NATIONAL LAW UNIVERSITY ODISHA, CUTTACK

THE RULE OF FORUM NON

CONVENIENS IN CONFLICT OF LAWS

Project for Conflict of Laws

Semester VIII

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 Submitted to:

Mr. Akash Kumar

Submitted y:

Girija Shankar (2013/BBA.LLB/015)

Deepankar Dikshit (2013/BA.LLB/012)

TABLE OF CONTENTS

Declaration.................................................................................................................................3

Table of Cases............................................................................................................................4

Research methodology...............................................................................................................6
1. Object and Scope................................................................................................................6
2. Research Questions............................................................................................................6
3. Chapterisation....................................................................................................................6

Introduction................................................................................................................................7
A. The development of the rule of forum non conveneins.................................................9
I. Origins and development in English law...................................................................9
II. Early applications of forum non conveniens in U.S. courts.....................................10
B. The Modem Framework of Forum Non Conveniens Analysis....................................12
C. The Use of Conditions on Forum Non Conveniens Dismissals...................................14
I. Availability of the alternate forum to the plaintiff...................................................14
II. Adequacy of the alternate forum to the plaintiff......................................................15
III. compensation to the plaintiff for lost conveniences.............................................16
IV. Deference accorded to plaintiff’s choice of forum..............................................16
V. Balancing public and private interests.....................................................................17
D. Conclusion....................................................................................................................19

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 TABLE OF CASES

Articles

Alan Reed, To Be or Not to Be: The Forum Non Conveniens Performance Acted Out on
Anglo-American Courtroom Stages, 29 GA. J. INT’L & COMP. L. 31, 42 (2000)...............14
Aric K. Short, Is the Alien Tort Statute Sacrosanct ?Retaining Forum Non Conveniens in
Human Rights Litigation, 33 N.Y.U. J. INT'L L. & POL. 1001, 1019 (2001).......................11
Blair, The Doctrine of Forum non Conveniens in Anglo-American Law, 29 COL. L. REV. 1
(1929).....................................................................................................................................8
Dainow, The Inappropriate Forum.............................................................................................8
David W. Rivkin and Suzanne M. Grosso, Forum Non Conveniens: A Doctrine On the Move
5 Bus. L. Int'l 1 (2004).........................................................................................................17
Finity E. Jeringan, Forum Non Conveniens: Whose Convenience and Justice? 86 TEX. L.
REV. 1079, 1092 (2008).......................................................................................................16
John Bies, Conditioning Forum Non Conveniens 67 U. Chi. L. Rev. 489, 493 (2000)..........16
Markus Petsche, A Critique Of The Doctrine Of Forum Non Conveniens, 24 FLA. J. INT'L L.
545 2012...............................................................................................................................19
Peter Prince, Bhopal, Bougainville and Ok Tedi: Why Australia's Forum Non Conveniens
Approach Is Better, 47 INT'L & COMP. L.Q. 573, 576 (1998)...............................................15
Ruth B. Ginsburg, Faculty Comment - The Competent Court in Private International Law:
Some Observations on Current Views in the United States...................................................9
Simona Grossi, Forum Non Conveniens as a Jurisdictional Doctrine 75 U. PITT. L. REV. 1, 10
(2014)...................................................................................................................................10

Municipal Cases

American Dredging Co. v. Miller, 510 U.S. 443, 455 (1994).................................................14

Broderick v. Rosner 294 U.S. 629, 642-43 (1935)..................................................................11
Can. Malting Co. v. Patterson S.S. 285 U.S. 413, 422 (1932).................................................11
Glaxo Smithkline Consumer Healthcare Ltd. v. Heinz India (P) Ltd. 39 PTC 498 (Del)
(2009)...................................................................................................................................14
Gulf Oil Corp. v. Gilbert............................................................................................................8
In Re Union Carbide Corporation Gas Plant Disaster at Bhopal, India in December 1984 v
Union Carbide Corporation 809 F 2d 195 (1987)................................................................13
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Logan v. Bank of Scotland [1906] 1 K.B. 141.........................................................................10
Lueck v SundstrandCorp,236 F 3d 1137 (9th Cir 2001)..........................................................17
Piper Aircraft Co v Reyno 330 US 518 (1947)........................................................................12
Societe du Gaz de Paris v. Societe Anonyme de Navigation "Les Armateurs Franeais S.C. 13
(H.L.) [1926]........................................................................................................................10
St. Louis, S.F. Ry. v. Superior Ct...............................................................................................8
Sussman v Bank of Israel,990 F2d 71,71 (2d Cir 1993)..........................................................17
Voth v. Manildra Flour Mills Proprietary Ltd. 171 C.L.R. 538 (1990)...................................14

Treatises and Books

COLLIER, J.G. CONFLICT OF LAWS............................................................................................8

GIBB, THE INTERNATIONAL LAW OF JURISDICTION IN ENGLAND AND SCOTLAND ......................8

GLOAG AND HENDERSON, INTRODUCTION TO THE LAW OF SCOTLAND ......................................8

NORTH, P.M. AND FAWCETT, J.J. CHESHIRE AND NORTH’S INTERNATIONAL LAW..................8
RONALD A. BRAND & SCOTT R. JABLONSKI, FORUM NON CONVENIENS: HISTORY, GLOBAL
PRACTICE, AND FUTURE UNDER THE HAGUE CONVENTION ON CHOICE OF COURT
AGREEMENTS........................................................................................................................10

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 RESEARCH METHODOLOGY

1. OBJECT AND SCOPE

The object of the present paper is to address the development of the jurisdictional rule of the
doctrine of the forum non conveniens in conflict of law and the examines the scope and
conditions imposed on the courts for the dismissal of the case upon the forum non conveniens
rule. Substantial focus has been with reference to development of the rule in the United States
and United Kingdom.

2. RESEARCH QUESTIONS

The paper seeks to answer two questions:

• (i)  How did the the rule of forum non conveniens historically evolved and originated?

• (ii) What are the conditions attached to the rule of forum non conveniens for its
applicability?

• (iii) What is the modern framework of the Forum Non Conveniens?

The present paper relies extensively on case law discussions by eminent scholars on the
doctrine.

3. CHAPTERISATION

The paper is divided into three substantive chapters. The author first introduces the concept
of the rule of forum non conveniens in the conflict of laws and thereafter deals with the
historical foundations of the rule in Scotland, England and United States in Chapter I.
Chapter II addresses the modern framework of the rule of forum non conveniens. Chapter III
discusses the conditions imposed for dismissing the forum non conveniens. In the last part of
the paper, the authors present their conclusions.

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 INTRODUCTION

“The rule or doctrine of forum non conveniens is a well recognized judge-made doctrine of
private international law (conflicts of laws).1 Private international or ‘conflict of laws’ is that
part of law where the courts are faced with the issues concerning a foreign presence. 2 This
doctrine gives the trial courts a discretionary power to stay or to refuse cases whenever the
forum or court would be inappropriate. The Doctrine of forum non-conveniens means that a
court can refuse to take jurisdiction of any matter whatsoever. The court has the discretionary
power to decline such cause of action if the matter has some issues which involves
extraneous origins or elements.3 This is done so that the matter and its cause of action can be
settled at a place which is more suitable to settle the matter. 4 But this doctrine is only
operational in cases where the matter actually can be settled in more than one jurisdiction.
The essence of this doctrine is that it cannot be said that the court has the “power” to refuse
any matter, but instead the court has the “wisdom” to identify the exact place where the cause
of action arise.5”

“It should be noted that there cannot be any rules or criteria which can be determined in
advance to decide which matter the court has to refuse to take up under its jurisdiction. That
will depend on the facts of each case. The court will balance the conveniences of the parties,
and "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum
should rarely be disturbed."6 General elements are considered to decide whether the remedy
should be provided or not, like the interest of private as well as public litigants.”

“This doctrine has fully developed in some countries of Europe. England and Scotland are the
prime examples.7 There is a general rule that it is obligatory for a court to exercise its power,
which has the jurisdiction of a matter. But in England it is followed now that if the parties to

1
COLLIER, J.G. CONFLICT OF LAWS 81 (1994).
2
NORTH, P.M. AND FAWCETT, J.J. CHESHIRE AND NORTH’S INTERNATIONAL LAW 3 (1999).
3
St. Louis, S.F. Ry. v. Superior Ct., 276 P.2d 773 (Okla. 1954), opinion supplemented, 290 P.2d 118 (Okla.
1955).
4
Ibid.
5
Gulf Oil Corp. v. Gilbert 330 U.S. 501 (1947) [hereinafter “Gilbert”].
6
Ibid.

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the matter have the cause of action outside the country, then the court inside the country
which also has jurisdiction on the matter can decline to take it up.8The doctrine of forum non
conveniens can be regarded as a specific application of the idea that judicial discretion helps
to ensure fairness in individual cases.” 9

7
Blair, The Doctrine of Forum non Conveniens in Anglo-American Law, 29 COL. L. REV. 1 (1929); Dainow,
The Inappropriate Forum, 29 ILL. L. REV. 867 (1935); GIBB, THE INTERNATIONAL LAW OF JURISDICTION IN
ENGLAND AND SCOTLAND (1926); GLOAG AND HENDERSON, INTRODUCTION TO THE LAW OF SCOTLAND 22
(1939).
8
Ibid.
9
Ruth B. Ginsburg, Faculty Comment - The Competent Court in Private International Law: Some Observations
on Current Views in the United States, 20 RUTGERS L. REV. 89, 89.

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 A. THE DEVELOPMENT OF THE RULE OF FORUM NON CONVENEINS

I. ORIGINS AND DEVELOPMENT IN ENGLISH LAW.

“The history of therule of forum non conveniens can be traced to the doctrine formulated in
seventeenth century by the Scottish Courts as doctrine of Forum Non Competens to refuse the
exercise of its jurisdiction.10It was only the early 19thcentury that the Scottish doctrine
evolved as the rule of forum non conveniens. The rule of forum non conveniens was
acknowledged in the judgment of Logan v. Bank of Scotland. 11 In Logan, a Scottish plaintiff
filed a suit against Bank of Scotland for false representation and the jurisdiction was
established in England on the basis of the defendant's London branch bank. The court granted
the defendant's motion to stay the proceedings in deference to a Scottish forum as the court
deemed as a "serious injustice" to the defendant in trying the suit in London. 12

The English perspective of the forum non conveniens was applicable only under exceptional
circumstances, specifically when the proceedings in England would be extremely “vexatious
or oppressive” for the litigants and the court itself. 13 Moreover, the doctrine was used mainly
to correct a gross unfairness that a rigid application of the jurisdictional doctrines or rules
might otherwise produce.14

In Societe du Gaz de Paris v. SocieteAnonyme de Navigation "Les ArmateursFraneais”, a

shipman from France sued the French ship owner in a Scottish court, obtaining jurisdiction
by attaching the defendant's property.15 The plaintiff’s prayer was for damages for the loss of
its cargo due to the bad condition of the defendant's vessels, which wasplunged on a trip from
Scotland to France. The judges noted that “if in the whole circumstances of the case it be
discovered that there is a real unfairness to one of the suitors in permitting the choice of a
forum which is not the natural or proper forum, either on the ground of convenience of trial

10
RONALD A. BRAND & SCOTT R. JABLONSKI, FORUM NON CONVENIENS: HISTORY, GLOBAL PRACTICE, AND
FUTURE UNDER THE HAGUE CONVENTION ON CHOICE OF COURT AGREEMENTS 7 (2007).
11
Logan v. Bank of Scotland [1906] 1 K.B. 141 (Eng.).
12
Ibid. at 152.
13
SimonaGrossi, Forum Non Conveniens as a Jurisdictional Doctrine 75 U. PITT. L. REV. 1, 10 (2014)
[Hereinafter “Grossi”].
14
Ibid.
15
Societe du Gaz de Paris v. SocieteAnonyme de Navigation "Les ArmateursFraneais S.C. 13 (H.L.) [1926].

8
or the residence or domicile of parties, or of its being either the locus contractus,or the locus
solutionis, then the doctrine offorum non conveniens is properly applied.”16

In Egber v. Short, another English judicial decision, the plaintiff was a foreign national,
domiciled in India filed a suit against the defendant, an Indian solicitor. The dispute was
pertaining to the breach of the “trust agreement” made in India and was governed by the
Laws of India. The court applied the doctrine of forum non conveniens and held that the mere
presence of the defendant in the England does not provide a rationale for exercising the
court’s jurisdiction as it would have been vexatious for the defendant since all the proof and
relevant evidence was in India. Therefore, the application of the forum non conveniens rule
was to correct the unfairness which would have been caused to the defendant from the
exercise of the court’s jurisdiction over the dispute. The prominent Scottish and English
precedents referred above reflect that the rule of forum non conveniens was used
predominantly to correct theunfairness and potential difficulties which may arise owing to the
exercise of the jurisdictional rule.”

II. EARLY APPLICATIONS OF FORUM NON CONVENIENS IN U.S. COURTS.

The idea that a court possessing jurisdiction is obligated to exercise it is not universally
true.17In the United States, Supreme Court has long recognized the discretion of both state
and federal courts to decline to exercise jurisdiction in exceptional circumstances. 18 The
doctrine of forum non conveniens was inconsistently applied until 19471 19 when In Gulf Oil
Corp. v. Gilbert, the US supreme court recognized the existence of forum non conveniens
doctrine to dismiss cases in federal court and formulated a test for the application of the
doctrine.20

In Gilbert, the plaintiff was a Virginian resident sued Gulf Oil Corporation, a Pennsylvannia
corporation in a New York federal court alleging that due to the negligent acts by the

16
Ibid.
17
Can. Malting Co. v. Patterson S.S. 285 U.S. 413, 422 (1932).
18
Broderick v. Rosner 294 U.S. 629, 642-43 (1935).
19
Aric K. Short, Is the Alien Tort Statute Sacrosanct ?Retaining Forum Non Conveniens in Human Rights
Litigation, 33 N.Y.U. J. INT'L L. & POL. 1001, 1019 (2001).
20
Gilbert, supra note 3.

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defendant in Virgnia the plaintiff’s warehouse was set on fire.21 The suit had to no other link
to the forum state, the New York, apart from the fact that the defendant was doing business
there.22

Although the choice of the forum was technically proper, that forum was not a natural forum
for the action.23 The defendant filed a motion to reject the case on forum non conveniens
grounds, the more appropriate forum being in Virginia where the plaintiff, the witnesseswas
residing and where most of the witnesses were to be found, where the claim arose, and where
the claim arose.24

When the case was brought before the supreme court, the court of appeals had reversed the
decision of the district court to grant the motion to the defendant.25 The Supreme Court while
upholding the decision of the district court noted that the case in hand was one of the rare
cases where the rule of forum non conveniens could be applied as the plaintiff’s choice of
New York forum was not a natural forum. 26 The court while determining the applicability of
the rule of forum non conveniens also took public and private factors into consideration. 27
These factors included access to evidence, availability of witness, the administrative
difficulties that follow for courts when litigation is piled up in congested centers instead of
being handled at its origin; jury duty-which should not be imposed upon the people of a
community with no relation to the litigation; and a local interest in having localized
controversies decided at home (public factors).28

The approach followed by the court in Gilbert was also maintained while deciding Koster v
(American) Lumbermens Mutual Casualty Co.29 In Koster, a New York citizen brought a

21
Ibid. at 502-503.
22
Ibid.
23
Ibid.
24
Ibid.
25
Grossi, supra note 7, 17.
26
Gilbert, supra note 5.
27
Ibid. at 508.
28
Gilber, supra note 5.
29
Piper Aircraft Co v Reyno 330 US 518 (1947). [hereinafter “Piper”].

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derivative action against an Insurance company based in Illinois. The court while rejecting
the complaint of the plaintiff noted that since all the evidence and witnesses were located in
Illinois and no convenience was established for bringing the action in New York.30

B. THE MODEM FRAMEWORK OF FORUM NON CONVENIENS ANALYSIS

In 1981, the US Supreme court in Piper Aircraft Co. v Reyno again dismissed the complaint
through application of the rule of forum non conveniens. In Piper, after suffering injuries
from a plane crash in Scotland, the plaintiffs who were foreign nationals had brought an
action in US against the manufacturers based in US.31The court noted that the primary
objective of the rule of forum non conveniens is to ensure that the trial is convenient. 32
However, in Piper since the plaintiff’s were foreign nationals the court considered that the
foreign plaintiff’s choice deserves less deference.33

The Republic of India following the December 1984 incident, where lethal gas was
disseminated from the plant operated and owned by the Union Carbide India Ltd. As a
consequence, 2000 nationals lost their lives and many were severely injured, brought a class
action suit in New York against the Union Carbide Corporation, the parent company. In Re
Union Carbide CorporationGas PlantDisasterat Bhopal, India in December 1984 v Union
Carbide Corporation34the United States Court of Appeal, Second Circuit dismissed the case,
in consonance with the US Supreme court’s rulings, on various factors. The factors taken into
consideration were: Firstly, the witnesses were not located in United States and were not able
to communicate in English. Secondly, the evidence and documents was in India. Thirdly, the
travel and transportation costs for witnesses would have been exorbitantly high and
substantial. Fourthly, United States interest in the case of minor as compared to India’s
interest in adjudicating the claims. 35

30
Ibid. at 531.
31
Ibid.
32
Ibid.
33
Ibid.
34
In Re Union Carbide Corporation Gas Plant Disaster at Bhopal, India in December 1984 v Union Carbide
Corporation 809 F 2d 195 (1987).
35
Ibid at 199-202.

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In American Dredging Co. v. Miller, the Court held that a state court exercising concurrent
jurisdiction over an admiralty claim was not necessary to follow to the federal principle of
forum non conveniens when state law would have banned application of the doctrine in that
case.36 And inSinochem International Co. v. Malaysia InternationalShipping Corp., the Court
ruled that a federal court could dismiss a case under the forum non conveniens doctrine
before definitively ascertaining its own jurisdiction "when considerations of convenience,
fairness, and judicial economy so warrant.37

In India, the rule of forum non conveniens has not been adjudicated frequently in
comparision to the United States. In the case of GlaxoSmithKline and Horlicks Limited v
Heinz India38 the Delhi High Court noted that the rule of forum non conveniens requires a
two-stage enquiry: (a) Availability of an alternative competent and appropriate forum and (b)
whether it is in the interest of justice to relegate the parties to the alternative forum. 39 Further,
the court noted that the aforementioned rule is to be applied rarely and each case has to
adjudicated on its own facts which include various factors such evidence and witnesses
availability.40

Contrary to the Unites States’ recent approach which requires a determination into whether
the forum is “must suitable”41, the Australian High Court in Voth v. Manildra Flour Mills
Proprietary Ltd.42held that courts in Australia should only use the rule of forum non
conveniens to dismiss a case when hearing it in the Australian forum would be “vexatious
and oppressive.”43In Australia, for the application of the rule of forum non conveniens, it is a
mandatory prerequisite that the appropriate foreign tribunal must be conferred with the

36
American Dredging Co. v. Miller, 510 U.S. 443, 455 (1994)

3749 U.S. 422, 432 (2007).

38
Glaxo Smithkline Consumer Healthcare Ltd. v. Heinz India (P) Ltd. 39 PTC 498 (Del) (2009).
39
Ibid.
40
Ibid.

41
Alan Reed, To Be or Not to Be: The Forum Non Conveniens Performance Acted Out on Anglo-American
Courtroom Stages, 29 GA. J. INT’L & COMP. L. 31, 42 (2000).[hereinafter “Reed”].

42
Voth v. Manildra Flour Mills Proprietary Ltd. 171 C.L.R. 538 (1990).
43
Ibid. at 556 & 564.

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jurisdiction and will exercise it.44For a stay on forum non conveniens to be granted, it has to
be established that the Australian forum is clearly inappropriate.45

C. THE USE OF CONDITIONS ON FORUM NON CONVENIENS DISMISSALS

The defendant for a successful claim of dismissal of complaint upon forum non conveniens
motion, must establish that there exists an adequate alternate forum and should show that the
balance of the private and public factorsweighsstrongly towards the dismissal of the
suit.46The defendant bears the burden of proving both these prongs laid down in the Piper and
Gilbert case.47In American Dredging Co. v. Miller, Justice Scalia observed that the
discretionary nature of the rule, combined with the multifariousness of the factors relevant to
its application make uniformity and predictability of outcome almost impossible. 48Further,
courts generally attach allow the application of the common law rule of forum non
conveniens for dismissal on certain conditions. These requirements can be separated
effectively into two types- those that ensure the accessibility of the alternate forum and those
that compensate the plaintiff for lost conveniences.49The defendant bears the burden of
proving both prongs of the Piper test i.e., that there is an adequate forum

I. AVAILABILITY OF THE ALTERNATE FORUM TO THE PLAINTIFF.

The foremost condition placed while dismissing a case upon forum non conveniens is that the
court has to successfully ensure that the alternative forum extended by the defendant is in fact
presented to the plaintiff without great risks.50 In a similar vein is the condition that the
defendant consent to personal jurisdiction in the al- ternate forum and in fact appear for

44
Reed, supra note 39, 117.
45
Peter Prince, Bhopal, Bougainville and Ok Tedi: Why Australia's Forum Non Conveniens Approach Is Better,
47 INT'L & COMP. L.Q. 573, 576 (1998).

46
Gilbert, supra note 5.

47
Finity E. Jeringan, Forum Non Conveniens: Whose Convenience and Justice? 86 TEX. L. REV. 1079, 1092
(2008).

48
American Dredging Co. v. Mille 510 U.S. at 455 (1994).
49
John Bies, Conditioning Forum Non Conveniens 67 U. Chi. L. Rev. 489, 493 (2000). [hereinafter. “Bies”].
50
Ibid.

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trial.51In Sussman, the US court conditioned dismissal on forum non conveniens on an
"undertaking," or promise, by appropriate officials of the state of the alternate forum would
be available to the plaintiff.52 Moreover, considering the basic argument by the defendant that
the recommended forum is suitable, finding such a defendant estopped from contesting any
adverse judgment from that forum appears reasonable.53

III. ADEQUACY OF THE ALTERNATE FORUM TO THE PLAINTIFF

A determination into whether the forum is adequate requires specific consideration in other
countries’ legal systems. In United States,courts are generally reluctant to declare that the
foreign jurisdiction is inadequate therefore, defendant is not under a heavy
burden.54Nevertheless, the courts are required to conduct a case by case while applying the
doctrine and should not render decision based on prior precedents.55

The proposed forum will be regarded as inadequate if the plaintiff would be denied access to
the recommended forum and is barred from raising the claims with reference to the
complaint.56Therefore, the specific inquiry is whether the remedy available in the alternative
forum is “so clearly inadequate that it is no remedy at all.” 57 Further, In US the courts have
not considered the alternative forum inadequate solely on the ground that the alternate
forum’s justice system is entirely different from the US.58Consequently, courts have therefore
rejected the contentions of the plaintiff that a forum is inadequate because of the less
development of the law59or because remedies sought by the plaintiff are less favorable 60and

51
Quintero v Klaveness Ship Lines, 914 F2d 717, 731 (5th Cir 1990); In re Union Carbide Corp Gas Plant
Disaster,809 F2d 195,203 (2d Cir 1987); Constructor a Spilimerg,CA v Mitsubishi Aircraft Co,700 F2d 225,226
(5th Cir 1983).
52
Sussman v Bank of Israel,990 F2d 71,71 (2d Cir 1993).
53
Bies, supra note 33, 495.
54
David W. Rivkin and Suzanne M. Grosso, Forum Non Conveniens: A Doctrine On the Move 5 Bus. L. Int'l 1
(2004). [hereinafter “Rivkin”]
55
In Re Bridgestone/Firestone,Inc, 190 F Supp 2d 1125 at 1132 n 6 (SD Ind 2002)

56
BaseMetalTrading,253FSupp 2d at 700 (quoting Fed R Civ P 44.1)

57
Piper, supra note 23, 254.
58
Rivkin, supra note 52.
59
Aguinda, 142 F Supp 2d at 540 (Ecuador); Torres, 965 F Supp at 904 (Peru); Polanco, 941 F Supp at 1525-26
(Guatemala); Lueck v SundstrandCorp,236 F 3d 1137 (9th Cir 2001) (New Zealand).

14
because its justice system does not recognize identical causes of actions that were first
brought in the US court.61

IV. COMPENSATION TO THE PLAINTIFF FOR LOST CONVENIENCES.

US Courts have imposed certain conditions not only to commit for the availability of an
alternate forum, but also to compensate the plaintiff for the loss of convenience caused by
dismissal.62In Piper, the court noted that the defendant has to make commitment to ensure
witnesses and other evidence accessible to the plaintiff in the alternate forum.63

V. DEFERENCE ACCORDED TO PLAINTIFF’S CHOICE OF FORUM

US courts give more consent to their citizen the choice of forum and traditionally it has been
difficult to overcome.64 The foreigners on the other hand do not get much of the regard from
US courts when they chose their forum.65 But there is an exception to this tradition. The
countries which have treaties with US under which access of US courts is provided to their
citizens, this doctrine will be applicable in its purest form and the citizens of that country will
be provided same status as US citizens in this regard. 66 If this is not followed by the US
courts, then it will result in a violation of the treaty with the other country. 67 A case can be
discussed to elaborate on this issue. In Iragorri v United Technologies Corporation, where
the person was a US citizen but living outside the country, the court held that ‘the degree of
deference to be given to a plaintiff's choice of forum moves on a sliding scale depending on
several relevant considerations.’68The Court further went on, stating that“On the other hand,
the more it appears that the plaintiff's choice of a US forum was motivated by forum-
shopping reasons - such as attempts to win a tactical advantage resulting from local laws that

60
Nolan v BoeingCo, 762 F Supp 680 at 682 (ED La 1989) (England).

61
CreativeTech, Ltd v Aztech System Pte,Ltd,61 F 3d 696 (9th Cir 1995) (Singapore).

62
Bies, supra note 33.
63
Piper, supra note 23, 257.
64
See Koster, 330 US at 524.
65
See Piper, 454 US at 255-56.
66
See Blanco, 997 F 2d at 981.
67
See International Law Commission, DraftArticles on State Responsibility, Art 4, UN GAOR, 56th Sess, Supp
No 10, at 44, UN Doc A/56/10 (2001).

68
Iragorri v United Techs Corp, 274 F 3d 65 (2nd Cir 2001) (en banc) (discussing Gilbert, Kosterand Piper).

15
favor the plaintiff's case, the habitual generosity of juries in the United States or in the forum
district, the plaintiff's popularity or the defendant's unpopularity in the region, or the
inconvenience and expense to the defendant resulting from litigation in that forum - the less
deference the plaintiff's choice commands and, consequently, the easier it becomes for the
defendant to succeed on a forum non conveniens motion by showing that convenience would
be better served by litigating in another country's courts.”69

VI. BALANCING PUBLIC AND PRIVATE INTERESTS

In United States, the test for balancing the public and private interests is still blurred and
there is a conflict among the US courts of appeals whether the private interests factors should
be examined in the light of public interests factors. 70 There are two conflicting approaches of
the court: In Air Crash Disaster Near New Orleans, the court have held that public interest

factors should only be considered when the private interest factors are in or near equipoise
and is not mandatorywhile in Zelinski v. Columbia, the court held that the consideration of

the public interests factors is mandatory irrespective whether the private interests factors may
71
outweigh the public interests factors.

The Supreme Court in Gilbert regarded the several factors to fall within the scope of public
interests factors. Such as the localized controversies surrounding the dispute, the difficulties
flowing from overload of court with its own work, the issue of foreign law being determined
and adjudicated by a foreign tribunal and imposing a burden of jury to determine a case
72
which will have no impact on its community. The defendant must have strong case and the
balance should be in his favour if he wants the forum according to his convenience. 73 It
should also be mentioned here that the court should give equal importance to all the Gilbert

69
Ibid.
70
David W. Rivkin and Suzanne M. Grosso, Forum Non Conveniens: A Doctrine On the Move 5 Bus. L. Int'l 1
(2004).
71
Air Crash Disaster Near New Orleans, 821 F 2d at 1166 (1982); Zelinski v Columbia, 300 Inc. 335 F 3d 633
at 643 (7th Cir 2003).
72
Gilbert, supra note, 508.
73
Gilbert, 330 US at 508.

16
factors and not to only one of them. 74 These interests relate to the convenience of the
litigants.75 In the case of Aguinda v Texaco, Inc, the court observed the following:‘[A
foreign] court would be able to view those premises and assess the allegations made in
respect to them in ways no New York jury could hope to approximate. Likewise, all plaintiffs,
as well as members of their putative classes, reside in [foreign forum], all of their alleged
personal and property injuries occurred there, and virtually all witnesses to the manner in
which such injuries occurred reside there, along with all the relevant medical and property
records.’76

74
See Piper, 454 US at 249-50.
75
See Gilbert, 330 US at 508.
76
Aguinda v Texaco, In, at 548, see Sequihua v Texaco, 847 F Supp 61 at 64 (SD Tex 1994) (reaching same

conclusion with respect to Ecuador under similar facts).

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 D. CONCLUSION

The author has discussed about the doctrine of forum non conveniens in the present paper and
it’s evolution in Scotland and England. Further, the author has also put light on the scenario
of this doctrine in United States, India, Australia and the United Kingdom. The applicability
of this common law doctrine is almost similar in different countries but only some of the
rules to dismiss the matter vary from place to place.

It should be noted that this doctrine is used to dismiss the petition and direct it to a more
suitable jurisdiction. So while applying this doctrine, the courts should look upon the
protection of the plaintiff and it should be proportional to the reasonableness of his first
choice of forum.77 This will improve the current scenario as it will help the trial courts to put
certain conditions on the dismissals of the matters under forum non conveniens doctrine.
Also, considering the reasonableness of plaintiff’s choice of forum goes in consonance with
the principle of equity. Looking the current practice of this doctrine, it is understood that the
plaintiff is at disadvantage and suffers because of non-convenience of the forum for his
matter. The application of the above-mentioned principle of protecting plaintiff’s reasonable
choice of forum must be applied and used to bring them on an equitable footing.78

The doctrine should also be balanced for the defendants and the courts should not apply it in
an arbitrary manner. Flexibility is much needed but if a foreign party’s matter satisfies all the
jurisdictional requirements, then the matter should be taken up by the court.79

The application of this doctrine should be improved, as the wrong application may result in
its downfall and instead of it a retaliatory legislation might be adopted. 80 As long as this
doctrine is in operation, it should be operational in line with the private and public interests, it
should follow a more challenging test to decide the most convenient forum for a matter. Also,
it should be applied in a non-discriminatory manner.

77
Bies, supra note 33.
78
Ibid.
79
Markus Petsche, A Critique Of The Doctrine Of Forum Non Conveniens, 24 FLA. J. INT'L L. 545 2012.
80
Ibid.

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