"Forum Shopping" in International Litigation

Kurt Siehr*, Eric H. Leake**

 

 

Table of Contents

 

I. Illustration and Definition.. 2

1. A "Texas-style" claim.. 2

2. Defining Forum Shopping. 3

II.  The Reality.. 4

1. Motives for Forum Shopping. 4

2. Legal Basis for Forum Shopping. 8

III.  The Legality of Forum Shopping.. 10

1. International Law.. 10

2. National Law Pertaining to the Unilateral Selection of Jurisdiction. 11

3. Domestic Law Pertaining to Prorogation. 14

4. Preliminary Results. 15

IV. Legitimacy of Forum Shopping.. 15

1.  Academia. 15

2.  Lawmakers. 15

3. The Courts. 16

4. The Parties and their Representatives. 16

V.  Opportunities. 18

1.  Doubts about the Respective Roles. 18

2.  Uncertainty about the Jurisdiction. 18

3. Difficulties in Applying Foreign Law.. 18

4. The Danger of Parallel Cases. 19

5.  Conclusion. 19


 

I. Illustration and Definition

1. A "Texas-style" claim

 

          The Portuguese sailor Castanho worked for a Panamanian Corporation that supplied, via ship from England, various drilling platforms in the North Sea.  In February, 1977, Castanho was tasked to re-fuel the ship at the English port of Great Yarmouth.  While refueling, a valve in the compressed air powered oil-line exploded, injuring Castanho in the neck and penetrating his spinal cord--causing the arms and legs to be totally paralyzed.  Castanho filed suit in England against his Panamanian employer, the English company responsible for delivering the oil and the company's chief engineer who was ultimately responsible for the accident.

 

          The incident came to the attention of a law firm in Texas.  They found the accident victim and even sent one of the partners to England, and later, to Portugal, to convince Castanho to authorize their firm to file suit against the giant parent corporation with its headquarters in Texas.  Under Texas law, the corporation could be held liable for the accident.  They intended to sue the corporation for 15 million dollars (US) in damages (compensatory and punitive)--several times the amount requested in the English suit.   The firm offered to take the case on a contingency basis.  In the event of a successful settlement, the firm would charge 40% of the settlement amount.  Castanho agreed to the offer and withdrew the complaint in the English courts (notice of discontinuance) in order to eliminate a potential plea of pending action in another jurisdiction before the American court.  The defendants adamantly objected to the notice of discontinuance and to the suit in Texas, claiming that they had already admitted liability in the matter and paid out 27,250 £ of the settlement--the amount of which was still being determined.  The defendants had initial success before the first instance of the Queen's Bench Division[1] .  The Court found that the notice of discontinuance appeared to be an abuse of legal rights.  An injunction was issued forbidding the plaintiff to file suit in Texas or in any other jurisdiction.  This action was justified to protect the defendant and to generally disapprove of "Forum Shopping".  The Court of Appeal set aside the lower court's ruling--against the vote of Lord Denning, M.R.[2]  The notice of discontinuance is specifically permitted by the law of  procedure[3] and a prohibition on filing suit in a foreign country would lead to a "ridiculous charade"[4]--due to the lack of enforceability--in Texas.  The House of Lords called the prohibition a "brutum fulmen"[5] and allowed the notice of discontinuance, although the discontinuance represented a general abuse of the law.  The calculation of the lawyers and Mr. Castanho proved to be correct:  After the American corporation fought in vain to have the jurisdiction of the American courts set aside[6], the parties settled, giving the plaintiff and his lawyers a huge settlement[7].

 

2. Defining Forum Shopping

          Forum shopping is understood as the selection of a judicial jurisdiction[8].  The term does not imply that forum shopping is allowed, although "forum shopping" is often used as a pejorative.  We prefer not to use the term in this manner.  Rather, what interests us is whether forum shopping is allowed, under what circumstances it is prohibited and how to react to it.

          When evaluating forum shopping, it is important to differentiate between the various forms.  Typically, there are three:

 

a)    Prorogation of the parties; whereas at least one of the parties attempts to reach agreement on the most advantageous forum.

b)    Surreptitiously obtaining a legal jurisdiction; the deliberate and calculated attempt to fulfill the requirements for jurisdiction prior to the start of any legal action.  Surreptitiously obtaining a legal jurisdiction can occur unilaterally or through prior agreement of both parties, or to proceed on the merits with the trail before the surreptitiously obtained forum.

c)     Taking advantage of what would normally be an available forum to bring a case before the court which, from a supranational point of view, has a competing jurisdiction with domestic and foreign courts.

 

Forum shopping is commonly associated with surreptitiously obtaining a legal jurisdiction (aforementioned Type b).  Memories of Transylvanian marriages[9], Latvian divorces[10] and the more contemporary practice of "Mexican divorces"[11] only serve to underscore this association.  Today, however, forum shopping as described under type c has a much greater significance than surreptitiously obtaining a legal jurisdiction.  This applies both to the sheer number of cases as well as the impact.  I will therefore concentrate the remainder of this article on taking advantage of existing legal jurisdictions.

 

II.  The Reality

          It is uncommon for forum shopping to be as blatant as was the case in the Anglo-Texan tug-of-war.  Or, as Lord Denning sarcastically noted:  The American lawyers became aware of Castanho's plight too late[12].  Had they started their fishing expedition sooner, we would be examining a suit filed in Texas by a Portuguese Sailor, there would be no discussion pertaining to the withdrawal of the suit in the incorrect forum and we would assume that a calculated forum shopping had preceded the filing of the suit in Texas.  It is exactly this quiet and targeted action in the pre-trail phase that is, however, characteristic for selecting the most favorable forum.  The motives for this kind of tactical consideration are numerous.

1. Motives for Forum Shopping

a)  The most advantageous substantive law for the plaintiff, applicable in the state where the action is brought to court, is generally considered to be the primary motive for forum shopping.  This supposition is probably accurate.  Not just the accident involving Mr. Castanho[13], but also product liability action for damages against American aircraft manufacturers[14] as a result of defective aircraft provide anecdotal evidence to support this motive for forum shopping.  Along the same lines, claims for damages are often filed by American and European plaintiffs against European companies in the U.S.[15]  Where the damage actually occurs is of little significance as long as the American jurisdiction is not called into question due to the location of the incident[16].

          The broad nature of American liability law[17] is not the only enticement to forum shopping, or as Lord Denning put it:  "As a moth is drawn to the light, so is a litigant drawn to the United States."[18]  We should not forget "divorce paradises."[19]  Where domestic law makes a divorce difficult, or even impossible, but is liberal in its recognition of foreign decrees, the foreign judge is quick to free the applicant from the bonds of marriage[20].  The practice is another story.  More often, such decrees are not recognized by domestics courts[21].  Additionally, the world-wide liberalization of divorce laws appears to indicate that the divorce paradises have reached their zenith[22].  Whether such jurisdiction will once again blossom is doubtful.  A more likely scenario is that other motives within the realm of divorce law will lead people to pursue forum shopping.  The primary consideration will no longer be removing the bond of marriage, but, rather, the increasing importance assigned to the legal consequences of divorce.  In order to avoid the adjustment of pension rights, or attain an adjustment, the divorce will be filed before domestic or foreign courts[23].  The success of this tactic is questionable; under certain circumstances, an adjustment of pension rights can also be executed abroad or isolated domestically[24].

          Exotic reasons such as adjusting pension rights are not the only motivation emboldening couples to search for advantageous forums.  Discharge of child support payments[25] or the allocation of joint custody of children[26] fires the imagination and often leads to parallel cases[27] or a petition before the domestic court to render a foreign decree ineffectual[28].

          b) The evidentiary rules can also animate a plaintiff to pursue forum shopping.  Two cases illustrate the point.

          The Maharanee of Baroda, living at the time in Paris, purchased a Francois Boucher painting from the Parisian Gallery Wildenstein in 1965 for approximately 33,000 £ (converted).  Some two years later, the Indian Duchess put the painting up for auction at Sotheby's of London.  The painting was not sold.  Furthermore, an art expert believed that the so-called Boucher painting was not a real Boucher and the auction house thought that the painting would bring at most 750 £ at auction.  Of course, the Duchess was not happy about this turn of events.  She demanded that the Wildenstein Gallery return her money should the description of the painting as a Boucher turn out to be incorrect.  What happened at this point was reminiscent of the lectures of William Thackery.  The Maharanee had the papers served personally to Mr. Wildenstein during the races at Ascot and justified the jurisdiction of the English courts through this action[29].  Then, as Lord Denning noted, both parties were "citizens of the world,"[30] both parties had sufficient social and business ties to England[31], and the plaintiff had a valid interest in bringing suit in London and not before the jurisdiction of the legal residence for both parties[32].  In England, both parties are allowed to call expert witnesses on their behalf.  The experts could then clarify their expert opinions and defend their positions during cross-examination.  On the other hand, in France, expert witnesses are appointed by the courts, evidentiary materials are restricted, and courts are satisfied with only a written opinion; no cross-examination of the witness takes place.  The more favorable--from the Duchess` viewpoint--evidentiary rules certainly played a role in selecting English jurisdiction.

          Evidentiary Rules as an inspiration for forum shopping is not an isolated event, as can be deduced from the previously summarized case.  For product liability cases, American rules of evidence offer the victim considerable advantages.  So that it is not just American tort law that makes the American forum so attractive.  Through the use of pre-trail discovery for example, the probability dramatically increases that the decisive production defect or error for all types of manufacturing comes to light.  In March , 1974, when, at the time, the worst aviation accident in history occurred just outside Paris, the surviving dependents did not file suit in Paris (location of the accident), nor in Turkey (headquarters for the airline), nor in London (headquarters for the insurer).  Rather, they filed suit against the airplane manufacturer (McDonnell Douglas and General Dynamics), the Federal Aviation Agency and the Turkish airline before the US District Court in Los Angeles[33].  The manufacturers were located in California and the cases could be concentrated under Judge P.M. Hall, a specialist on airplane accidents.  During the pretrial discovery phase, the defendants were required to provide thousands of documents which revealed errors and mistakes that were literally unbelievable[34].  Within 18 months of the accident, Judge Hall ruled on the applicable law for the case and most of the surviving dependents settled shortly thereafter[35].  It is no surprise then, that the lawyers for the plaintiffs did not accept a meager settlement from the insurer, Lloyd's of London, and instead searched for and found their justice in the United States35a .

          c) Rapid legal protection is a primary factor when the client considers which forum to select.  Whether legal protection is quicker domestically or abroad depends in large part on the lawyers as well as the courts.  But, as the Paris Air Crash case shows, energetic activity on the part of the lawyers and the judge during the pretrial discovery phase can accomplish a great deal[36].   In the London trial of the Maharanee of Baroda, Lord Denning also justified English jurisdiction due to the extreme length of a trial resulting from a huge case backlog in France and that the Maharanee could therefore expect a more timely resolution of her legal problems in England[37].

          In most cases, it is not clear to what extent a timely resolution of the matter is a primary motive for forum shopping.  I believe that this aspect will gain greater importance in Europe as the time, in certain European countries, from filing a claim to final judgment continues to grow.  A trend in this direction was made clear in a recent German court's decision regarding jurisdiction in a divorce proceeding involving a legally separated German-Italian couple[38].  Although the wife filed for divorce before an Italian court, the husband was allowed to also file for divorce in Germany and the plea of pending action before another jurisdiction was set aside.  The German court found that the Italian proceedings were not moving forward and the legal protection of the husband's legal interests could not be influenced in an unreasonable manner.

          A forum shopping ratione velocitatis comes closest to the already existing domestic forum shopping.  Where there are competing jurisdictions, a good lawyer advises the client to file suit before the court where the likelihood of resolving the matter as soon as possible is greatest[39].

          d) Cost considerations facilitated the Mr. Castanho's decision to authorize the American lawyers to file suit in Texas[40].  The lawyers provided their services on a contingency basis which meant that Castanho was not required to make any payments in advance and eliminated his risk of paying the court costs should he lose the case[41].

          The enticement of a large contingency fee does not lead to forum shopping within Europe;  there is apparently no European Legal system which allows for a quota litis.  It is not however beyond the realm of possibility that at some point it will make the rounds as to where low monetary barriers simplify people's access to justice.  It could then happen, that, as is the case of the flight from high notary public fees in Germany[42], in the judicial arena inexpensive countries with reasonable legal systems will experience an increased case flow.

          Finally, we should not forget that industry, trade and commerce prefer to agree to the jurisdiction before courts at their places of business.  It is not only convenient for the businesses, but is apparently the most cost-effective approach[43].

          e) The execution of the desired judgment has long been an important consideration for lawyers when choosing a forum.  The plaintiff must know where to file suit.  The fact that a judgment is for all practical purposes not enforceable due to a lack of assets in the state does not necessarily eliminate the legal interests of the plaintiff.  The judgment is perhaps enforceable abroad and it is also possible that the debtor obtains property at some point domestically.  Generally, the plaintiff will be satisfied sooner, when he or she sues in the same jurisdiction as the intended enforcement.  This is particularly clear with regard to maritime law.  To pursue claims against a carrier, charter ship, or shipowner, the creditor must carefully follow the ships movements, lure the ship into a port where an effective judiciary exists and chain the ship down until the titled or untitled claim is fulfilled[44]. "Asset hunting"[45], combined with forum shopping, has become, under today's maritime law with its one-ship companies whose owners are difficult to find, a life-saving necessity should the creditor ever wish to see any money[46].   

 

2. Legal Basis for Forum Shopping

 

Forum shopping in international legal relations is worth the effort when certain prerequisites are fulfilled.

 

          a)  In general, every nation regulates their own international jurisdiction for courts and administrative personnel.  But even where the states commit the international jurisdiction of their decision-taking bodies in treaties, competing jurisdictions often occur[47].  Accordingly, domestic and binding international law often provides the well-informed lawyer with the opportunity to choose between domestic and foreign jurisdictions.

 

          In most cases, it is difficult to determine when an alternative jurisdiction is available.  This can lead to unpleasant surprises; it is not universally clear and unequivocally governed under what circumstances domestic courts have international jurisdiction, or, as the Austrians say:  When the courts can occupy international jurisdiction[48].  A while back, Scottish dependents of an airplane crash victim were disappointed by an American court's decision.  The incident involved an airplane produced in the U.S. by the Piper company.  The plane was registered to an English owner in Great Britain and all the surviving family members were Scottish.  They decided to file suit in the U.S. which promised to be a more lucrative jurisdiction than Scotland.  The American Federal District Court thought otherwise.  Ruling their jurisdiction as a forum non conveniens[49], the court disallowed the suit[50].    The Appellate Court found for the plaintiffs, ruling that the U.S. courts could exercise jurisdiction in this case[51].  Finally, the U.S. Supreme Court, siding with the lower court, reversed the Appellate Court's decision[52].

 

          b) International determination of applicable law is only partially standardized at  the international level and enjoys only a limited scope.  One hundred years after the high-flying ambitions to codify the entire Private International Law (P.I.L.), the individual states are tinkering at the edges with their own conflicts rules and according to domestic legal philosophies.  The current struggles countries are having just to create domestic international private laws indicates how far we are from reaching anything close to a truly international codification of private law.  This condition is not without consequences.  For, as long as several countries subjugate the same case, in accordance with their own P.I.L., to another substantive law, lawyers will attempt to attain the most advantageous--from their clients view--substantive legal arrangement.  Whether or not these attempts will be crowned with success is another matter.  Miscalculations often have their origins in an insecure analysis of the P.I.L. for the lex fori, as well as cases where the analysis is essentially correct, but the substantive law is misunderstood.  Such was the case where an Israeli mother kidnapped her kids from Berlin, bringing them to Israel with the expectation that the Israeli Judges would award her custody and disregard the German Courts[53].  After considerable back and forth before the courts, Israel's highest court ruled, that under Israeli law, the well-being of the children must be the primary consideration in child custody suits and that returning the children would not unduly injure them[54].

 

          c) Unified civilian procedural law with its rules of evidence and cost arrangements is almost non existent.  Conventions on international legal assistance agreements to some extent attempt to extend domestic evidence rules abroad[55].  There have been a few attempts, accompanied by heavy opposition to American legal concepts, to implement a form of pre-trail discovery in Germany[56].

          Apart from these limited attempts to expand the territorial reach of rules of evidence, civilian procedural law remains the domain of lex fori.    In other words, each court applied to, will use its own procedural law and competing jurisdictions will judge the same case under potentially different rules[57].  This, of course, provides another temptation to forum shop.

          d) Foreign judgments are increasingly being recognized and executed more than before.  This is in part due to the numerous treaties as well as a more liberalized autonomous law pertaining to the recognition and execution of foreign judgments.  As increased numbers of foreign judgments are enjoying the protection of domestic courts, the prospect of executing a court order in a foreign country loses its significance as a consideration for forum shopping.  Logically then, execution of judgments will dwindle as a prime mover for forum shopping.   Cases involving maintenance payments provides insight into this phenomenon.  If the debtor has his residence abroad and the judgment is recognized in that jurisdiction, then the creditor would be well advised to file suit domestically[58].  There is even a decision from a Swedish court which strongly disapproved of a suit filed before the Swedish court where the plaintiff had legal residence.  The suit requested a change to a German court decision which the court rejected and even awarded the successful German defendant the associated court costs:  A suit filed before the courts of the habitual residence in Germany would have been--due to the application of the material lex fori--quicker and cheaper and without prejudice for the creditor since Sweden recognizes the 1958 Hague Convention on the Execution of Maintenance Payments[59].

 

III.  The Legality of Forum Shopping

          Considering the low-brow comments about forum shopping, it could be concluded that forum shopping is illegal.  This is as a rule not the case.

 

1. International Law

          a) General international law does not forbid a person to forum shop.  International law is, with regard to forum shopping, only relevant to the extent that international law set limits to a state's power to exercise jurisdiction.  A case of misusing jurisdiction-- to the extent that such cases have even come out into the open--for forum shopping has never successfully been upheld.  The characteristic in the search  for an adequate forum is to select a thoroughly normal jurisdiction and to avoid exorbitant jurisdictions.

          b) International treaties often substantiate competing jurisdiction.  An example is the European Community Convention on Jurisdiction and Execution from 1968/78[60].  Forum shopping does not just benefit from internationally stipulated competing jurisdictions.  Exceptions from international unifying determinations of applicable law also cause their fair share of confusion.  An example here are the reserve clauses in the Hague Maintenance Rules favoring the lex fori as the  applicable domestic law when the participants are from the same country[61].  Under these circumstances, it is advisable for the person entitled to maintenance payments to clarify the preliminary paternity issue at his/her place of habitual residence when the paternity cannot be established in the foreign country and accordingly, the maintenance claims would fail due to a lack of evidence[62].  Once again, we see that determining the most favorable location to file suit can lead to the conclusion that "there's no place like home."

          There are very few international treaties that even take up the issue of forum shopping.  The Hague Convention concerning the jurisdiction of authorities and the law applicable with respect to the protection of minors confronts forum shopping by restricting jurisdiction[63].  Likewise, the European Community Convention on Jurisdiction and Execution from 1968/78 at least eliminates exorbitant jurisdictions internally[64].  Both child abduction conventions from 1980 approach forum shopping indirectly, by either making the recognition of child custody decisions mandatory, thus attempting to ensure that abducted or improperly retained children are returned[65], or by providing legal assistance that ensures the return of the children[66].

 

2. National Law Pertaining to the Unilateral Selection of Jurisdiction

 

When discussing forum shopping, at least two legal systems are affected.  Specifically, the legal system in the selected forum and the system for the disregarded forum.

 

          a) The applicable law on a unilaterally chosen jurisdiction can generally do nothing against a suit filed before the courts of the state in question.  In most cases, the plaintiff files suit at home precisely because he/she knows that the court actually has jurisdiction, but this may not always be true.  We only need remember the detailed justification supporting English jurisdiction in the case of the Maharanee of Boroda[67], the refusal to consider the case due to a lack of jurisdiction for American courts in the suit for damages involving the airplane accident in Scotland[68], or the Israeli court's behavior regarding the child custody decree favoring the child abductor[69].

          Such uncertainties have various causes.  The jurisdiction may not be clearly defined; the courts have sufficient leeway to claim jurisdiction[70], or not[71].  The petitioned court could declare itself a forum non conveniens.  This is especially the case when, due to the provided evidence,  another state is in a better position and willing to handle the case[72].

          In as much as the selected court affirms its jurisdiction, a suspected or proven forum shopping will not prejudice the court.  Lord Denning, otherwise critical of forum shopping[73], confidently opined when the opposite was true: 

 

No one who comes to these courts asking for justice should come in vain.  He must, of course, come in good faith.  The right to come here is not confined to Englishmen.  It extends to any friendly foreigner.  He can seek the aid of our courts if he desires to do so.  You may call this "forum shopping" if you please, but if the forum is England it is a good place to shop in, both for quality of goods and the speed of service[74].

 

 

The House of Lords was of a different opinion[75].  Following a near exact recitation of the above quote, Lord Reid said:

 

My Lords, with all respect, that seems to me to recall the good old days, the passing of which many may regret, when inhabitants of this island felt an innate superiority over those unfortunate enough to belong to other races.  It is a function of this House to try, so far as possible, to keep the development of the common law in line with the policy of Parliament and the movement of public opinion.  So I think that the time is ripe for a re-examination of the rather insular doctrine to which I have referred[76].

 

Then the majority of Lord judges did that which a petitioned court alone can do to restrict what it finds to be an inadmissible case of forum shopping:  The House of Lords restricted the jurisdiction of the English courts.  Whether, in the aforementioned constellation, the decision was legally allowable[77] or factually justifiable[78], is another issue.  In this regard two points are worth noting:  On the one hand, only a reasoned control of jurisdictional issues can contribute directly to a supranational coordination of jurisdictions; on the other hand a generous opening of the courts will encourage more litigants towards forum shopping.

          b) The unilaterally disregarded forum can, from its own perspective, react differently to foreign proceedings.

          (1) The most obvious reaction is for the court not to recognize the foreign decision and to do so because the foreign court does not possess recognition authority.  The law for the disregarded jurisdiction intends, with this action, to brand forum shopping as illegal.  This justified action of the disregarded forum has two flaws: 1) As a rule, it only works against surreptitiously attained forums or where a serious procedural error has occurred[79], not where a plaintiff takes advantage of a normal foreign jurisdiction[80] and 2) often, a recognition in the country of the disregarded forum is irrelevant because the decision will be executed in the country where the case is tried.

          (2) The party sued in a foreign country can attempt in the country of the disregarded venue to forbid the plaintiff from pursuing the case in the foreign country or force the plaintiff to withdraw the suit.  Such an injunction is most widely known in England and the United States.  Originally, the  injunction was used as a weapon in a battle for dominance between the different branches of the English judiciary.  The Chancellor, as the top judge issued injunctions forbidding the commencement or continuation of a case, or to prohibit a decision from being executed[81].  After these rivalries were institutionally eliminated, the injunction remained, primarily, as a means to prevent suits abroad[82].  In the suit of the Portuguese national Castanho, mentioned at the top of this article, the court of first instance (Queen's Bench Division of the English High Court of Justice) forbade the plaintiff from bringing action over the same issue before a foreign jurisdiction[83].  This decree was later set aside[84], but not out of a principled rejection of this type of injunction.  Just two years later, the Court of Appeal issued just such an injunction forbidding an English plaintiff from filing suit in the United States against a former employer and its American parent company involving a supposed breach of contract[85].  At the same time, the court did note that such an injunction should be issued with extreme caution and should represent an exception to the rule[86].  Even when caution prevails, it is possible, as was the case in the anti-trust case by Laker Airways against six Airlines[87], for a battle to enflame over the choice of venue:  Every petitioned court forbids a litigant from petitioning a foreign court and thereby destroying the proceedings.

          Under German Law there is only one known case, where all three instances forced a German husband who desired a divorce in the divorce paradise Lettland in the 20`s and 30`s  to withdraw the request (for divorce)[88].  The courts justified their action under § 826 of the German Civil Code, recognizing that a German citizen, with residency in Germany who takes advantage of a foreign Court to obtain a divorce against a likewise German spouse is acting contra bonos mores.

          Although the prerequisites for issuing an injunction against filing suit abroad are very narrow, we cannot lose sight of the fact that an injunction is only limited in its effectiveness.  Certain is that the injunction will not be applied abroad and it could expose the affected party to a fine[89].  Accordingly, a court ordered injunction against filing suit abroad is more or less a weapon against surreptitiously obtaining another jurisdiction.  It is not, on the other hand, used to deter a citizen from obtaining a normal foreign jurisdiction.

          (3) The same can be said of actions for damages as a result of a case pursued abroad.  This form of legal assistance will only be granted for cases involving surreptitiously obtained jurisdictions or judgments and can, under certain circumstances be successful[90].

          (4) More promising is a domestic suit requesting the disqualification of the demands requested by the other party abroad.  The disqualification may be a positive or negative action for declaratory judgment[91], or a suit requesting a reduction of the disputed sale price[92].  This approach is of little value when the domestic court recognizes the pending action in the foreign jurisdiction which would be the case with regards to a normal foreign jurisdiction, leaving, once again, cases where the jurisdiction or judgment is surreptitiously obtained.

          (5) The bottom line is that the country of the disregarded venue does have a considerable measure of control against illegally obtained foreign jurisdictions.  It can do little, however, and should not undertake to prevent, forum shopping where a party is exercising its right to take advantage of a normal foreign jurisdiction.    

 

3. Domestic Law Pertaining to Prorogation

          Prorogation can be liberally applied[93], or in favor of a weaker contractual party be more complicated or even forbidden[94].  In non-pecuniary cases or where only one jurisdiction exists, choice of forum clauses are not allowed[95].  Additionally, provisions exist which can render a prorogation invalid when the particular case and the parties do not have sufficient relations to the forum country[96].

          Accordingly, all these regulations render unrestrained forum shopping via prorogation almost impossible.  In continental Europe it is rare to find an irrelevant jurisdiction clause anyway--a vast majority of such clauses, are cases where one party manages to achieve a valid agreement establishing a legally available jurisdiction.

          If both parties agree, through this type of preventive forum shopping, to a single jurisdiction for any potential legal issues resulting from their relationship and if this prorogation is valid according to the laws of the prorogated venue as well as the derogated jurisdiction[97], then the possibility of subsequent forum shopping is generally non-existent.  This is even true when a foreign jurisdiction is agreed upon although the expected court decision will not be recognized domestically[98].  Exceptions to a valid obligation are also rare.  One such exception, is when the prorogated court cannot hear the case because the judicial system has come to a standstill[99].  If, under these circumstances a domestic court is asked to provide legal redress, then we are not talking about forum shopping per se, but rather a request for emergency jurisdiction.

 

4. Preliminary Results

Is forum shopping legal?  We can deduce the following:  International Law does not forbid forum shopping.  The law of the selected forum judges the parties` behavior according to their own guidelines concerning the right to exercise jurisdiction.  If there is jurisdiction, forum shopping is illegal.  The law of the non-selected forum cannot directly hinder forum shopping, only indirectly by sanctioning the party (or parties) involved.

          Forum shopping by prorogation or surreptitiously obtaining jurisdiction is judged differently from both legal systems.  When a country throws open their doors to the courts and invites the world to seek and find justice from their judges, the country legalizes an otherwise despised and illegal form of forum shopping.  On the other hand, legal systems of the selected or disregarded forum tend to view the third type of forum shopping in the same light:  It is perfectly acceptable for a party to take advantage of a normally available jurisdiction by selecting the most advantageous forum.  As long as the party does not purposefully and superficially manipulate the facts (e.g. child abductions) in order to justify a court's jurisdiction.  A discussion on the legitimacy of forum shopping is therefore only worthwhile with regards to legal forms of forum shopping.

IV. Legitimacy of Forum Shopping

It may be that forum shopping as an alternative selection of available jurisdictions, as opposed to surreptitiously obtaining a jurisdiction, is legal, but that raises the further issue of its legitimacy.  The many disparaging comments about forum shopping suggest that this tactic is still viewed as improper, not worthy of a lawyer and certainly not legitimate.  Whether this point of view is correct can be answered  differently depending on one's perspective.

 

1.  Academia

Experts on the conflicts of laws would prefer to see the same case judged according to the same legal system throughout the world[100].  That this degree of harmony among judges is more wishful thinking than reality is particularly illuminated by forum shopping; it is precisely the lack of legal harmony that lawyers take advantage of, attempting within the law to use the abundance of law to gain an advantage.  When forum shopping is lamented, it is less an accusation against the practice of legal forum shopping and more a political disappointment at the fissure between the ideal and the distant state of contemporary conflicts of laws.  

2.  Lawmakers

          a) The international lawmakers are attempting to lessen the incentive for forum shopping by harmonizing rules of selection as well as the material substantive law and procedural rules.  An example here is the European Community's agreement on debtor contracts from 19 June, 1980[101] that prevents forum shopping based on the EC agreement on jurisdiction and enforcement from 1968/1978[102].  The same is true for the two child abduction agreements from 1980 attempting to deter child abductions through recognition and legal assistance agreements between different countries[103].  On the other hand, the international "lawmaker" encourages forum shopping by standardizing competing jurisdictions and allowing exceptions to unified standards of conflicts of laws[104].

 

          b) National legislators can also pull the brakes on forum shopping.  They do this by ratifying international treaties or acting unilaterally to curb forum shopping.  More often, however, they actually extend their own jurisdiction and thereby create competing foreign and domestic jurisdictions.  Of course this motivates lawyers to forum shop and counters the argument that forum shopping is improper or somehow illegitimate.

 

3. The Courts

          a) The courts of a unilaterally selected forum fulfill the expectations of their legislators or enhance through their own discretionary powers general clauses such as forum non conveniens or misuse of rights.  It is only in this narrow area of the law where courts can influence forum shopping.  It is not permissible to disregard the application of the P.I.L. of the lex fori and then to apply the P.I.L. of the state where the courts possess a stronger jurisdiction[105].  Turning their back to the domestic P.I.L. would have a chilling affect on forum shopping, but is hardly enforceable[106].  The concept of the forum non conveniens is another matter[107].  Likewise, the establishment of subsidiary rules of selection where the case has little to do with the domestic court and where the party has lost its connection to the former applicable law would curb forum shopping[108].

          b) The courts of the unilaterally selected forum indirectly sanction forum shopping by refusing to recognize foreign decisions.  Domestic political concepts about forum shopping can only be realized to a limited degree as applicable law changes very slowly through the influence case law[109].

4. The Parties and their Representatives

          The motto for parties with an international case is "the world is my oyster."  More specifically:  I will file suit before the court exercising jurisdiction where my interests are most likely to find justice.  An international case as a practical matter is not subject to a legal system until the selection of the forum and the forum's rules concerning the conflict of laws fixes the applicable law[110].

          Naturally, special and exorbitant jurisdictions do exists.  These jurisdictions are the same, in as much as each party may take advantage of the jurisdictions when the prerequisites are fulfilled.  It is not forbidden for any party or their lawyers to take advantage of the most advantageous forum.  It is neither dishonorable, nor unworthy of a lawyer.  In fact, the opposite is true.  A lawyer who has the interests of his/her client at heart, should not at all costs encourage the client to seek a court judgment at the place where the lawyer practices law.  The lawyer is even required to counsel the client that the chances of success are greater abroad than at home[111].  That does not mean that a lawyer should repeat the tactics of the law firm in "a Texas-style claim"[112].  What was disturbing to English and our sensibilities is that the firm went on a client hunt and offered themselves as the defender of his interests in a blatantly commercial manner.  In Texas this is, as Lord Denning reported "big business"[113], but not yet a standard business practice in Europe.  This is not to say that the English lawyers did everything within their power to get the best settlement for Mr. Castanho.  They should have come up with the idea themselves to file suit in Texas and after consulting with Mr. Castanho done so.

          The duties of a competent lawyer are not exhausted in the lawyer's knowledge of the rules concerning the conflicts of laws or the foreign law applied in the courts where the lawyer practices law.  A good lawyer must also be aware that a case with foreign implications might provide competing foreign and domestic jurisdictions.  The lawyer must explore the possibility that a case before a foreign court might be more lucrative for the client.  From this point of view, there is only one boundary that the lawyer and the client may not cross:  Surreptitiously obtaining a jurisdiction.  Illegitimate, and even illegal, for example, is justifying a jurisdiction through child abduction.  In this case, a unilateral attempt is made to obtain a jurisdiction after disagreements about the custody of a child arise.  The intent being to gain an advantage vis-à-vis the already existing legal positions[114].  Along the same lines, is the case where a purely domestic case is transformed into an international case by arbitrarily resorting to a foreign court[115].  In contrast, the interesting and typical cases of forum shopping discussed here concern litigants taking advantage of competing jurisdictions that already existed before the legal relationship came into effect.  In these case, a jurisdiction is not manufactured after the fact.

          Legal advisors must therefore move away from viewing international legal relations through purely parochial lenses.  A judge should generally limited himself/herself to applying the international private and procedural laws of his/her lex fori.  The judge is not burdened by international conflicts of laws[116], the same cannot be said of the lawyer.  With international cases, the lawyer must shed the advisory function under domestic P.I.L. in favor of a more supranational viewpoint.  The lawyer must advise whether foreign courts can exercise jurisdiction, and if so which courts.  He/she must advise the client as to which substantive law and procedural rules provides the best prospects for success.  The lawyer is thus obliged to subjugate a cloudy legal case to the legal system of the petitioned court.

          This type of forum shopping is not only legitimate, it will continue to be so for some time.  Then, as real life indicates, a forum is selected not only due to the most favorable applicable substantive law.  Procedural rules in a broader sense (evidentiary rules, cost considerations and speed of justice) are key factors in motivating a lawyer to forum shopping and procedural rules are infinitely more difficult to harmonize than is P.I.L. and material law.  Only on occasion is forum shopping confronted by rigorous international treaty limitations.  Who will deny a person due process by forbidding forum shopping?  Only surreptitiously obtaining a jurisdiction should be disallowed, not the often healthy competition for fast, effective, and proper justice.

 

V.  Opportunities

That forum shopping can be very opportune for the plaintiff was justly illustrating in the introduction.  As rosy as the prospects can be, there are still more ominous aspects to forum shopping.

 

1.  Doubts about the Respective Roles

          We should not lose sight of the fact that, in contract law, each party can potentially be the plaintiff and petition his or her own most favorable jurisdiction.  The opponent is then at a corresponding disadvantage.  It is therefore recommended that the parties agree to a jurisdiction[117].  The agreed jurisdiction should encompass all claims for both parties emanating from the same contractual relationship[118].

2.  Uncertainty about the Jurisdiction

          We already touched upon the concern that the court may not exercise jurisdiction or the uncertainty as to whether or not the court will apply the more favorable law in the case[119].  The risk is relatively small if the lawyer is working on a contingency basis and the petitioned court rejects its jurisdiction.  On the other hand, if the case is tried, then the outcome can differ from expectations.  The claim comes into force and the lawyer participates in a rather lean settlement.  Where a quota litis is not agreed upon or cannot be agreed upon, the financial risk is, accordingly, higher.

3. Difficulties in Applying Foreign Law

          Furthermore, lawyers do not always observe the principled that the case should be tried in the country where the domestic law for the legal relationship is applied.  As uneconomical as it is to sue for  maintenance payments in Sweden under German Law[120], it is more tedious, difficult and expensive for the court to judge a complex legal issue under applicable foreign legal norms.   As a result, lawyers should take care to ensure that the selected forum will also be applying the substantive lex fori[121].  Doing so not only streamlines the proceeding, but usually ensures the possibility of appeals; most civil supreme courts will not review the concrete application of foreign law[122].

 

4. The Danger of Parallel Cases

          Finally, do not forget that "what is good for goose" is not necessarily "good for the gander."  The defendant in a selected forum may not always be as amenable as the Mines de potasse d`Alsace was in the Dutch Pure Water Case[123].  The defendant is likely to fight the jurisdiction of the forum[124] and if the defendant does not fear fighting jurisdiction, then probably question the applicability of the lex fori[125].  Additionally, the defendant may attempt by filing a parallel suit abroad to block the domestic court case or at least to minimize the impact of the case beyond national borders[126].  This approach is not just attempted to delay proceedings, but also to fight the advantage that the plaintiff hopes to achieve through the application of the lex fori.

 

5.  Conclusion

          In spite of the advantages of legal and generally legitimate forum shopping it is not always the most fruitful plan of action.  In each individual case of any significance the lawyer should examine whether the potential advantages really outweigh the disadvantages.  But considering the pros and cons of a particular course of action can only be accomplish by a careful legal comparative analysis and evaluation.  The phenomena of forum shopping is a reflection of the state of today's P.I.L., as a political appeal to prevent the unjustified search or successful attempt to acquire a favorable jurisdiction, or a wake-up call to employ through pre-trial comparative law a legal form of forum shopping that protects the legitimate interests of the parties.

 



* Professor of Laws, University of Zürich, Switzerland

** Lic. iur, University of Zürich, Switzerland

[1] Castanho v. Brown & Root (UK) Ltd., [980] 1 All E.R. [Q.B.]; also published in:  [1980] 1 W.L.R. 833, 837 = [1980] 2 Lloyd's L.R. 423, 425.

[2] Castanho v. Brown (UK) Ltd., [1980] 3 All E.R. 72 (C.A.); also published in: [1980] 1 W.L.R. 833 = [1980] 2 Lloyd's L.R. 423.

[3] Rules of the Supreme Court (Abbr.: R.S.C.), Order 21 rule 2, The Supreme Court Practice, Vol. 1 (London 1978) 361; This regulation was changed effective 1 Oct. 1980 through the introduction of paragraph 2a:  A party which has received advanced payments from the opposing party may only withdraw the suit with the permission (leave) of the court:  Supreme Court Practice 1982, Vol. 1 (London 1981) 401.

[4] Lord Justice Shaw (Above, Footnote 2) 89.

[5] Lord Scarman in:  Castanho v. Brown & Root (UK) Ltd., [1980] A.C. 557, 574 (H.L.); also published in: [1981] 1 All E.R. 143 = [1980] 3 W.L.R. 991 = 1 Lloyd's L.R. 113.

[6] Castanho v. Jackson Marine, Inc., 484 F. Supp. 201 and 207 (E.D. Texas 1980); appeal dismissed 650 F. 2d 546 (5th Cir. 1981); rehearing denied 656 F. 2d 700 (5th Cir. 1981).

[7] According to Lord Denning, M.R. in the case Smith Kline & French Laboratories Ltd. v. Bloch, [1983] 2 All E.R. 72, 74 = [1981] 1 W.L.R. 739, 734 (C.A.): "His (Castanho's) American lawyers won a huge settlement to the profit of the litigant and of course for themselves as well."

[8] For more information see:  Geimer in Zöller, ZPO, 13. ed. (Cologne 1981) IZPR Commentary XIII and XIV (76f); Kropholler, Internationales Zivilverfahrensrecht, Vol. 1 (Tübingen 1982) 260; Riezler, Internationales Zivilprozessrecht und prozessuales Fremdenrecht (Berlin and Tübingen 1949) 329-341.

[9] Wilhelm Fuchs, Die sogennanten Siebenbürgischen Ehen und andere Arten der Wiederverehelichung geschiedener österreichischer Katholiken (Vienna 1889); Walker, Internationales Privatrecht, 5 Ed. (Vienna 1934) 630-636.

[10] An example here is the Lettland Senate's decision on 30 June 1932, JW 1932, 3844 with Commentary Frankenstein, where Max Reinhardt was divorced from his first wife.  This decree was not recognized in Germany.  Only in 1935 was the marriage finally dissolved through a divorce decree in Nevada, allowing Mr. Reinhardt to marry Helene Thimig shortly thereafter.  Also Gusti Adler, ...But forget not the Chinese Nightingales.  Memories of Max Reinhardt, Paperback edition, Munich, 1983, 236-245.  Additionally, OLG Cologne 15.10.1937, StAZ 1937, 435 = IPRspe 1935-1944 Nr. 90a, confirmed by RG 3.3.1938, RGZ 157, 136 = JW 1938, 1252 (Commentary Mössner ibid 1333) = ZAkadDtR 1938, 747 Article by Reu ibid, 731-734 = IPRspr 1935 - 1944 Nr 90b = Nouv. Rev d.i.p. 1938, 388 (Commentary E. Metzger) = Clunet 66 (1938) 378 (Commentary K. Wolff); BMJ 10.1.1967 ZfRV 1967, 171 = EFSlg 8735.

[11] For more information on central American divorce paradises, see:  Swisher, Foreign Migratory Divorces:  A Reappraisal, Journal of Family Law 21 (1982-83) 9-52.

[12] Castanho v. Brown & Root (UK) Ltd. (Footnote 2) 76.

[13] Footnote 1

[14] Examples:  In re Paris Air Crash of March 3, 1974, 399 F. Supp. 732 (C.D. Calif. 1975); Piper Aircraft Co. v. Reyno, 102 S. Ct. 253 = 454 U.S. 235 = 50 U.S. Law Week 4055 (1981).

[15] Examples here include:  Harvey v. Chemie Grünenthal GmbH, 354 2d 428 (2d Cir. 1965), cert. denied 384 U.S. 1001 (1966):  Suit for damages resulting from the purchase of Contergan tablets in Germany; Rinck v. Deutsche Lufthansa A.G., 395 N.Y.S. 2d 7 (App. Div. 1977):  German plaintiff injured herself while exiting the aircraft in New York; Frummer v. Hilton Hotels International, Inc., 227 N.E. 2d 851 (N.Y. 1967):  Suit against Hilton resulting from an accident in a "modernistic" egg-shaped bathtub in the London Hilton hotel; Volkswagen v. McCurdy, 340 So. 2d 544 (Fla. 1976), cert. denied 348 So. 2d 950 (1977):  Product liability suit against Volkswagen; likewise in the case Smith Kline & French Laboratories Ltd. v. Bloch (Footnote 7), an Englishman files suit against an English subsidiary of an American corporation for breach of contract and criminal damages.  Laker Airways case, footnote 87.

[16] As was however the case in Piper Aircraft Co. v. Reyno (Footnote 14):  See also footnotes 49-52.

[17] Juenger, Forum Shopping, RabelsZ 46 (1982) 708-716; Ders, Produkthaftpflicht und amerikanisches Kollisionsrecht, Heft 4 der Veröffentlichungen der Deutsch-Amerikanischen Juristen-Vereinigung e.V., Bonn 1983.

[18] As in Smith Kline & French Laboratories Ltd. v. Bloch (Footnote 7) pages 74 and 733.

[19] Kugler v. Haitian Tours, Inc., 293 A. 2d 706 (Super.Ct.N.J. 1972):  A prohibition of the sale of "Haitian divorce packages" which included a trip to Haiti, room and board for one or two days as well as the preparations for obtaining a divorce (approximately 50% of the package price).  See also Swisher (Footnote 11).

[20] For New York, Rosenstiel v. Rosenstiel, 262 N.Y.S. 2d 86, 209 N.E. 2d 709 (1965)=RabelsZ 32 (1968) 527 (Commentary Rheinstein), cert. denied 384 U.S. 971 (1966):  Divorce in Mexico; Kraham v. Kraham, 342 N.Y.S. 2d 943 (Sup.Ct. Nassau Cty 1973):  Divorce in Haiti; Chase, Domestic Recognition of Divorce Decree Obtained in Foreign Country and Attacked for Lack of Domicile or Jurisdiction of Parties, 13 A.L.R. 3d 1419-1465 (1967, Suppl. 1983); Foster, Recognition of Migratory Divorces: Rosenstiel v. Section 250, N.Y.U.L.Rev. 43 (1968) 429-450.

[21] BMJ 9.3.1976 (924.078/2-I 10/76), EFSlg 27.567 (Divorce of Austrians in Nevada); KG 30.1.1964, NJW 1964, 981 = IPRspr 1964-1965 Nr 262 (Divorce of German from his English wife in Mexico); Eidgen Bundesamt für Justiz 20.3.1981, Verwaltungspraxis der Bundesbehörden 45 (1981) Nr 29 (a non-contested divorce of a Swiss couple domiciled in Switzerland in the Dominican Republic); for the more information on the situation in the US, see Kugler v. Haitian Tours, Inc. (Footnote 19) and Swisher (Footnote 11).

[22] An exception applies under certain circumstances to those states that do not allow divorce (e.g. Argentina, formerly Ireland, Malta and the Philippines) and states that do not recognize foreign divorces (e.g. Argentina for couples originally married in Argentina):  Also Fritsche, StAZ 1983, 284:  The divorce of Argentineans in Germany under the false pretense of German citizenship, and then a marriage in Paraguay.  The same is true for marriage paradises.  Tondern (Danish) marriages are now unnecessary since domestic divorces, regardless of the law of origin, releases the couple from the marital obligations:  BVerfG 4.5.1971, BVerfGE 31, 58=NJW 1971, 1509=RabelsZ 36 (1972) 358 (Commentary Neuhaus). 

[23] This impression arises from the numerous requests for information on this subject at the Max-Planck Institute, Hamburg.

[24] Egon Lorenz in:  Münchener Kommentar zum BGB, Bd VII (München 1983) Art 17 EGBGB RdNR 447-449; Jayme, Versorgungsausgleich und Internationales Privatrecht unter besonderer Berücksichtigung der deutsch-österreichischen Scheidungsfälle, ZfRV 1980 175 (181); Bergner, Ausländische Renten (Anwartschaften) im inländischen Versorgungsausgleich, IPRax 1982, 231-233.

[25] BG 22.2.1979, BGE 105 II 1:  A Hungarian refugee with domicile in Switzerland divorced his Hungarian wife (also a refugee) in Hungary and then ceased maintenance payments which he had agreed to in Switzerland.  Critical commentary in Andreas Bucher, Divorce de réfugiés dans leur pays d`origine?  Zeitschrift für Schweizerisches Recht N.F. 101 I (1982) 1-19.

[26] BGH 6.10.1982, MDR 1983, 118=LM Nr 4 to Art 7 FamRÄndG = IPRax 1983, 292: German-Turkish couple; the German wife requests a divorce and the settlement of collateral issues, the Turkish husband produces a binding Turkish divorce and child custody decree.  For child abduction cases, see footnotes 53 and 114.

[27] Basedow, Parallele Scheidungsverfahren im In- und Ausland, IPRax 1983, 278-281; Bürgle, Zur Konkurrenz von inländischen Scheidungsverfahren mit ausländischen Scheidungsverfahren und -urteilen, IPRax 1983, 281-284.

[28] In the case BG 22.2.1979 (footnote 25) the wife requested a declaratory judgment that she was still married.  The judgment was granted, since the Hungarian courts could not execute jurisdiction without the consent of the wife.

[29] R.S.C. (footnote 3) or 10/1/1 and 12/8/4, the Supreme Court Practice 1973, Bd I (London 1972) 69 and 108.

[30] Maharanee of Baroda v. Wildenstein, [1972] 2 Q.B. 283, 293 (C.A.); also published in: [1972] 2 All E.R. 689 =  [1972] 2 W.L.R. 1077.

[31] Maharanee of Baroda v. Wildenstein, (previous footnote) 289f.

[32] Maharanee of Baroda v. Wildenstein, (footnote 30) 293.

[33] In re Paris Air Crash of March 3, 1974 (footnote 14).

[34] Eddy/Potter/Page, Destination Disaster (London 1976) 283-288 (Summary), 128ff (details).

[35] This was already alluded to in the judgment In re Paris Air Crash of March 3, 1974 (footnote 14) 738.

35a On the battle among the London insurers, Balfour v. Beaumont, [1982] 2 Lloyd's L.R. 493 (Q.B., Com. Ct.); [1984] 1 Lloyd's L.R. 272 (C.A.).

[36] In re Paris Air Crash of March 3, 1974 (footnote 14) as well as Eddy/Potter/Page (footnote 34), 268ff.

[37] Maharanee of Baroda v. Wildenstein, (footnote 30) 293.

[38] BGH 26.1.1983, NJW 1983, 1269 = Il diritto di famiglia e delle persone 1983, 527 (Commentary Tortorici)

[39] Domestic forum shopping plays a greater part in states where the legal systems are separated territorially (particularly in the United States).  Also, for information on the situation in the United Kingdom, see MacShannon v. Rockware Glass Ltd., [1978] A.C. 795 (H.L.); also published in: [1978] 1 All E.R. 625 = [1978] 2 W.L.R. 362:  A Scottish accident victim (the accident occurred in Scotland) files suit in England.  In England, the settlement will be larger, the case will be handle more quickly and it costs less.

[40] Castanho v. Brown & Root (UK) Ltd. (footnote 1) 689.

[41] This was also the case in Smith Kline & French Laboratories Ltd. v. Bloch (footnote 7) 86:  The plaintiff was however consoled with the award of English court costs.

[42] Spellenberg, Münchener Kommentar (footnote 24), Art 11 EGBGB RdNr 14; Palandt(-Heldrich), BGB, 43 Aufl (München 1984) Art 11 EGBGB Commentary 3 c; OLG Frankfurt 10.4.1981, RIW 1981, 552 (Transfer of part ownership in a limited liability corporation using a Swiss notary public).

[43] LAG Düsseldorf 16.5.1972, NJW 1972, 2200 = IPRspr 1972 Nr 139:  Jurisdictional clause stipulating a French jurisdiction for all employees of a French company, even those working in Germany.

[44] This seizure is accomplished via a claim in rem (§ 916 dt ZPO), saisie conservatoire (Art 48 French Code de procédure civile), sequestro conservatorio (Art 671 Codicie de procedura civile) or in England with a "Mareva injunction":  See also, Supreme Court Act 1981 (1981 c. 54) sect. 37; also Graff von Bernstorff, Einstwilliger Rechtschutz in England mit Hilfe der Mareva-Injunction, RIW 1983, 160-163.

[45] Kerr, J. in:  Siskina (Cargo Owners) v. Distos Compania Naviera S.A., [1979] A.C. 210, 216 (Q.B.); also published in: [1977] 3 W.L.R. 532 = [1977] 1 Lloyd's L.R. 404.

[46] It is exactly this constellation that makes the English Mareva injunction popular:  Bland, The Mareva Injunction, West Indian Law Journal 1980, 59; Meisel, The "Mareva" Injunction-Recent Developments, Lloyd's Marit. & Comm. L.Q. 1980, 38-46.  This injunction is named after the decision Mareva Compania Naviera S.A. v. International Bulkcarriers S.A., [1975] 2 Lloyd's L.R. 509 = [1980] 1 All E.R. 213 (C.A.).  This legal vehicle is now codified in section 37 of the Supreme Court Act (footnote 44).

[47] For example, The EC Agreement on Jurisdiction and Execution, 9.10.78, Official Journal of the European Communities, 30.10.1978, L 304/77-102; also published in Jayme/Hausman, Internationales Privat- und Verfahrensrecht, 2. Aufl. (München 1983) 149-171.

[48] Matscher, Zur Abgrenzung der inländischen Gerichtsbarkeit, vornehmlich in Vermögenssachen, JBl 1983, 505 (509-516).

[49] A thorough examination of this term can be found in Claude Blum, Forum non conveniens (Zürich 1979) 17-146; Ulrich Wahl, Die verfehlte internationale Zuständigkeit—Forum non conveniens und internationales Rechtsschutzbedürfnis (Berlin 1979) 37-113; Scoles/Hay, Conflict of Laws (St. Paul, Minn. 1982) 363-382.

[50] Reyno v. Piper Aircraft Co., 497 F. Supp. 727 (M.D.Pa. 1979).

[51] Reyno v. Piper Aircraft Co., 630 F. 2d 149 (3d Cir. 1980).

[52] Reyno v. Piper Aircraft Co. (footnote 14).  See also Fitzpatrick, "Reyno":  Its Progeny and its Effects on Aviation Litigation, Journal of Air Law & Commerce 48 (1983) 539-559.

[53] Kammergericht 19.12.1973, FamRZ 1974, 461=IPRspr 1973 Nr 72; also Shapira/Siehr, The Jundeff Affair-Comparative Remarks on International Child Kidnapping and Judicial Co-operation:  Netherlands International Law Review 25 (1978) 3-23.

[54] For the five unpublished decisions of the Israeli High Court, see Shapira/Siehr (footnote 53) 4-6.

[55] Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, 18.3.1970, dBGBl 1977 II 1472.  This convention was, as of 1.1.1984, recognized by the following countries:  Germany, Denmark, Finland, France, Israel, Italy, Luxembourg, Netherlands, Norway, Portugal, Sweden, Singapore, Czechoslovakia, United Kingdom, United States.

[56] OLG München 27.11.1980, OLGZ 1981, 235=JZ 1981, 540=IPRspr 1980 Nr 161b:  Acceptance of a witness examination in pretrial discovery process; OLG München 31.10.1980, OLGZ 1981, 232=JZ 1981, 538=IPRspr 1980 Nr 161a:  Rejection of a pretrial discovery of documents; AG München 9.6.1981/LG München 10.6.1981, RIW 1981, 850 and 851:  No obligation to reveal trade secrets.  See also, Lowenfeld, Discovery-Verfahren und internationale Rechtshilfe, IPRax 1984, 51-53.

[57] On the other hand, in the few instances where foreign procedural rules are used or, at the very least, considered, they do not have a major impact on the outcome and therefore do little to keep someone from forum shopping.

[58] This is possible due to autonomous jurisdictional regulations:  E.g. § 23 a dZPO; Art 279 II Swiss ZGB.

[59] Tingsrätt Malmö 27.1.1972, Der Amtsvormund 1973, 515.

[60] See footnote 47.

[61] Art 2 of the Hague Convention on applicable law for child support payments, 24.10.1956 (BGBl 1961/293); Art 15 of the Hague Convention on applicable law for child support payments, 2.10.1973, printed in Jayme/Hausmann (footnote 47) 42, 45.

[62] See Siehr, Internationales Kindesrecht, Schweizerische Juristen-Zeitung 1982, 173 (181f).

[63] Schwimann, Internationales Zivilverfahrensrecht (Wien 1979) 90-95.

[64] See also, Art 3 GVÜ 1968/78 (footnote 47).

[65]European Convention on the Recognition and Execution of Decisions pertaining to the Custody of Children and the Re-establishment of Custody, 20.5.1980, European Treaty Series Nr. 105 (English version) = Swiss Bundesblatt 1983 I 127-138 (German translation).

[66] Hague Convention on the Civilian Law Aspects of International Child Abductions, 25.10.1980, Conférence de La Haye de droit international privé, Actes et documents de la Quatorzième session, Bd III (Den Haag 1982) 413 = Swiss Bundesblatt 1983 I 139-155 (German translation).

[67] Maharanee of Baroda v. Wildenstein (footnote 30).

[68] Piper Aircraft v. Reyno (footnote 14).

[69] Shapira/Siehr (footnote 53) 4-6.

[70] As was the case in Maharanee of Baroda v. Wildenstein (footnote 30); The "Atlantic Song", [1983] 2 Lloyd's L.R. 394 (Q.B., Adm. Ct.):  The non-observance of a prorogation in favor of Swedish courts between Swiss and Japanese freight owners and the Japanese carrier.

[71] On Israeli law see footnote 53 (Jundeff affair); on English law which does not recognize the rejection of jurisdiction as a "forum non conveniens", as opposed to Scottish law, also The Atlantic Star (footnote 75) and MacShannon v. Rockware Glass Ltd. (footnote 39).

[72] Emphasized in Piper Aircraft Co. v. Reyno (footnote 14).

[73] Castanho v. Brown & Root (UK) Ltd. (footnote 2); Smith Kline & French Laboratories v. Bloch (footnote 7).

[74] The Atlantic Star, [1973] Q.B. 364, 381f (C.A.); also printed in: [1972] 3 All E.R. 705 = [1972] 3 W.L.R. 746 = [1972] 2 Lloyd's L.R. 446.

[75] The Atlantic Star, [1974] A.C. 436 (H.L.); also printed in: [1973] 2 All E.R. 175 = [1973] 2 W.L.R. 795 = [1973] 2 Lloyd's L.R. 197.  The incident involved a collision between two Dutch ships off the coast of Belgium.  As the plaintiff was not satisfied with the Belgium suit, he had the other ship chained in Liverpool and started a suit in rem jurisdiction in England in the hope that he would achieve better results than in Belgium.

[76] The Atlantic Star (footnote 75) 453.

[77] Applicable in the case was the Brussels international convention on the unification of regulations pertaining to the civil court jurisdiction for ship collisions, 10.5.1952, printed in Zweigert/Kropholler, Quellen des internationalen Einheitsrechts, Bd. II (Leiden 1972) 44.  Article 1 I lit. b of the convention foresees the jurisdiction of the court at the seizure location.

[78] This is probably the case.  The defendant's ship had already been seized in Antwerp and then released against the payment of a security deposit.  A plaintiff before an English court "must not be acting vexatiously, oppressively or in abuse of the process of the court":  Lord Reid (footnote 75) 454; also MacShannon v. Rockware Glass Ltd. (footnote 39).

[79] BG 22.2.1979 (footnote 25):  Non-recognition of a Hungarian divorce--the wife did not participate in the Hungarian divorce proceedings.

[80] Castanho v. Brown & Root (UK) Ltd. (footnote 1, 2 and 5).

[81] Holdsworth, A History of English Law, Vol. 1, 7th ed. (London 1956) 459-465; Kerr/Paterson, A Treatise on the Law and Practice of Injunctions, 6th ed. (London 1927) 593.

[82] Halsbury/Simonds, The Laws of England, 3rd ed., Vol. 21 (London 1957) 407; Dicey/Morris, The Conflict of Laws, vol. 1, 10th ed. (London 1980) 247-254.  American Jurisprudence 2d, vol. 42 (Rochester, San Francisco 1969 with supplement 1983) Injunction §§ 214 ff, S 994 ff; also Graf Praschma, Die Einwirkung auf ausländische Prozesse durch Unterlassungs- und Schadensersatzklagen (Diss. Saarbrücken 1971) 148-230.

[83] Castanho v. Brown & Root (UK) Ltd. (footnote 1) 689, 696.

[84] Castanho v. Brown & Root (UK) Ltd. (footnote 2) 81f (Lord Denning), 89f (Shaw LJ); confirmed by the House of Lords (footnote 5) 999-1002 (Lord Scarman).

[85] Smith Kline & French Laboratories Ltd. v. Bloch (footnote 7) (Commentary O`Brien, Law & Policy in International Business 15 [1983] 635-652).

[86] Smith Kline & French Laboratories Ltd. v. Bloch (footnote 7) 78.

[87] In chronological order:

24.11.1982:  Suit by Laker Airways before the U.S. District Court for the District of Columbia, printed in [1983] 3 All E.R. 411;

21/24.1.1983:  The defendant British aircarrier files suit in England and requests that the plaintiff be prohibited from filing suit in the U.S.

9.3.1983:  The US courts forbids the sued British aircarrier from filing suit in England:  Laker Airways v. Pan American World Airways, 559 F. Supp. 1124 (D.D.C. 1983)= [1983] European Commercial Cases (abr. E.C.C.) 480;

3.4.1983:  U.S. court refuses to declare itself a forum non conveniens:  [1983] E.C.C. 480, 496 (D.D.C.);

20.5.1983:  The English lower court rejects the requested prohibition:  British Airways Board v. Laker Airways Ltd., [1983] 3 All E.R. 375 (Q.B.) = [1983] E.C.C. 503;

26.7.1983:  The English Court of Appeal issues the requested injunction:   British Airways Board v. Laker Airways Ltd., [1983] 3 All E.R. 375, 395 = [1983] 3 W.L.R. 544 (C.A.);

10.11.1983:  House of Lords allows the request for revision:  British Airways Board v. Laker Airways Ltd., [1983] 1 W.L.R. 1293 (H.L.).

[88] OLG Köln 15.10.1937 and RG 3.3.1938 (both in footnote 10).

[89] In England and the United States the served party can be charged and fined with a contempt of court citation for not following the court's instructions:  See, James v. Grand Trunk Western Railroad Co., 152 N.E. 2d 859 (Ill. 1958).  In Germany the enforcement is carried in accordance with § 888 ZPO (Enforcing unaccountable behavior through fines of jail sentences).

[90] OLG Königsberg 21.3.1935, StAZ 1937, 261 = IPRspr 1935-1944 Nr 10; OLG Köln 15.10.1937 and RG 3.3.1938 (footnote 10).

[91] LG Köln 28.7.1978, in:  Gerichtshof der EG, Nachschlagwerk der Rechtsprechung zum Gemeinschaftsrecht, Serie D, Luxemburg 1981, I-21-B3.

[92] Trib. Bassano del Grappa 13.2.1976, Riv. dir. int. priv. proc. 1978, 74; App. Milano 26.9.1978, Riv. dir. int. priv. proc. 1978, 843.

[93] On the liberalization of the American practice, see Scoles/Hay (footnote 49) 351 ff. and Schütze, Konzeptionelle Unterschiede der Prozessführung vor US-amerikanischen und deutschen Gerichten, WM 1983, 1078, 1081.

[94] On §§ 38-40 dZPO, Kropholler (footnote 8) 381ff; on Art 17 GVÜ, Christian Kohler, Internationale Gerichtsstandsvereinbarungen: Liberalität und Rigorismus im EuGVÜ, IPRax 1983, 265-275; For an overview, Jung/Sandrock:  Sandrock (Hrsg), Handbuch der Internationalen Vertragsgestaltung, Bd. II (Heidelberg 1980) Section E, 757 ff.

[95] On § 40 II 1 dZPO, see Kropholler (footnote 8) 406-408.

[96] For example Art 11 II, 12 I 2, from the ZPO for the Canton Zürich with regard to the prorogation of the Zürich courts;  on the English meaning of domestic "forum conveniens" where a prorogation of a foreign court was disregarded, see the "Atlantic Song" (footnote 70).

[97] If the prorogation or an arbitration clause is valid in only one country, it could lead to forum shopping and a disagreement between the competing jurisdictions:  For example, the British-Swiss back and forth in the case Tracomin S.A. v. Sudan Oil Seeds Co., Ltd. [1983] 1 All E.R. 404 = [1983] 1 W.L.R. 662 = [1983] 1 Lloyd's L.R. 560 (Q.B.), appeal dismissed [1983] 3 All E.R. 137 = [1983] 1 W.L.R. 1026 (C.A.), petition dismissed [1983] 1 W.L.R. 1427 (H.L.); as well as the second case covering the same issue: [1983] 2 All E.R. 129 = [1983] 1 Lloyd's L.R. 571 (Q.B.), reversed [1983] 3 All E.R. 140 = [1983] 1 W.L.R. 1026, 1031 = [1983] 2 Lloyd's L.R. 624 (C.A.).

[98] BGH 3.12.1973, VersR 1974, 470 = IPRspr 1973 Nr 128b.

[99] BAG 29.6.1978, NJW 1979, 1119 = JZ 1979, 647 (Commentary Geimer) = IPRspr 1978 Nr 144.

[100] On the subject of harmonizing international decisions, see Hans Hoyer, Die Anerkennung ausländischer Ehescheidungen in Österreich (Wien 1972) 35-39; Neuhaus, Die Grundbegriffe des Internationalen Privatrechts, 2. Aufl. (Tübingen 1976) 46-63, Schmid, Handbuch des Österreichischen Internationalen Privatrechts (Wien and New York) 13 and 54.

[101] Official Journal of the European Communities Nr L 266/1, 9.10.1980; also published in RabelsZ 46 (1982) 196-221 and in Jayme/Hausmann (footnote 47) 77-86.

[102] Specifically mentioned in Giuliano/Lagarde, A report on the convention pertaining applicable law in contractual obligations, Official Journal of the European Communities Nr C 282/1, C 282/5, 31.10.1980.

[103] See footnotes 65 and 66.

[104] See footnotes 47 and 61.

[105] Eckstein, Die Frage des anzuwendenden Kollisionsrechts, RabelsZ 8 (1934) 121-147.

[106] Makarov, Das Problem des anzuwendenden Kollisionsrechts, ZvglRWiss 55 (1944) 230 (233-235).

[107] OLG Frankfurt 15.11.1982, IPRax 1983, 294 (Interview with Peter Schlosser, ibid 285-287):  The German forum non conveniens for the regulation of parental custody and determination of Greek domestic law; an overview in Blum (footnote 49) 146ff; Kropholler (footnote 8) 277ff; Wahl (footnote 49) 114ff.

[108] Andrea Bucher, Über die räumlichen Grenzen der Kollisionsnormen, in; FS Frank Vischer (Zürich 1983), 93 (96-105); Siehr, Heilung durch Statutenwechsel, in: GS Albert A. Ehrenzweig (Karlsruhe and Heidelberg 1976) 131 (143ff, 181f).

[109] An example here is found in Smith Kline & French Laboratories Ltd. v. Bloch (footnote 7) as well as the German decisions cited in footnote 10.

[110] This is often overlooked due to a parochial evaluation of the case from the judge's perspective, not the lawyer's.

[111] Also Geimer (footnote 8) 76; Kropholler (footnote 8) 260 RdNr 160.

[112] Castanho v. Brown & Root (UK) Ltd. (footnotes 1, 2 and 5).

[113] Castanho v. Brown & Root (UK) Ltd. (footnote 2) 76.

[114] This censure is clearly articulated in the court decisions for the Affair Jundeff (footnotes 53 and 54) as well as in other decisions:  Re T. (infants), [1968] 3 All E.R. 411 (C.A.):  The return of children to Canada; M. V. M. (Custody of Children), (1983) 4 Family Law Reports 603 (C.A.):  Return of children to Italy; also Siehr, Kindesentführungen ohne Ende—but also:  Il y a des juges à Accra, FamRZ 1976, 225-257:  Return of a German child from Ghana to Germany.

[115] Smith Kline & French Laboratories Ltd. v. Bloch (footnotes 7 and 15).

[116] Opposing view:  Eckstein (footnote 105).

[117] For a thorough discourse, see Samtleben, Forum Fixing, (RabelsZ 46 (1982) 716-727.

[118] BGH 28.10.1982, WM 1983, 243.

[119] Footnotes 70-72.

[120] Tingsrätt Malmö 27.1.1972 (footnote 59).

[121] Anton Schnyder, RabelsZ 47 (1983) 340, 342.

[122] Zajtay, The Application of Foreign Law, International Encyclopedia of Comparative Law, Vol. III, Chapter 14 (Tübingen et al 1972) 30-43.EuGH 30.11.1976—Rs. 21/76 (Bier v. Mines de Potasse d`Alsace), EuGHRspr 1976, 1735 = NJW 1977, 493 = RIW/AWD 1977, 356 (Commentary Linke).

[123] EuGH 30.11.1976—Rs. 21/76 (Bier v. Mines de Potasse d`Alsace), EuGHRspr 1976, 1735 = NJW 1977, 493 = RIW/AWD 1977, 356 (Commentary Linke).

[124] Piper Aircraft Co. v. Reyno (footnotes 14 and 50-52).

[125] This was originally the case for the defendants In re Paris Air Crash of March 3, 1974 (footnote 14) 745; A couple of Japanese plaintiffs requested the application of their domestic law which was even more liberal than Californian law: ibid 739.

[126] As was the case in Castanho (footnotes 1, 2 and 5), Smith Kline (footnotes 7 and 15), Laker Airways (footnote 87), Tracomin (footnote 97) and BGH 6.10.1982 (footnote 26) as well as In the Marriage of Takach, (1980) 47 Federal Law Reports 441 (Family Court of Australia):  A wife domiciled in Sydney sues at the domicile of her husband in Hong Kong, the husband sues in Australia.  For an overview:  Rhidian  Thomas, Restraining concurrent foreign legal proceedings, Lloyd's Maritime & Commercial Law Quarterly 4 (1983) 692-701.