine of forum non conveniens, we must establish the proper basis of jurisdiction in accordance with the requirements of"The proper doctrine". The proper basis of jurisdiction should be fair for both the plaintiff and the defendant, especially for the defendant. It is the most important to eliminate the broad basis of jurisdiction. This set up a forbidden zone of the doctrine of forum non conveniens actually. The courts should not have jurisdiction over such cases. Many cases applied with the doctrine of forum non conveniens have nothing to do with the doctrine.The jurisdiction is not only expansive but also rigid, especially in civil law countries. No matter how detailed and complete the statutory rules of jurisdiction are, the special exception can not be taken into account. In exceptional circumstances, if the court apply jurisdiction and it would cause great inconvenience to the defendant, the inconvenience can be resolve by the doctrine of forum non conveniens under"The proper doctrine".According to the strict standard of "abuse of process", the doctrine of forum non conveniens can be only applied on the exceptional circumstances and it must be order to achieve the equity and justice for both the plaintiff and the defendant.It is a negative condition to application of the doctrine of forum non conveniens that the rights of plaintiff are not derogated. To balance the interests of both parties, if the choice of plaintiff is serious inconvenience to the defendant, restricting the plaintiff appropriately is justness. But the choice of plaintiff should be in the proceedings and not be included in the entities.In conclusion, aiming at the difficulties encountered, according to the"The proper doctrine", we need to fundamentally set up the appropriate basis of jurisdiction according to the"The proper doctrine". If it serious inconvenient to the defendant when the court of suit exercises jurisdiction, and the courts of other countries are more convenient to hear and it does not derogate from the interests of the plaintiff in the proceedings, the court of suit can decline the jurisdiction in accordance with the doctrine of forum non conveniens to achieve the equity and justice in each international civil and commercial case.