Document: Dissertation de Droit Commercial en langue anglaise: Forumnonconveniens (15 pages)
Extrait: The doctrine of lis alibi pendens applies in private international law in order to avoid contradictory judgment. In deed, because the rules of jurisdiction can differ from a country to another, it may happen that two courts from two different legal systems are seized. Are they both going to pronounce a binding judgement, which could be unfair for the defendant and, in addition, dangerous if the judgements are contradictory (in deed, how to enforce two inconsistent judicial decisions?)?
According to the lis alibi pendens doctrine, when two courts are seized and have to hear the same dispute, the one which was last seized shall stay in the proceedings in favour of the court where the litigation was first introduced.
This doctrine is not only used in common law legal system. It is also used in civil law, especially in continental Europe. In deed, lis alibi pendens is mentioned in the Brussels Convention and in the Brussels I Regulation. Article 21 of the Brussels Convention states that ?where proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States, any court other than the court first seized shall of its own motion decline jurisdiction in favour of that court?. The Convention is clear when two courts from two Contracting States are seized of the same in case. But what happens if the first court seized is from a non Contracting State?
If the first court has already given a judgement, the problem is solved by the provisions of the Convention: Article 27-5 of the Brussels Convention states that ?a judgment shall not be recognised ? if the judgment is irreconcilable with an earlier judgment given in a non Contracting State involving the same cause of action and between the same parties, provided that this latter judgments fulfils the conditions necessary for its recognition in the State addressed?. But what happens when no judgment has been given?
This question presents an interest regarding common law jurisdiction. In deed, the rules governing the doctrine of lis alibi pendens in the United Kingdom and Ireland are considered more flexible that the rules in other jurisdictions of continental Europe which have more developed the doctrine than common law jurisdictions. Before English and Irish jurisdictions, it is always at a court's discretion to determine whether a stay should be granted. It was considered in the Schlosser Report when Britain and Ireland joined in the European Union. Thus, in these European common law legal systems, the lis alibi pendens doctrine seems to be closely linked to forumnonconveniens. This leads to an interrogation concerning the consequences of the Owusu precedent on lis alibi pendens in England and Ireland. This question was brought before the Irish courts in the Goshawk case.
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[...] Canuslex Ltd, The Spiliada  A.C ?Forum Non Conveniens and the Brussels Convention? (1990) 106 L.Q.R Group Josi Reinsurance Company SA v. Universal General Insurance Company,  ILPr 549 (ECJ). Owusu v. Jackson & Others, C-281/ ECR1-1383. Goshawk Dedicated Ltd & Others v. Life Receivables Ireland Ltd  IEHC 90 (27 February 2008). Goshawk Dedicated (No. Ltd, and Cavell ManagementCavell Managing Agency Ltd v. Life Receivables Ireland Limited  IESC 7. [...]
[...] However, the company operated its activities in Argentina where its central management and control was exercised. Thus, when the minority shareholder brought the proceedings in the English courts, the preliminary question was to know whether or not jurisdiction could be declined on the ground of forum non conveniens. For the minority shareholder, Ladenimor S.A., who had commenced the proceedings before the English courts, because the company had an English domicile, the British judges were obliged to assume jurisdiction by virtue of Article 2 of the Convention. [...]
[...] APPLICATION OF FORUM NON CONVENIENS The latest definition of forum non conveniens was given by Lord Goff in the Spiliada case. This definition was taken up again by the Supreme Court of Ireland in the Intermetal Group Limited & Arnor decision. These precedents also gives a clear example of application of the doctrine of forum non conveniens. Who is carrying the burden of proof? On what basis can the judge decide to grant a stay in the proceedings? Once again, to answer these questions, we have to go back to the Spiliada case. [...]
[...] To introduce the doctrine of forum non conveniens in English Law, the House of Lords redefined the notions of vexation, oppression, and abuse of process. By using an old vocabulary, the British Lords made the notion of forum non conveniens briefly unstable after the decision in The Atlantic Star. The MacShannon decision used explicitly for the first time the doctrine of forum non conveniens. It is in this decision that an English court really came to formulate the doctrine, abandoning the test of the vexatious or oppressive litigation in favour of the most suitable forum approach. [...]
[...] In England and Ireland, the application of the doctrine of forum non conveniens came more lately despite its early origins. Some accused England of ?judicial chauvinism? arguing that there was a judicial view that ?England . is a good place to [forum] shop in, both for the quality of the goods and the speed of service?. The truth is that the situation was not the same in UK and Ireland than it was in the United States where the courts had to deal with an increase of international litigations. [...]