The Admissibility of the Forum Non Conveniens in International Maritime Contracts Report (Assessment)

Introduction

The legal doctrine of forum nonconveniens requires courts to refrain from adjudicating cases that are in an inappropriate forum. The forum nonconveniens principle is unique to common law nation-states (United States, UK, Canada, and Australia) but inadmissible in the majority of civil law countries (Siew 2010). Nonetheless, the concept of forum non conveniens has come under immense criticism because it generates inconsistent findings (Moon 2009). In addition, Lear (2007) has found out that some courts increasingly invoke this dogma to foster inappropriate objectives. Although forum non conveniens is essential to establish a court’s jurisdiction, its application in the international maritime contracts should have a limited scope.

The principal objection against forum non conveniens is the legitimacy of granting courts judicial discretion. In essence, courts have the inherent power to determine the forum threshold for litigations (Siew 2010). Gray (2009) has asserted that the courts may abuse these powers. These issues highlight specific flaws and limitations could hinder the application of forum non conveniens by the courts. Conversely, these contestations lack a theoretical basis to support the claims. Moon (2009) has argued that forum non conveniens can be an essential legal doctrine if courts apply it “correctly.” The preceding sentiment raises the question regarding the appropriateness or legitimacy of the forum non conveniens theory.

The principal tenet of forum non conveniens is that judicial discretion promotes fairness in the determination of individual cases. The rationale underpinning this dogma is the assumption that the complexity of the jurisdictional rules and proceedings may contribute to unfair results (Siew 2010). By contrast, the principle of predictability supersedes judicial discretion in civil law jurisdictions (Lear 2007). In essence, the civil law theory considers exceptional unfairness as the inevitable cost of such predictability. As such, the counterarguments regarding the forum non conveniens doctrine have arisen largely from the conflict between the requirements of predictability and fairness (Gray 2009).

The Legitimacy of Forum Non Conveniens

The dogma of forum non conveniens is a jurisdictional rule in common law jurisdictions. Thus, this legal doctrine should pursue objectives that meet these rules adequately (Moon 2009). The realization of these goals mandates the courts to consider private interests when making discretionary decisions. The private concerns of international jurisdiction include efficiency and fairness. On the one hand, efficient proceedings prevent the wastage of resources during court proceedings, particularly money and time (Gray 2009). In addition, the former aspect mandates courts to make a correct and an enforceable decision (Siew 2010). Siew has noted that some courts provide an efficient forum than the others in settling international disputes.

The EC Council Regulation 44/2001 (or the Brussels-One Regulations), which succeeded the Brussels Convention, has provided the legal basis for efficiency. The Brussels-One Regulations (B1R) governs commercial contracts (except labor, insurance, and consumer contracts) largely (Kruger 2008). The B1R promotes efficiency by allocating authority to the courts based on material facts. These courts must have a closer connection with the evidence underlying the dispute. For instance, the Regulation requires the claimant to file a petition in the defendant’s domicile court as a general principle (Kuipers 2009). According to Kruger, the rule of efficiency and universal application enshrined in the B1R ensures that the forum is convenient for the defendant.

The Supreme Court of the United States has affirmed the significance of efficiency in court proceedings. The court has emphasized the need to account for all the practical limitations of cases to ensure that the trial is both inexpensive and expeditious (Siew 2010). Gray (2009) has indicated that the issue of efficiency also facilitates the enforceability of the final determinations. In addition, the House of Lords in the UK and the Supreme Court of Canada have acknowledged the fundamental role of forum non conveniens in determining the natural forum for hearing international disputes. The latter authorities have asserted that the court jurisdiction should have a significant relationship with the merits of the case (Lear 2007).

On the other hand, the purpose of equality is to protect the plaintiff against the abusive selection of a court forum. Fairness entails equal position or treatment for the litigants (Moon 2009). The rules that govern international jurisdiction influence fairness in two ways. First, the application of the jurisdictional statutes ensures that the actual outcome is not only just but also acceptable. Second, these rules provide equal convenience for both parties (Lear 2007). According to Siew (2010), the court should account for distance, travel restrictions, travel expenses, and linguistic barriers when choosing the forum. In fact, the application of forum non conveniens is in the interest of the defendants. This doctrine protects mitigates the effects that arise from the excessive rules of jurisdiction (Moon 2009).

Despite the relevance of fairness in legal processes, forum non conveniens has shifted its focus to efficiency in several jurisdictions. Consequently, the English courts have relinquished the oppressive and vexatious standard regarding the abuse of process (Moon 2009). Nonetheless, the preceding assertion has not nullified the protection of defendants. Courts usually pursue the objectives of efficiency when there has been an abuse of process (Lear 2007). Courts in the United Kingdom dismiss forum non conveniens the selection of forum disadvantages the plaintiff unfairly. In addition, the U.S. Supreme Court has and continues to acknowledge the need to protect the defendants against this abuse. However, the U.S threshold is lower than the requirement of vexatious forum selection (Gray 2009).

The Illegitimacy of Forum Non Conveniens

The primary objection against the application of forum non conveniens is that some courts often pursue illegitimate objectives either implicitly or explicitly. Moon (2009) has found out that the majority of courts (especially those in the U.S) misuse the doctrine of forum non conveniens. Courts across the globe suffer from the systematic challenge regarding the piling-up of cases. Thus, these courts apply forum non conveniens to reduce their respective caseloads (Lear 2007). The courts may also use forum non conveniens as a means of protecting the interests of domestic plaintiffs. Conversely, this objective does not only discriminate foreign litigants but it is inappropriate. The preferential treatment of domestic litigants undermines the legitimacy of forum non conveniens (Siew 2010).

The doctrine of forum non conveniens lacks explicit objectives to enhance its legitimacy. Moon (2009) has asserted that forum non conveniens makes it difficult to articulate a workable rule even if it pursues legitimate goals. Courts may establish jurisdiction but fail to spell out a clear guideline for applying the determined criteria in practice. It is also challenging to determine the threshold of appropriateness and inappropriateness enshrined in forum non conveniens (Gray 2009). Consequently, Lear (2007) has underscored the intricacies inherent in the translation of the objectives of forum non conveniens into workable rules. These issues present practical challenges in the application of forum non conveniens in the international maritime contracts.

The maritime business in the contemporary society is increasing using the Flags of Convenience (FOC) doctrine to circumvent international regulations (Powell 2013). The ongoing trend of economic globalization has facilitated the emergence of the open registry shipping. For instance, an American-owned sea vessel is not subject to the American laws if the owner outsources it using the FOC (Petrig 2013). The majority of business leaders register their vessels in countries that do not have stringent laws as a means of lowering operational costs. Conversely, the legal system in the chosen jurisdiction presents a practical challenge during litigation (Mansell 2009). The main problem is that business owners register their vessels in countries that have dysfunctional legal systems (Petrig 2013).

The principal goal of forum non conveniens is to ensure that the litigant has the right to choose a forum. However, it is difficult to establish jurisdiction when the sea vessel has been registered in a foreign country (Moon 2009). The defendants often invoke forum non conveniens to institute court proceedings outside the defendant’s country of domicile. Thus, the application of forum non conveniens disenfranchises the petitioner (siew 2010). Business owners understand that foreign countries have inefficient legal systems that delays justice significantly. The inconsistencies in the application of this doctrine exacerbate these limitations further. For instance, the multiplicity of interpretations instigates inefficiencies that affect the fairness of the legal process (Gray 2009).

The registration of ships and vessels under the flag of convenience has increased the scope of illegal trade. The interception of sea vessels carrying drugs, weapons, and other contraband goods exemplify the magnitude and implications of this concern (Mansell 2009). The vast majority of the countries that offer the open registers lack the capacity to regulate maritime operations, transparency in ownership, and labor standards (Powell 2013). These issues illustrate difficulties of instituting legal proceedings in countries where justice is not a guarantee. The abuse of forum non conveniens is undermining global efforts to prevent illegal maritime operations (Petrig 2013).

The legitimate objective of forum non conveniens is to ensure that court processes are efficient. In addition, this doctrine enhances fairness by protecting defendants from abusive practices during the selection of a court forum (Siew 2010). In essence, forum non conveniens responds to the inadequacies of the rules that govern exorbitant jurisdiction. However, these rules pose challenges in terms of fairness and efficiency. For instance, the allocation of jurisdiction to the complainant’s domicile court may inconvenience the defendant (Moon 2009). In addition, the determination of jurisdiction based on personal service does not establish a meaningful connection between the court and the facts of the case (Lear 2007). Thus, the doctrine of forum non conveniens is an unnecessary legal principle.

Conclusion

The principal tenet of forum non conveniens is that judicial discretion promotes fairness in the determination of individual cases. The doctrine of forum non conveniens promotes efficiency and fairness by allowing the plaintiff to choose the preferred court forum. Nonetheless, forum non conveniens lacks explicit objectives to enhance its legitimacy. The misuse of this principle by both courts and plaintiffs has brought to question its legality. The maritime industry is one of the sectors where forum non conveniens is losing its validity. The dogma of flags of convenience has increased illegal activities at the sea. The application of forum non conveniens by business owners has made it difficult to ensure justice and fairness. Thus, it is imperative to develop legal rules that will nullify the use of forum non conveniens in maritime contracts.

References

Gray, A 2009, ‘Forum non conveniens in Australia: a comparative analysis’, Common Law World Review, vol. 38, no. 3,

Kruger, T 2008, Civil jurisdiction rules of the European Union and their Impact on third states, Oxford University Press: Oxford: UK.

Kuipers, J-J 2009, ‘Party autonomy in the Brussels 1 Regulation and Rome 1 Regulation and the European Court of Justice’, German Law Journal, vol. 10, no. 11, pp. 1505-1524.

Petrig, A 2013, ‘The use of force and firearms by private maritime security companies against suspected pirates’, International and Comparative Law Quarterly, vol. 62, pp 667-701.

Lear, ET 2007, ‘National interests, foreign injuries, and federal forum non conveniens’, Davis Law Review, vol. 41, no. 559, pp. 516-620.

Mansell, J 2009, Flag state responsibility: historical development and contemporary issues, Springer: New York.

Powell, E 2013, ‘Taming the beast: how the international legal regime creates and contains flags of convenience’, Annual Survey of International & Comparative Law, vol. 19, no. 1, Article 12.

Siew, TG 2010, ‘Choices of law in forum non conveniens analysis’, Singapore Academy of Law Journal, vol. 22, no. 1, pp. 440-454.

Moon, LB 2009, ‘Should they stay or should they go: applying the forum non conveniens doctrine to foreign plaintiffs injured abroad in Abad v. Bayer Corporation’, Seventh Circuit Review, vol. 5. No. 1, pp. 1-37.