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{{Italic title}}
{{Conflict of laws}}
'''''Forum non conveniens''''' ([[Latin]] for "an inconvenient forum"<ref>{{cite web |title=Forum Nonnon Conveniens |url=https://dictionarywww.thelawlaw.comcornell.edu/forum-non-convenienswex/forum_non_conveniens |website=Wex |publisher=TheCornell Law.com and Black's Law Dictionary, 2nd Ed.School |access-date=1314 SeptemberOctober 20192021}}</ref><ref>{{cite web |title=Forum Non-Conveniens Law and Legal Definition |url=https://definitions.uslegal.com/f/forum-non-conveniens/ |publisher=USLegal.com |access-date=13 September 2019}}</ref><ref>{{cite web |title=Forum non conveniens |url=https://uk.practicallaw.thomsonreuters.com/2-341-8952?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1 |publisher=Thomson Reuters Practical Law UK |access-date=13 September 2019}}</ref>) ('''FNC''') is a mostly [[common law]] [[legal doctrine]] wherebythrough which a court "acknowledges that another forum or court where the case might have been brought is a more appropriate [[Venue (law)|venue]] for a legal case, and sendstransfers the case to such a forum. A change of [[Venue (law)|venue]], wheremight anotherbe venueordered, isfor more appropriateexample, to adjudicatetransfer a matter,case suchto as thea jurisdiction within which an accident or incident underlying the litigation occurred and where all the witnesses reside."<ref>{{cite webjournal |titlelast1=Forum Non ConveniensBarrett |urlfirst1=https://dictionary.thelawEdward L.com/forum-non-conveniens/ |publishertitle=The Law.comDoctrine andof Black'sForum Non Conveniens |journal=California Law Dictionary,Review 2nd|date=1947 Ed|volume=35 |issue=3 |page=389|doi=10.2307/3477253 |access-datejstor=133477253 September|url=https://scholarship.law.berkeley.edu/californialawreview/vol35/iss3/4 2019}}</ref>
 
As a doctrine of the [[conflict of laws]], ''forum non conveniens'' applies between courts in different countries and between courts in different [[jurisdiction (area)|jurisdiction]]s in the same country. ''Forum non conveniens'' is not applicable between counties or federal districts within a state.{{citation needed|date=September 2019}}
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A concern often raised in applications of the doctrine is [[forum shopping]], or picking a court merely to gain an advantage in the proceeding. This concern is balanced against the public policy of deferring to a plaintiff's choice of venue in claims where there may be more than one appropriate jurisdiction. The underlying principles, such as basing respect given to foreign courts on reciprocal respect or [[comity]], also apply in [[civil law (legal system)|civil law]] systems in the form of the legal doctrine of ''[[lis alibi pendens]]''.
 
''Forum non conveniens'' is not exclusive to common law nations: the maritime courts of the [[Republic of Panama]], although not a common law jurisdiction, also have such power under more restrained conditions.<ref>ARRUE MONTENEGRO, Carlos Alberto. ''Le forum non conveniens à l'assaut des compétences exorbitantes : l'expérience panaméenne'', [[Panthéon-Assas University]], 2006, p. 85. (http://catalogue.ppl.nl/DB=1/SET=1/TTL=1/SHW?FRST=2 {{Webarchive|url=https://web.archive.org/web/20070618012144/http://catalogue.ppl.nl/DB=1/SET=1/TTL=1/SHW?FRST=2 |date=2007-06-18 }}</ref>
 
==Explanation==
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===Historical origin===
Scholars and jurists seemagree to find a Scottish origin prior tothat the firstconcept American useis of thea conceptScottish origin.<ref>{{cite web|url=http://www.mssc.state.ms.us/decisions/Publishedopinions/96-01284.HTM |title=State of Mississippi Judiciary |publisher=Mssc.state.ms.us |date= |accessdate=2022-09-07}}</ref><ref>{{cite web |url=http://www.judicium.it/news/pistis01.html#_edn1 |title=Forum non conveniens |website=www.judicium.it |url-status=dead |archive-url=https://web.archive.org/web/20021119182213/http://www.judicium.it/news/pistis01.html |archive-date=2002-11-19}}</ref><ref>http://works.bepress.com/context/graydon_staring/article/1008/type/native/viewcontent/ {{Bare URL inline|date=September 2022}}</ref><ref>{{cite web|url=http://supreme.justia.com/us/454/235/case.html</ref>|title = SomePiper writersAircraft seeCo. theV. doctrineReyno, of454 FNCU.S. as having developed from an earlier doctrine of ''forum non competens''235 ("non-competent forum"1981).}}</ref> Many early Scottish cases in the U.S. and Scotland involvinginvoking FNC were cases under [[admiralty law]]. FNC thus may ultimately have a [[civilian law|civil law]] origin, as has been asserted by several writers, since admiralty law is based in civil law concepts.{{Citation needed|date=March 2022}} However, there is no equivalent in the [[Napoleonic Code|French Civil Code]] or [[Roman law]].<ref name=":0">{{Cite journal |last=C. M. Jr |date=1948 |title=The Doctrine of Forum Non Conveniens |journal=[[Virginia Law Review]] |volume=34 |issue=7 |pages=811–822|doi= 10.2307/1069695|jstor= 1069695}}</ref>
 
In [[Scotland]], the concept was developed in the 18th century and was later incorporated into [[English law|English common law]]. It was first adopted in Scotland in 1610, the case being ''Vernor v Elvies'' [1610] Mor 4788, as an extension of ''forum non competens''; two English residents were tried in Scotland argued a Scottish trial would be inconvenient, the court ruling "The Lords will not find themselves Judges betwixt two Englishmen". It was expanded and applied in the 1860s (in ''Clements v Macauley'' [1866] 4 S 224 and ''Longworth v Hope'' [1865] 3 S 1049), which led to its incorporation into English law. The pleading was used in situations where the competence of the court was unchallenged (unlike ''forum non competens'') but the court was asked to invoke its discretion.<ref name=":0" />
The doctrine of FNC originated in the [[United States]] in ''Willendson v. Forsoket'' [29 Fed Cas 1283 (DC Pa 1801)] (No 17,682) where a federal district court in [[Pennsylvania]] declined to exercise jurisdiction over a [[Denmark|Danish]] sea captain who was being sued for back wages by a Danish seaman, stating that "[i]f any differences should hereafter arise, it must be settled by a Danish tribunal." In [[Scotland]], the concept is first recorded in ''MacMaster v. MacMaster'' (Judgment of 7 June 1833, Sess, Scot 11 Sess Cas, First Series 685.)
 
The doctrine had been applied in several jurisdictions under varying names; in the 1793 case ''Robertson v Kerr'', a Massachusetts court refused to apply jurisdiction in a case involving a foreign transaction between non-residents.<ref name=":0" />
 
According to the "parental function" of [[Law of the Soviet Union|Soviet law]],<ref>James L. Hildebrand,
The Sociology of Soviet Law: The Heuristic and "Parental" Functions, 22 Case W. Rsrv. L. Rev. 157 (1971)</ref> the 1964 R.S.F.S.R. code of civil procedure recognised the doctrine of ''forum non conveniens'' for civil procedures.<ref>J. Alex Morton, Civil Procedure in the U.S.S.R., 7 Case W. Res. J. Int'l L. 211 (1975)</ref>
 
===United Kingdom===
{{Expand section|date=March 2022}}
The doctrine has limited application in most civil law jurisdictions which prefer ''[[lis alibi pendens]]'', although the principle behind FNC is acknowledged. As a member of the [[European Union]], the [[United Kingdom]] signed the [[Brussels Convention]]. The [[Civil Jurisdiction and Judgments Act (1982)]] as amended by the [[Civil Jurisdiction and Judgments Act (1991)]] states:
{{quoteblockquote|Nothing in this Act shall prevent any court in the UK from staying, sisting [staying or stopping a process, or summoning a party<ref>{{cite web|url=http://www.scotcourts.gov.uk/library/publications/docs/glossary.pdf |title=ArchivedWe copyhave recently updated our website |access-date=2014-01-07 |url-status=dead |archive-url=https://web.archive.org/web/20121209114651/http://scotcourts.gov.uk/library/publications/docs/glossary.pdf |archive-date=2012-12-09 }}</ref>], 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 [Brussels] Convention or, as the case may be, the Lugano Convention.}}
 
The case of ''Owusu v Jackson and Others''<ref>{{cite web|url=http://www.bailii.org/eu/cases/EUECJ/2005/C28102.html |title=Owusu (Judgments Convention/Enforcement of judgments) [2005&#93; EUECJ C-281/02 (01 March 2005) |publisher=Bailii.org |date= |accessdate=2022-09-07}}</ref> before the [[European Court of Justice]], was concerned with the relationship between Article 2 of the Brussels Convention and the scope of FNC within the [[European Community]]. In ''Owusu'', the English [[Court of Appeal of England and Wales|Court of Appeal]] asked the ECJ whether it could stay a matter brought to it under Article 2 Brussels Convention pursuant to the English FNC rules. The Court held that the Brussels Convention was a mandatory set of rules designed to harmonise and so produce a predictable system throughout the EU. If states were able to derogate from the Convention using their domestic rules of civil procedure, this would deny a uniform result to proceedings based on forum selection. Hence, at 46. the ECJ held:
{{quoteblockquote|the Brussels Convention precludes a court of a Contracting State from declining the jurisdiction conferred on it by Article 2 of that convention on the ground that a court of a non-Contracting State would be a more appropriate forum for the trial of the action even if the jurisdiction of no other Contracting State is in issue or the proceedings have no connecting factors to any other Contracting State.<ref>{{cite web|url=http://www.waltonsandmorse.com/Decisions2.jsp?decisionsID=9|title = NameBright - Coming Soon}}</ref>}}
 
However, some UK commentators{{According to whom|date=March 2022}} argue that the FNC rules may still apply to cases where the other proceedings are not in a Member state but this remains uncertain. What is certain is that aA Scottish Court may sist its proceedings in favour of the Courts of England or Northern Ireland on the ground of FNC, since this is settling intra-UK jurisdiction.<ref>Cumming v Scottish Daily Record and Sunday Mail Ltd, The Times June 8, 1995; Collins: 1995</ref>
 
===Australia===
In the jurisdictions where the FNC rule survives, a court will usually dismiss a case when the judge determines that the dispute would be better adjudicated in a different forum. CourtsAfter havea been split in their applicationsperiod of thesplit rule.approach Into ''Oceanicforum Sunnon Line Special Shipping Co v Fayconveniens'' (1988) 165 CLR 197 and ''Voth v Manildra Flour Mills'' (1990) 171 CLR 538, the [[High Court of Australia|High Court]] refused to adopt the "most suitable forum" approach and instead devised its own "clearly inappropriate forum" test. Nevertheless, the Australian courts balanced the foreign and local factors, andadopted a dismissalconsolidated wouldapplication only be granted ifof the defendantrule couldin show''Voth thatv heManildra wasFlourd "oppressed" or "harassed" by the plaintiffMills''s choice(1990) of171 AustraliaCLR for legal action538. This retaineddecision affirmed the rationalejudgement of the[[William traditionalDeane|Justice doctrine,Deane]] making it impossible for Australian defendants to obtain a dismissal from their own courts on FNC grounds. Inin ''RegieOceanic NationalSun desLine UsinesSpecial RenaultShipping SACo v ZhangFay'' (20021988) 210165 CLR 491197, whereby his Honour departed from the Hightraditional Courttest affirmedand articulated the "clearly inappropriate forum" test.<ref asname=":1">{{Citation Australian|last=Brand law,|first=Ronald whileA. stating|title=Australia that|date=2007-07-26 even|work=Forum whereNon theConveniens law|pages=87–100 of|url=https://doi.org/10.1093/acprof:oso/9780195329278.003.0005 a|access-date=2024-02-27 foreign|publisher=Oxford countryUniversity hadPress to|doi=10.1093/acprof:oso/9780195329278.003.0005 be|isbn=978-0-19-532927-8 applied|last2=Jablonski to|first2=Scott decide a case, Australia would not be a "clearly inappropriate" forum for hearing the matterR.}}</ref>Lindell: 2002</ref>
 
In ''Voth'', the [[High Court of Australia]] refused to adopt the "more appropriate forum" approach and instead affirmed [[William Deane|Justice Deane's]] test.<ref>''Voth v Manildra Flour Mills Pty Ltd'' (1990) 171 CLR 538, 560.</ref> This approach requires that continuation of proceedings in Australia would cause vexation or oppression on the defendant, to such an extent that it would amount to a serious injustice.<ref name=":1" /> The court found that their approach retained the rationale of the traditional doctrine, while sparing them unduly time consuming considerations associated with the complex questions arising under the traditional test.<ref>''Voth v Manildra Flour Mills Pty Ltd'' (1990) 171 CLR 538, 559.</ref>
 
Notable subsequent developments of the test include the ''Zhang'' and the ''Henry'' cases. In ''Regie National des Usines Renault SA v Zhang'' (2002) 210 CLR 491, the [[High Court of Australia|High Court]] affirmed the "clearly inappropriate forum" test as Australian law, while stating that even where the law of a foreign country had to be applied to decide a case, Australia would not be a "clearly inappropriate" forum for hearing the matter.<ref>Lindell: 2002</ref> In ''Henry v Henry'' (1996) 185 CLR 571, the High Court found that it would be ''[[prima facie]]'' vexatious and oppressive to commence proceedings in Australia after proceedings for substantially the same subject matter were initiated in another jurisdiction.<ref>''Henry v Henry'' (1996) 185 CLR 571, 587.</ref>
 
===Canada===
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The law of the province of Quebec, Canada is slightly different. The Quebec Civil Code 1994, at art. 3135 c.c.q., provides:
{{quoteblockquote|Even though a Quebec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide.}}
 
The practical effects are identical to any other jurisdiction but the wording used by the code is different. For decisions applying art. 3135 c.c.q., see ''H.L. Boulton & Co. S.C.C.A. v. Banque Royale du Canada'' (1995) R.J.Q. 213 (Quebec. Supr. Ct.); ''Lamborghini (Canada) Inc. v. Automobili Lamborghini S.P.A.'' (1997) R.J.Q. 58 (Quebec. C.A.); ''Spar Aerospace v. American Mobile Satellite'' (2002) 4 S.C.R. 205, and ''Grecon Dimter Inc. v. J.R. Normand Inc.'' (2004) R.J.Q. 88 (Quebec. C.A.)
 
===United States===
{{Unreferenced section|date=March 2022}}
The defendant may move to dismiss an action on the ground of FNC. Invoking this doctrine usually means that the plaintiff properly invoked the jurisdiction of the court, but it is inconvenient for the court and the defendant to have a trial in the original jurisdiction. The court must balance convenience against the plaintiff's choice of forum. In other words, if the plaintiff's choice of forum was reasonable, the defendant must show a compelling reason to change jurisdiction. If a transfer would simply shift the inconvenience from one party to the other, the plaintiff's choice of forum should not be disturbed.
 
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==Europe==
The doctrine of FNC gained little footing in the civil law world, which prefers the approach of ''[[lis alibi pendens]]'' (see Articles 21-23 Brussels Convention). The civil law jurisdictions generally base jurisdiction on the residence of the defendant and on [[choice of law]] rules favouring the [[habitual residence]] of the parties, the ''[[lex situs]]'', and the ''[[lex loci solutionis]]'' (applying ''actor sequitur forum rei''). This reflects an expectation that a defendant should be sued at his "own" courts, modified to reflect different priorities in certain types of case. As an example of this expectation, Article 2 [[Brussels I Regulation]] (as well as the corresponding Lugano conventions) provides:
{{quoteblockquote|
Subject to the provisions of this Convention, persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that State.
 
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==External links==
{{Portal|Law}}
* [http://www.jus.uio.no/lm/brussels.jurisdiction.and.enforcement.of.judgments.in.civil.and.commercial.matters.convention.1968/doc.html The Brussels Convention] {{Webarchive|url=https://web.archive.org/web/20060626211154/http://www.jus.uio.no/lm/brussels.jurisdiction.and.enforcement.of.judgments.in.civil.and.commercial.matters.convention.1968/doc.html |date=2006-06-26 }}
* [https://web.archive.org/web/20081030004354/http://www.sherby.co.il/200803ILQ.pdf ''Forum Non Conveniens'' Dismissal: The Quieter Side of Section 1782 Discovery]
* [https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3543&context=californialawreview "The Doctrine of Forum Non Conveniens"] {{Webarchive|url=https://web.archive.org/web/20190427233320/https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3543&context=californialawreview |date=2019-04-27 }} Edward L. Barrett, Jr. ''California Law Review'', September 1947. (PDF)
* [https://digitalcommons.law.buffalo.edu/cgi/viewcontent.cgi?article=1022&context=bjil "Forum Non Conveniens in the United States and Canada"] Donald J. Carney. ''Buffalo Journal of International Law'', July 1996. (PDF)
 
[[Category:LatinLegal legalrules with Latin terminologynames]]
[[Category:Legal doctrines and principles]]
[[Category:Venue (law)]]
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