FORUM CONVENIENS

Citation(1993) 5 SAcLJ 1
Published date01 December 1993
Date01 December 1993

MUCH water has flowed under the bridge since the decision in “The Atlantic Star1 where the House of Lords set its face against the recognition of the doctrine of forum non conveniens in English law.2 A clutch of decisions3 emanating from the House of Lords has now put that right - the doctrine of forum non conveniens is part of English law. In 1987, in the case of Spiliada Maritime Corporation v. Cansulex Ltd. (hereinafter referred to as “The Spiliada.”), Lord Goff of Chieveley delivering the principal judgment of the House of Lords was able to say “… it can now be said that English law has adopted the Scottish principle of forum non conveniens….”4 The Latin tag “forum non conveniens” is used to describe the principle that notwithstanding that an action has been properly brought before the court, the court has the power to stay the action as there exists another available forum having competent jurisdiction which is clearly and distinctly more appropriate to hear and determine the claim in respect of which the action was brought within the jurisdiction. Writing in 1925, Lord Dunedin in La Societe Du Gaz de Paris v. La Societe Anonyme de Navigation “Les Armateurs Francais”5 observed that ‘competent’ is just as bad a translation for ‘competens’ as ‘convenient’ is for ‘conveniens’. The proper translation for these Latin words,

so far as this plea [of forum non conveniens or forum non competens]6 is concerned, is ‘appropriate’.”7 Although there has been judicial misgivings8 on the tag “forum non conveniens”, it has remained in use. Having said that, as Lord Goff pointed out in “The Spiliada”, “it is wiser to avoid the use of the word ‘convenience’ and to refer rather … to the appropriate forum.”9

Be that as it may, the contention involved in the plea of forum non conveniens is that for the “interests of all the parties, and for the ends of justice, the case may more suitably be tried elsewhere.”10 This is said to be the “foundation of the whole doctrine”11 offorum non conveniens. More recently, Lord Goff of Chieveley in “The Spiliada” had occasion to say that “the underlying principle requires that regard must be had to the interests of all the parties and the ends of justice….”12 Of course, the existence of the other forum which is more appropriate for securing the ends of justice is a condition precedent to the application of the plea of forum non conveniens.13 Thus, the object of the doctrine of forum non conveniens is “to find that forum which is the more suitable for the ends of justice, and is preferable because pursuit of the litigation in that forum is more likely to secure those ends.”14

The doctrine of forum non conveniens has also been recognised by the Judicial Committee of the Privy Council - the highest court in the Singapore judicial system.15 The Privy Council in Societe Nationale Industrielle Aerospatiale v. Lee Kui Jak16 hearing an appeal from the Court of Appeal of Brunei Darussalam acknowledged that the principle of forum non conveniens apply in Brunei as it does in England. In that case, the Privy Council held that

different considerations apply when it is sought to enjoin a defendant from commencing or pursuing legal proceedings in a foreign jurisdiction. In such a case, the jurisdiction to enjoin a defendant by way of injunction from pursuing legal proceedings in a foreign jurisdiction “is to be exercised when the ends of justice require it” and when such an injunction is granted, it is directed at the party concerned and not against the foreign court. More importantly, such an injunction restraining one party from pursuing legal proceedings in a foreign jurisdiction will only be granted against a party who is amenable to the jurisdiction of the court for otherwise such an order would be a mere brutum fulmen. In any case, since such an order albeit it operates in personam on the party who has proceeded or intending to proceed in a foreign jurisdiction has an indirect effect on the foreign court, the jurisdiction to grant such an injunctive relief must be exercised with caution. Lord Goff of Chieveley observed that “the long line of English cases concerned with injunctions restraining foreign proceedings still provides useful guidance on the circumstances in which such injunctions may be granted; though of course the law on the subject is in a continuous state of development… They wish to observe that care must be taken to state the principle of forum non conveniens without references to cases on injunctions.”17

As stated earlier, the doctrine offorum non conveniens recognises that notwithstanding that the action has been properly commenced within the jurisdiction, the circumstances of the case may warrant that the action be stayed in favour of another jurisdiction which is more appropriate to determine the rights and liabilities of the litigating parties. Of course, if the defendant is not amenable to the other jurisdiction, the other jurisdiction cannot be said to be the more appropriate forum. The question is whether there is another jurisdiction to which the defendant is amenable which is the forum conveniens? In answering this question, regard must be had to the facts of the particular case and identifying the facts and issues in the case which link the case to the foreign jurisdiction. Where the facts and issues in any particular case have “more real and substantial connections”18 with a foreign jurisdiction, the prima facie inference is that the foreign jurisdiction is the more natural

and appropriate forum to hear the claim. And in considering the connection of the proceedings with each forum, the court is plainly not limited to factors of convenience in the preparation for and conduct of a trial such as availability of witnesses and the need to use interpreters. The court must consider such factors together with the issues of law that arise in the case such as the law governing the relevant transaction.19 Other factors which are to be considered by the court include the places where the parties respectively reside or carry on business and any special factor independent of the parties which may make trial in one forum more appropriate rather than the other forum.20

The onus lies on the defendant to show that there exists another forum which is more appropriate to try the action. In the felicitous words of Lord Goff of Chieveley in “The Spiliada”, “… the burden resting on the defendant is not just to show that [the jurisdiction in which action has been commenced by the plaintiff] is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the [forum in which the plaintiff commenced proceedings].”21 Of course, where the defendant is not able to show that there exists another forum which is more appropriate to hear and determine the plaintiff’s claim, the court would not stay the proceedings commenced within the jurisdiction on the ground of forum non conveniens.22 This may be illustrated by the recent decision of Sir Barry Sheen in “The Vishva Abha”,23 where his Lordship held that the defendants had not shown that South Africa was a distinctly more appropriate forum than the English court and that the only connection between South Africa and the case was the fortuitous circumstance that the Shipping Corporation of India (the defendants in the English action) had arrested the vessel ‘Dias’ which was the vessel collided into by the defendants’ vessel, the ‘Vishva Apurva’, in Durban. The English action had been commenced by cargo-owners of cargo carried on board the ‘Dias’ against the ‘Vishva Abha’ which was a vessel owned by the

Shipping Corporation of India. The learned judge held that “the interests of justice demand that these plaintiffs, who have brought an action in this country (as of right), should not be required to litigate in South Africa merely because of the chance that the defendants, who have an interest in pursuing ‘Dias’, were only able to bring an action against that ship in South Africa.”24

In some situations, the court will take the view that a particular factor in a case is of such vital importance that it concludes the inquiry as to which is the more appropriate forum to hear the claim. This was the situation in Banco Atlantico S.A. v. The British Bank of the Middle East.25 In this case, the English Court of Appeal had to consider the application of “The Spiliada” principles to an action commenced in England for breach of a contract which was held to be governed by Spanish law. The defendants who were the guarantors contended that as they were based in Sharjah, the more appropriate forum was the United Arab Emirates and it followed that the English action was to be stayed. The defendants were a bank incorporated in England by a royal charter granted in 1889 and at the material time had their main office in the City of London. Sir Thomas Bingham M.R. (as he now is) delivered the leading judgment of the court in Banco Atlantico S.A. v. The British Bank of the Middle East and observed that as the plaintiffs had established the jurisdiction of the English court in respect of their claim and had commenced action as of right in the English forum, “Very clear and weighty grounds must be shown for refusing to exercise jurisdiction … A balance of convenience in favour of the foreign forum is not enough … The interests of justice are paramount.”26 After taking account of the facts which allegedly linked the plaintiffs’ claim with Sharjah, Sir Thomas Bingham M.R. concluded that the defendants’ connection with England was “in truth very solid indeed. It must be rare that a corporation resists suit in its domiciliary forum. Rarely would this Court refuse jurisdiction in such a case. In my judgment very clear and weighty grounds for doing so were not shown.”27

In like vein, Nourse L.J. observed that the trial judge who ordered a stay of the English action...

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