Global Judicial Dynamics

Abstract

Jurisdiction is everything for without it a court or tribunal must down its tools. Therefore, International commercial litigation is governed by principles analogous to local jurisdiction laws that bestows upon them powers to hear certain cases. Normally, a corporation based in Europe and operating around the world should be sued for any contractual breach where it does business. However, corporations have often been dragged to other jurisdictions like the United States by plaintiffs asking the American courts to resolve the dispute. Proper selection of a forum to sue by the plaintiff in a commercial dispute is instrumental in minimising choice of law conflicts. The forum non conveniens doctrine allows courts to dismiss a case that is brought in an inconvenient forum.

In England and Wales, the choice of law concept has been the subject of interpretation over the years, from The Spiliada to Altimo Holdings case. The author considers the application of the above doctrine on matters of service out of jurisdiction, dispute as to jurisdiction, restraint of proceedings as well as appealing a decision on forum. In addition, a comparison of the United States approach will be relevant especially the precedent in the Piper Aircraft case. The author will further look at the current trends in choosing an appropriate forum including the developing global judicial culture of increased cooperation among courts engaged in commercial litigation. A global view of judicial activity has the potential of encouraging judges to take new approaches in application of jurisdiction tools in managing conflicts.

Annotated Bibliography

1. Reus A, Judicial Discretion: A Comparative View of the Doctrine of Forum Non Conveniens in the United States, the United Kingdom, and Germany. (Loyola of Los Angeles International & Comparative Law Review Journal 1993)16:455.

This article explores the concept of forum selection particularly, the doctrine of forum selection in the context of United States, Germany and the United Kingdom. It traces the origin and the development of the doctrine forum non conveniens in all the three countries. The author criticises the application of the doctrine in the US as being unpredictable unlike the UK where court precedents indicate a level of consistency. In conclusion, the author argues that judicial discretion jurisdictional matters in both the US and the UK is excessive in practice.

The above arguments are central to my research paper since they provide a background critique of the application of the doctrine in two countries that are both member states of the European Union. In tandem with other sources I will paraphrase major points related to my paper and include them in my work to support the various arguments I will make. Discussions concerning will take several paragraphs since it covers relevant jurisdictions applicable to my research topic.

2. Hennessee K, and Weiner DJ, International litigation and forum non conveniens: Strategies and lessons from the aviation context. (International In-house Counsel Journal 2009)

This article recognises that corporations are now face with lawsuits in countries where they do not even have business hence they grapple with issues of forum. The authors argue that a new trend is developing where plaintiffs in international commercial litigation tend to drag the defendants to US courts even when the plaintiffs themselves are not from the US. They identify the aviation industry as one of the most affected sectors with regards to forum selection and forum shopping. They further argue that the US provides unique opportunities for plaintiffs which are not available in other jurisdictions. The above argument will be incorporated in my research to support my suggestion that there are unique advantages available in some jurisdictions that have direct impact on forum selection.

I will majorly employ paraphrasing as tool to marry my ideas with that of the authors of the above work to give credibility to my research.

3. Buxbaum HL, Forum Selection in International Contract Litigation: The Role of Judicial Discretion. (Willamette J. Int'l L. & Dis. Res. 2004)12:185.

This source discusses judicial globalization in the context of choice of law conflicts and in so doing, looks at the increased cooperation between courts in international commercial litigation. Specifically, the author considers the role of judges in avoiding conflict by correcting inappropriate forum selection by plaintiffs. This work is relevant to my research because it provides a different angle of understanding forum selection and enforcement of judgements.

The author suggests that the inclusion of a valid forum selection clause could deprive the court of the jurisdiction to consider dismissal based on inconvenience. I will use this argument in my research to support the idea of avoiding forum selection conflict. I will support my research using this material by majorly paraphrasing the important points. Paraphrasing is key in writing a paper because it summaries the point needed to be put down and takes less spaces in the work. This work will feature in a few paragraphs of my research to support arguments for the role of judges in streamlining forum selection in international commercial litigation.

4. Whytock CA, Robertson CB. Forum non conveniens and the enforcement of foreign judgments. (Colum. L. Rev. 2011)111:1444.

This research considers the forum conveniens doctrine in light of the interest of both parties to the transnational suit. It evaluates the reasons why a defendant may file motion to dismiss a suit in favour of a foreign court based on the argument that it provides adequate alternative forum that is more appropriate that the Plaintiff’s. Interestingly, the same defendant may after a decision is made against them in the foreign court argue that the foreign judiciary suffers from paucities that may prevent the enforcement of the judgment.

The article useful to my research because it examines and reconciles the apparent inconsistency arising from a party who declines a jurisdiction because it is inconvenient but changes their mind after judgement is delivered against them. I will be paraphrasing and summarising the point’s relevant to my topic of study since it will help show my understanding and interpretation of the article.

5. Freer RD, Refracting Domestic and Global Choice-of-Forum Doctrine through the Lens of a Single Case (BYU Law Review 2007)

This research dissects Piper Aircraft Co v Reyno and recognises it as a canonical case in forum selection. The author goes over and above the forum coneveniens doctrine espoused in the case and considers a scenario where the facts do not involve forum non conveniens. He further explores other significant aspect of the case in international litigation including forum selection law in general and other fundamental issues like the role of American courts in the international community.

The article is useful to my research topic, as Freer suggests, large portions of international litigation curriculum in schools are devoted to the issue of forum selection. The article appears to be written to inform international law students, professors and practitioners on the depth of the case with regard to forum selection law. Although the information provided is useful to this research and sheds more light on forum selection law, it is limited mostly to the US courts’ interpretation of international law.

Dig deeper into Foundations of Separation of Powers in the United Kingdom with our selection of articles.

General Bibliography

Baatz Y, Sandiforth A. Forum non conveniens further constrained. (Journal of Business Law. 2010)6:522-8.

Brand RA, Challenges to Forum Non Conveniens. (NYUJ Int'l L. & Pol 2012)45-1003.

Hartley TC, The European Union and the Systematic Dismantling of the Common Law of Conflict of Laws. (International & Comparative Law Quarterly. 2005)813-28.

Lewis MR, The Lawfare of Forum Non Conveniens: Suits by Foreigners in US Courts for Air Accidents Occurring Abroad. (J. Air L. & Com. 2013)

McCormack G, Universalism in insolvency proceedings and the common law. (Oxford Journal of Legal Studies. 2012)325-47.

Samuels JH, When is an Alternative Forum Available-Rethinking the Forum Non Conveniens Analysis. (Indiana Law Journal 2010)

Shine P, The Treatment of Non-EU Nationals before Domestic Courts of Member States. (Chinese Journal of International Law 2010)

Weintraub RJ. International Litigation and Forum Non Conveniens. (Texas International Law Journasl 1994)29:321.