Limitations Of Access At The National Level: Forum Non Conveniens
Binda Sahni
I. Introduction National courts provide a possible venue to assess transnational corporate ("TNC") liability for personal injuries and death to consumers, employees, and community members. The absence of diplomatic protection as a pre-requisite for forum accessibility allows standing to individuals and companies as parties to legal actions.[1] Therefore, individuals serve as complainants, and defendant corporations may be held directly accountable for injuries caused by defective products ("product liability"[2]) and from the use of negative managerial policies, plant equipment, and technology ("process liability").[3]
Limitations of access to the plaintiff may arise if the domestic forums of the plaintiff and the corporate defendant differ. This situation ensues where the plaintiff seeks to assert that a parent company is responsible for the injurious acts of a subsidiary corporation in a Host State. Framing TNC accountability entails the satisfaction of two criteria. First, the victim must establish that the subsidiary corporation is acting on behalf of the parent company and thus is not an independent entity in practice.[4] This enables the complainant to pursue proceedings in the local courts with jurisdiction over the parent company. At this level, the court is required to assert jurisdiction under procedural rules of "court-access," e.g. personal, legislative, and/or subject matter jurisdiction.[5] Second, the plaintiff must refute a possible application of forum non conveniens by the defendant. Forum non conveniens is a discretionary doctrine common law courts apply when declining to exercise jurisdiction and dismissing judicial proceedings in favour of an alternative forum.[6] For example, a parent company may plead that it would incur financial and administrative disadvantages from an action in the original forum, specifically if the jurisdiction is neither where the injury occurred nor where the factual and scientific evidence is located. If the court approves the removal of proceedings to a forum where the harm and evidence are located, then the subsidiary company-as the direct perpetrator of the plaintiff's injury-has a closer nexus with the venue. In this way, the parent company can utilise the forum non conveniens principle to minimise its liability. Therefore, the defendant's capacity to displace valid or existing jurisdiction with the flexible tactic of forum non conveniens demonstrates that in the transnational context the assessment of forum non conveniens assumes significance over the issue of jurisdiction-or at the very least, the analysis of both doctrines is perceived as being interrelated. For example, "[t]he American federal courts often use forum non conveniens to virtually replace personal or legislative jurisdiction analyses when foreign plaintiffs seek redress for injury inflicted abroad."[7] This statement also applies to other national courts and is illustrated in the discussion of English, Australian, and Canadian cases in this article.
The development of forum non conveniens has not been uniform in all common law jurisdictions. Yet, the underlying aim of each approach has been to avoid "forum shopping," the undue disadvantage placed on a defendant when a plaintiff "bypasses" his natural forum and brings an action in a foreign court to obtain further relief or benefits.[8] In England, the test for determining stays of actions is set forth in Spiliada Maritime Corporate v. Cansulex Limited.[9] The defendant must prove the availability of a forum that is "clearly or distinctly" more appropriate to hear the dispute than the English courts. The court will grant a stay unless the plaintiff identifies circumstances whereby justice requires the proceedings to continue in an English forum. In Australia, Voth v. Manildra Flour Mills[10] identifies a "clearly inappropriate forum" for dismissal of a suit. In Canada, Amchem Products, Inc. v. British Columbia (Worker's Comp. Bd.)[11] incorporates the "more appropriate forum" threshold. In the United States, the leading case is Piper Aircraft Co. v. Reyno,[12] which emphasises the convenience of the parties according to private and public policy interests.
These legal systems employ forum non conveniens in admiralty and commercial litigation, as well as personal injury actions. Therefore, it is necessary to consider the development of forum non conveniens from these perspectives to assess the doctrine's applicability to TNC liability for human injury and death.
II. The Development of Forum Non Conveniens in the United Kingdom
A. Common Law Interpretation of the Doctrine
English courts are authorised to stay proceedings on the ground of forum non conveniens under section 49 of the Civil Jurisdiction and Judgments Act 1982, as amended by the Civil Jurisdiction and Judgments Act 1991, Sch. 2, para. 24.[13] Section 49 states that: "[n]othing in this Act shall prevent any court in the United Kingdom from staying, sisting, striking out or dismissing any proceedings before it, on the ground of forum non conveniens or otherwise, where to do so is not inconsistent with the 1968 Convention."[14]
The judicial interpretation of forum non conveniens derives from Scottish and English case law. The current tenets of the doctrine are based upon Scottish principles. First, the term "forum non conveniens" refers to the "appropriate" rather than the "convenient" forum.[15] The aim is to consider the interests of the parties objectively.[16] Second, a court will approve a stay only if it "is satisfied that another tribunal with competent jurisdiction exists, in which the case may be tried more suitably for the interests of all the parties and for the ends of justice."[17] The House of Lords upheld these rationales in Spiliada Maritime Corporate v. Cansulex Limited.[18]
Prior to Spiliada, the plaintiff emphasised his or her interests in an application for a stay of proceedings. Cohen v. Rothfield[19] instructed that the onus was on the defendant to satisfy the court that the plaintiff would not be deprived of an advantage in the foreign legal procedure that he would otherwise be entitled to use in the English courts. Lord Scott clarified this approach in St. Pierre v. South American Stores (Gath & Chaves) Ltd. He stated that:
The true rule about a stay under section 41 [of the Supreme Court of the Judicature (Consolidated) Act, 1925] ... may I think be stated thus: (1) A mere balance of convenience is not a sufficient ground for depriving a plaintiff of the advantages of prosecuting his action in an English court if it is otherwise properly brought. The right of access to the King's court must not be lightly refused. (2) In order to justify a stay two conditions must be satisfied, one positive and the other negative: (a) the defendant must satisfy the court that the continuance of the action would work an injustice because it would be oppressive or vexatious to him or would be an abuse of process of the court in some other way; and (b) the stay must not cause an injustice to the plaintiff. These propositions are, I think, consistent and supported by the following cases: McHenry v. Lewis (1882) 22 Ch. D. 397; Peruvian Guano v. Bockwoldt (1883) 23 Ch. D. 225; Hyman v. Helm (1883) 24 Ch. D. 531; Thornton v. Thornton (1886) 11 P.D. 176; and Logan v. Bank of Scotland (No. 2) [1906] 1 K.B. 141, 150-151.[20]
The practicality of the "vexatious and oppressive" threshold was examined in The Atlantic Star.[21] The Atlantic Star was a maritime dispute that arose when two Dutch owned vessels collided in Belgian waters, resulting in two deaths. The plaintiffs invoked the jurisdiction of the Admiralty Court in England to bring an action in rem against the defendants' vessels.[22] The defendants sought a stay of action in favour of the Belgian forum.
The issue before the House of Lords was whether forum non conveniens could be granted if the sole connecting factor between the English forum and the dispute was jurisdiction as of right. The Court provided a stay of proceedings, observing that the words "vexatious" and "oppressive" could have a flexible construction to assess the plaintiff's conduct toward the defendant.[23] It was not necessary for the defendant to show that the plaintiff was wrongly motivated in selecting the forum.[24] The Court suggested that the terms be applied in the future with a liberal interpretation.[25]
Further modifications of the St. Pierre test were considered in MacShannon v. Rockware Glass Ltd.[26] The fact pattern and issues raised in MacShannon are akin to those concerning the liability of TNCs for human injury and death. MacShannon was an industrial action for personal injury claims. The defendant company was registered in England but situated in Scotland.[27] Four employees claimed damages for workplace accidents resulting from the employer's failure to provide a safe work environment.[28] The defendant attained a stay of action by pleading that litigation in English courts would include the extra expense and delay of transferring witnesses from Scotland.[29] The House of Lords granted the application on the basis that the terms "vexatious and oppressive" should be defined with more certainty.[30] Lord Diplock reformulated the second half of the St. Pierre test, stating that:
In order to justify a stay two conditions must be satisfied, one positive and the other negative, (a) the defendant must satisfy the court there is another forum to whose jurisdiction he is amenable in which justice can be done between the parties at substantially less inconvenience or expense and (b) the stay must not deprive the plaintiff of a legitimate personal or juridical advantage which would be available to him if he invoked the jurisdiction of the English court.[31]
While this statement was not expressly approved in MacShannon,[32] it was endorsed in The Abidin Daver.[33]
The above considerations were subsequently integrated into the Spiliada test for applying forum non conveniens. Lord Goff of Chieveley confirmed the dictum in Sim v. Robinow as the underlying determinant for a stay of proceedings. He held that a stay will be made only if the court is satisfied that there is some other available forum with competent jurisdiction.[34] It is the forum where the case may be tried more suitably for the interests of all the parties and the ends of justice.[35]
The alternative forum must be "clearly or distinctly more appropriate than the English forum."[36] It may be the "natural forum" since it has "the most real and substantial connection" with the action.[37] Connecting factors to consider include: convenience or expense (such as the availability of witnesses), the law governing the relevant transaction,[38] "and the places where the parties reside or conduct business."[39] The judge has discretion to determine the weight of each factor.[40] If the defendant establishes the presence of a more appropriate forum, the plaintiff bears the burden of proving that the existence of extraordinary circumstances requires the trial to continue in England.[41] For example, the alternative forum could present procedural disadvantages which prevent fair administration of justice. General examples of injustice may arise from administrative or judicial inefficiency, differing legal procedures or the absence of legal remedies.[42] Lord Goff refrained from emphasising the "legitimate personal or juridical advantage" as stated by Lord Diplock in MacShannon. Lord Diplock had cautioned that a stay should not deprive the plaintiff of a legitimate personal or juridical advantage provided in the English court.[43] In Spiliada, Lord Goff stated that the benefits of remaining in an English jurisdiction include: "damages awarded on a higher scale; a more complete procedure of discovery; a power to award interest; [and] a more generous limitation period."[44] He held that the denial of these benefits should not prevent the court from granting a stay of proceedings if the court determines that justice will prevail in the available forum.[45]
B. Statutory Interpretation of the Doctrine
1. The English Courts
In addition to a common law analysis, interpretation of the Brussels Regulation assists in determining the applicability of forum non conveniens.[46] Article 2(1) reads that: "Persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that Member State."[47] Clarification of this article by the English judiciary and the ECJ remains inconclusive, leading to three types of discrepancies.
First, Article 60(1)(a)(b)(c) clarifies that the corporate domicile is the Contracting State where a corporation has "(a) a statutory seat, or (b) central administration, or (c) principal place of business."[48] Article 60(2) provides that "[f]or the purposes of the U.K. or Ireland, ‘statutory seat' means registered office . . . or the place of incorporation or . . . the place under the law of which the formation took place."[49] These provisions offer access to victims of personal injuries by U.K. TNCs and assert liability against the parent company. To hold a parent corporation responsible for the injuries committed by the subsidiary company, a complainant could submit a claim under either ground. The complainant could establish that the parent company was incorporated in the U.K. and plead that the subsidiary had implemented policies on behalf of the parent company, the essential centre of management and control for foreign operations. In regards to the principal place of business, the Court has ruled that it is "‘not necessarily where most of the physical business is carried out,'" but can be where the earnings are ultimately remitted and the most important decisions are made.[50] In addition, a company's central administration can be the principal place of business if it is the location of persons with the most significant responsibilities.[51]
Second, the Court of Appeal formed an exception to the phrasing of Article 2 in In re Harrods (Buenos Aires) Ltd.[52] It ruled that an English court could apply forum non conveniens if a more appropriate forum was not a Contracting State.[53] This reasoning was justified by the view that "[t]he Convention was intended to regulate jurisdiction as between Contracting States."[54] Therefore, there was no inconsistency between the Court's approach and the forum specification rules in the Brussels Convention. The decision was referred to the ECJ by the House of Lords, but was settled prior to a court ruling.[55] Thus, a claim under Article 60 by a plaintiff from a non-Member State could be precluded on grounds of forum non conveniens.
Third, on an individual level, the Harrods ratio contributes to an uncertainty that a plaintiff associates with a court's discretionary assessment of a forum non conveniens application. On a general level, it promotes inconsistency by denying uniform, expeditious, and affordable jurisdictional rules within the European Union.[56] Both disadvantages are demonstrated in transnational suits such as the conflict in Airbus Industrie GIE v. Patel.[57]
Patel concerned an air crash in India.[58] The aircraft had been assembled by Airbus Corporation, which was registered in France.[59] Therefore, plaintiffs from Contracting States of the Brussels Convention were required to bring proceedings in France; however, the Harrods judgment provided English claimants with a choice of alternative forums.[60] The English plaintiffs could consider initiating an action against the defendants in French, Indian, or U.S. courts (Texas being the home state of the defendant corporation's parent company).[61] The legal process was complicated when Airbus Industrie persuaded the Court of Appeal to enforce an anti-suit injunction issued by the Indian courts.[62] The injunction would confine the English victims to litigation in India, which if successful would probably result in a lower award of damages than the U.S. and French forums. In granting the injunction, the Court of Appeal made a forum non conveniens analysis.[63] This was an unnecessary measure that denied jurisdiction to a Texas court, since the U.S. was not a Contracting State to the Brussels Convention. Instead the Court observed that:
France would also be a convenient forum. It is where Airbus Industrie is registered and carries on business. In so far as its management practices are concerned and, to an extent, the training of the pilots, France is the relevant party. France is also the Convention Country under which the English claimants are obliged to sue Airbus Industrie under the Brussels Convention.[64]
The House of Lords reversed the ruling, endorsing its limited jurisdiction.[65] It clarified that England was not a natural forum for the proceedings and could not justify indirect interference with a foreign court.[66] English courts should grant anti-suit injunctions only if they had a connection or "sufficient interest in the matter" to intervene.[67] This approach returned to the plaintiffs the right to sue in Texas and/or France. It also highlighted the obstacles formed from the procedural interpretation of the Brussels Convention commencing in Harrods and continued by the Court of Appeal above. In contrast, the jurisdictional rules in the Brussels Convention and Regulation hold an element of definitiveness and logic for the fair and efficient resolution of transnational suits.
2. The European Court of Justice
Article 5(3) of the Brussels Convention states that: "A person domiciled in a Contracting State may, in another Contracting State, be sued . . . in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur."[68] Under the Brussels Convention, the ECJ formed a broad interpretation to offer plaintiffs a choice of forum. According to Handelswekerij G.J. Bier BV v. Mines de Potasse d'Alsace SA,[69] "the place where the harmful event occurred" refers to both the defendant's act and the resulting injury. Therefore, the plaintiff may sue the defendant where the damage was caused (the place of acting) or manifested (the place of injury). The rationale for this "freedom of choice"[70] is that both connecting factors could have procedural or evidentiary relevance for the plaintiff.[71] The significance of this reasoning is illustrated in view of forum accessibility to plaintiffs asserting corporate liability for transborder injuries. For example, an environmental claim could be sought in the State where a corporation emits pollution (i.e. the place from where the tort derives) or in the State where the pollution enters and harms the plaintiff. A products liability suit could be brought, similarly, in the State where the manufacturer is located or where the product was sold to the plaintiff. Arguably, a distinction could be made regarding an injury's origin so as to deem the parent company liable as the principal tortfeasor. The connecting factor would be the forum where the offending policy was made and approved (if not implemented), and thus permit the victim to seek recourse there.
C. The Application of Forum Non Conveniens to TNC Proceedings in English Courts
The Spiliada guidelines continue to be further defined as foreign plaintiffs attempt to sustain proceedings in English courts against English TNCs for the harmful acts of overseas subsidiary companies. For example, the direct testimony of expert evidence and witnesses,[72] conditional fee arrangements,[73] and legal aid for the plaintiffs[74] are identified as legitimate connecting factors that do not automatically dismiss proceedings in the defendant's favour.
1. The Connelly Case
In Connelly v. RTZ Corp. PLC and RTZ Overseas Ltd., the plaintiff was a former employee of a subsidiary company in Namibia that operated uranium mines.[75] He alleged he acquired throat cancer as a result of working in a mine that the company had failed to maintain as a reasonably safe workplace. He attempted to bring proceedings against both the parent and subsidiary companies in England.
The Queen's Bench Division granted a stay of proceedings, surmising the case had the most real and substantial connection with Namibia.[76] The trial judge observed that Namibia was the jurisdiction where the injury had occurred and where the principal and expert witnesses resided.[77] Moreover, he determined that a site inspection of the mine was needed and the Namibian courts had the expertise and effectiveness to ensure a fair trial.[78] This last conclusion was made although the plaintiff was impecunious and could not obtain legal aid in Namibia to finance professional representation and witnesses. Conversely, legal aid might have been available in England for him to pursue the claim; however, the trial judge interpreted Section 31(1)(b) of the 1988 Legal Aid Act, however, as precluding the plaintiff from receiving assistance.[79] Section 31(1)(b) states that:
(1) Except as expressly provided by this Act or regulations under it... (b) the rights conferred by this Act on a person receiving advice, assistance or representation under it shall not affect the rights or liabilities of other parties to the proceedings or the principles on which the discretion of any court or tribunal is normally exercised.[80]
Finally, the judge opined that a court could not take the availability of legal aid into consideration for a forum non conveniens application.[81] Nonetheless, this ruling did not address the issue of a case that could be heard more suitably for the interests of all parties and for the ends of justice in a jurisdiction where a party lacked funding to conduct litigation, although the plaintiff potentially had access to financial assistance in another forum.
The Court of Appeals affirmed the decision of the trial judge,[82] holding that Section 31(1)(b) required the judge to disregard the availability of legal aid in England and the unavailability of such aid in Namibia.[83] A justification for this approach was that the recipient would acquire advantages over other applicants for legal aid. This exception would transform the recipient into a "super first class citizen."[84] The Court also considered the importance placed upon international comity by Spiliada,[85] which emphasised that the aim of comity was to attain a "broad consensus" among common law jurisdictions;[86] such consensus concerned forum conveniens and not fiscus conveniens.[87] Hence, a Court should consider whether the alternative forum has the juridical and forensic facilities to warrant a fair trial, while exempting financial comparisons such as the effectiveness of legal aid structures in individual states.[88]
The House of Lords reversed this reasoning under the dictum in Sim v. Robinow and affirmed in Spiliada.[89] It ruled that the determination whether "the court is satisfied that there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of all the parties and for the ends of justice"[90] was contradicted by the reading of Section 31(1)(b) that "artificially curtailed" the legal aid qualification of the applicant as a factor to consider.[91]
Lord Goff stated the general rule for analyzing the plaintiff's legal aid eligibility as a factor in a forum non conveniens application.[92] He upheld the general principle set forth in Spiliada[93] that a plaintiff must accept a clearly more appropriate forum even if there are less procedural and financial advantages than in the English forum.[94]
In Connelly, professional representation by lawyers and testimony of expert scientific witnesses was essential for the case to be tried in any jurisdiction.[95] The absence of financial resources would impede litigation from occurring in Namibia, whereas the benefits of legal aid or a conditional fee agreement were available to the plaintiff in England.[96] It was clear that substantial justice could not be guaranteed to the plaintiff in the natural forum.[97] Thus, Namibia was not, in the interests of both parties and the ends of justice, the most appropriate venue.[98] This reasoning, however, remains theoretical. The High Court dismissed the claim in 1998.[99] It found that the complaint had not met the applicable statute of limitations and refused further leave to appeal.[100]
2. The Lubbe Case
In Lubbe v. Cape Plc., a claim was brought against an English parent corporation for the subsidiary's failure to provide a safe workplace in South Africa.[101] The plaintiffs alleged that they had acquired mesothelioma and other diseases from exposure to high asbestos levels in the subsidiary company's mines.[102]
The case was heard before two Courts of Appeal and the House of Lords.[103] The main issues before the courts were a clarification of when an alternative forum becomes available to the defendant and whether a group action could proceed in English courts.[104] The initial claim was brought on behalf of five claimants. The Court of Appeal dismissed a forum non conveniens application on technical grounds.[105] It held that a defendant must heed the availability of an alternative forum by consenting to jurisdiction in the courts of that State.[106] Submitting to jurisdiction must occur between the period of the summons being issued to the defendant and the hearing before the trial judge.[107] In the present case, the defendant had elected in favour of the foreign forum during the hearing before the trial judge. The rationale for the time limit is to prevent an undue advantage to the defendant, who otherwise could attain a forum that predominantly was more favourable to his interests.[108] This would counter the Court's disinterested approach for approving a forum that was in "the interests of both parties and for the ends of justice," as required by Spiliada.[109]
The number of claimants eventually was extended to a group action of 1,538 additional individuals.[110] The issue then arose before the Queen's Bench whether the change in standing was an abuse of the Court's process, since the plaintiff's solicitors first had obtained jurisdiction in U.K. courts as a tactical advantage before making the proposed amendment.[111]
The Court disagreed that the group action was an abuse of process,[112] although the plaintiffs' solicitors had an initial obligation to disclose their intentions.[113] However, forum non conveniens would be granted as the vast requirements for a group action identified the more appropriate forum as South Africa.[114] A group action would entail a complete determination of the unsafe asbestos conditions in the mines and mills and the impact upon employees and residents.[115] The mass presence of witnesses in South Africa was vital.[116]
The fact that a group action would be a test case in South African courts was not a disadvantage to the plaintiff.[117] The Court suggested that the South African legal system could rely upon the past experience of U.K. courts in conducting such proceedings.[118] Similarly, the possibility that legal aid would not be available to the claimant due to financial and administrative obstacles in South African was not a matter of general consideration for the Court.[119]
The Court of Appeal[120] confirmed that a group action did not form an abuse of court process but that, nonetheless, legal representation and accessibility to scientific, technical, and medical evidence could be made available in South African courts.[121]
The House of Lords reversed the stay of proceedings by emphasizing the principles contained in case precedents rather than relying merely on the Spiliada connecting factors test.[122] Lord Bingham restated the general rule that a plaintiff must accept an alternative and more appropriate venue even if less advantageous to him than the English forum.[123] As held in Connelly,[124] the onus is not discharged by showing that legal aid is available in the U.K. and not in the competing forum. A possible exception to this premise is if the plaintiff can establish that the nature and complexity of the case requires the use of legal representation and expert scientific assistance that is available only in the present forum.[125] If the Lubbe proceedings had been stayed in favor of the more appropriate forum in South Africa, it was improbable that the plaintiffs would have had access to obtain the professional representation and expert evidence essential to justly decide the claims.[126] This would result in a denial of justice.[127] Furthermore, the lack of established procedures in South Africa to handle group actions was an obstacle for the plaintiff.[128] Even if the South African judiciary applied the examples of other jurisdictions, such as the U.K., an experimental stage would still arise from which further delay, uncertainty, and expense could incur.[129] Lastly, the Court observed that public interest considerations were not a factor in the Spiliada test in view of Sim v. Robinow.[130] The more appropriate jurisdiction would provide "for the interests of all the parties and for the ends of justice,"[131] regardless of which forum was more "desirable" on public interest grounds for the litigation to proceed.[132]
However, litigation failed to materialize since the parties entered settlement negotiations in 2001. A final settlement was approved in 2003 for the allocation of £7.5 million among the existing 7,500 claimants.[133]
D. Summing Up Connelly and Lubbe
The Connelly and Lubbe judgments did not resolve the uncertainty in English law arising from the analysis of Article 2 of the Brussels Convention in In re Harrods. In Lubbe, the House of Lords did not decide the issue nor seek a ruling from the ECJ. Its view was that the decision not to grant a stay of proceedings made it unnecessary for the Court to apply either option.[134]
Following the recent ECJ judgment in Owusu v. Jackson,[135] a reconsideration of Harrods should confirm the following points to interpret the Brussels Regulation:
Article 2 refers only to the defendant against which a claim is brought. Consequently, there is no qualification of the nationality or domicile of the potential plaintiff. By implication, Article 2 does not exclude a plaintiff who is a national of, or is domiciled in, a non-Contracting State.[136]
Article 2 states that persons domiciled in a Contracting State "shall" be sued in that forum. This is a mandatory stipulation. Forum non conveniens provides a discretionary power to English courts and contradicts Article 2. It can be exercised against non-Civil law Contracting States only by the express authorisation of the Brussels Convention[137] or Regulation.
If the Regulation subsequently does authorise the forum non conveniens principle, then there must be a significant factor in the Spiliada test to justify dismissing the forum that is considered to be appropriate under the Regulation.[138] The court should invoke a "relevant discretion."[139] This approach would avoid the results of the Harrods ratio.
Pending an assessment of Harrods, the doctrine of forum non conveniens remains a partially defined instrument of English Courts.
III. The Development of Forum Non Conveniens in Australia and Canada
The development of forum non conveniens in England has directed the interpretation in other jurisdictions that provide a stay of proceedings. For example, the Spiliada test has been adopted with modification in Australia and Canada.[140]
In Australia, the leading case for a forum non conveniens assessment is Voth v. Manildra Flour Mills.[141] It is an adaptation of the St. Pierre test[142] that retains harassment as a standard for considering inconvenience to the defendant. "[A] defendant must satisfy the Court that the continuance of the action would work an injustice because it would be oppressive or vexatious to him."[143] The "clearly inappropriate forum" test avoids a comparison with the competing forums that is inherent in the "clearly more appropriate forum" approach.[144] Instead the focus is upon the advantages and disadvantages of continuing proceedings in the plaintiff's choice of forum.[145] Public policy interests are not considered, and administrative delays and insufficient judicial resources cannot be claimed in the defendant's defense.[146]
The exemption of the "most suitable forum" principle serves in favour of the plaintiff.[147] The onus upon the defendant to establish strong inconvenience to its interests is significant if the claim is against a company.[148] Accordingly, parent companies that are based in Australia could be made accountable in local courts for injuries arising abroad to individuals.[149] This would deter corporations from applying different safety and environmental standards in the foreign operations of subsidiary companies.[150]
In Canada, the leading case for a forum non conveniens determination is Amchem Products Incorporated v. British Columbia (Worker's Comp. Bd.).[151] It confirms the Spiliada threshold of a more appropriate forum.[152] A court must first determine if the domestic forum is the natural forum that has the closest connection with the action and the parties.[153] Alternatively, it will dismiss proceedings to the clearly more appropriate forum.[154]
However, personal and juridical advantages should be considered and weighed with the other connecting factors when identifying the more appropriate forum.[155] The loss of juridical advantage should not be treated as a separate and distinct condition.[156]
The weight to be given to juridical advantage is very much a function of the parties' connection to the particular jurisdiction in question. If a party seeks out a jurisdiction simply to gain a juridical advantage rather than by reason of a real and substantial connection of the case to the jurisdiction, it is ordinarily condemned as "forum shopping." On the other hand, a party whose case has a real and substantial connection with a forum has a legitimate claim to the advantages that the forum provides. The legitimacy of this claim is based on "a reasonable expectation that in the event of litigation arising out of the transaction in question, those advantages will be available."[157]
This "reasonable expectation" is subject to the court's interpretation, and the possibility exists that the court could regard a plaintiff's legitimate actions as "forum shopping." For instance, a judicial approach that could apply in favour of a defendant TNC is stated in the Dissent of Lord Hoffmann in the Connelly judgment (H.L.).[158] In the opinion of Lord Hoffmann:
[t]he plaintiff while employed in Namibia had no legitimate expectation that litigation arising out of the circumstances of his employment would take place in England. He had abandoned his Scottish domicile of origin and emigrated to South Africa. He then moved to Namibia. His position was therefore no different from that of a native Namibian. Apart from the fact that his employer formed part of a multinational group of companies with its headquarters in England, the transaction had no connection with England.[159]
This reasoning places a narrow obligation upon corporations to compensate victims. It is a strict interpretation of facts that limits geographical considerations over justice and fairness. In this sense it is contrary to the dicta in Sim v. Robinow.
The Amchem case was perceived in the defendant's interest in Recherchés Internationales Quebec v. Cambior.[160] The defendant was a Canadian subsidiary that had caused mass pollution in Guyana by failing to maintain a dam.[161] The Superior Court in Quebec held that it would grant forum non conveniens if the remedy sought by the plaintiffs was available also in the foreign jurisdiction.[162] This test is subjective since it allows the court to be satisfied with comparable rather than identical legal standards. Here, the Superior Court recognized that the company's decision making had occurred in Canada but considered that the High Court of Guyana was capable of handling issues of proof and discovery procedures.[163] Its approach aligns with the U.S. courts below.
IV. The Development of Forum Non Conveniens in the United States
A. United States Supreme Court
The United States Supreme Court initially allowed Admiralty Courts to invoke forum non conveniens in disputes between foreign litigants.[164] It held that declining jurisdiction was not an abuse of a court's discretion.[165] Presently, any court may dismiss an action even if a general venue statute authorises jurisdiction[166] and a local party is involved.
In Koster v. American Lumbermens Mutual Casualty Co.[167] a court's forum of choice was identified as that which best served "the convenience of the parties and the ends of justice."[168] There were two assumptions within this definition. First, the Supreme Court assumed that a plaintiff generally would be a U.S. national and would claim against a non-resident defendant in American courts.[169] Second, the choice of local forum suggested that there were factors of convenience to the plaintiff.[170] Therefore, the plaintiff's choice of forum was entitled to great deference and would exceed the inconvenience to the defendant.[171] It was rarely to be disturbed.[172]
Piper Aircraft Co. v. Reyno addresses the issue of determining a forum non conveniens application against an American defendant by a national from another country.[173] The Court's objective of ensuring that the trial is convenient entails the converse application of the Koster principles.[174] As a result, an alien plaintiff's choice of a U.S. forum receives less deference than a local complainant's.[175] The Piper case provides the federal test for assessing stays of action. The Court first must determine whether an alternative forum exists and to which the defendant is amenable to process.[176] If so, it must evaluate whether the forum is "appropriate" by weighing the private and public interests of the parties.[177]
The Court upheld the private and public interest factors cited in Gulf Oil, although these had been intended to apply in interstate rather than transnational disputes.[178] Private interest factors of the litigants include: (1) the "relative ease of access to sources of proof;" (2) the "availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses;" (3) the "possibility of a view of the premises, if the view would be appropriate to the action;" and (4) "all other practical problems that make trial of a case easy, expeditious and inexpensive."
