The ground of venue or forum non-conveniens là gì năm 2024

"The doctrine of forum non conveniens permits a US court to decline to exercise its judicial jurisdiction if the court would be a seriously inconvenient forum and if an adequate alternative forum exists."1 In all cases in which the doctrine ... comes into play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them."2 The doctrine "can never apply if there is absence of jurisdiction or mistake of venue."3 "The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion."4 The Supreme Court of the United States has repeatedly reaffirmed the doctrine of forum non conveniens even though it has no direct federal statutory or constitutional foundation.5

B - History of the doctrine

"Although the origins of the doctrine [of forum non conveniens] in Anglo-American law are murky, most authorities agree that ... [it] had its earliest expression ... in Scottish estate cases."6 As the doctrine emerged, it developed two approaches: the "abuse of process" approach which permitted application of the doctrine only in cases of vexation and oppression, and the "most suitable forum" approach which was set forth in 1892 in Sim v. Robinow7 as follows:

The plea [for staying proceedings on the ground of forum non conveniens] can never be sustained unless 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 justice8

The "most suitable forum" approach eventually prevailed over the "abuse of process" approach.9

II -- USE OF DOCTRINE IN UNITED STATES DOMESTIC LITIGATION

Prior to the decision in International Shoe Co. v. Washington,10 a case which expanded the personal jurisdiction of the courts, the doctrine of forum non conveniens was rarely utilized.11 The doctrine of forum non conveniens appears to have developed in the United States "in response to the enlargement of jurisdictional limits after International Shoe,"12 which engendered forum shopping thereby creating a need for the courts to limit a plaintiff's choice of forum.13

In 1946, in Gulf Oil Corp. v. Gilbert, the Supreme Court was presented with the issue of whether a United States District Court, with jurisdiction based on diversity, had inherent power to dismiss a suit pursuant to the doctrine of forum non conveniens. In Gilbert, the plaintiff, a Virginia resident, brought an action in the Southern District of New York against the defendant, a Pennsylvania corporation qualified to do business in both Virginia and New York. The defendant invoked the doctrine of forum non conveniens claiming that the appropriate forum was Virginia because it was the place where the plaintiff lived, where the defendant did business, where all events in the litigation took place, where most of the witnesses resided, and where both the state and federal courts were available to plaintiff and were able to obtain jurisdiction over the defendant. The Court conceded that under the venue statutes the plaintiff was permitted to commence his action in the Southern District of New York and that the court was empowered to entertain the action.14 What remained to be decided was whether the Court must entertain the action.15

The Court began its analysis by stating that it had "repeatedly recognized the existence of the power [of a court] to decline jurisdiction in exceptional circumstances."16 In support of this statement the Court quoted the following passage from a prior decision:

Obviously, the proposition that a court having jurisdiction must exercise it, is not universally true; else the admiralty court could never decline jurisdiction on the ground that the litigation is between foreigners. Nor is it true of courts administering other systems of our law. Courts of equity and of law also occasionally decline, in the interest of justice, to exercise jurisdiction, where the suit is between aliens or nonresidents, or where for kindred reasons the litigation can more appropriately be conducted in a foreign tribunal.17

The Court stated that "[t]he principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute."18 However, the Court recognized that because the venue statutes were drafted with sufficient generality to give a plaintiff a choice of forums, a plaintiff may select a forum not simply to seek justice but "perhaps [seeking] justice blended with some harassment."19 The Court acknowledged that a plaintiff may be tempted to adopt a trial "strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself."20

The Court noted that "wisely" no previous court had attempted to catalogue those circumstances which would justify the granting or denial of a motion to dismiss on grounds of forum non conveniens.21 Rather, the Court determined that the circumstances under which such a motion would be granted or denied had been and should continue to be left primarily to the discretion of the court resorted to by the plaintiff, i.e., the court hearing the motion.22 Nevertheless, the Court did set forth a list of both "private" and "public" interest factors which it considered to be relevant to a forum non conveniens analysis.

The private interest considerations are those of the litigants which include "the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive."23 Additional considerations would be the enforceability of a judgment if one were obtained and the advantages and obstacles to a fair trial.24 The purpose served by consideration of the private interest factors is to prevent a plaintiff, by choice of an inconvenient forum, from vexing, harassing, or oppressing "the defendant by inflicting on him unnecessary expense or trouble unrelated to the plaintiff's own right to pursue his remedy."25 Ultimately, the Court concluded that "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed."26 Regarding the public interest factors, a court may consider administrative difficulties, i.e., docket congestion.27 In addition, jury duty should not be imposed on community members where the litigation has no relation to the community.28 This factor was supported by the contention that "[t]here is a local interest in having localized controversies decided at home."29 It is also appropriate in diversity cases to have the case decided in the "forum that is at home with the state laws that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in laws foreign to itself."30

It is important to note that both the plaintiff and the defendant in Gilbert were US citizens; the litigation was domestic. The defendant argued that the more appropriate forum, as a matter of convenience, was another jurisdiction in the US, not a foreign forum. One year after the adoption of the doctrine of forum non conveniens by the Supreme Court in Gilbert, the US Congress enacted the federal venue transfer statute which provides that "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."31 A transfer under this statute appears to require an analysis similar to that of the doctrine of forum non conveniens.32 However, such a transfer does not affect the applicable law, including the applicable choice of law, which remain that of the transferor state.33 Note, however, that this statute applies only to transfers between different federal courts and not to dismissal in favor of a foreign forum. Consequently, although the forum non conveniens doctrine was originally a domestic doctrine to be utilized by the courts to limit a plaintiff's ability to forum shop within the United States, the federal doctrine continues to apply "only in cases where the alternative forum is abroad."34

III -- USE OF DOCTRINE OF FORUM NON CONVENIENS IN INTERNATIONAL LITIGATION

It is important to note that in 1947, the year during which Gilbert was decided, the possibility of a forum selected by a plaintiff being seriously inconvenient to the defendant was much more relevant than it is today. As one commentator has stated, in 1947 "[w]e had no commercial jet travel, no personal or office computers, no photocopy technology, no fax machines. ... It is hard to grasp how much technology has changed our lives since then."35 With the advent of technology, the purpose served by the doctrine of forum non conveniens appears to have changed. It no longer appears to be restricted to those instances where the plaintiff's forum choice was so egregiously inappropriate as to appear motivated by a desire to vex and harass the defendant...."36

As communications and transportation technology have facilitated international activity, there has been an increase in the number of international disputes. Consequently, the number of cases filed by foreign plaintiffs has increased. As stated by Lord Denning in that oft-quoted passage, "[a]s a moth is drawn to the light, so is a litigant drawn to the United States. If he can only get his case into their courts, he stands to win a fortune."37 There are numerous reasons why American courts are more attractive to foreign plaintiffs: (1) strict liability remains primarily an American innovation; (2) a tort plaintiff may choose, at least potentially, from among at least 50 jurisdictions if he decides to file suit in the United States; (3) jury trials are almost always available in the United States, while they are never provided in civil law jurisdictions (even in the United Kingdom most civil actions are not tried before a jury); (4) unlike most foreign jurisdictions, American courts allow contingent attorney's fees, and do not tax losing parties with their opponents' attorney's fees; and (5) discovery is more extensive in American than in foreign courts.38

The leading case regarding application of the doctrine of forum non conveniens in the international context is Piper Aircraft Co. v. Reyno wherein the Supreme Court not only reaffirmed the doctrine of forum non conveniens, but arguably expanded it. The facts in Piper were as follows. In 1976, a small commercial aircraft crashed in the Scottish highlands killing the pilot and all five passengers. The decedents were all Scottish subjects and residents. The wrongful death actions filed against both Piper Aircraft Company, the Pennsylvania manufacturer of the aircraft, and Hartzell Propeller, Inc., the Ohio manufacturer of the propeller, were eventually transferred to the Middle District of Pennsylvania. Gaynell Reyno, the administratrix of the estates of the five passengers, admitted that the action against Piper and Hartzell was filed in the us because of its laws regarding liability, capacity to sue and damages more favorable to her position than were those in Scotland. Both Piper and Hartzell moved to dismiss the action on the ground of forum non conveniens. Relying on the balancing test of private/public interest factors set forth in Gilbert, the District Court granted the motions.

The District Court observed that an alternate forum existed in Scotland and that Piper and Hartzell had agreed to submit to the jurisdiction of Scottish courts and to waive any available statute of limitations defense.39 In addition, the District Court noted that although a plaintiff's choice of forum ordinarily deserves substantial deference:

"Reyno is a representative of foreign citizens and residents seeking a forum in the US because of the more liberal rules concerning products liability law" and that "the courts have been less solicitous when the plaintiff is not an American citizen or resident and particularly when the foreign citizens seek to benefit from the more liberal tort rules provided for the protection of citizens and residents of the United States."40

The District Court concluded that both the private and public interest factors strongly pointed towards dismissal.41

Reyno argued that dismissal would be unfair because Scottish law was less favorable. The District Court rejected this argument stating that "the possibility that dismissal might lead to an unfavorable change in law did not deserve significant weight; any deficiency in the foreign law was a "matter to be dealt with in the foreign forum".42 On appeal, the US Court of Appeals for the Third Circuit reversed, holding, inter alia, that "dismissal is never appropriate where the law of the alternative forum is less favorable to plaintiff."43

The Supreme Court affirmed the dismissal of the District Court and held:

[P]laintiffs may not defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs than that of the present forum. The possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry.44

Referencing Gilbert, the Court reiterated that the central focus of the forum non conveniens inquiry is convenience.45 Thus, Gilbert "implicitly recognized that dismissal may not be barred solely because of the possibility of an unfavorable change in law."46 The Court also confirmed the Gilbert Court's use of the private/public interest factors in the forum non conveniens analysis:

Under Gilbert, dismissal will ordinarily be appropriate where trial in the plaintiff's chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice. If substantial weight were given to the possibility of an unfavorable change in law, however, dismissal might be barred even where trial in the chosen forum was plainly inconvenient.47

The Court also stated that its earlier decisions emphasized the need to retain flexibility in the forum non conveniens doctrine.48 If substantial weight were given to the possibility of a change in law, the forum non conveniens doctrine would become virtually useless.49 The court stated that the American courts were already extremely attractive to foreign plaintiffs.50 Barring dismissal solely because of an unfavorable change in law would make the American courts even more attractive, thereby increasing the flow of litigation into the US and further congesting the courts.51

However, "if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, the unfavorable change in law may be given substantial weight....".52 In Piper, the Court held that even though Scottish law did not provide for strict liability, and the potential damages award could be lower under Scottish law, the decedents would not be deprived of any remedy nor treated unfairly.53

In addition, the Court confirmed the District Court's assertion that, although there is ordinarily a strong presumption in favor of the plaintiff's choice of forum, the presumption applies with less force when the plaintiff is foreign.54 The distinction between resident or citizen plaintiffs, and foreign plaintiffs was justified as follows:

[A] plaintiff's choice of forum is entitled to greater deference when the plaintiff has chosen the home forum. When the home forum has been chosen, it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable. Because the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff's choice deserves less deference.55

IV -- CONCLUSION

The Supreme Court's decisions in both Gilbert and Piper describe a doctrine of forum non conveniens that "entails a discretionary balancing of [private and public interest] factors and prescribes an extremely deferential standard of review."56 Such factors are utilized by and have been expanded upon by the lower courts. The "abuse of discretion" standard of review results in very few reversals of a trial court's forum non conveniens decision.

ENDNOTES

1Gary B. Born & David Westin, International Civil Litigation in United States Courts 275 (2d ed. 1994).

2Gulf Oil Corp. v. Gilbert, 330 US 501, 506-507 (1947).

3Gilbert, 330 US at 504.

4Piper Aircraft Co. v. Reyno, 454 US 235, 257 (1981).

5Born & Westin, supra

6American Dredging Co. v. Miller, 114 S.Ct. 981, 986 (1994).

71892 Sess. Cas. 665 (Scot 1st Div.).

8Alexander Reus, Judicial Discretion: A Comparative View of the Doctrine of Forum Non Conveniens in the United States, The United Kingdom, and Germany, 16 Loy. L.A. Int'l & Comp. L. J. 455, 459-460 (1994) (quoting Sim, 1892 Sess. Cas. at 668).

9Reus, supra note 8, at 460 (citation omitted).

10326 US 310 (1945).

11Allan R. Stein, Forum Non Conveniens and the Redundancy of Court-Access Doctrine, 133 U. Pa. L. R. 781, 802 (1985). See also, Miller, 114 S. Ct. at 986 (prior to Gilbert, although the doctrine had its most frequent expression in admiralty cases, it was also utilized by state courts, both at law and in equity, to address the problem of plaintiffs' misusing venue to the inconvenience of the defendant).

12Stein, supra note 11, at 802.

13Stein, supra note 11, at 805.

14Gilbert, 330 US at 504 (citation omitted).

15Gilbert, 330 US at 504.

16Id.

17Gilbert, 330 US at 504 (quoting Canada Malting Co., Ltd. v. Paterson Steamships, Ltd., 285 US 413, 422-423 (1932)).

18Gilbert, 330 US at 507.

19Id.

20Id.

21Gilbert, 330 US at 508.

22Id.

23Id.

24Id.

25Id. (citation omitted).

26Gilbert, 330 US at 507. But see Piper, 454 US at 255 (the presumption applies with less force when the plaintiff is foreign).

Stein sets forth the following as a possible explanation for the presumption that a plaintiff's choice of forum should rarely be disturbed:

In an era in which conceptions of a court's personal jurisdiction were narrow limited to immediate presence of the defendant's person or property a rule that gave deference to the plaintiff's "choice" of forum was a modest bequest. The choice was in reality a burden of traveling to the defendant's home forum. When the scope of personal jurisdiction was subsequently expanded so that a defendant became subject to suit in numerous jurisdictions, a rule that once operated at a practical level to the disadvantage of plaintiffs eventually gave them enormous control over both choice of forum and choice of law.

Stein, supra note 11, at 816-817 (citations omitted).

27Gilbert, 330 US at 508.

28Gilbert, 330 US at 508-509.

29Gilbert, 330 US at 509.

30Id.

3128 U.S.C. 1404(a).

32Born & Westin, supra note 1, at 277 (citation omitted).

33See Van Dusen v. Barrack, 376 US 621 (1964).

34Miller, 114 S.Ct. at 986 n.2.

35David W. Robertson, The Federal Doctrine of Forum Non Conveniens: An Object Lesson in Uncontrolled Discretion, 29 Tex. Int'l. L.J. 353, 367 (1994).

36Id.

37Smith Kline & French Lab. Ltd v. Bloch, [1983] 1 W.L.R. 730, 733 (C.A. 1982).

38Piper, 454 US at 252 n. 18.

39Piper, 454 US at 242.

40Piper, 454 US at 242 (quoting Reyno v. Piper Aircraft Co., 479 F.Supp 727, 731 (M.D. Pa. 1979)).

41Piper, 454 US at 242-244.

42Piper, 454 US at 244 (quoting Reyno, 479 F.Supp. at 758).

43Piper, 454 US at 244.

44Gilbert, 454 US at 247.

45Piper, 454 US at 249.

46Id. (citation omitted).

47Piper, 454 US at 249 (footnote omitted).

48Piper, 454 US at 249. See Williams v. Green Bay & Western R. Co., 326 US 549, 557 (1946) (setting forth a rigid rule to govern discretion would rob the doctrine of its flexibility.).

49Piper, 454 US at 250.

50Piper, 454 US at 252.

51Id.

52Piper, 454 US at 254.

53Piper, 454 US at 255. A determination that there is effectively no remedy available in the alternate forum would permit the district court to conclude "that dismissal would not be in the interest of justice." Id. Note that consideration of the availability of a remedy in the alternate forum is not a question of "convenience" but rather the "appropriateness", in the interest of justice, of a dismissal. Therefore, although the Court stressed "convenience" throughout its decision, a court is not limited to a "convenience" inquiry; it may also consider the appropriateness of a dismissal under the circumstances of the individual case.

In addition to granting dismissals even though the substantive law applicable in the alternative forum is less favorable to the plaintiff, the lower courts have granted dismissals in cases where the alternative forum did not provide for trial by jury, or contingent-fee arrangements. See, e.g., In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in December, 1984, 809 F.2d 195, 202, cert. denied, 484 US 871 (1987). Even though a court dismisses an action, such a dismissal may be made subject to conditions such as the defendant's agreeing to submit to the jurisdiction of the alternative forum and to waive the statute of limitations as a defense to such jurisdiction. See Bhopal, 809 F.2d at 203; Cf., Piper, 454 US at 242 (defendants unilaterally agreed to submit to the jurisdiction of the alternative forum and to waive any statute of limitations defense that might have been available).