Exploration And Analysis On The Doctrine Of Forum Non Conveniens In International Civil And Commercial Litigation

Doctrine of Forum Non Conveniens is integral part of jurisdiction regime in Common law countries. Under this Doctrine, court may waive the jurisdiction over a case even it is a jurisdictionally competent forum. With the focus on the issue that if we need to import the Doctrine of Forum Non Conveniens into our legal institution, this dissertation develop its research regarding to the Doctrine of Forum Non Conveniens.This Dissertation selects the rules regarding the Doctrine of Forum Non Conveniens in US, England and Australia as the samples for review for the reason that the rules in these three countries are three typical approach to the Forum Non Conveniens. Both US and England follow the"the most appropriate forum"standard, under which court can dismiss the case or stay the proceedings on the ground of Forum Non Conveniens if it is satisfied that another alternative forum is more appropriate for the trial of the case. By contrast, Australian courts are vested less discretionary power and may resort to this Doctrine only when continuing of litigation in Australia will cause vexation or harassment to the defendant that make the Australia is a clearly inappropriate forum. Evolvements of this Doctrine in these countries show that adoption of a particular approach is dependant on the judicial attitude towards the forum shopping, different judicial regime and situation and different jurisdiction can design its rules regarding the Doctrine of Forum Non Conveniens by reference to its own issues.The theory study of this Dissertation demonstrate that the function of this Doctrine is to balance current exorbitant jurisdiction and censor those undesirable forum shopping. From this perspective, the Doctrine of Forum Non Conveniens is intended to waive those exorbitant jurisdictions and protect the defendant from vexation or harassment, which is in compliance with the spirit of international harmonization. The study further show that although, theoretically, the Doctrine can be applied with the presence of jurisdiction selection clause, the opposite is the truth as this application contradict with the deference to autonomy that is long established in the context of international litigation and international commercial order established thereupon. The practice in common law countries can prove this. The theory study also finds that in the evolvement of the doctrine, the Most Significant Connection approach that is adopted in conflict law show its influence. It can be exemplified by the case occurring in England, which focus on seeking an natural forum that has the most real and substantial connection with the dispute in analyzing the Doctrine.Base on above rules review and theory study, this dissertation try to explore the value of the Doctrine of Forum Non Conveniens in China legal regime. It is found that the Doctrine is able to prevent positive conflict of jurisdiction between foreign countries and china and vest the defendant with rights to counter-argue the unreasonableness of plaintiff's forum selection. Apparently, the Doctrine of Forum Non Conveniens can make china jurisdiction regime more complete and worth importing into china. In addition, considering the some courts in china has already applied this Doctrine, legislators are asked to accept the Doctrine that is able to guide the judges in practice. In this regard, the points advanced by those dissidents is either overstatement or less grounded. However, legislators do must pay attention to the downsides of the Doctrine and carefully define the limit of discretionary power that is a must in order for the Doctrine to work. All in all, it is expected to establish a Forum Non Conveniens institution that is fit for china and supplement the current jurisdiction rules regarding international civil and commercial litigation.