Font Size: a A A

Research On The Doctrine Of Forum Non Conveniens

Posted on:2010-09-14Degree:MasterType:Thesis
Country:ChinaCandidate:Y M GaoFull Text:PDF
GTID:2166360275956718Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The doctrine of Forum Non Conveniens is a theory for courts to decline civil jurisdiction that originated from Scotland,and has been prevailing in the countries of commen law,thereafter was introduced to many countries of continent law. The doctrine is used both internationally and is a discretionary power of the courts to refuse to hear a proceeding that has been brought before it,if there is no substantive reason for the case to be brought there or hearing the case in that court will creat hardship and inconveniens on the party and the court itself,therefore the court will dismiss or stay the case under the application of the party.the doctrine has been playing an important role in harmonizing international civil jurisdiction.The doctrine of Forum Non Conveniens has been developed into three modes ,these are The American Mode of "the most suitable court", The British Mode of " the more suitable court "and The Australia Mode of "the apparent unsuitable court ".In this modern globalized times,The problem of the civil jurisdiction is becoming more and more important ,it is first question to be resolved in the cases which involved foreign element. when this problem is settled, The court will have the outline of the case as to the law that will be applied and the division of the right and the obligation of the party.For this reason the courts of every country are competing for the jurisdiction in the international lawsuit,as a result of the expanding bases of the jurisdiction ,there exist many serious conflicts to be resolved . The doctrine of Forum Non Conveniens in Common is one of effective legal approach of waiving jurisdictions.recently,there is a vehement discussion respecting of introducing the doctrine of Forum Non Conveniens to China.Through my comprehensive study of the literature of scholars who are native or foreign,I conclude the opinion that those irrelative cases will bring about tremendous inconvenience to both the people'court and the litigant,it is necessary to introduce the doctrine of Forum Non Conveniens to decline jurisdictions upon them. The dissertation is to put forward reasonable advice to the construction of the doctrine of Forum Non Conveniens in China.Part I summarizes the different definitions of The Doctrine of Forum Non Conveniens. It refers that the competent court may dismiss or stay the proceedings upon the plea of defendant when there exist an alternative forum which is more convenient and economical for the parties than the original court .With the development of judicatory practice, the implication of the doctrine is changed ,the writer of this dissertation gives her own definition .in order to study the doctrine deeply, the history of the doctrine is retrospected, it is originated from Scotland in the early 17th century and then prevailed in the countries of common law .In modern times it is developed globally.Part II analyzes the theoretical foundation of the doctrine. in the perspective of the conflict law, the doctrine has inter-relation with the principles of comity, power of discretion and the most significant relationship in the domain of jurisdiction. what's more ,under the influence of the jurisprudence of the 20 century -the socialized jurisprudence, the doctrine of Forum Non Conveniens embody the important value of justice ,economy and harmonization.Part III dwells on apllication modes of the doctrine in the whole world. the traditional standard of application in England is the use of two words "oppressive" and "vexatious". The more suitable forum approach was established in seventys of 20 century and it is popular till today, it adopts two prongs analysis and balance different interests of the parties and court. The doctrine was developed into the most suitable forum in U.S.A and the clearly inappropriate forum in Australia. Other countries in the British commonwealth such as Canada, New Zealand also accepts the doctrine. Similar approaches are found in the civil law countries such as Japan, Holand and Panama. Apart from these, this part of the dissertation introduce the attitudes on this issue of two worldly convention.Part IV focuses on the important role of the doctrine in harmonizing international civil jurisdiction. firstly, there is a comparison between the doctrine and other approaches such as agreement jurisdiction, injunction and the doctrine of entertaining case early, then the analysis of the due elements and the limitations of the doctrine. at last, a conclusion is given that the unavoidable trend is the globalization of the application of the doctrine.Part V mainly discuss the necessity of introducing the doctrine of Forum Non Conveniens into our legal system. Though there is no relevant provision in our statute, the People's Court has adopted this doctrine to waive jurisdictions in cases.Recently, the academy circle has favored the opinion that we should introduce the doctrine into our country. this dissertation support the same point of view and give my suggestions on the criterion and procedure of applying the doctrine.
Keywords/Search Tags:The Conflict of Jurisdiction, The Doctrine of Forum Non Conveniens, The Doctrine of The Most Significant Relationship, Comity in The International Society
PDF Full Text Request
Related items