A Critique of the Doctrine of Forum Non Conveniens

markus a. petsche, Taylor's University

Abstract

In this article, I formulate a basic critique of the doctrine of forum non conveniens. Unlike other authors, I do not focus on the numerous problems posed by the actual application of this doctrine in practice (e.g. delaying effect on proceedings, incoherent decisions, and discrimination against foreign plaintiffs). Instead, I explore the validity of the theory of forum non conveniens, i.e. the question of whether forum non conveniens – if applied in the best possible manner – can at all be a useful legal rule.

My starting point is the observation that, despite the prevalence of contrary views, forum non conveniens constitutes a jurisdictional rule and that, therefore, it should pursue objectives that are properly associated with such rules. On the basis of an analysis of the interests involved in issues of international jurisdiction, I argue that the legitimate objectives of forum non conveniens consist of efficiency and fairness (understood as equal convenience of the forum) and that all other objectives (and notably the reduction of judicial caseloads and the protection of domestic litigants) are unjustified. Transposing the basic principle that conflict of laws rules should not pursue interests of “material” justice to the jurisdictional context, I also show that any taking into account of likely outcomes as part of the forum non conveniens analysis is inappropriate.

Second, I show that even an ideal doctrine of forum non conveniens ultimately fails to achieve its objectives. In this respect, I highlight the difficulty to translate the forum non conveniens objectives into a workable rule or “test” and the inherent risks of judicial errors and abuses. Third, most importantly, I demonstrate that the role assigned to forum non conveniens can be performed more efficiently by appropriate jurisdictional rules and that there is thus no need for a doctrine of forum non conveniens. I explain that forum non conveniens emerged as a response to the “excesses” of rules of exorbitant jurisdiction and that, in the absence of such rules, the role of forum non conveniens is significantly reduced. I also show that abstract rules of jurisdiction are able to ensure efficiency and fairness in the vast majority of cases and that discretionary adjustments at the judicial level are not necessary.