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Declining jurisdiction in the Hague's proposed judgments convention: amalgamating the 'more appropriate forum' and the 'clearly inappropriate forum' tests to provide the optimal forum non conveniens clause.

Abstract

Judicial cooperative efforts which focus on harmonising jurisdictional rules and the mutual recognition and enforcement of foreign judgments should advance certainty and predictability in international commercial litigation. Critically, the civilian and common law traditions adopt fundamentally different approaches to resolving conflicts of jurisdiction. The civil law system of lis pendens promotes procedural efficiency by applying the first-in-time rule whilst the common law technique for declining jurisdiction is governed by the doctrine of forum non conveniens. Moreover, different forms of this doctrine are applied throughout the common law world. Whilst the majority of common law courts apply the 'most appropriate forum' test, in Australia, a highly criticised variant of that analysis developed--the 'clearly inappropriate forum' test. In recent times, the Hague Conference on Private International Law has rekindled interest in producing a global judgments treaty. This article examines whether inter alia the forum non conveniens provision for declining jurisdiction in the proposed convention stands to benefit from an amalgam of the more appropriate forum and the clearly inappropriate forum tests. It is argued that, on the world stage, the narrow focus of the Australian test could be advantageous in bridging the ideological divide between the concepts of lis pendens and forum non conveniens.

I Introduction

'Jurisdiction' refers to the power of a court to hear an action and to adjudicate an issue 'upon which its decision is sought'. (1) Significantly, in international litigation, each individual State determines adjudicatory authority in accordance with its own rules of jurisdiction. (2) Within this 'jungle' (3) of different national jurisdictional rules, (4) either several courts could assert jurisdiction over a dispute with a foreign element or a 'jurisdictional vacuum' could arise where no court claims jurisdiction. (5) Such conflicts of jurisdiction reduce certainty and predictability in international commercial litigation which, in turn, can adversely affect international trade. (6) In this context, judicial cooperative efforts that provide for the 'proper allocation of jurisdiction' and the mutual recognition and enforcement of foreign judgments should promote economic growth. (7)

The 'grim reality' of globalisation, however, is that a comprehensive judgments convention has yet to be developed. (8) At a global level, the most important institution for unifying private international law is the Hague Conference on Private International Law. (9) During the 1990s, this intergovernmental organisation embarked on an ambitious attempt to establish an international regime for recognising and enforcing foreign judgments. (10) Ultimately, though, negotiations on this treaty broke down due to the fundamentally different 'political, economic and cultural objectives' of the participating countries. (11) Notwithstanding these differences, one aspect on which the negotiating parties were able to reach an acceptable compromise was the inter-relationship between the civil law doctrine of lis pendens and the common law principles oi forum non conveniens in resolving conflicts of jurisdiction. (12)

In line with the civil law's focus on procedural efficiency, the lis pendens system for allocating jurisdiction is designed to prevent concurrent proceedings by adopting a 'simple test of chronological priority' in favour of the first court seised. (13) In contrast, the common law approach to declining jurisdiction is governed by the doctrine of forum non conveniens which proposes that a court may decline to exercise jurisdiction on the grounds that 'the appropriate forum for trial is abroad or that the local forum is inappropriate'. (14) Moreover, the 'general discretionary power' to decline jurisdiction within the common law world is complicated by the fact that there is not a single doctrine of forum non conveniens. (15) In England and Scotland, for instance, a modern doctrine has evolved based on identifying the natural forum for the trial of the dispute. (16) This is the forum with which the action has 'the most real and substantial connection'. (17) That inquiry, the 'more appropriate forum' test, has been largely followed by the courts in most Commonwealth countries.

A different enquiry is undertaken by Australian courts to staying proceedings on forum non conveniens grounds. Here, the basis for declining jurisdiction is the clearly inappropriate forum' test enunciated by the High Court of Australia in Voth v Manildra Flour Mills Pty Ltd, (18) The self-centred nature of the Voth test and its bias towards local jurisdiction has been widely criticised by the judiciary (19) and academics. (20) Despite this criticism, the Hague's Draff Conventions indirectly supported the Australian approach to forum non conveniens by including provisions governing the suspension of proceedings that were, in part, modelled on the Voth test and which leant distinctly towards the rigor demanded by Australia's 'clearly inappropriate forum' standard. (21) On the other hand, in intra-Australian matters and in the recently concluded Trans-Tasman Treaty between Australia and New Zealand, (22) the legislatures have authorised that conflicts of jurisdiction should be decided pursuant to the 'more appropriate forum' test.

This paper will initially discuss the principles underlying both the modern doctrine of forum non conveniens as practiced throughout most of the common law world and the version that developed in Australia. Following that discussion, the paper contrasts the different approaches to declining jurisdiction in two regional instruments, namely, the Brussels I Regulation (23) and the Trans-Tasman Treaty, before examining the lis pendens!forum non conveniens interaction and the mechanism for suspending proceedings in the Draff Conventions. In recent times, the Judgments Project has returned to the Hague's agenda. (24) In light of this rekindled interest in a global treaty to promote the enforcement of judgments, the purpose of the paper is to ascertain whether the forum non conveniens provision for declining jurisdiction in the proposed convention should simply be based on the 'more appropriate forum' test or an amalgam of that test and the 'clearly inappropriate forum' analysis.

Bell advocates that the 'more appropriate forum' assessment is an 'effective cornerstone of the common law's response to the complex problem of venue in modern transnational litigation'. (25) Nevertheless, it is arguable that, on the world stage, the narrow focus of the 'clearly inappropriate forum' test could assist in harmonising the concepts of lis pendens and forum non conveniens, (26) First, however, it is necessary to address in more detail the diverse approaches favoured by the civil and common law traditions in dealing with conflicts of jurisdiction.

II Concurrent jurisdiction and the civil law/common law divide

In an ever-expanding global economy, the open-ended rules of exorbitant jurisdiction adopted by many States present opportunities for litigants to resolve transnational disputes in multiple fora. (27) The combination of concurrent jurisdiction and the various advantages offered by one competent forum over another advances two private international law concerns. (28) The first is forum-shopping which occurs in a pejorative sense when a party seeks a particular court either to obtain a favourable judgment or to impose upon the defendant the 'greatest procedural disadvantage'. (29) The second issue is the prospect of parallel litigation, (30) which should be discouraged on the basis that it engenders 'injustice, delay and increased expense' (31) for the parties and raises the 'unattractive possibility' of irreconcilable judicial decisions. (32)

Civil law and common law countries have developed vastly different approaches towards declining regularly invoked jurisdiction to avoid parallel litigation and restrict forum shopping. (33) The civil law tradition applies the doctrine of lis pendens, which requires a court to stay its proceedings if the same action between the parties is already pending before the courts of another jurisdiction. (34) The appropriate forum is identified objectively on the basis of 'temporal priority'. (35) The most obvious weakness attributed to the first-in-time rule is that it promotes forum shopping by encouraging a race to the courthouse to effect control of the preferred forum. (36) Furthermore, whilst the rigidity of the system accords with the continental notion of legal certainty, (37) this approach can lead to 'injustice' (38) as the decision on jurisdiction is made without considering procedural fairness. (39)

The mechanistic lis pendens rule for resolving clashes of jurisdiction contrasts starkly with the common law doctrine of forum non conveniens. The exercise of judicial discretion in ascertaining the forum with which the action is most closely connected provides this doctrine with two significant attributes in resolving conflicts of litigation: the flexibility to adapt to the circumstances of each case (40) and the capacity to combat forum-shopping as the plaintiff is required to contest the dispute in the forum which is more appropriate for adjudicating the case. (41)

Nonetheless, civil law jurists regularly question the propriety of the forum non conveniens doctrine. (42) It is argued that the large discretion afforded trial courts does not promote predictability in jurisdictional issues and that preliminary litigation over the venue is costly for both the parties and the court. (43) The most compelling argument, however, is that it does not necessarily seek to discontinue parallel proceedings. (44) Consequently, the risk of inconsistent decisions is not eliminated and a 'race to judgment' is created in which one forum is effectively obliged to recognise and enforce the first judgment rendered' in accordance with the principle of res judicata, (45) In addition, the doctrine of forum non conveniens is not applied uniformly as each common law jurisdiction imposes its own conditions on staying proceedings. (46) The different approaches, at times, vary considerably and require closer inspection.

III Forum non conveniens in the common law world

A The Various Applications of the Forum Non Conveniens Doctrine

The origins of forum non conveniens can be traced to a series of Scottish cases decided in the early 17th century. (47) Although the courts provided a range of interpretations, (48) the House of Lords ultimately confirmed in Societe du Gaz de Paris v La Societe anonyme de navigation (49) that the application of the forum non conveniens test required evaluating whether Scotland was the most suitable forum to try the action. (50) The Scottish principles governing non conveniens were subsequently exported to the United States (US) and England,51 where the courts in both jurisdictions, at first, adopted a restrictive stance towards the doctrine. (52) The traditional approach, expounded by Scott LJ in St. Pierre v South American Stores (Goth & Chaves) Ltd,53) was that a court would not grant a stay unless the proceedings were deemed oppressive or vexatious' or 'an abuse of the process of the court'. (54)

As litigation internationalised in the (1970)s and (1980)s, the English courts progressively reformed the test by moving closer to the more liberal approach of the Scottish forum non conveniens plea. (55) This progression culminated in Lord GofFs landmark speech in Spiliada that informs much of the modern law governing forum non conveniens in England. (56) By this judgment, a stay will only be granted if a two-step test is satisfied. (57) The first stage requires the court to determine the natural forum. (58) If the defendant can establish that there is another court with competent jurisdiction which is 'clearly and distinctly more appropriate', then the inquiry progresses to the second stage. (59) Here, the plaintiff is extended an opportunity to show 'that justice requires that a stay should nevertheless not be granted'. (60)

The Spiliada 'more appropriate forum' test has been endorsed 'without any obvious difference' (61) in numerous common law countries including Canada, (62) New Zealand, (63) and Singapore. (64) The search for the most suitable forum is also central to a forum non conveniens claim in the United States. (65) However, the US Supreme Court has not adopted the two-stage Spiliada analysis. (66) Instead, adjudicatory authority is evaluated by weighing private and public interest factors to decide whether an alternative forum would be substantially more appropriate. (67)

The greatest departure from Spiliada, though, is the approach favoured by the courts in Australia. In Oceanic Sun Line Shipping Co v Fay (68) and its sequel Voth, the High Court of Australia constructed a higher threshold than the Spiliada standard for staying proceedings on the ground of forum non conveniens. (69) The High Court has summarised the principles which govern declining jurisdiction under Australian law by providing that:
   a stay should be granted if the local court is a clearly
   inappropriate forum, which will be the case if continuation of the
   proceedings in that court would be oppressive, in the sense of
   "seriously and unfairly burdensome, prejudicial or damaging", or,
   vexatious, in the sense of "productive of serious and unjustified
   trouble and harassment". (70)


In its 'qualified rejection' (71) of Spiliada, the Australian High Court re-affirmed the basic principle that, 'where jurisdiction exists', (72) the plaintiffs choice of forum is a right that should not 'be lightly disturbed'. (73) However, the rules of court for transnational cases allow jurisdiction to be founded on tenuous connections with the local forum. (74) The court's inherent power to stay proceedings is therefore an 'important procedural tool' for connecting the action with the natural forum. (75) Accordingly, it is apposite to critically discuss the different approaches of the Spiliada and Voth tests to declining jurisdiction.

B A Critique of the Spiliada and Voth Tests

The Spiliada inquiry requires the court to undertake a balancing exercise by weighing relevant connecting factors. (76) This approach offers a 'neutral and objective' solution to jurisdictional disputes by allocating litigation to the forum with which the case has its most substantial connection. (77) Nevertheless, the Spiliada test has been subjected to 'powerful' criticism for its uncertain compass'. (78) Lord Templeman's observation in the Spiliada case is telling: ' [t]he factors which the court is entitled to take into account in considering whether one forum is more appropriate are legion. The authorities do not, perhaps cannot, give any clear guidance as to how these factors are to be weighed in any particular case'. (79) Put simply, the Spiliada process may be flexible and fair but its outcomes are afflicted with uncertainty. (80)

Unlike Spiliada, the Voth test does not involve a comparative exercise. (81) In fact, in Zhang, the High Court majority emphatically declared that the primary judge had erred in 'striking a balance between competing considerations'. (82) The self-centred nature of the Voth test, however, has been described as 'parochial' (83) and chauvinistic'. (84) Fawcett correctly asserts that the Voth formula is 'loaded in favour' of proceedings continuing in the seised court as it is more difficult to prove that the local forum is clearly inappropriate rather than showing that the alternative forum is distinctly more appropriate. (85) Moreover, this narrow focus on the inappropriateness of the chosen forum is claimed to encourage forum shopping. (86)

Despite the Australian High Court's commitment to the Voth principles for staying proceedings in international litigation, (87) conflicts of jurisdiction within Australia are resolved in accordance with the 'more appropriate forum' test. Furthermore, the Trans-Tasman Treaty extends the Australian judicial model to include New Zealand with only minimal qualifications. (88) Hence, the next chapter will address inter alia the means by which the Trans-Tasman Treaty 'establishes a common forum non conveniens test' between two common law jurisdictions that in transnational disputes over venue have otherwise applied different tests. (89) However, before that discussion, it is important to examine the civilian-inspired Brussels regime (90) for allocating jurisdiction in the European judicial area.

IV Forum non conveniens in regional international instruments

A The Brussels Regime

The Regulation is the primary international instrument for coordinating judicial cooperation within the European Union (EU). (91) The founding members which negotiated the Regulation's predecessor, the Brussels Convention, were all from the civil law tradition and accordingly, the civilian penchant for certainty and consistency has heavily influenced the Brussels' instruments. (92)

The civil law ethos is clearly evident in the hierarchy of jurisdictional rules that underpins the Brussels regime. (93) The general rule in Article (2) of the Regulation specifies that the defendant can be sued in their country of domicile and forms the base of the structure. (94) To this general venue, the Regulation supplies 'a plurality of predetermined fora' that maintain a close connection with the dispute in which the plaintiff may also bring suit. (95) For example, an important head of jurisdiction that is capable of overriding the defendant's domicile rule is Article 23 of the Regulation. (96) This provision accords the parties' autonomous choice of venue significant respect by holding that if the parties have negotiated a choice-of-court agreement in favour of a Member State's court, then the courts of the chosen State shall have exclusive jurisdiction over the dispute. (97) In essence, jurisdiction is allocated on the criteria of 'proximity and fairness' and as such, any venue selected in accordance with the jurisdictional rules is 'always considered an appropriate forum'. (98)

Overall, the Regulation is a 'rigid tool' for determining jurisdiction that offers minimal recourse to judicial discretion. (99) Although the legislators were silent on the issue of forum non conveniens in the Brussels' instruments, the private international law experts of continental Europe maintained that staying proceedings in accordance with the doctrine was incompatible with the regime. (100) That perspective was comprehensively confirmed by the Court of Justice of the European Union (CJEU) in Owusu v Jackson, (101) where it was held that the mandatory nature of the jurisdictional rule in Article 2 prohibited a stay of proceedings in favour of the natural forum. (102) The forum non conveniens principles are essentially not suitable for the European system of civil procedure for, as Advocate General Leger advocated in his Owusu opinion, the opportunity to decline jurisdiction in a 'discretionary manner' undermines the predictability of the rules on adjudicative authority. (103)

The 'precisely formulated' jurisdictional rules also promote the proper functioning of the internal market by facilitating the free circulation of foreign judgments throughout the EU. (104) Effectively, only judgements rendered in compliance with the Regulation's criteria for jurisdiction are entitled to enforcement within the European judicial area. (105) Titus the Brussels regime is a double convention as the instruments address both judicial jurisdiction and the recognition of foreign judgments. (106) Von Mehren notes that double conventions are generally 'achievable' where the legal orders have 'convergent legal traditions that reflect a high degree of consensus on basic issues'. (107) It follows that the drafters of the Brussels Convention were assisted by the fact that the original six founding members had many common elements' and aspired to form an economic federation'. (108)

To facilitate the free movement of judgments within the internal market, the Brussels regime negates the risk of parallel proceedings, and subsequent inconsistent decisions, by a strict lis pendens rule presently articulated in Article 27 of the Regulation. (109) This provision grants precedence to the first court seised in resolving conflicts of jurisdiction and relevantly provides that:
   [w]here proceedings involving the same cause of action between the
   same parties are brought in the courts of different member States,
   any court other than the court first seised shall ... stay its
   proceedings until such time as the jurisdiction of the court first
   seised is established. (110)


Whilst the Regulation provides clear rules in Articles 27 and 23 that respectively prevent parallel proceedings and support party autonomy, (111) the strict application of the first-in-time rule has contributed to significant problems regarding the enforcement of jurisdiction agreements. (112) In Erich Gasser GmbH v Misat Sri, (113) the leading authority concerning the interplay between Articles 23 and 27 of the Regulation, the CJEU confirmed that if one party commences proceedings in breach of a jurisdiction agreement before the other party brings an action in the putatively chosen court, the second seised court must stay proceedings until the first court has ascertained whether it holds jurisdiction. (114) In short, lis pendens takes precedence over the party's agreement on jurisdiction if the chosen court is seised second.

Gasser has been subjected to substantial criticism. (115) Although the Court upheld the strictures of the first-in-time rule, (116) the decision has been criticised for inter alia fostering abusive litigation tactics in commercial practice as proceedings may be initiated in 'bad faith' in a forum other than that agreed upon by the parties. (117) Mance asserts that the CJEU's literal interpretation of the Brussels regime presents 'real problems for legitimate claimants' and opportunities for those litigants who are unwilling to meet their contractual obligations. (118)

The issues raised in Gasser and Owusu draw attention to the complex problems that can arise in an adjudicatory system that is 'reluctant to vest discretion' in the judiciary and prefers 'rigid over flexible' rules. (119) Notwithstanding these concerns, the Regulation has been described as 'the most successful instrument on international civil procedure of all time'. (120) Critically, the Brussels regime has largely worked on a regional basis in Europe due to the predominance of civil law nations in this area. (121) In contrast to the Regulation, the focus will now turn to a regional instrument that only involves common law jurisdictions.

B The Trans-Tasman Treaty

Australia and New Zealand are separated by the Tasman Sea. In addition to their geographical proximity, the two countries are members of the Commonwealth of Nations (122) and thus they also share a common law heritage and language. (123) In 2004, the national governments of both countries declared that a 'single economic market' had been formed on the back of the success of the 1983 Closer Economic Relations (CER) Trade Agreement. (124) This relationship was further strengthened in July 2008 when the Australian and New Zealand governments signed the Trans-Tasman Treaty. (125)

The objective of the bilateral treaty and its implementing legislation is to facilitate the creation of a shared trans-Tasman jurisdiction for civil proceedings. (126) This entails bringing New Zealand into the intra-Australian scheme, (127) which is predominantly based on a piece of legislation, the Service and Execution of Process Act 1992 (Cth) (SEPA). There are three main components to this scheme: the free circulation of civil initiating process to establish adjudicative jurisdiction; (128) the reliance on the principle of forum conveniens to identify the court which will decide the case in a clash of jurisdictions; (129) and liberal provisions for the enforcement of judgments whereby a court order rendered in one State may be 'localised by registration in the State where enforcement is sought'. (130) The Australian SEPA scheme is therefore a double convention as it not only ensures that all state and territory court orders are enforceable anywhere in the federation', (131) but also provides common principles of jurisdiction that direct litigation to the forum conveniens--the most appropriate Australian court for the trial of the action. (132) Most noticeably, this court is determined by a 'more appropriate forum' assessment based on the Spiliada principles.

Beyond extending the Australian jurisdiction and judgments model to incorporate New Zealand, (133) the Trans-Tasman Legislation also removes the 'disparities in the common law rules' applied by Australian and New Zealand courts for declining jurisdiction in international cases. (134) Whilst New Zealand has accepted the Spiliada standard in international litigation, Australian courts apply the more forum-centric Voth analysis. (135) Most relevantly, the protectionism fostered by the application of the 'clearly inappropriate forum' test has extended to jurisdictional disputes involving the courts of New Zealand. A 'low point', (136) in terms of protectionist practice in trans-Tasman proceedings, is Puttick, a 2008 decision of the Australian High Court. (137)

In Puttick, the High Court upheld an application against a permanent stay of proceedings in Victoria (138) and unanimously reaffirmed Voth as the applicable test for forum non conveniens in Australia. (139) The defendant had been unable to establish that New Zealand provided the applicable law which is typically a connecting factor that carries considerable weight in forum non conveniens claims. (140) Although the ruling that the Victorian forum was not clearly inappropriate was reasonable, (141) the plurality judgment made comments in obiter which indicated that the similarities between the Australian and New Zealand legal systems counteracted the significance of proving and applying New Zealand law in an Australian forum. (142) This reasoning suggests that, under the Voth approach, it almost inevitable' that an Australian forum will not consider itself clearly inappropriate to deal with a trans-Tasman dispute. (143) The codification of the Spiliada principles of forum non conveniens in the Trans-Tasman legislation should, therefore, eliminate the problematic Voth-Puttick' standard that Australian courts have applied in determining adjudicative jurisdiction in the single economic market. (144)

Mortensen and Knofel claim that, in general, the Trans-Tasman legislation establishes a 'balanced' mechanism for coordinating the exercise of jurisdiction and the enforcement of judgments in a 'highly integrated market'. (145) Interestingly, these authors also suggest that the 'European schemes of international cooperation' and their 'counterparts in the Tasman world' are essentially 'two sides of the same coin'. (146) In other words, both schemes are designed to regulate international litigation 'under the special condition of a common market'. (147) Yet, the success of the Brussels regime and the successful conclusion of the Trans-Tasman Treaty pivot on the fact that, as regional treaties, the legal orders concerned have 'relatively common legal traditions'. (148) Conversely, a convention premised on improving the global circulation of judgments is confronted with a more diverse range of legal philosophies. (149) Amongst other things, a question that arises in the face of such diversity is which methodology for declining jurisdiction, namely, the first-in-time rule, the 'more appropriate forum' test or the 'clearly inappropriate forum' test is most suitable for a worldwide judgments treaty. That was the issue confronting the drafters of the Hague's Jurisdiction and Judgments Convention and is the primary focus of the next chapter.

V The draft conventions on jurisdiction and foreign judgments in civil and commercial matters

A The History of the Judgments Project

In 1992, the United States encouraged the Hague to negotiate a multilateral convention dealing with the recognition of foreign judgments. (150) A Working Group, established to review the US proposal, identified that in the 'absence of a general enforcement of judgments convention, international litigants encountered considerable 'legal uncertainty, delay and costs'. (151) In this context, the Hague's experts 'unanimously' supported the proposed treaty. (152)

The Working Group also examined the 'optimal structure' of a judgments convention. (153) The single convention model, upon which the unsuccessful 1971 Hague Judgments Convention had been based, was deemed inferior to the double convention format. (154) However, the complete double convention of the Brussels/ Lugano type', was considered overly ambitious' for the Hague's broader membership. (155) For this reason, the Working Group was attracted to the flexibility of the mixed convention option. (156)

Although the 1992 Working Group acknowledged the inherent difficulties of negotiating a mixed jurisdiction and judgments convention, they were of the opinion that an instrument of this nature was 'technically feasible'. (157) Over the next decade, however, the negotiating parties were unable to reach consensus on a number of issues, particularly on the thorny question of whether a jurisdictional basis should be listed as required or prohibited. (158) In 2001, the negotiators decided to shelve the plans for a comprehensive convention in favour of a narrower project that focused on the 'most acceptable basis of jurisdiction': (159) choice-of-court agreements in the commercial context. (160)

Brand advises that before the negotiations on the more ambitious global judgments treaty collapsed, the experts at the Hague had produced a 'rather substantial draft convention'. (161) As a mixed convention, the proposed treaty planned to define the lists of required and prohibited jurisdictional bases. It also preserved 'some freedom to apply national jurisdictional law' that was neither required nor prohibited. (162) As the proposed treaty was effectively intending to deal with all bases of jurisdiction', Brand also advises that it had to address the different techniques of declining jurisdiction adopted by civil law and common law systems. (163) Further, the Draft Conventions included provisions for treating the vexed issue of parallel litigation which represented an interesting compromise between the doctrines of forum non conveniens and lis pendens.

B Declining Jurisdiction in the Draft Conventions

At this juncture, it is worth recalling that the approaches favoured by civil law and common law countries for dealing with parallel litigation are not 'wholly satisfactory'. (164) The lis pendens rule is efficient and predictable but creates a race to file proceedings whilst the forum non conveniens doctrine is tainted with uncertainty due to its reliance on judicial discretion. While both doctrines serve legitimate goals, neither provides a 'perfect combination of predictability, efficiency and equity' in all cases. (165) The goal for the drafters of the proposed convention therefore was to obtain the best of both systems while concomitantly neutralising their deficiencies. (166)

The 1996 Eighteenth Session of the Hague Conference established a Special Commission with a mandate to prepare a draft: convention on international jurisdiction and foreign judgments. (167) From the beginning of the discussions, it was apparent that the provisions of the proposed convention could offer plaintiffs a choice of fora in which to commence their action and that a conflict of jurisdictions could arise. (168) At the Special Commission's meeting in March 1998, Kessedjian noted that the experts were ambivalent on the inclusion of a forum non conveniens clause. (169) She observed that a proposal involving a 'relatively unrestricted' forum non conveniens provision produced a 'rather virulent' reaction by the experts from the countries with 'Roman law traditions'. (170) Other experts, however, believed that integrating a forum non conveniens provision with the lis pendens rule would advantageously combine 'two opposing principles: certainty and concrete realities'. (171) Ultimately, the Special Commission opted for a 'broad solution' to the problem of parallel proceedings by including in the Draft Conventions both a lis pendens rule and a forum non conveniens clause. (172)

The lis pendens provisions contained in Article 21 of the Draft Conventions are, according to Burbank, 'an excellent example of the fruits of enlightened procedural lawmaking'. (173) The drafters adopted the traditional first-in-time rule which requires the court second seised to suspend proceedings if the case is already in another court. Many details, though, were incorporated into the text to avoid the problems associated with the strict lis pendens rule of the Brussels regime. (174) For instance, pursuant to Article 21(6), the lis pendens norm is inapplicable when the first court seised involves proceedings that seek a negative declatory-judgment. (175) Most importantly, the general lis pendens procedure is balanced by Article 21 (7) which allows for the application of a forum non conveniens exception. (176) Here, the court first seised may suspend proceedings if it determines in accordance with Article 22 that the court second seised is 'clearly more appropriate' to resolve the dispute. (177)

Although the text in Article 21(7) intimates that the experts introduced the 'more appropriate forum' standard into the Draft Conventions, (178) Walter asserts that the rule for declining jurisdiction in Article 22 differs significantly from the Spiliada principles that govern the modern doctrine of forum non conveniens. (179) Firstly, it is only possible for proceedings to be suspended if three conditions are satisfied: the first seised court must declare itself clearly inappropriate; the alternative forum must hold jurisdiction to hear the case; and the alternative court must be a clearly more appropriate forum. (180) Secondly, Article 22(1) expressly states that the court is prohibited from suspending proceedings when the jurisdiction is founded on Articles 4, 7, 8 or 12. Consequently, a court can never decline jurisdiction where it holds exclusive jurisdiction, (181) or has been appropriately designated in an exclusive choice-of-court agreement. (182) Additionally, the court is prevented from dismissing proceedings if the jurisdiction concerns a consumer or employment dispute. (183) Thirdly, Article 22(3) forbids discrimination based on nationality or habitual residence of the parties. This is designed to outlaw the principles of forum non conveniens applied by the US courts that discriminate against foreign plaintiffs. (184)

The Special Commission managed to draw from two potentially conflicting doctrines, a system for declining jurisdiction that balances legal certainty and fairness. (185) An important component of the interaction between Articles 21 and 22 of the Draft Conventions is the requirement on the court to stay proceedings on the basis that it considers itself clearly inappropriate. This is basically the 'stringent', (186) but widely rebuked, Australian approach for declining jurisdiction in international litigation.

In 2012, the Hague convened an Experts' Group to examine the merits of recommencing work on the Judgments Project. (187) The experts recently recommended that inter alia further study on matters relating to parallel proceedings should be undertaken. (188) In light of this recommendation, and the inclusion of the Australian principle for staying proceedings in Article 22 of the Interim Text, it is essential to compare the clearly inappropriate forum' and the 'more appropriate forum' tests in the context of the proposed judgments treaty.

VI A comparative analysis of the 'clearly inappropriate forum' and the 'more appropriate forum' tests in international instruments

In the Issues Paper prepared in advance of the Experts' Group meeting in February 2013, the Permanent Bureau acknowledged that problems associated with concurrent jurisdiction remained 'at the fore-front of policy-making in the area of international litigation'. (189) The Bureau also commented that the approach to treating parallel litigation espoused by Articles 21 and 22 of the Interim Text had received 'in-principle agreement at the Nineteenth Session' and typified a position on which consensus could 'readily be achieved'. (190)

The Interim Text was never adopted. Nevertheless, following the demise of the Judgments Convention, a number of international non-governmental organisations continued to address the issues associated with parallel litigation. (191) By 2004, three law reform proposals on the topic had been concluded. (192) These instruments provided a slightly different system to that employed by the Draft Conventions for governing the lis pendens I forum non conveniens interaction. The experts at the ILA, IIL and ALI/UNIDROIT retained the fundamental mechanism whereby a mandatory first-in-time rule' operates in conjunction with a forum non conveniens clause. (193) The variance, though, occurred in relation to the relevant standard for deferring proceedings to the second seised court.

Brand and Jablonski maintain that the Draft Conventions implemented the Australian clearly inappropriate forum' test but overlaid that test with 'the gloss of the clearly appropriate forum' requirement applied in England and other common law jurisdictions. (194) In the ILA's Leuven/London Principles, however, the court searches for the 'manifestly more appropriate forum', (195) while in the Bruges Resolution and the ALI/UNIDROIT Principles, the court first seised yields its primacy to a second forum which is 'clearly more appropriate'. (196) Although the methodology for suspending proceedings in the proposals reflects 'the reasoning in Spiliada, (197) it is most noticeable that they do not incorporate the 'clearly inappropriate forum' condition. (198) That point of divergence is sharp and demands further elaboration.

The Spiliada 'more appropriate forum' test requires a comparative evaluation on the merits of possible fora and is therefore well-suited to softening the rigidity of a strict lis pendens rule. (199) The 'more appropriate forum' test also has the capacity to substantially restrict the practice of forum shopping (200) and, as Kirby J claimed in Zhang, the Spiliada standard is 'harmonious with ... comity and [the] mutual respect ordinarily observed between the courts of different nations'. (201)

Critics of the Spiliada approach argue, however, that its determinations on venue suffer from inconsistency as the courts have not established a definitive list of connecting factors to guide the 'discretionary decisions of trial judges'. (202) In Oceanic Sun, Deane J nominated this sense of unpredictability as a particular reason for not adopting the Spiliada standard. (203) Further, the common law and civil law traditions occupy polar positions on the role of judicial discretion in allocating jurisdiction in transnational litigation. (204) Accordingly, whilst the Spiliada principles are eminently suitable for a regional common law framework such as the Trans-Tasman Treaty, the 'broad, discretionary nature' of the more appropriate forum test could be problematic for a worldwide convention involving civil law countries. (205)

On this basis, the insular nature of the Voth test becomes attractive. It should be recalled that Voth and the decision in Puttick have attracted robust criticism. Mortensen alleges, for example, that the Australian standard is 'the most parochial approach to forum conveniens in the common law world'. (206) Paradoxically, it is the restrictive properties of the clearly inappropriate forum' test that makes the Australian version of forum non conveniens more acceptable to civil law countries. (207)

Specifically, it is suggested that three prime reasons support the wider acceptance of the clearly inappropriate forum' test by civil law jurisdictions. (208) The first is that the test provides a more certain standard as the court is not required to balance the competing merits of the local and foreign forums. (209) Secondly, as emphasised by the joint judgment in Voth, (210) the 'sole inquiry' avoids 'invidious comparisons' between the legitimacy of respective legal systems. (211) Finally, the joint judgment also proclaimed in Voth that in the majority of cases the 'clearly inappropriate forum' test would produce the same outcome as the 'more appropriate forum' test. (212) Their Honours stressed, however, that applying the 'clearly inappropriate forum' test was less complicated as it merely focuses on the 'advantages and disadvantages' arising from continuing the proceedings in the selected forum. (213) The critical point to note here is that in international commercial transactions, where ascertaining the natural forum can be a 'finely balanced question', a court can more readily conclude whether it is a clearly inappropriate forum. (214) The introspective nature of the Australian 'clearly inappropriate forum' test is therefore more likely to appeal to civilian lawyers than the Spiliada approach.

It follows that the Draft Conventions benefited by including the 'clearly inappropriate forum' condition in Article 22. Notably, the inclusion of a Voth- type test furnished the forum non conveniens provisions in these instruments with a more exacting standard for declining jurisdiction than the principles outlined in the ILA, IDI and ATI/ UNIDROIT proposals. The need to satisfy Article 22's twin requirements, namely, that the originating court is a clearly inappropriate forum and that the other forum is distinctly more appropriate to resolve the issue, warrants that jurisdiction will only be declined in exceptional cases. (215) Crucially, as Andrieux observes, a finding that the alternative forum may be clearly more appropriate does not necessarily infer that the 'forum seised is itself clearly inappropriate. (216) Puttick illustrates this situation nicely. On balance, the more appropriate forum for the trial of the dispute was New Zealand. (217) Yet the Victorian forum was not clearly inappropriate. (218) Thus, if the court applied Article 22 of the Draft Convention to the circumstances in Puttick, the proceedings would not have been stayed. These observations imply that, under the Article 21/22 'package', (219) the case will be tried in an appropriate forum, albeit 'perhaps not the most appropriate forum'. (220) It is suggested that underscoring this proposition is a trade-off of considerable importance: by limiting the application of the forum non conveniens doctrine, the risk of offending the civil law's 'cherished' principles of certainty and predictability is also reduced. (221)

Walker warns, though, that the higher threshold set by the Article 22 system for staying proceedings could foster discontent between the courts of different jurisdictions. (222) Her concerns are that, whilst a rigorous approach to granting a stay might be 'suitable in one legal system', it could be frustrating for a second seised court that typically would have suspended proceedings if presented with 'the situation faced by the first court'. (223) Nonetheless, the frustration alluded to by Walker may be the price for enticing civil law jurisdictions to operate a form of forum non conveniens when as Fawcett offers 'this has hitherto not been the case'. (224)

The issue of parallel proceedings remains relevant and is expected to be addressed in the Hague's proposed judgments instrument. (225) It is submitted that Articles 21 and 22 of the Draft Conventions created an excellent 'hybrid' solution:226 an amalgamation of the Voth and Spiliada forum non conveniens tests and the civil law's lis pendens doctrine. Thus the Experts' Group have a solid base on which to develop better solutions for resolving the complex problems associated with parallel litigation, (227) the incidence of which is only likely to increase in the 'face of globalisation'. (228)

VII Conclusion

The Brussels regime has successfully achieved its primary objectives, namely: to harmonise jurisdictional rules and to facilitate 'with a minimum of formality' (229) the recognition of judgments throughout the EU. (230) The success of these regional international instruments has largely been attributed to the fact that the Member States share similar 'social, political and economic cultures'. (231) Likewise, the shared common law heritage of Australia and New Zealand remains the foundation upon which the Trans-Tasman Treaty is based. (232)

On a global platform, however, the obstacles created by the cultural diversity of the various legal orders proved to be 'insurmountable'233 in negotiating a world-wide convention on jurisdiction and the enforcement of judgments. (234) McClean and Beevers maintain that, after 10 years of work, the Hague's failure to conclude a universal judgments treaty is 'instructive' for it illustrates the tensions that inherently exist between the common law and civil law traditions. (235)

The cultural incompatibility' (236) of common law and civil nations is reflected in the different techniques employed by their courts for dealing with parallel litigation. Although, the civil law doctrine of lis pendens is 'simple and certain', (237) it is 'rather arbitrary' (238) and creates an 'unseemly' race to file proceedings. (239) The common law doctrine of forum non conveniens, on the other hand, allows for 'appropriate results' (240) but lacks consistency and promotes an 'equally unseemly' race to judgment. (241) Bell correctly identifies that while both techniques contain 'certain virtues, neither is without its flaws'. (242)

Notwithstanding the vast disparity in their approaches to resolving conflicts of litigation, civil law and common law countries share two important concerns in jurisdictional law. (243) The first centres on preventing plaintiffs from bringing suits in inappropriate courts while the second is to limit the negative consequences of litigating in multiple fora. (244) It was from this common ground that the Hague was able to craft an outstanding solution to the problems of parallel proceedings in the Draft Conventions. (245) The experts recognised that a pragmatic approach was necessary to solve the issues that bedevil conflicts of jurisdiction.246 Thus, the Article 21/22 package in the Draft Conventions blended the flexibility of forum non conveniens with the predictability of lis pendens, 'albeit in a more limited fashion', (247) to produce a solution that was acceptable to both legal traditions. (248) Most importantly, the forum non conveniens clause implemented in Article 22 effectively restricts the suspension of proceedings to exceptional cases by supplementing the 'more appropriate forum' test, which is generally favoured throughout most of the common law world, with the 'clearly inappropriate forum' test that is applied in international litigation by the courts in Australia.

The 'more appropriate forum' test focuses on fairness between the parties as to the choice of venue by identifying the natural forum for resolving the dispute. (249) This test requires the suitability of competing fora to be compared and thus introduces a discretionary element which, in practice, clashes with the civil law notion that 'jurisdictional issues must be certain and predictable'. (250) The Australian clearly inappropriate forum' test, on the other hand, has been robustly criticised both for the deference that is extended to the plaintiff's choice of court and its association with forum shopping. (251) Despite this criticism, it is suggested that the inclusion of the Australian doctrine of forum non conveniens set a higher threshold for staying proceedings and this factor increased the acceptability of the declining jurisdiction provision to civilian lawyers. In effect, by combining the 'more appropriate forum' and 'clearly inappropriate forum' tests, the drafters maintained certainty in the application of the Draft Conventions but, concomitantly, allowed for 'some flexibility' which is essential in a global convention. (252)

Significantly, the Hague has resumed discussions on the Judgments Project with an Experts' Group considering matters relating to jurisdiction and parallel litigation. (253) It is submitted that the 'language of Articles 21 and 22' in the Draft Conventions built a 'global jurisdictional bridge' to reduce the ideological divide between the civil law and the common law approaches to resolving conflicts of jurisdiction. (254) Accordingly, the text of these provisions should form the basis of the exploratory work conducted by the Hague's experts on conflicts of litigation.

Finally, in 1981, Anton advised that the success of the then recently concluded Hague Child Abduction Convention (255) 'may depend less upon its precise terms than its adoption by a relatively large number of States'. (256) It is also submitted, therefore, that the proposed Judgments Convention stands to benefit by including a forum non conveniens provision that adopts both the 'more appropriate forum' and the clearly inappropriate forum' tests for declining jurisdiction because, in line with Anton's advice, jurisdictional equity is preserved without precluding civil law States from signing the treaty.

JUSTIN PAUL COOK *

* The author is an LLM graduate in Private International Law at the University of Aberdeen.

Acceptable World-wide: Can the Hague Conference Project Succeed?' (2001) 49 American Journal of Comparative Law 191, 194 ('Drafting a Convention).

(1) James Fawcett and Janeen Carruthers, Cheshire, North & Fawcett Private International Law (Oxford University Press, 14th ed, 2008) 199.

(2) Arthur Von Mehren, 'Theory and Practice of Adjudicatory Authority in Private International Law' (2002) 295 Recueil des Cours 9, 308 ('Theory and Practice').

(3) Airbus Industrie GIF v Patel [1999] 1 AC 119, 132 (Lord Goff) ('Airbus).

(4) Campbell McLachlan, 'Declining and Referring Jurisdiction in International Litigation (Report, International Law Association Conference, London, July 2000) 4.

(5) HCAW Schulze, 'Declining and referring jurisdiction in international litigation: the Leuven/London Principles' (2000) 25 South African Yearbook of International Law 161, 161.

(6) Peter Nygh, 'Declining Jurisdiction under the Brussels I Regulation 2001 and the Preliminary Draft Hague Judgments Convention: A Comparison in James Fawcett (ed) Reform and Development of Private International Law (Oxford University Press, 2002) 305.

(7) Ibid 307.

(8) William Woodward, 'Saving the Hague Choice-of-Court Convention (2008) 29 University of Pennsylvania Journal of International Law 657, 658.

(9) Hans Van Loon, 'Globalisation and the Hague Conference on Private International Law' (2000) International Law Forum du droit international 230, 230-1; Hereinafter the Hague Conference on Private International Law shall be referred to as 'the Hague' or 'HCCH'.

(10) Woodward, above n 8, 658; The Preliminary Draft Convention on Jurisdiction and Foreign Judgments was adopted by the Special Commission on 30 October 1999. See HCCH, ' Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters--Report by Peter Nygh and Fausto Pocar ' (August 2000) <http://www.hcch.net/upload/wop/jdgmpdl l.pdf> ('Nygh/Pocar Report'). The 1999 Preliminary Draft Convention was modified at the 2001 Diplomatic Conference to produce the 2001 Hague Interim Text for a Convention on Jurisdiction and Enforcement of Judgments, see <http.7/www.hcch.net/upload/wop/idgm2001 draft e.pdf>. Hereinafter, the 'Draft Conventions' shall refer collectively to the 1999 and 2001 Draff Conventions whilst the 'Interim Text' shall refer specifically to the 2001 Draff Convention.

(11) Yoav Oestreicher, '"We're on a Road to Nowhere"--Reasons for the Continuing Failure to Regulate Recognition and Enforcement of Judgments' (2008) 42 The International Lawyer 59, 84.

(12) Ronald Brand, 'Challenges to Forum Non Conveniens' (2013) University of Pittsburgh Legal Studies Research Paper 2013-21, 30 < http://papers.ssrn.com/sol3/papers.cfmPabstract id=2288697> ('Challenges').

(13) Jonathon Mance, 'Exclusive Jurisdiction Agreements and European Ideals' (2004) 120 Law Quarterly Review 357, 358.

(14) James Fawcett, 'General Report' in James Fawcett (ed), Declining Jurisdiction in Private International Law (Oxford University Press, 1995) 10.

(15) Ibid.

(16) Andrew Bell, Forum Shopping and Venue in Transnational Litigation (Oxford University Press, 2003) 91-2.

(17) Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460, 477-8 (Lord Goff) Spiliada).

(18) (1990) 171 CLR 538 CVoth).

(19) Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491, 525 (Kirby J) ('Zhang).

(20) Mary Keyes, Jurisdiction in International Litigation (Federation Press, 2005) 120; Richard Garnett, 'Stay of Proceedings in Australia: A 'Clearly Inappropriate' Test?' 23 Melbourne University Law Review 30, 64.

(21) Ronald Brand and Scott Jablonski, Forum Non Conveniens: History, Global Practice, and Future under the Hague Convention on Choice-of-Court Agreements (Oxford University Press, 2007) 169.

(22) Department of Foreign Affairs and Trade Canberra, 'Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement' (Christchurch 24 July 2008) <http://www.aph.gov.au/binaries/house/committee/jsct/9february2011/treaties/newzealand nia.pdfl> ('Trans-Tasman Treaty').

(23) Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the regulation and enforcement of judgments in civil and commercial matters, [2001] OJ L21/1 (the 'Regulation'). Hereinafter, the 'Brussels regime' shall refer to both the 1968 Brussels Convention on Jurisdiction and Judgments ('the Brussels Convention') and the Regulation.

(24) Permanent Bureau, 'Ongoing Work on International Litigation' (HCCH, March 2013) <http://www.hcch.net/upload/wop/genaff2013pd03e.pdf > ('Ongoing Work').

(25) Bell, above n 16, 131.

(26) Fawcett, above n 14, 70.

(27) Bell, above n 16, 11.

(28) Ibid 49.

(29) Lawrence Collins, 'Contractual Obligations--The EEC Preliminary Draft Convention on Private International Law' (1976) International and Comparative Latu Quarterly 35, 36; See also The Atlantic Star [1974] AC 436, 471 (Lord Simon).

(30) Martin Gebauer, 'Lis Pendens, Negative Declatory-Judgment Actions and the First-in-Time Principle' in Eckart Gottschalk et al (eds) Conflict of Laws in a Globalized World (Cambridge University Press, 2007) 89.

(31) Campbell McLachlan, 'Lis Pendens in International Litigation' (2008) 336 Recueil des Cours 199, 508 ('International Litigation').

(32) Bell, above n 16, 12.

(33) Airbus [1999] 1 AC 119, 131 (Lord Goff); Nygh identifies four situations in which the courts can refuse to exercise legitimately invoked jurisdiction: lis alibi pendens; related actions, forum non conveniens and by giving effect to a valid foreign choice-of-court agreement or an arbitration agreement; Nygh, above n 6, 304. The scope of this article does not permit an extensive discussion on declining jurisdiction with respect to related actions, exclusive choice-of court agreements or arbitration agreements.

(34) Von Mehren, above n 2, 315; See, eg, Article 9(1) of the Swiss Private International Law Act of 18 December 1987.

(35) Von Mehren, above n 2, 315.

(36) McLachlan, above n 31, 521.

(37) Christian Kohler, 'Practical Experience of the Brussels Jurisdiction and Judgments Convention on the Six Original Contracting States' (1985) 34 International and Comparative Law Quarterly 563, 582.

(38) Airbus [1999] 1 AC 119, 132 (Lord Goff).

(39) Von Mehren, above n 2, 315

(40) Spiliada [1987] 1 AC 460, 477-8 (Lord Goff); See also Fawcett, above n 14, 30.

(41) Martine Stuckelberg, 'Lis Pendens and Forum Non Conveniens at the Hague Conference' (2001) 26 Brooklyn Journal of International Law 949, 930; Common law courts generally employ two main procedural techniques to maintain fairness regarding the venue: the forum non conveniens doctrine and the anti-suit injunction, which restrains a party from initiating proceedings or prosecuting a case in a foreign court; Gebauer, above n 30, 89. The scope of this article does not extend to discussing anti-suit injunctions. For a comprehensive discussion on this device, see Martin Davies, Andrew Bell and Paul Brereton, Nygh's Conflict of Laws in Australia (LexisNexis, 8th ed, 2010) 187-202.

(42) See, eg, Haimo Schack, 'Germany in James Fawcett (ed) Declining Jurisdiction in Private International Law (Oxford University Press, 1995) 194.

(43) Stuckelberg, above n 41, 950; See also Gregoire Andrieux, 'Declining Jurisdiction in a Future International Convention on Jurisdiction and Judgments - How Can we Benefit from Past Experiences in Conciliating the Two Doctrines of Forum Non Conveniens and Lis PendensV (2005) 27 Loyola of Los Angeles International and Comparative Law Review 323, 351.

(44) Brand and Jablonski, above n 21, 121.

(45) Brand, above n 12, 8.

(46) Stuckelberg, above n 41, 955.

(47) Brand and Jablonksi, above n 21, 7; See, eg, Vernor v Elvies 6 Diet of Dec 4788 (1610) (Scot).

(48) See Longworth v Hope (1865) 3 M 1049, 1057; Sim v Robinow (1892) 19 R 665, 668 (Lord Kinnear); See also Alexander Anton, Private International Law (W Green, 1967) 148-54.

(49) 1926 SC (HL) 13.

(50) Ibid 22 (Lord Sumner).

(51) Paul Beaumont, 'A United Kingdom Perspective on the Proposed Hague Judgments Convention (1999) 24 Brooklyn Journal of International Law 75, 76 ('United Kingdom Perspective').

(52) Von Mehren, above n 2, 324.

(53) [1936] 1 KB 382.

(54) Ibid 398 (Scott LJ).

(55) For the development of the modern doctrine in England, see: The Atlantic Star (n 29); MacShannon v Rockware Glass Ltd [1978] AC 793; and 'The Abidin Daver [1984] AC 398. See also Paul Beaumont, 'Great Britain in James Fawcett (ed) Declining Jurisdiction in Private International Law (Oxford University Press, 1995) 209.

(56) CMV Clarkson and Jonathan Hill, The Conflict of Laws (Oxford University Press, 3rd ed, 2006) 104.

(57) Spiliada [1987] 1 AC 460, 477-8 (Lord Goff).

(58) Hie determination of the natural forum is made by referring to a number of connecting factors such as: the availability of witnesses, the applicable law and the residences of the parties; Spiliada [1987] 1 AC 460, 477-8 (Lord Goff).

(59) Ibid.

(60) Lubbe v Cape Pic (No 2) [2000] 4 All ER 268, 275 (Lord Bingham).

(61) Fawcett, above n 14, 12.

(62) Amchem Products Inc v British Columbia (Workers' Compensation Board) [ 1993] 1 SCR 897.

(63) Club Mediterranee NZ v Wendell [ 1989] 1 NZLR 216.

(64) Brinkerhoff Maritime Drilling Corporation v PTAirfast Services Indonesia [1992] 2 SLR 776.

(65) Gulf Oil Corp. v Gilbert 330 US 501, 508 (1947) (' Gulf Oil)-, See also Alexander Reus, 'Judicial Discretion: A Comparative View of the Doctrine of Forum Non Conveniens in the United States, the United Kingdom and Germany' (1994) 16 Loyola of Los Angeles International and Comparative Law Review 455, 462.

(66) Stuckelberg, above n 41, 956.

(67) Gulf OiliW US 501, 508 (1947).

(68) (1988) 165 CLR 197 ('Oceanic Sun).

(69) Davies, Bell and Brereton, above n 41, 167.

(70) Henry v Henry (1996) 185 CLR 582, 586-7.

(71) Adrian Briggs and Paul Rees, Civil Jurisdiction and Judgments (Norton Rose, 4th ed, 2005) 325.

(72) Oceanic Sun (1988) 165 CLR 197, 252 (Deane J).

(73) BHP Billiton v Schultz 221 CLR 400, [11] (Gleeson CJ, McHugh and Heydon JJ) {'Schultz).

(74) Keyes, above n 20,196.

(75) Reid Mortensen, 'Duty Free Forum Shopping: Disputing Venue in the Pacific' (2001) 32 Victoria University of Wellington Law Review 673, 674.

(76) Davies, Bell and Brereton, above n 41, 173.

(77) Bell, above n 16, 92.

(78) Ibid 130.

(79) Spiliada [1987] 1 AC 460, 465 (Lord Templeman).

(80) Anthony Gray, 'Forum Non Conveniens in Australia: A Comparative Analysis' (2009) 38 Common Law World Review 207, 234.

(81) Davies, Bell and Brereton, above n 41, 173.

(82) Zhang (2002) 210 CLR 491,521 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

(83) Michael Pryles, 'Judicial Darkness on the Oceanic Sun' 62 Australian Law Journal 774, 786

(84) Zhang (2002) 210 CLR 491, 550 (Kirby J).

(85) Fawcett, above n 14, 13; See also Voth v Manildra Flour Mills Pty Ltd (1989) 15 NSWLR 513, 534 (Kirby P).

(86) Keyes, above n 20, 123.

(87) See Puttick v Tenon Ltd (2008) 250 ALR 582 ('Puttick).

(88) Reid Mortensen, 'The Hague and the Ditch: The Trans-Tasman Judicial Area and the Choice-of-Court Convention (2009) 5 Journal of Private International Law LX'S, 222 ('The Ditch').

(89) Permanent Bureau, 'Issues Paper on Matters of Jurisdiction (Including Parallel Proceedings)' (HCCH, January 2013) < http://www.hcch.net/upload/hidden/2013/jdgm2013note02en.pdf> ('Issues Paper').

(90) The scope of the Brussels regime was extended by the Lugano Convention, which was concluded on 16 September 1988 between the then 12 Member States of the European Community and the then six Member States of the European Free Trade Area (EFTA). Essentially, the Lugano Convention covers the same subject matter as the Brussels regime but extends the operation of that system to cover a single legal area consisting of the EU Member States and the three EFTA States of Iceland, Norway and Switzerland; European Union Committee of the House of Lords, Green Paper on the Brussels I Regulation (21st Report of Session 2008-09), HL Paper 148, [6] <http://ec.europa. eu/iustice/news/consulting public/0002/contributions/ms parliaments/united kingdom house of lords en.pdf> ('HL 2008-09 148'). This article will limit its discussion to the Brussels regime.

(91) European Commission, 'Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee on the application of Council Regulation (EC) No 44/2001' COM (2009) 174 final, 2.

(92) AG Leger in Case C-281/02 Owusu vJackson [2005] ECR 1-1383, [264].

(93) Anna Gardella and Luca Radicati di Brozolo, 'Civil Law, Common Law and Market Integration: The EC Approach to Conflicts of Jurisdiction' (2003) 51 American Journal of Comparative Law 611, 612.

(94) The Regulation, Recital 14; See also Jonathon Harris, 'Understanding the English Response to the Europeanisation of Private International Law' (2008) 4 Journal of Private International Law 347, 352.

(95) Gardella and Radicati di Brozolo, above n 93, 613.

(96) HL 2008-09 148, above n 90, [35].

(97) The Regulation, Article 23.

(98) Gardella and Radicad di Brozolo, above n 93, 614.

(99) Ibid; Article 28 of the Regulation provides a limited discretion to the court second seised to stay a case if a related action is pending in another Member States courts; Stuckelberg, above n 41, 962.

(100) Peter Schlosser, Report on the Convention of 9 October 1978 on the Accession of Denmark, Ireland and the United Kingdom (OJ C 59/71, 1979) [78].

(101) Case C-281/02 [2005] ECR1-1383; In Owusu, a UK domiciliary was seriously injured while on vacation in Jamaica. Mr Owusu brought suit in England against Mr Jackson, the owner of the premises where the plaintiff was injured, and five Jamaican legal entities which supervised the premises. Jackson was also a UK domiciliary. The defendants sought for the proceedings to be stayed, basing their claim on the doctrine of forum non conveniens and arguing that Jamaica was the natural forum; Owusu [2005] ECR 1-1383, [11], [12], [14] and [15].

(102) Ibid, [46].

(103) AG Leger, above n 92, [263].

(104) Bell, above n 16, 52.

(105) Gardella and Radicad di Brozolo, above n 93, 631.

(106) Von Mehren, above n 2,405; There are three types of private international law conventions: single, double and mixed. A single convention only deals with indirect jurisdiction--the jurisdiction of the rendering court is considered 'indirectly by the requested court when deciding whether to recognise the foreign courts judgment. Double conventions deal with both recognition of foreign judgments and provide direct jurisdictional rules. Further, double conventions require that certain bases of jurisdiction are available; prohibit the use of all other jurisdictional bases and mandate that all judgments rendered on convention-required' bases are enforced in all Contracting States. A mixed convention is a variant of the double convention. This system provides rules for both jurisdiction and the recognition of judgments but does not purport to be exhaustive in its lists of required and prohibited bases of jurisdiction; Ronald Brand, 'Comparative Forum Non Conveniens and the Hague Convention on Jurisdiction and Judgments' (2002) 37 Texas International Law Journal 467, 490 ('Comparative Forum Non Conveniens); See also Von Mehren above n 2, 405.

(107) Arthur Von Mehren, 'Drafting a Convention on International Jurisdiction and the Effects of Foreign Judgments

(108) Ibid.

(109) Sir Anthony Clarke, 'The Differing Approach to Commercial Litigation in the European Court of Justice and the Courts of England and Wales' (Speech delivered at the Institute of Advanced Legal Studies, Russell Square, London, 23 February 2006) <http://www.kluwerlawonline.com/abstract.php?id=EULR2007004&PHPSESSID=5piqklo6gd elfvsmkhcjnl0pa4>.

(110) The Regulation, Article 27(1).

(111) HL 2008-09 148, above n 90, [33].

(112) Mance, above n 13, 362.

(113) Case C-116/02 Erich Gasser GmbH v Misat Sri [2003] ECR I-14693 ('Gasser).

(114) Ibid [54].

(115) See, eg, Trevor Hartley, International Commercial Litigation (Cambridge University Press, 2009) 255-9.

(116) Harris, above n 94, 368.

(117) Ibid.

(118) Mance, above n 13, 357.

(119) Von Mehren, 'Theory and Practice', above n 2, 352; The recendy adopted Recast Regulation implements important reforms to the Brussels regime. Notably, Article 31(2) of the Recast Regulation reverses the current priority mechanism by granting precedence to the forum designated in the parties' jurisdiction agreement. Moreover, Articles 33 and 34 of the Recast Regulation introduce two new rules governing international lis pendens which grant the Member States' courts a discretion to stay proceedings in circumstances where the court of a non-Member State has already been seised. The revised European jurisdictional regime will apply only to proceedings initiated after 10 January 2015; Elizabeth Crawford and Janeen Carruthers, 'Brussels I bis--the Brussels Regulation recast: closure (for the foreseeable future)' (2013) Scots Law Times 89, 89-93. For the adopted text, see Regulation 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (recast), [2012] OJ L351 /1.

(120) Roy Goode, Herbert Kronke and Ewan McKendrick, Transnational Commercial Law--Primary Materials (Oxford University Press, 2007) 793 cited in Burkhard Hess, Thomas Pfeiffer and Peter Schlosser, 'Report on the Application of Brussels I Regulation in the Member States (Study JLS/C4/2005/03)' (September 2007) <http://ec.europa.eu/ civiljustice/news/docs/studyapplicationbrussels1en.pdf>.

(121) Stuckelberg, above n 41, 970.

(122) Michael Kirby, 'Trans-Tasman Federation--Achievable, Impossible, Unnecessary?' (2010) 16 Canterbury Law Review 1, 2.

(123) Reid Mortensen and Oliver Knofel, 'The Australia and New Zealand Jurisdiction and Judgments Scheme: A Common Law Judicial Area' (2011) 16 Zeitschrift fur Zivilprozess International 369, 375.

(124) Kirby, above n 122, 6.

(125) Mortensen 'The Ditch', above n 88, 214.

(126) Kirby, above n 122, 10; The implementing legislation in Australia is the Trans-Tasman Proceedings Act 2010 (Cth) (the 'Australian Act') whilst the mirror legislation in New Zealand is the Trans-Tasman Proceedings Act 2010 (NZ) (the 'NZ Act'). Although both Acts have received Royal Assent, their substantive provisions have not entered into force; Hua Wang Bank Berhad v Commissioner of Taxation (No 3) [2013] FCA 262, [2] (Perram J). Hereinafter, the Acts shall collectively be referred to as the 'Trans-Tasman legislation'.

(127) Mortensen 'The Ditch', above n 88, 227.

(128) SEPA, ss 12, 15; See also Mortensen and Knofel, above n 123, 376.

(129) Mortensen 'The Ditch', above n 88, 22-3; In Schultz, the High Court confirmed that the applicable test for transferring a matter to another Supreme Court in accordance with section 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and the equivalent legislative measures in the States' Cross-Vesting Acts is the Spiliada formula; Schultz 221 CLR 400, [162] (Kirby J). In proceedings commenced in an inappropriate inferior court, section 20 of SEPA provides that the action can be stayed on the ground that another court is more appropriate to determine the dispute.

(130) SEPA, s 105; See also JLR Davis, 'Closer Economic Relations--A Trans-Tasman Confederation?' (2010) 16 Canterbury Law Review 47, 53.

(131) Mortensen 'The Ditch', above n 88, 218.

(132) Ibid 221.

(133) See, eg, section 9 of the Australian Act and section 13 of the NZ Act which grant all courts in Australia and New Zealand the power to judge proceedings commenced by the service of a summons anywhere in the market area.

(134) Australia (Attorney-General's Department) and New Zealand (Ministry of Justice), 'Trans-Tasman Court Proceedings and Regulatory Enforcement--A Report by the Trans-Tasman Working Group' <http://www.justice.govt.nz/publications/global-publications/t/trans-tasman-court-proceedings-and-regulatory- enforcement-a-report-by-the-trans-tas- man-working-group-december-2006>; See Australian Act, s 19(1) and NZ Act, s 24.

(135) Reid Mortensen, 'A Trans-Tasman Judicial Area: Civil Jurisdiction and Judgments in the Single Economic Market' (2010) Canterbury Law Review 61, 69 ('Trans-Tasman Judicial Area').

(136) Ibid 74.

(137) Puttick involved the following material facts: Mr Puttick, a New Zealand resident, was exposed to asbestos fibres in Belgium and Malaysia during his employment with a New Zealand company. After relocating to Victoria, he was diagnosed with malignant mesothelioma. Mrs Puttick subsequently commenced a negligence action in Victoria against her deceased husbands former employer; Puttick v Fletcher Challenge Forests Ltd [2006] VSC 370, [1] (Harper J).

(138) Puttick (2008) 250 ALR 582, 590 (French CJ, Gummow, Hayne and Keifel JJ).

(139) Murakami v Wiryadi [2010] NSWCA 7, [36] (Spigelman CJ).

(140) Puttick (2008) 250 ALR 582, 590 (French CJ, Gummow, Hayne and Keifel JJ); See also Mortensen, 'Trans-Tasman Judicial Area', above n 135, 74.

(141) Mortensen, 'Trans-Tasman Judicial Area, above n 135, 74.

(142) Puttick (2008) 250 ALR 582, 590 (French CJ and Gummow, Hayne and Kiefel JJ).

(143) Mortensen and Knofel, above n 123, 381.

(144) Mortensen, 'Trans-Tasman Judicial Area', above n 133, 96; See also Studorp Ltd v Robinson [2012] NSWCA 382.

(145) Mortensen and Knofel, above n 123, 377.

(146) Ibid 378.

(147) Ibid.

(148) Von Mehren, 'Drafting a Convention, above n 107, 198.

(149) Arthur Von Mehren, 'Enforcing Judgments Abroad: Reflections on the Design of Recognition Conventions' (1999) 24 Brooklyn Journal of International Law 17, 25.

(150) Louise Teitz, 'Both Sides of the Coin: A Decade of Parallel Proceedings and Enforcement of Foreign Judgments in Transnational Litigation (2005) 10 Roger Williams University Law Review 1, 2.

(151) Permanent Bureau, 'Conclusions of the Working Group meeting on enforcement of judgments' (HCCH, November 1992) < http://www.hcch.net/upload/wop/jdgm concll992e.pdf> (T992 Working Group Conclusions').

(152) Ibid 257.

(153) Gardella and Radicad di Brozolo, above n 93, 636.

(154) Permanent Bureau, '1992 Working Group Conclusions', above n 151, 257; The 1971 Hague Judgments Convention was only ratified by three nations. See <http://www.hcch.net/indexen.php?act=conventions.status&cid=78>.

(155) Permanent Bureau, '1992 Working Group Conclusions', above n 151, 257.

(156) Ibid 259.

(157) Ibid 263.

(158) Von Mehren, 'Drafting a Convention, above n 107, 198.

(159) Ronald Brand 'Jurisdictional Developments and the New Hague Judgments Project' University of Pittsburgh Legal Studies Research Paper 2013-19, 89 <http://papers.ssrn.com/sol3/papers.cftn?abstract id=2288071 >.

(160) Teitz, above n 150, 6; The Hague Choice-of-Court Agreement Convention was concluded in 30 June 2005, see < http://www.hcch.net/upload/conventions/txt37en.pdf>.

(161) Brand, 'Challenges', above n 12, 30.

(162) Stephen Burbank, 'Jurisdictional Equilibration, the Proposed Hague Convention and Progress in National Law' (2001) 49 American Journal of Comparative Law 203, 237.

(163) Brand, 'Challenges', above n 12, 30.

(164) Ibid 10.

(165) Brand, 'Comparative Forum Non Conveniens, above n 106, 494.

(166) Andrieux, above n 43, 359.

(167) Catherine Kessedjian, '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' (HCCH, July 1998) < http://www.hcch.net/ upload/wop/jdgmpd9.pdf >.

(168) Nygh/Pocar Report, above n 10, 89.

(169) Kessedjian, above n 167, 40.

(170) Ibid 42.

(171) Ibid 44.

(172) Stuckelberg, above n 41, 976; Notably, the substantive text of the provisions governing lis pendens and forum non conveniens in the 1999 and 2001 Draft Conventions, Articles 21 and 22 respectively, essentially remained unaltered.

(173) Burbank, above n 162, 219.

(174) Stuckelberg, above n 41, 977.

(175) This provision evades the Gasser problem in which the CJEU elevated a prior request for a negative declaratory- judgment over the parties' choice-of-court agreement; Brand, 'Challenges', above n 12, 31. For an excellent discussion on the relationship between lis pendens and negative declatory-judgment actions, see Gebauer, above n 30, 94-100.

(176) Stuckelberg, above n 41, 977.

(177) Interim Text, Article 21(7); See also Stuckelberg, above n 41, 977.

(178) Gerhard Walter, 'Lis Alibi Pendens and Forum Non Conveniens: From Confrontation via Co-ordination to Collaboration' (2002) 4 European Journal of Law Reform 69, 84.

(179) Ibid.

(180) Interim Text, Article 22(1).

(181) Interim Text, Article 12.

(182) Interim Text, Article 4.

(183) Interim Text, Articles 7 and 8.

(184) See Piper Aircraft v Reyno 454 US 235 (1981); See also Walter, above n 178, 85.

(185) Andrieux, above n 43, 368.

(186) Brand, 'Challenges', above n 12, 32.

(187) Permanent Bureau, 'Ongoing Work', above n 24, 3.

(188) Ibid Annex 2.

(189) Permanent Bureau, 'Issues Paper', above n 89, 12.

(190) Ibid 13.

(191) McLachlan, 'International Litigation', above n 31, 214.

(192) The organisations, and their respective instruments, that provided the reform proposals were: the International Law Association (ILA) [Resolution 1/2000, the Leuven/London Principles on Declining and Referring Jurisdiction in Civil and Commercial Matters (Leuven/London Principles)]; the Institute of International Law (IIL) [Resolution 2003 on the principles for determining when the use of the doctrine of forum non conveniens and anti-suit injunctions is appropriate (Bruges Resolution)] ; and the American Law Institute (ALI) in conjunction with the International Institution for Unification of Private Law (UNIDROIT) [2004 Principles of Transnational Civil Procedure (ALI/UNIDROIT Principles)].

(193) Permanent Bureau, 'Issues Paper', above n 89, 13; The lis pendens rules and the forum non conveniens clauses are respectively located in the various instruments as follows: Leuven/London Principles--Principles 4.1, 4.3; Bruges Resolution--paras 4, 1; ALI/UNIDROIT Principles--Principles 2.6, 2.5.

(194) Brand and Jablonski, above n 21, 155.

(195) Nygh, above n 6, 328.

(196) Permanent Bureau, 'Issues Paper', above n 89, 14.

(197) Nygh, above n 6, 328.

(198) Ibid.

(199) Burbank, above n 162, 222.

(200) Bell, above n 16, 130.

(201) Zhang (2002) 210 CLR491, 524 (Kirby J).

(202) Schack, above n 42, 194.

(203) Oceanic Sun (1988) 165 CLR 197, 252-4 (Deane J); See also Peter Prince, 'Bhopal, Bougainville and OKTedi: Why Australia's Forum Non Conveniens Approach is Better' (1998) 47 International Comparative Law Quarterly 573, 590.

(204) Bell, above n 16, 130.

(205) Andrew Dickinson, 'Publication Review: Lis Pendens in International Litigation (2011) 60 International Comparative Law Quarterly 282, 284.

(206) Reid Mortensen, 'Woodhouse Reprised: Accident Compensation and Trans-Tasman Integration (2013) 9 Journal of Private International Law 1, 27.

(207) Stuckelberg, above n 41, 957.

(208) Ibid 970; See also Prince, above n 203, 579.

(209) Garnett, above n 20, 36.

(210) Voth (1990) 171 CLR 538, 559 (Mason CJ, Deane, Dawson and Gaudron JJ).

(211) Nygh, above n 6, 329.

(212) Voth (1990) 171 CLR 538, 558 (Mason CJ, Deane, Dawson and Gaudron JJ).

(213) Ibid.

(214) Ibid.

(215) Nygh, above n 6, 331.

(216) Andrieux, above n 43, 366.

(217) Puttick v Fletcher Challenge Forests Ltd [2006] VSC 370, [21] (Harper J).

(218) Puttick (2008) 250 ALR 582, 583 (French CJ, Gummow, Hayne and Keifel JJ).

(219) Permanent Bureau, 'Issues Paper', above n 89, 13.

(220) Andrieux, above n 43, 366.

(221) Ibid 351.

(222) Janet Walker, 'Parallel Proceedings--Converging Views: The Westec Appeal' (2000) Canadian Yearbook of International Law 155, 171.

(223) Ibid.

(224) Fawcett, above n 14, 70.

(225) Permanent Bureau, 'Ongoing Work', above n 24, Annex 2.

(226) McLachlan, 'International Litigation', above n 31, 223.

(227) Ibid 545.

(228) Walter, above n 178, 85.

(229) Paul Beaumont and Peter McEleavy, AE Anton Private International Law (W Green, 3rd ed, 2011) 212.

(230) The Regulation, Recital 2; See also Friedrich Juenger, 'A Hague Judgments Convention?' (1999) 24 Brooklyn Journal of International Law 111, 116.

(231) Juenger, above n 230, 121.

(232) Mortensen and Knofel, above n 123, 376.

(233) Juenger, above n 230, 121.

(234) Stuckelberg, above n 41, 970.

(235) David McClean and Kisch Beevers, Morris: The Conflict of Laws (Sweet & Maxwell, 7th ed, 2009) 70.

(236) Edwin Peel, 'Forum Shopping in the European Judicial Area--Introductory Report' Oxford Legal Studies Research Paper 39/2006, 4 < http://papers.ssrn.com/so13/papers.cfm?abstract id=927198>.

(237) Beaumont, 'United Kingdom Perspective' (n 51) 75.

(238) Ibid.

(239) Walker, above n 222, 167.

(240) Beaumont, 'United Kingdom Perspective', above n 51, 75.

(241) Walker, above n 222, 167.

(242) Bell, above n 16, 129.

(243) Ibid.

(244) Ibid.

(245) Ronald Brand, 'Jurisdictional Common Ground: In Search of a Global Convention' in James Nafziger and Symeon Symeonides (eds), Law and Justice in a Multistate World (Transnational Publishers, 2002) 12 ('Jurisdictional Common Ground').

(246) McLachlan, 'International Litigation', above n 31, 223.

(247) Brand, 'Challenges', above n 12, 34.

(248) Stuckelberg, above n 41, 961.

(249) Bell, above n 16, 92.

(250) Stuckelberg, above n 41, 949.

(251) Jocelyn Kellam and Rene Mouledoux, 'Forum Non Conveniens in Australia (Federation of Defense and Corporate Counsel, May 2009) <http://www.thefederation.org/documents/6-CLE%20Annual%2009-Kellam.pdf>.

(252) Stuckelberg, above n 41, 951.

(253) Permanent Bureau, 'Ongoing Work', above n 24, 6.

(254) Brand, 'Jurisdictional Common Ground', above n 245, 12.

(255) The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, see <http:// www.hcch.net/upload/conventions/ txt28en.pdf>.

(256) Alexander Anton, 'The Hague Convention on International Child Abduction' (1981) 30 International Comparative Law Quarterly 537, 556.
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