Forum non conveniens: An unjustified doctrine

Netherlands International Law Review

Volumn 48, Issue 2, 2001, Pages 143-169

  Zhenjie, Hu ^a  

^a Research Department of the Legal Affairs Office of the State Council   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79957495069     PISSN: 0165070X     EISSN: 17416191     Source Type: Journal    
DOI: 10.1017/S0165070X00001236     Document Type: Article

References (116)

1. J. J. Fawcett, Declining Jurisdiction in Private International Law (Oxford, Clarendon Press 1995) p. 10; P. Prince, 'Bhopal, Bougainville and OkTedi: Why Australia's Forum Non Conveniens Approach Is Better’, 47 ICLQ (1998) p. 573; and the Permanent Bureau of the Hague Conference on Private International Law (hereinafter: Permanent Bureau), 'Note on the Question of “Forum Non Conveniens” in the Perspective of a Double Convention on Judicial Jurisdiction and the Enforcement of Decisions’, Prel. Doc. No. 3, April 1996 (hereinafter: 1996 Prel. Doc. No. 3) pp. 3–4.
2. See P. Blair, 'The Doctrine of Forum Non Conveniens in Anglo-American Law’, 29 Colum. L Rev. (1929) p. 1; and A.M. Bickel, 'The Doctrine of Forum Non Conveniens as Applied in the Federal Courts in Matters of Admiralty’, 35 Cornell Law Quarterly (1949) p. 12.
3. F.K. Juenger, 'Forum Shopping, Domestic and International’, 63 Tulane L Rev. (1989) p. 553; and D.W. Robertson, 'Forum Non Conveniens in America and England: A Rather Fantastic Fiction’, 103 LQR (1987) pp. 398–399.
4. See Fawcett, Human Rights in the World n. 2, at p. 10; and P R. Beaumont, 'A United Kingdom Perspective on the Proposed Hague Judgments Convention’, 24 Brooklyn JIL (1998) p. 82, fn. 13. 6. Cf., A.E. Anton, Private International Law: A Treatise from the Standpoint of Scots law (Edin-burgh, Green 1967) pp. 148-149; A.E. Anton and P.R. Beaumont, Private International Law: A Treatise from the Standpoint of Scots Law (Edinburgh, Green 1990) pp. 213-214; Dicey and Morris, The Conflict of Laws, 12th edn. (London, Sweet and Maxwell 1993) p. 398; M.W. Janis, 'The Doctrine of Forum Non Conveniens and the Bhopal Case’, 34 NILR (1987) p. 193; J.H.C. Morris, The Conflict of Laws, 4th edn. by D. McClean (London, Sweet and Maxwell 1993) p. 93; Cheshire and North, Private International Law, 12th edn. (London, Sweet and Maxwell 1992) p. 222; A. Reus, ' Judicial Discretion: A Comparative View of the Doctrine of Forum Non Conveniens in the United States, the United Kingdom, and Germany’, 16 Loyola of Los Angeles International and Comparative Law (1994) p. 459; A. A. Ehrenzweig, 'The Transient Rule of Personal Jurisdiction: the “Power” Myth and Forum Conve-niens’,65 Yale U (1956)p. 305, fh. 116; and Permanent Bureau, 1996 Prel. Doc. No. 3, ANNEX C-D.
5. Cf, Beaumont, Human Rights in the World n. 5, at p. 76.
6. Cf., Dicey and Morris, Human Rights in the World n. 6, at p. 398; and Permanent Bureau, 1996 Prel. Doc. No. 3, ANNEX D. In Longworth v. Hope,[1865] 3 U, pp, 1049 and 1058, Lord Deas remarked: 'Although questions like the present are ranged in our books under the head offorum non compete ns, the plea is really not that the one forum is incompetent, but that the other forum ought to be preferred. ’ In the same case, Lord President McNeill pointed out: 'The plea has received a wider signification, and it is frequently stated in reference to cases in which the court may consider it more proper for the ends of justice that the parties should seek their remedy in another forum.’
7. Cf., A. Gibb, The International Law of Jurisdiction in England and Scotland (London, Sweet and Maxwell 1926) pp. 212 - 213; and Reus, Human Rights in the World n. 6, at p. 459. Whereas in England attachment of movables belonging to a non-resident no longer creates jurisdiction, it still exists in Scotland. Cf., L.I. de Winter, 'Excessive Jurisdiction in Private International Law’, 17 ICLQ (1968) p. 71; and K.H. Nadel-mann, Conflict of Laws: International and Interstate (The Hague, Nijhoff 1972) pp. 324–325.
8. Cf., Anton, Human Rights in the World n. 6, at p. 149.
9. Human Rights in the World 12. For some important earlier cases, see Permanent Bureau, 1996 Prel. Doc. No. 3, ANNEX D, notes 4, 6, and 8. Earlier cases are also discussed in Anton, Human Rights in the World n. 6, at pp. 149–154.
10. See [1926] Sess. Cos. (H.L.), p. 13.
11. Cf., Blair, Human Rights in the World n. 3, at p. 20.
12. Human Rights in the World
13. Cf., [1974] AC (The Law Reports-Appeal Cases, Britain), p. 436.
14. Cf, [1986] 3 WLR, p. 987.
15. Cf., [1987] AC, pp. 477–478.
16. Cf., [1987] AC, p. 478.
17. Cf., [1987] AC, pp 991–993.
18. Cf., Fawcett, Human Rights in the World n. 2, at p. 11.
19. Cf., Dicey and Morris, Human Rights in the World n. 6, at pp. 400-402; and Fawcett, Human Rights in the World n. 2, at pp. 11–12.
20. Human Rights in the World 26. Cf., Cheshire and North, Human Rights in the World n. 6, at p. 222, fn. 2–7 and the accompanying texts; Fawcett, Human Rights in the World n. 2, atp. 12, fn. 39–43 and the accompanying texts; and P.E. Nygh, Conflict of Laws in Australia, 6th edn. (Sydney, Butterworths 1995) p. 103.
21. Cf., J.-G. Castel, Canadian Conflict of Laws, 3rd edn. (Toronto, Butterworths 1994) pp. 235-236; and Fawcett, Human Rights in the World n. 2, at p. 12.
22. See W. Tetley, ' Current Developments in Canadian Private International Law’, 78 The Canadian Bar Rev. (1999) p. 163.
23. Cf., Permanent Bureau, 1996 Prel. Doc. No. 3, ANNEX B.
24. 1 SCR (Supreme Court Reports, Canada) 1993, pp. 897–940.
25. Human Rights in the World, pp. 919–921.
26. Cf., 165 CLR (Commonwealth Law Reports, Australia) 1988, p. 197.
27. See Nygh, Human Rights in the World n. 26, at p. 103.
28. Cf., 165 CLR 1988, p. 245. 35. Cf., P. Brereton, 4Forum Non Conveniens in Australia: A Case Note on Voth v. Manildra Flour Mills’, 40 ICLQ (1991) p. 895.
29. Cf., Voth v. Manildra Flour Mills Pty Ltd, 171 CLR 1990, p. 538.
30. Cf. CSR Ltd. v. Cigna Insurance Australia Limited and Ors., which is published in Bulletin of Legal Developments, Issue No. 18, 22 September 1997, p. 210.
31. Cf, Permanent Bureau, 1996 Prel. Doc. No. 3, ANNEX A. See also Nygh, Human Rights in the World n. 26, at pp. 107–108.
32. Cf., Brereton, Human Rights in the World n. 35, at p. 895; and Prince, Human Rights in the World n. 2, at p. 576.
33. Cf., Reus, Human Rights in the World n. 6, at p. 460.
34. Cf., Blair, Human Rights in the World n. 3, at p. 1.
35. In a 1956 article, Ehrenzweig writes: 'Slowly and painfully, American courts are developing a common law of forum non conveniens as a corrective of the serious shortcomings in a law of personal jurisdiction based on mere personal service.’ See Ehrenzweig, Human Rights in the World n. 6, at p. 312.
36. Cf., 330 US (1947) p. 501.
37. Cf, 454 US (1981) p. 235. 45. In that case, Gilbert, a resident of Virginia, brought suit in a federal court in New York against Gulf Oil, a Pennsylvania corporation qualified to do business in both Virginia and New York. The plaintiff sought to recover damages from the defendant, alleging that the defendant negligently delivered gasoline to his Virginia warehouse tanks and pumps causing an explosion and fire. The District Court's jurisdiction was solely based on diversity of citizenship. As all the events giving rise to litigation had happened in Virginia, the New York District Court applied the doctrine offorum non conveniens and dismissed the action. The Court of Appeal reversed. The Supreme Court in turn reversed the Appellate Court's decision. See 330 US (1947) pp. 502–503.
38. See 330 US (1947) p. 508.
39. Human Rights in the World
40. Human Rights in the World
41. See 330 US (1947) p. 509. For a detailed analysis of the private/public interests approach, see W.L. Reynold, 'The Proper Forum for a Suit: Transnational Forum Non Conveniens and Counter - Suit Injunction in the Federal Courts’, 70 Tex. L Rev. (1992) pp. 1672–1683.
42. See 330 US (1947) p. 507.
43. Cf., Gilbert, 330 t/S(1947) p. 508. 52. Cf., Robertson, Human Rights in the World n. 4, at pp. 398 and 412.
44. Cf., Robertson, Human Rights in the World n. 4, at p. 401.
45. Para. 1404(a) USCA (United States Code Annotated) provides: 'For the conveniens of parties and witness, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.’ For more information about it, see E.F. Scoles and P. Hay, Conflict of Laws, 2nd edn. (St. Paul, Minnesota, West Publishing Co. 1992) pp. 382–384.
46. Cf., G.B. Bom and D. Westin, International Civil Litigation in United States Courts, 2nd edn. ( Deventer, Kluwer Law and Taxation Publishers 1992) p. 277; and Robertson, Human Rights in the World n. 4, at p. 402.
47. The facts of the case are as follows: In 1976, a small commercial aircraft crashed in Scotland. The pilot and all five passengers were killed. The decedents were all Scottish citizens and residents. The wrongful death actions brought against both Piper Aircraft Company, the Pennsylvania manufacturer of the aircraft, and Hartzell Propeller Inc., the Ohio manufacturer of the propeller, were eventually transferred to the Middle District of Pennsylvania. Both defendants moved to dismiss the action on the ground of forum non conveniens. Relying on the balancing test of private/public interest factors developed in Gilbert, the District Court granted the motions. The Appellate Court reversed, holding, inter alia, that 'dismissal is never appropriate where the law of the alternative forum is less favorable to plaintiff. The Supreme Court affirmed the dismissal of the District Court. See 454 (75 (1981) p. 235; and Robertson, Human Rights in the World n. 4, at p. 402.
48. See454 US(1981)pp. 253–256.
49. Human Rights in the World, p. 250. 59. Human Rights in the World, p. 255.
50. Human Rights in the World, pp. 255–256.
51. See 928 F. Supp. (S.D.N.Y. 1996) p. 374. In this case, five Greek nationals brought a lawsuit against Marika Maritime Corp., a Liberian corporation, which owned the vessel in which crew members of the vessel who were the plaintiffs’ relatives died. Alleging that the defendant's vessel was owned and controlled from the New York area by Peter Pappas, a Connecticut resident, the plaintiffs brought this suit in New York, seeking to recover under the Death on the High Seas Act. The plaintiffs argued that Pappas was an unscrupulous operator who negligently failed to keep the vessel in good repair and who was hiding behind the shield of a collective bargaining agreement that prohibited recourse to courts of countries other than Greece.
52. Cf., 928 F. Supp., p. 378.
53. Cf., Human Rights in the World n. 19. 64. In the US case of Piper, it was also determined that the forum's law would govern the liability issue. Cf.,Reyno v. Piper Aircraft Co., 630 F. 2d (3d Cir. 1980) pp. 149 and 167–171.
54. Cf., A.R. Stein, 'Forum Non Conveniens and the Redundancy of Court-Access Doctrine’, 133 University of Pennsylvania L Rev. (1985) p. 782.
55. For a detailed discussion of the relation between comity andforum non conveniens, see B. Pearce, 'The Comity Doctrine as a Barrier to Judicial Jurisdiction: A U.S.-E.U. Comparison’, 30 Stanford JIL (1994) p. 551. According to this commentator, 'the doctrine offorum non conveniens is a significant relative of the comity doctrine in in personam jurisdiction. In the United States, forum non conveniens, like comity itself, is a federal common-law doctrine without any statutory basis’. Human Rights in the World, at p. 552.
56. Cf, for example, Piper, 454 US (1981) p. 250; De Mateos v. Texaco, Inc., 562 F. 2d (3d Cir. 1977) p. 902; In Re Union Carbide Gas Plant Disaster, 634 F. Supp. (S.D.N. Y. 1986) pp. 862–866. See also Robertson, Human Rights in the World n. 4, at p. 407, and D.W. Robertson, 'The Federal Doctrine of Forum Non Conveniens: “An Object Lesson in Uncontrolled Discretion’”, 29 Texas ILJ(994) p. 372; and J. Duval-Major, 'One-Way Ticket Home: The Federal Doctrine of Forum Non Conveniens and the International Plaintiff, 77 Cornell L Rev. (1992) p. 674.
57. Cf., W. Reynolds, 'The Proper Forum for a Suit: Transnational Forum Non Conveniens and Counter-Suit Injunctions in the Federal Courts’, 70 Tex. L Rev. (1992) p. 1714.
58. In The A bidin Dover, [1984] 1 AC 398, p. 411, Lord Diplock stated with satisfaction that 'judicial chauvinism has been replaced by judicial comity’. See also Amin Rasheed,[1984] AC, p. 65.
59. For more information, see Hu Zhenjie, Chinese Perspectives on International Jurisdiction and the Enforcement of Judgments in Contractual Matters (Zurich, Schulthess 1999) pp. 20 – 23. 71. Cf, Human Rights in the World section 2.2.2.
60. Cf., Human Rights in the World section 2.2.1.
61. Cf., Human Rights in the World sections 2.2. and 2.3.
62. Cf., Human Rights in the World sections 2.2. and 2.3.
63. See Fawcett, Human Rights in the World n. 2, at pp. 15–16.
64. Cf, Piper, 454 US (1981) p. 255; and Human Rights in the World section 2.3.2. 77. Cf.Human Rights in the World sections 2.2 and 2.3.
65. Human Rights in the World 79. This situation may account for the use of anti-suit injunctions, which are used in the common law jurisdictions. For a deeper analysis, see Hu Zhenjie, Human Rights in the World n. 70, at p. 244.
66. Some common law lawyers argue that this would not happen because if a court is not sure that the 'more appropriate forum’ would accept a case, the court would not dismiss it. This is not true. For instance, in the notorious Bhopal case, the Indian government and Supreme Court had expressed their unwillingness to deal with the case, but the US court still dismissed it on the grounds of forum non conveniens. Cf.,infra section 3.3.3. Even if this is true in some countries, the approach cannot be expected to function well. For instance, how can the forum get to know that the 'more appropriate forum’ would entertain the case which this forum is reluctant to hear? It seems that it is improper for the forum to directly communicate the other and discuss the issue with it. If this forum just waits for the entertainment of the case by the 'more appropriate forum’, it will substantially delay the adjudication of the case.
67. See R.J. Weintraub, 'International Litigation and Forum Non Conveniens’, 29 Tex. IU (1994) p. 330.
68. One recent US case again highlights the inconsistent treatment of motions to dismiss or to stay action in reference to foreign proceedings. See Dragon Capity Partners L.P. v. Merrill Lynch Capital Services Inc., 949 F. Supp. (S.D.N.Y. 1997) p. 1123. See also B. Legum, ed., 'International Legal Developments in Review: 1997 - International Litigation’, 32 The International Lawyer (1998) pp. 224–225.
69. In Macedo v. Boeing Co., the defendant's airplane crashed in Portugal, killing 132 persons and injuring 32 others. The ensuing litigation involved 157 plaintiffs, of whom 6 were Americans. The Court of Appeals for the Seventh Circuit held that the trial judge had abused his discretion in dismissing this case for forum non conveniens. On the other hand, in Pain v. United Technologies Corp., the American- aircraft crashed in the North Sea, killing 5 persons, one of whom was an American. The District of Columbia Circuit held that the forum non conveniens dismissal of the case was appropriate. For more details, see Robertson (1994), Human Rights in the World n. 67, at p. 363.
70. Merrell-Dow Pharmaceuticals made and distributed the drug Bendectin, which injured hundreds of persons in many countries. Merrell-Dow has its corporate headquarters in Cincinnati, Ohio. When Canadian victims sued it in the Northern District of Ohio, the defendant's forum non conveniens motion was denied. When British victims sued it in the Southern District of Ohio, the case was dismissed for forum non conveniens'. See Robertson (1994), Human Rights in the World n. 67, at p. 363.
71. Cf., Human Rights in the World section 2.3.1.
72. Robertson, Human Rights in the World n. 4, at p. 414; Duval-Major, Human Rights in the World n. 67, at p. 676; and A.G. Slater, 'Forum Non Conveniens: A View From the Shop Floor’, 104 LQR (1988) p. 554.
73. Cf., Spiliada,[1986] 3 WLR, p. 975 (quoting Lord Templeman).
74. In Lacey v. Essna Aircraft, a personal injury case Mr. Lacey labored toward a hearing on the merits of his claim for almost seven years since his injury. In this case, the plaintiff was injured in 1985. In 1992, the federal district court of the US decided in the end that discovery can go forward in the US court. The case of Mizodami Bros, of Ariz., Inc. v. Baychem Corp. is another example. When it was finally over in 1986, thirteen years had passed since the injury occurred. See Robertson, Human Rights in the World n. 4, at pp. 364–366.
75. Cf, L. Green, 'Jury Trial and Mr. Justice Black’, 65 Yale A/(1956) p. 494.
76. See, for instance, R. C, Casad, 'Jurisdiction in Civil Actions at the End of the Twentieth Century: Forum Conveniens and Forum Non Conveniens’, 7 Tulane Journal of International and Comparative Law (1999) pp, 106–107.
77. Cf, Blair, Human Rights in the World n. 3, at p. 1.
78. An Australian scholar has pointed out: 'But to allow workload - an administrative factor - to influence the forum non conveniens doctrine undermines its legal basis. The US practice of using docket congestion to dismiss a foreign plaintiffs claim seems particularly inappropriate.’ See Prince, Human Rights in the World n. 2, atp. 585. 93. Cf., Robertson, Human Rights in the World n. 4, at p. 407.
79. Cf., Dow Chem. Co. v. Castro Alfaro (Tex. 1990), 786 SW 2d, pp. 674 and 686.
80. For more information, see Robertson (1994), Human Rights in the World n. 67, at pp. 373–375
81. Cf., Prince Human Rights in the World n. 2, at p. 577. 97. Cf., Human Rights in the World sections 2.1 and 2.2.
82. Cf, 326 US (1945) p. 310.
83. Cf., Stein, Human Rights in the World n. 65, at p. 801, and Juenger, Human Rights in the World n. 4, at p. 557.
84. Cf., Stein, Human Rights in the World n. 65, at pp. 801–802.
85. Cf., 'The Yale Law Journal, Comment: Forum Non Conveniens, A New Federal Doctrine’, 56 Yale U (1949) p. 1234.
86. See H. Litman, 'Comment: Considerations of Choice of Law in the Doctrine of Forum Non Conveniens’, 74 California L Rev. (1986) p. 583.
87. Cf., Robertson (1994), Human Rights in the World n. 67, at pp. 368–369. 104. See Robertson, Human Rights in the World n. 4, the title of the article.
88. See P.T. Muchlinski 'The Bhopal Case: Controlling Ultrahazardous Industrial Activities Undertaken by Foreign Investors’, 50 MLR (1987) pp, 579–580.
89. See Prince, Human Rights in the World n. 2, at p. 574.
90. For the courts of the US, Britain and Canada, anti-suit injunctions are another weapon to ensure that the suits which they want to be brought in them will not be brought in a foreign court. Cf., Hu Zhenjie, Human Rights in the World n. 70, at pp. 250–257. 108. For some cases of this kind, see Duval-Major, Human Rights in the World n. 67, at p. 650, fn 5 and at p. 670, fn. 162.
91. For a detailed discussion of the outcome determinative effect of dismissal on the ground offorum non conveniens, see Duval-Major, Human Rights in the World n. 67, at 671-672; and Robertson, Human Rights in the World n. 4, at pp. 417–421.
92. See Human Rights in the World section 2.3.2. 111. Cf., Robertson, Human Rights in the World n. 4, at p. 405; and J.P. Verheul, 'The Forum (Non) Conveniens in England and Dutch Law and Under Some International Conventions’, 35 ICLQ (1986) p. 415.
93. Cf., Piper, 454 US(1981)pp. 260–261.
94. For instance, when discussing the annual renewal of China's Most-Favored-Nation status, the US Congress and government always make its granting subject to some political conditions amongst which human rights figured prominently. Cf., W. Van der Geest, 'Bringing China into the Concert of Nations: An Analysis of Its Accession to the WTO’, 32 Journal of World Trade (1998) p. 112; and Duval-Major, Human Rights in the World n. 67, at fh. 197 and the accompanying text.
95. For details of the case, see Janis, Human Rights in the World n. 6, at pp. 198-203; and Robertson (1994), Human Rights in the World n. 67, at pp. 372–375
96. Cf, Robertson (1994), Human Rights in the World n. 67, at fh. 186 and the accompanying text.
97. Cf., Duval-Major, Human Rights in the World n. 67, at p. 675.
98. Cf, Hu Zhenjie, Human Rights in the World n. 70, at pp. 250–256. 118. Cf., Robertson (1994), Human Rights in the World n. 67, at p. 373, fh. 165 and the accompanying text.
99. Janis, Human Rights in the World n. 6, at pp. 199-203; Prince, Human Rights in the World n. 2, at p. 577; and Robertson (1994), Human Rights in the World n. 67, at p. 373.
100. Human Rights in the World
101. Cf., Robertson (1994), Human Rights in the World n. 67, at p. 368.
102. For details, see Hu Zhenjie, Human Rights in the World n. 70, at p. 245. 123. Cf., Robertson (1994), Human Rights in the World n. 67, at p. 370.
103. Cf., In Re Union Carbide Corp. Gas Plant Disaster at Bhopal India, 684 F. Supp. (S.D.N.Y. 1986) pp. 842 and 867.
104. Some US scholars have criticized this principle, too. Cf., for instance, Duval-Major, Human Rights in the World n. 67, at p. 651; K.L. Hartman, 'Note:Forum Non Conveniens and Foreign Plaintiffs in the Federal Courts’, 69 Georgia U (1981) p. 1257; and A.J. Stevenson, 4Forum Non Conveniens and Equal Access Under Friendship, Commerce, and Navigation Treaties: A Foreign Plaintiffs Rights’, 13 Hastings International and Comparative L Rev. (1990) p. 267.
105. Cf., Human Rights in the World section 2.3.2.
106. Cf., Human Rights in the World section 2.1. 128. See Art. 3 of Brussels and Lugano Conventions.
107. See Permanent Bureau, 1996 Prel. Doc. No. 3, p. 4. The present author does not agree to this opinion. In choosing jurisdictional basis, the considerations should be focused on the objective contacts between the forum and the case. If the plaintiffs home forum has very close connection with the case, it cannot be deemed exorbitant.
108. Cf., 704 F. Supp. (W.D.VIR. 1989) p. 673.
109. Beaumont takes the same view. See Beaumont, Human Rights in the World n. 5, at pp. 79–80. 133. He writes:4 Where and so long as personal jurisdiction was limited to the convenient forum, there was no need, and indeed no room, for a doctrine of forum non conveniens.’ See Ehrenzweig, Human Rights in the World n. 6, at p. 305.
110. Cf., Juenger, Human Rights in the World n. 4, at p. 560; A.F. Lowenfeld, 'Forum Shopping, Antisuit Injunctions, Negative Declarations, and Related Tools of International Litgation’, 91 AJIL (1997) p. 321; H. A. Ellen-crig, 'Expanding Personal Jurisdiction over Foreign Defendants: A Response to Omni Capital International v. Gudolf Wolff & Co. 24 California Western ILJ (1994) p. 380, fh. 116; and G.B. Bom, 'Reflections on Judicial Jurisdiction in International Cases’, 17 The Georgia Journal of International and Comparative Law (9%l)pp. 3 – 5. For more information concerning these matters, seeD.J. Dorward, 'The Forum Non Conveniens Doctrine and the Judicial Protection of Multinational Corporations from Forum Shopping Plaintiffs’, 19 University of Pennsylvania Journal of International Economic Law (1998) pp. 146–150. 135. Cf, Permanent Bureau, 1996 Prel. Doc. No. 3, p. 2.
111. Cf., for instance, Lowenfeld, Human Rights in the World n. 134, at pp. 322–324.
112. The real reason for the doctrine's exclusion from the Brussels Convention is said to be the fear that to allow such an open-ended jurisdictional discretion would threaten to disrupt the proper functioning of the overall Convention system, whereunder judgment-courts are bound to apply fixed, known jurisdiction grounds and recognition-courts are thereby enabled to grant fast and effective recognition and enforcement without requiring to review the jurisdiction of the court of origin. Cf, P. Kaye, 'The EEC Judgments Convention and the Outer World: Goodbye to Forum Non Conveniens?’, The Journal of Business Law (1992) p. 49.
113. Cf, Permanent Bureau, 1996 Prel. Doc. No. 3, p. 4. 139. Cf., Permanent Bureau, 1996 Prel. Doc. No. 3, p. 2.
114. Cf., Permanent Bureau, 'Synthesis of the Work of the Special Commission of March 1998 on International Jurisdiction and the Effects of Foreign Judgments in Civil and Commercial Matters’, drawn by Catherine Kessedjian, 1998 Prel. Doc. No. 9, p. 43, para. 101. 141. Cf., Art. 22 (1) of the draft Convention, which was adopted by the Special Commission on 30 October 1999. It provides: 'In exceptional circumstances, when the jurisdiction of the court seised is not founded on an exclusive choice of court agreement valid under Article 4, or on Articles 7, 8 or 12, the court may, on application by a party, suspend its proceedings if in that case it is clearly inappropriate for that court to exercise jurisdiction and if a court of another State has jurisdiction and is clearly more appropriate to resolve the dispute. Such application must be made no later than at the time of the first defence on the merits.’
115. A US commentator has attempted to justify the inclusion of the doctrine in the future Hague Judgment Convention. He argues: '. no signatory state should be required to apply the doctrine in its courts. Beyond that, it would seem advantageous to all signatory states that a convention which is likely to be more adventurous than the Brussels and Lugano Conventions accommodate such a safety valve in those states whose legal traditions permit it.’ See S.B. Burbank, 'Jurisdiction to Adjudicate: End of the Century or Beginning of the Mellennium?’,7 Tulane Journal of International and Comparative Law (1999) p. 122. This argument is not convincing: if the 'safety valve’ can be used only by those few states whose legal traditions permit it, how can it be 'advantageous to all signatory states’? He might intend to mean that if one of those few states dismiss a case on die doctrine of forum non conveniens, the other contracting states may be 'honored’ to have the opportunity to hear that case. But judicial history has demonstrated that the other countries are usually unwilling to accept that kind of cases. For instance, the Bhopal which the Americans 'do not want brought here’ was not welcome by the Indians.
116. Cf., Nygh, Human Rights in the World n. 26, at p. 103; and Prof. Beaumont writes that. we believe in discretion in conflicts of jurisdiction but have come to live with the certainty of the Brussels and Lugano Conventions.’ See Beaumont, Human Rights in the World n. 5, at p. 109.