International Law Update

FORUM NON CONVENIENS

Texas Supreme Court grants mandamus petition to dismiss wrongful death action on forum non conveniens grounds where incident occurred on oil rig in Singapore waters

Paul Merema (“Paul”), an Australian citizen, was a contract worker on the oil rig ENSCO 104 in the territorial waters of Singapore. He was killed when a valve assembly malfunctioned. Singapore authorities investigated the incident. Paul’s employment contract through Total Marine Services (TMS) provided that the laws of Western Australia applied, and any dispute was to be resolved through arbitration in Perth, Western Australia.

Paul’s widow, Margaret Merema (“Merema”), filed suit in Australia against TMS. She also sued the owner of the oil rig and its parent company (jointly “ENSCO”) in Dallas, Texas. ENSCO moved to dismiss the Dallas case based on forum non conveniens because none of the alleged negligent acts occurred in Texas. The trial court denied ENSCO’s motion. The court of appeals denied ENSCO’s mandamus request. ENSCO then filed for a writ of mandamus with the Supreme Court of Texas.

The Supreme Court of Texas, in a per curiam opinion, conditionally grants the mandamus because the trial court abused its discretion by failing to dismiss the case based on forum non conveniens.

As for the procedure, the Court notes when a motion to dismiss on forum non conveniens is erroneously denied, an appeal is not appropriate, but mandamus relief.

In Texas, a statute lists the factors to be considered by a trial court in ruling on forum non conveniens:

“If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties a claim or action to which this section applies would be more properly heard in a forum outside this state, the court shall decline to exercise jurisdiction under the doctrine of forum non conveniens and shall stay or dismiss the claim or action. In determining whether to grant a motion to stay or dismiss an action under the doctrine of forum non conveniens, the court shall consider whether:”

“(1) an alternate forum exists in which the claim or action may be tried;

(2) the alternate forum provides an adequate remedy;

(3) maintenance of the claim or action in the courts of this state would work a substantial injustice to the moving party;

(4) the alternate forum, as a result of the submission of the parties or otherwise, can exercise jurisdiction over all the defendants properly joined to the plaintiff’s claim;

(5) the balance of the private interests of the parties and the public interest of the state predominate in favor of the claim or action being brought in an alternate forum, which shall include consideration of the extent to which an injury or death resulted from acts or omissions that occurred in this state; and

(6) the stay or dismissal would not result in unreasonable duplication or proliferation of litigation.”

“TEX. CIV. PRAC. & REM.CODE § 71.051(b). The word ‘shall’ in the statute ‘requires dismissal of the claim or action if the statutory factors weigh in favor of the claim or action being more properly heard in a forum outside Texas.’” [311 S.W.3d 924]

The Court then proceeds to apply the factors to the case at bar. ENSCO argues that either Australia or Singapore offer an adequate forum for this case. Merema responds that ENSCO was attempting to obscure by lumping Australia and Singapore together as potential forums. The Court disagrees. Section 71.051 does not require the designation of one specific forum when there are several available forums.

A forum is inadequate if the remedies it offers are so unsatisfactory that they provide no remedy at all. Merema further argues that ENSCO should have explained the trial procedures of Australia and Singapore to show that they are adequate. The Court again disagrees. Comparative analysis of procedures in different forums is generally not appropriate in a forum non conveniens analysis. Such exercises involve complicated analysis in comparative law, and should only be used if the potential forum offers no remedy at all.

The Court then reviews the third factor, whether litigating the case in Texas would work a substantial injustice to the moving party, ENSCO. Here, the Court agrees with ENSCO. The lack of compulsory process in Texas for the majority of the foreign witnesses is substantially unjust.

Also, the fact that ENSCO has a suit pending against TMS in Australia mandates dismissal, because it is more convenient to resolve all claims in one trial.

The fourth statutory factor, whether the alternate forum has jurisdiction over the defendants, weighs in favor of ENSCO, as all defendants have agreed to submit to jurisdiction in either Singapore or Australia.

The Court then turns to the fifth statutory factor, the balancing of the public and private interest factors.

“A consideration in this balancing is the extent to which Paul’s death resulted from acts or omissions that occurred in Texas. … Private interest considerations include ease of access to proof, availability and cost of compulsory process, and other practical problems that make trial easy, expeditious, and inexpensive. … ENSCO points out that in this case relevant documents and potential witnesses are located around the world. For example, the investigating officials and employees of the shipyard are in Singapore. Paul’s family, a psychologist who provided services after the incident, and TMS and its employees are located in Australia. … Of the twenty‑nine men assigned to work on the ENSCO 104 at the time of the incident, twenty‑one were TMS employees and all but two of the men on duty at the time of the incident were citizens of Australia or New Zealand, as were three of the four men who witnessed the incident. … Even if some witnesses are located in the United States, the fact remains that compulsory process is unavailable for the vast majority of witnesses. See TEX.R. CIV. P. 176.3. Similarly, although Merema asserts that copies of documents located in Australia and Singapore can be shipped or sent by email, that fact does not cure the problems and difficulties posed by the lack of compulsory process to secure production of the documents and other evidence. …”

“Aside from the fact that compulsory process is unavailable to compel the majority of witnesses to appear in Dallas County or to require production of documents, the practical problems that make trial easy, expeditious, and inexpensive must be considered. … The physical evidence is in storage in Singapore and onboard the ENSCO 104, which was operating off the shores of Malaysia when the trial court rendered its decision and off the shores of Australia when ENSCO filed its brief. This evidence is under ENSCO’s control, but ENSCO presented evidence that the cost of airfare from Singapore or Australia to Dallas was approximately five times the cost of airfare between Australia and Singapore. Travel time between Australia and Singapore was five hours compared to over twenty hours for travel between Australia or Singapore and Dallas. … The cost, time, and scheduling difficulties to obtain evidence and present witness testimony would be far greater if the case were tried in Texas.”

“Another consideration in the fifth factor is the extent to which Paul’s death resulted from acts or omissions that occurred in this state. TEX. CIV. PRAC. & REM.CODE § 71.051(b)(5). Merema asserts that she need not prove that Paul’s death resulted from acts or omissions occurring in Texas by a preponderance of the evidence, but that she need only make a prima facie showing that it did so. She claims her burden was fulfilled by evidence that actions and inactions of ENSCO corporate management led in part to Paul’s death. Merema relies on a statement in a report produced by TMS entitled ‘Human Factors Investigation into the fatality that occurred on board the jack‑up rig ENSCO 104 on 23 April 2005.’ [...]”

“We disagree with Merema’s premise as to her burden of proof. The forum non conveniens statute does not place the burden of proof on either party. To the extent evidence is necessary to support a party’s position, the trial court must base its decision on the greater weight of the evidence. … Here, Merema has not identified any corporate policy linked to Paul’s death, and the report on which she relies states that if safety practices were not being performed, failure to comply was possibly due to a lack of commitment from ENSCO shore management. ENSCO presented uncontroverted evidence that persons addressed by the report ‘rig management and shore management’ were employed by a separate corporation located in Singapore and land‑based personnel were based in Singapore and Australia. Accordingly, the report is no evidence that Paul’s death resulted from an act or omission that occurred in Texas.”

“The public interest factors to consider in determining the fifth factor include administrative difficulties related to court congestion, imposition of jury duty on citizens who have no relation to the litigation, local interest in having localized controversies decided at home, and trying the case in a forum that is at home with the law that governs the case. … But as previously noted, Merema did not offer evidence that the ENSCO defendants’ actions or omissions in Texas contributed to Paul’s death. Nor did she identify any other Texans who have an interest in the case. The case involves an injury that happened in Singapore’s territorial waters on a Liberian‑flagged vessel to an Australian citizen employed by an Australian company. …Further, the fact that the trial court has jurisdiction over the defendants because their offices are in Dallas is a separate issue from whether the case should be dismissed on forum non conveniens grounds. …”

FORUM NON CONVENIENS

In dismissal of defamation lawsuit for alleged acts that took place in Iraq, Fourth Circuit [1] remands holding that Defendant’s motion to dismiss was premature since Plaintiff was about to amend his complaint and [2] provides guidance as to forum non conveniens issues that will arise again

Richard Galustian (Plaintiff) is a British citizen residing in the United Arab Emirates (UAE). He owns ISI International, Ltd. (ISI), a commercial security business in the UAE and in Dubai. Lawrence Peter (Defendant) is a U.S. citizen residing in Virginia Beach, Virginia. He directs the Private Security Company Association of Iraq (PSCAI). It is supposed to keep member companies informed about industry developments and to set standards for similar companies doing business in Iraq.

Plaintiff sued Defendant for defamation in a Virginia federal court. His complaint alleges that Defendant defamed him by sending an e‑mail to PSCAI members, attaching an Iraqi warrant for Plaintiff’s arrest. The warrant failed to specify the name of the offense or to include any citation to an applicable article of Iraqi law. Plaintiff further alleged that someone had forged the signature of the official issuing the warrant. Defendant responded that he had forwarded the warrant to PSCAI members to let them know that an Iraqi court was asserting jurisdiction over a private U.S. contractor.

Defendant moved to dismiss (1) on forum non conveniens (FNC) grounds and (2) for failure to state a claim under either Virginia or Iraqi law. Attached to the motion was an affidavit by former Iraqi lawyer George Hermes Hanna; it alleged that Articles 204 and 205 of the Iraqi Civil Code provides for a defamation claim.

The District Court dismissed the lawsuit conditionally based on FNC doctrine. The conditions were that Defendant (1) waive all immunity he might have by virtue of Coalition Provisional Authority Order 17 (providing immunity to international consultants and contractors) and (2) waive any applicable statute of limitations defense. The District Court found that, under those conditions, Iraq was an available and adequate forum.

On Plaintiff’s appeal, the Fourth Circuit reverses in part and remands for further proceedings. The Court points out that the dismissal of the case was premature in that Plaintiff was about to amend his complaint to add another Defendant. Nevertheless, the Court seems to favor the applicability of FNC.

“We … express no opinion as to the substance of the [FNC] issue, but do offer some guidance to the district court upon remand. We review the decision of the district court on [FNC grounds] for abuse of discretion. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 … (1981) …”

“When moving to dismiss an action on FNC grounds, the defendant has the burden of proof to show the existence of an alternate, adequate, and available forum. … ‘Ordinarily, [the availability] requirement will be satisfied when the defendant is ‘amenable to process’ in the [foreign] jurisdiction.’ … However, in certain cases, the alternate forum is unavailable ‘where the remedy offered by the other forum is clearly unsatisfactory’ or when the other forum does not provide for a cause of action for the plaintiff’s alleged injury. …”

“As to the second factor, a forum is considered adequate when ‘(1) all parties can come within that forum’s jurisdiction, and (2) the parties will not be deprived of all remedies or treated unfairly, even though they may not enjoy all the same benefits as they might receive in an American court.’ …”

“To show that Iraq was an available alternative forum, Defendant introduced an affidavit from [Mr.] Hanna, an reputed expert on Iraqi law. While this Court does not require an exhaustive comparative law analysis from the parties or the [lower] court, Mr. Hanna’s affidavits fell short of showing the availability of a defamation remedy, especially in the case where serious questions arise as to whether a British citizen [like Plaintiff] can bring suit in an Iraqi court. In this Court’s review of the articles of the Iraqi Civil Code cited by Mr. Hanna, it does not appear certain that defamation as such is contemplated by the Civil Code as a cause of action. Rather, the sections cited by Mr. Hanna appear to provide for damages for reputational harms occurring as part of another injury.”

FORUM NON CONVENIENS

In action by French company against German companies and Polish individual over control of Polish telecom company, Ninth Circuit affirms forum non conveniens dismissal despite claims that district court failed to give deference to Plaintiff’s choice of forum and improperly balanced private and public factors

In 2006, Vivendi S.A. of France, and its Delaware Holding Company (jointly Vivendi) sued various German telecom companies (collectively T‑Mobile) and a Polish billionaire, Zygmunt Solorz‑Zak (Solorz), in federal district court in Washington State. The complaint alleges a violation under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962, and common‑law fraud. This is one of at least 20 litigation and arbitration cases that Vivendi initiated to recover its $2.5 billion investment in Polska Telefonia.

This case began in 1999, when both Vivendi and T‑Mobile became interested in the Polish telephone company, Polska Telefonia. At the time, Polish law prohibited foreign investors from owning more than 49% of any telecom company. One of the T‑Mobile defendant companies eventually owned 49%. Vivendi partnered with a Polish company, Elektrim, to jointly own 51%. In 2000, T‑Mobile began arbitration against Vivendi’s Polish partner for its transfer of Polska Telefonia shares, claiming that the transfer breached the Polska Telefonia shareholder agreement. While the arbitration was ongoing, Solorz bought a controlling interest in Elektrim. Vivendi alleged in its federal complaint that Solorz had conspired with T‑Mobile to help T‑Mobile gain control of Polska Telefonia.

In 2004, an arbitration panel found that Elektrim’s transfer of its Polska Telefonia shares to the joint venture was ineffective because it violated the shareholders’ agreement that required the consent of the Polska Telefonia Board of Directors. T‑Mobile and Elektrim then took over the Polska Telefonia management board.

Three years later, the district court dismissed the Complaint based on the forum non conveniens doctrine. It ruled, inter alia, that Poland offered an adequate alternative forum. Vivendi appealed. The U.S. Court of Appeals for the Ninth Circuit affirms the dismissal.

To decide a forum non conveniens question, the district court must consider (1) whether an adequate alternative forum exists, and (2) whether the balance of private and public interest factors favors dismissal. In this case, Vivendi argues that the district court abused its discretion by (a) giving insufficient deference to Vivendi’s choice of forum, and (b) unreasonably balancing the public and private interest factors. The Court of Appeals disagrees.

“Vivendi contends the district court gave insufficient deference to its choice of forum. Under our law, foreign plaintiffs are entitled to less deference than are plaintiffs who file suit in their home forums. … Vivendi S.A., a French company, filed this action related to European transactions in a forum far from its home. Therefore, the district court did not abuse its discretion when it afforded Vivendi S.A.’s choice of forum ‘little deference.’”

“Moreover, this court’s review of a district court’s forum non conveniens determination is highly deferential. … In cases concerning foreign plaintiffs, this court rarely has reversed a district court’s grant of a motion to dismiss for forum non conveniens. …”

“The only allegations Vivendi asserts that connect this action to the United States are the use of ‘U.S. wires’ in various conversations and e‑mail exchanges between the parties and the appointment to Polska Telefonia’s board of Thomas Winkler, the Chief Financial Officer of T‑Mobile International, a German corporation, ‘who upon information and belief conducted business in the United States at T‑Mobile USA’s Seattle, Washington headquarters.’”

“Notably, Vivendi has alleged no facts that show that Winkler took any action from Seattle – or, for that matter, from anyplace else – specifically with respect to T‑Mobile’s allegedly fraudulent acquisition of Polska Telefonia. Instead, these allegations are incidental to the substance of Vivendi’s complaint and involve only tenuous connections to the United States. These allegations do not establish plausibly that a U.S. entity participated in the alleged fraud and thus fail to show that the plaintiffs’ fraud claims are connected to a U.S. business entity. … Therefore, the district court did not err when it granted Vivendi S.A.’s choice of forum little deference.” [693‑4]

Vivendi’s complaint of improper balancing of factors does not fare any better. “When considering a motion to dismiss for forum non conveniens, the district court must weigh the following private interest factors: ‘the ease of access to sources of proof; [availability of] compulsory process to obtain the attendance of hostile witnesses, and the cost of transporting friendly witnesses; other problems that interfere with an expeditious trial . . .; and the ability to enforce the judgment.’ …

The district court also must take into account factors affecting the public interest, such as (1) administrative difficulties flowing from court congestion; (2) imposition of jury duty on the people of a community that has no relation to the litigation; (3) local interest in having localized controversies decided at home; [and] (4) . . . the avoidance of unnecessary problems in conflicts of law.’ … Vivendi contends the district court unreasonably balanced the public and private interest factors in its analysis of the defendants’ motion to dismiss.”

“We hold that the district court did not abuse its discretion when it concluded that the private interest factors favor dismissal. Five of the seven parties reside or have their principal places of business in Europe, and, of the twenty‑two witnesses Vivendi identified, only three reside in the U.S. Notably, none of these U.S.‑based witnesses has information about the substance of the dispute between the parties: one has information about the corporate relationship of T‑Mobile International and T‑Mobile USA, one has information about a letter Vivendi sent to Deutsche Telekom after Vivendi filed its complaint in this case, and one (sic) is a group of unidentified Elektrim bondholders.”

FORUM NON CONVENIENS

Eleventh Circuit affirms dismissal of United States litigation involving alleged torture of Guatemalan union leaders on forum non conveniens grounds as not constituting abuse of discretion since Plaintiffs are Guatemalan citizens who escaped to U.S. while Defendants and witnesses are all residents of Guatemala

In 2001, seven union leaders from Guatemala (Plaintiffs) sued Del Monte Fresh Produce N.A., Inc. and related companies (Defendants) in a Florida federal court The complaint charged that Defendants were liable for their mistreatment by Defendants’ hired thugs in retaliation for their union activities. Their complaint is based on the Alien Tort Claims Act (ATCA), 28 U.S.C. § 1350, and the Torture Victim Protection Act of 1991 (TVPA).

During a 1999 labor dispute, SITRABI, the Guatemalan labor union for local plantation workers, was trying to negotiate a new collective bargaining agreement with Defendants. When Defendants fired 918 workers during the negotiations, SITRABI filed a complaint in the Guatemalan Labor Court. Allegedly to intimidate the union leaders, however, Defendants hired private “security forces” who proceeded to hold the union leaders hostage and to abuse them for several hours. The unionists later obtained political asylum in the U.S.

In 2003, Defendants moved to dismiss based on forum non conveniens (FNC). The district court eventually dismissed on that basis. The district court noted, however, that the dismissal was “without prejudice to Plaintiffs’ right to seek reconsideration if any of the Plaintiffs are required to appear in person in Guatemala in order to litigate their claims.” Defendants appealed. In a 2 to 1 vote, the U.S. Court of Appeals for the Eleventh Circuit affirms.

With respect to the adequacy of the alternative forum, Plaintiffs argue that Guatemala is not safe for them and [that] Guatemalan courts are corrupt and inadequate to adjudicate political cases such as this one. The Court does not accept these arguments because the district court had provided for reconsideration if the Plaintiffs cannot litigate without having to return to Guatemala. As for the inadequacy of the Guatemalan courts, the prior proceedings in Florida state court had found the Guatemalan courts adequate. Thus, the doctrine of collateral estoppel precluded the federal court from relitigating that issue.

As for the private interest factors: “In Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), the Supreme Court outlined the relevant public and private interest factors [in transferring litigation from one federal district to another within the U. S]. … We have continued to recite the same list of private interests ever since Gilbert. …”

FORUM NON CONVENIENS

Where one side in dispute has first filed its fraud case in U.S. federal court, Irish Supreme Court decides that, where closest precedent from European Court of Justice (ECJ) did not decide the applicability under Brussels 1 Regulation of common law doctrines of forum non conveniens and lis alibi pendens on how to proceed where first filed case lay in U.S. Federal Court rather than in EC Member State court; thus it should refer legal question to ECJ before ruling on merits of case before it

Goshawk Dedicated Ltd., and Kite Dedicated Ltd. (formerly known as Goshawk Dedicated (No.2) Ltd.) along with Cavell Management Services Ltd. and Cavell Managing Agency Ltd. are the Plaintiffs in this case before the Irish Supreme Court. The Defendant is Life Receivables Ireland Ltd. is a subsidiary of International Investment and Underwriting The Plaintiffs are English companies and the Defendant is an Irish company.

Defendant, however, has already filed proceedings against Plaintiffs here, in a Georgia federal court. The present Defendant (as plaintiff), sought certain reliefs against the present Plaintiffs (as defendants) and against others who are not party to these Irish proceedings.

The U.S. proceedings sought relief for, inter alia, alleged misrepresentation, fraud, securities fraud, and other relief. The prior U.S. proceedings, therefore, related to the same dispute being raised here. The Defendant moved the Irish High Court for an order staying the Irish proceedings pending the final determination of the Georgia litigation. The High Court rejected the application and the Defendant appealed.

The significant procedural issue that arose between the parties related to the proper interpretation of the Brussels I Regulation and its application to the circumstances of this case. It also involved the common law doctrine of forum non conveniens. More particularly, it focused on the extent and application of the doctrine of lis alibi pendens to this case. under the Brussels I Regulation to proceedings concerning the same cause of action when the earlier proceedings had been commenced in a non‑Member State.

The parties and the court examined and analysed the key decision of the ECJ in Owusu v. Jackson (t/a :/Villa Holidays Bal‑Inn Villas et al. (C‑281/02) [2005]; E.C.R.I. I‑1383; [2005] Int. Lit. Proc.25 but the ECJ has not given a ruling on the precise question at issue here.

The Irish High Court found the following facts. In June 2005, the Defendant bought a partnership interest in a Delaware partnership known as Life Receivables II, LLP. The Defendant and Life Receivables Holdings are the only partners but in which the Defendant would appear to be the only partner with a financial stake.

The partnership is, in turn, a beneficiary of Life Receivables Trust (LRT) whose commercial value derives from trust property; these consist of life insurance policies bought in the early years of this decade together with a contingent cost insurance issued by Goshawk in respect of those policies. As Plaintiff in the U.S. proceedings, Defendant here alleged that the Georgia defendant had fraudulently induced it into buying into the partnership.

The complaint in the U.S. proceedings alleges securities fraud, common law fraud, negligent misrepresentation and conspiracy to commit fraud in connection with a transaction valued at a figure in excess of U.S. $14 million. The primary jurisdiction invoked is in respect of the securities fraud pursuant to U.S. law, and a supplemental jurisdiction is alleged over the U.S. common law claims, on the grounds that the same facts and circumstances gave rise to all claims.

Apart from the securities claims, one of the major allegations made is that Goshawk, relying on material furnished through or by an actuarial company, American Viatical Services, located in Atlanta, Georgia, made representations appearing on the face of the life policies, to persons including Life Receivables, the defendant in the Irish proceedings. It is also alleged that Cavell, acting through one of its principals, devised a run off scheme to commute Goshawk’s obligations to, inter alia, Life Receivables. It is alleged that, at certain times, that principal, acting on behalf of both Goshawk and Cavell, made material misrepresentations and omissions.

The proceedings filed by the defendant in Georgia, U.S.A., on June 29, 2007, are clearly first in time. The plaintiffs have later commenced these Irish proceedings; they seek declarations that the plaintiffs did not make the misrepresentations, together with other similar relief, on September 6, 2007. The Irish proceedings are a mirror image of the Georgia proceedings, except that none of the additional co‑defendants in Georgia are parties in the Irish proceedings.

On September 5, 2007, the plaintiffs in these proceedings moved in the U.S. District Court to dismiss the defendant’s complaint, on the basis that the court lacks  subject matter jurisdiction  over the defendants since the transactions in issue in the case are  predominantly foreign  and lack the necessary domestic conduct or effects to permit the application by that court of American securities laws. The defendant in these proceedings resisted that motion, and a ruling by the U.S. District Court was, at the time of this appeal, awaited.

The Irish trial judge referred to the undisputed EC law. He quoted from the ECJ’s judgment in the Owusu case. There a person was injured while on holiday in Jamaica. It was submitted that Jamaica would be a more convenient forum for the conduct of litigation. The ECJ rejected the travel agent’s effort to stay the proceedings first filed against him in England despite his Jamaican domicile and the convenient access to local eye witnesses that would result from allowing the proceedings to take place in Jamaica.

“Counsel for the plaintiffs relies squarely on the decision of the ECJ in Owusu and argues that the failure to respond to the second question posed is merely the adoption of the normal formula found in the case law of the ECJ. Senior counsel, submits that Owusu answered the issue in its entirety.”

“The issue which arose in Owusu was whether the third country was a more appropriate forum, and that is also the issue in these proceedings. There is, he contends, no point of principle calling for the application of a different approach to existing foreign proceedings and to intended proceedings. Lis alibi pendens is not a doctrine, but a rule adopted by jurisdictions, to resolve a practical problem, namely to avoid conflicting judgments.’”

“There were formerly two solutions in being for that problem, the first being the common law discretionary approach, and the second the civil law approach which applies the ‘first in time’ rule. The Irish courts, following on from Owusu, have a mandatory jurisdiction, pursuant to the Regulation and may not decline this, unless there is provision for a derogation from the application of that Article, in the Regulation itself.”

“Owusu is the most relevant case law, but it was limited to the facts of that case, which are not similar to the circumstances of this case, and indeed the circumstances of this (the pending case) are expressly excluded. In this case, there is a pending proceeding which is first in time in a non‑Contractual State. It is a situation identified in Owusu, but expressly not answered. In these circumstances the issue may not be considered acte clair.”

“This Court is satisfied that it is necessary to refer the legal question to the ECJ. The exact format of the reference may be considered in submissions by the parties after the delivery of this judgment. However, in essence, such a reference would query whether, when a defendant is sued in its country of domicile, it is inconsistent with the Regulation for the court of a Member State to decline jurisdiction or to stay proceedings on the basis that proceedings between the same parties and involving the same cause of action are already pending in the courts of a non‑Member State and therefore first in time.”

“It may be necessary also, having regard to the absence of any clear guidance, to pose an additional question concerning the criteria to be applied by a Member State [which is] coming to a decision whether to stay pending proceedings in a Member State, depending on the response to the first, primary, question to be posed.” [450].

Citation: Goshawk Dedicated Ltd v Life Receivables Ireland Ltd [2009] I.E.S.C. 7; [2009] I. L. Pr. 26 (Sup. Ct. Ire. 2009)

FORUM NON CONVENIENS

In consolidated appeal of two cases dismissed on forum non conveniens grounds to be litigated in courts of Argentina, Seventh Circuit affirms and reviews law underlying that discretionary doctrine

The Seventh Circuit consolidated two appeals because they present similar issues as to forum non conveniens [FNC]. The Plaintiffs in one case are Argentine citizens residing in Argentina who filed lawsuits here against American manufacturers for injuries sustained in Argentina. This case, Abad v. Bayer Corporation, is a class action on behalf of 600 Argentine hemophiliacs; they claim that their use of the defendant manufacturers clotting factor had infected them with the AIDS virus. The other case, Pastor v. Bridgestone/Firestone North American Tire, LLC, involves a rollover accident of a Ford Explorer equipped with Bridgestone/Firestone tires. In both cases, the district courts dismissed on FNC grounds.

The U.S. Court of Appeals for the Seventh Circuit, in a scholarly and analytical opinion, affirms. “The plaintiffs are right that there is a presumption in favor of allowing a plaintiff his choice of courts rather than insisting that he choose the optimal forum, as we explained in U.S. O. Corp. v. Mizuho Holding Co., 547 F.3d 749, 752‑53 (7th Cir. 2008), though it is not so powerful a presumption as they think. A case should not be lightly shifted from one court to another, forcing the plaintiff to start over, especially when the rules of personal jurisdiction often force a plaintiff to litigate on the defendant’s home turf. Yet, in the two cases before us, the plaintiffs could have sued – all concede – in their own nation’s courts, the courts of Argentina, where the defendants would have been in the uncomfortable position of being giant American corporations accused of killing and injuring citizens of Argentina.” [666]

“When application of the [FNC] doctrine would send the plaintiffs to their home court, the presumption in favor of giving plaintiffs their choice of court is little more than a tie breaker. And so our focus in these cases must be on particularized circumstances that lean in favor of U.S. courts or foreign courts. For guidance, judges often turn to a multifactor test for applying [FNC] that the Supreme Court laid down more than 60 years ago, in [Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508‑9, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)]. ”

“American law has long been hospitable to multifactor tests – maybe too hospitable. … The factors that the Gulf Oil opinion deemed relevant to whether to dismiss a suit on the basis of [FNC] form quite a laundry list: ‘the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.’” [667‑668]

“The Court prefaced the list with the rather alarming statement that ‘it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy. The doctrine leaves much to the discretion of the court to which plaintiff resorts.’ Gulf Oil, supra at 508. Thus, long as it is, the list is incomplete. That gives a party free rein to suggest any reason that occurs to him for why the case should be litigated in one court rather than another. But because there is a list, and a list sponsored by the Supreme Court, albeit in a case more than half a century old, parties find it difficult to resist trying to make their case correspond to the items in the list, however violent a dislocation of reality results.”

“And so the Plaintiffs in our two cases argue that the United States has a greater interest in the litigation than Argentina because the Defendants are American companies, while the Defendants argue that Argentina has a greater interest than the United States because the Plaintiffs are Argentines. The reality is that neither country appears to have any interest in having the litigation tried in its courts rather than in the courts of the other country; certainly no one in the government of either country has expressed to us a desire to have these lawsuits litigated in its courts.”

“For this is ordinary private tort litigation that ‘implicates,’ as some judges like to say, no national interest. So, rather than proceed down the list, we shall simply consider whether the district judge in either case was unreasonable in deciding that, given the circumstances of each case, the remaining litigation should be conducted in Argentina rather than in Illinois or Florida.” [668]

“In most U.S. jurisdictions, even those that use a ‘most significant relationship’ test to resolve conflict of laws issues in tort suits, there is a practical presumption that the law of the place where the tort occurred (‘lex loci delicti’) governs the substantive questions in the suit, see e.g., Carris v. Marriott International Inc., 466 F.3d 558, 560 (7th Cir. 2006) (Illinois law) (describing lex loci delicti as the ‘default rule’ of choice of law in tort cases even in jurisdictions that have embraced ‘most significant relationship’ or other alternative choice of law rules) … And the place where the tort occurred is where the injury occurred, which in the present cases was Argentina, rather than where the conduct (in this case the manufacture of the clotting protein) that caused the injury occurred; for ‘there is no tort without an injury.’ Rozenfeld v. Medical Protective Co., 73 F.3d 154, 156 (7th Cir. 1996).” [669]

FORUM NON CONVENIENS

In litigation over collision between containership and large dredge in Chinese river, where admiralty action began in China but one party later filed multiple actions in U. S. , Fourth Circuit affirms forum non conveniens dismissal of U. S. case in favor of Chinese forum and, because of fortuitous delays that occurred, conditions its dismissal on nonassertion of statute of limitations or missed deadline in Chinese proceedings

In March 2007, the containership MSC Joanna (owned by a Panamanian corporation and chartered by a Swiss corporation) collided with the world’s largest dredge, the W. D. Fairway, in the ship channel leading to the port of Tianjin, China. Several Netherlands corporations jointly own and charter the dredge under the name “Boskalis.” The Fairway sank in shallow water and was later salvaged. The Tianjin Maritime Safety Administration investigated the collision, interviewed witnesses, and prepared diagrams.

Legal proceedings began in the Tianjin Admiralty Court where the Chinese subcharterer of the dredge—CCCC Tianjin Dredging—filed a claim for $19. 5 million in damages. The charterer of the MSC Joanna deposited about $20 million with the Tianjin Admiralty Court as a limitation fund. Boskalis, however, filed eight different court actions in four different U. S. district courts. It sought attachment of MSC chartered vessels and other relief to escape the limitation on its damages in the Chinese proceeding.

The Panamanian and Swiss corporations then filed the present action on behalf of the MSC Joanna; the defendants, however, moved for a forum non conveniens (FNC) dismissal in favor of the Chinese proceeding. MSC posted a security of $111 million as required by U. S. law for calculating limitation of liability. Boskalis responded that it could not prosecute its claims in China because the applicable statute of limitations had run out. This is a question of foreign law and the parties disagree on its content and effect. [See Federal Rule of Civil Procedure 44. 1 on Proof of Foreign Law].

The district court found that liability for the collision had little or no connection to the U. S. —except that other MSC vessels do call in U. S. ports. The court granted the FNC motion, and enjoined the other U. S. actions. The district court also noted that Boskalis had purposely let the Chinese statute of limitations run out and deliberately declined to take part in the Chinese proceeding.

The U. S. Court of Appeals for the Fourth Circuit affirms the FNC dismissal. It added a proviso, however, that barred the affirmative assertion of any applicable statute of limitations or defense in the Chinese proceeding based on a missed deadline.

The Court first explains that Boskalis’ principal, if not only, strategic concern with litigating the dispute in China is that the limitation fund created in China is only $20 million, and its claim for damages amounts to $326 million. Moreover, a limitation fund created in a U. S. court could be much larger than in China and could equal the post-collision value of the vessel and of pending freight cargo. In this case, the collision had damaged the MSC Joanna, a large containership, to a relatively minor extent; this left the vessel with a post-collision value (including pending freight) of more than $111 million.”

“Accordingly, Boskalis is seeking to take advantage of the more generous U. S. limitation-of-liability law; if it cannot succeed, it is willing to waive taking part in the Chinese proceedings, having anticipated that it would receive little or no recovery from them. Put bluntly, Boskalis has gambled on the possibility that the U. S. courts might allow it to proceed in the United States to resolve the claims between it and MSC Shipping; it also risked that it will obtain no recovery at all from either a U. S. court or a Chinese court.” [Slip op. 12]

The Court then turns to the FNC issue. “Granting a motion to dismiss for forum non conveniens rests in the discretion of the district court exercised upon [the] consideration of numerous factors. These include (1) the ease of access to sources of proof; (2) the availability of compulsory process for securing the attendance of unwilling witnesses; (3) the costs of obtaining the attendance of witnesses; (4) the ability to view the premises; (5) the general facility and cost of trying the case in the selected forum; and (6) the public interest, including administrative difficulties, (7) the local interest of having localized controversies decided at home, and the interest of trying cases where the substantive law applies. See [American Dredging Co. v. Miller, 510 U. S. 443, 448 (1994)] . . . ”

“Applying these factors, the district court made findings, based on undisputed evidence, that no nexus—whether the parties, the witnesses, or the law—exists between the United States and the collision at issue. . . . The prospect of having to interpret and apply Chinese law as it might pertain to liability and the need for the many interpreters for the various involved parties was further given as a reason supporting the district court’s conclusion that the public interest weighed overwhelmingly toward dismissal. Accordingly, it exercised its discretion to dismiss this case under the [FNC] doctrine.” [Slip op. 17-18]

Here, the collision took place in Chinese territorial waters and Chinese authorities have investigated it. All parties are foreign corporations, and no American citizen was on board. Most of the evidence lies in China, and a U. S. court proceeding would demand a large number of interpreters. Thus, the district court did not abuse its discretion by dismissing this action.

The Court, however, disagrees with the district court’s statement that it is unsound to allow a party to assert the unavailability of an alternative forum when the unavailability results from its own purposeful conduct. Here, Boskalis deliberately failed to take part in the Chinese proceeding because of the recovery limitation.

FORUM NON CONVENIENS

Canadian metal companies filed suits over insurance coverage of potential CERCLA damages arising out of alleged pollution of Columbia River in Washington State on same date in courts of Washington and British Columbia but Washington court first asserted jurisdiction over its case; under these circumstances Supreme Court of Canada holds that such prior assertion did not alone control question of which was more convenient forum and that the BC court’s proper multifactored analysis under Canada’s Court Jurisdiction and Proceedings Transfer Act did control and led to British Columbia court as more convenient forum

Teck Cominco Metals Ltd. (Teck) ran several mining and smelting operations in British Columbia (BC). It gave notice to its insurers of legal claims or potential claims related to environmental damage arising from the pollution activities of a predecessor company, Cominco. The largest claim arises from the discharge of waste material known as slag into the Columbia River that flows by Teck’s smelter in Trail. (“Slag” is essentially a scum or dross that forms on the surface of a molten metal). Allegedly, the discharge accumulated in Washington State along the Upper Columbia River and in Lake Roosevelt.

In a federal environmental action filed against Teck’s predecessor company in 2004, numerous private citizens and the State of Washington sought to hold Teck liable under a U.S. statute, namely, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) for environmental property damage allegedly caused by the contamination.

Teck sued various insurers in a Washington federal court seeking a declaratory judgment confirming its right to insurance coverage under its insurance policies for any damages arising from a likely CERCLA sanction. On the same date, the insurers also filed suit in the British Columbia (BC) courts seeking declaratory orders regarding the existence, or the extent, of their obligation to defend or indemnify Teck.

The U.S. District Court denied the insurers’ motions to dismiss Teck’s claims against them on the basis of forum non conveniens [FNC]. Teck then sought orders in the BC court to stay the BC litigation over coverage. The chambers judge declined to stay the BC coverage action.

Taking into account all the factors in  11 of Canada’s Court Jurisdiction and Proceedings Transfer Act (CJPTA), the BC chambers judge found that BC was the jurisdiction with the closest connection to Teck and to the subject matter of the coverage action; in its view, the solitary fact that the U.S. court was the first tribunal to assert jurisdiction was not controlling.

In dismissing Teck’s appeal, the BCCA found that the BC chambers judge had properly considered and weighed the factors in  11(2) of the CJPTA. The BCCA agreed with the chambers judge that the principle of comity did not require deference to the first court to assert jurisdiction. Teck finally appealed to the Supreme Court of Canada. That Court unanimously dismisses the appeal. It then explains its reasoning.

“Teck submits that where a foreign court has assumed jurisdiction in parallel proceedings, the usual multifactored test under  11 of the CJPTA must give way to a ‘comity‑based’ test that respects the foreign court’s decision to take jurisdiction.”

“In favour of this approach, Teck argues that there is a distinction between a situation where it is submitted that a foreign court would be the appropriate forum, and the situation where a foreign court has in fact asserted jurisdiction. A foreign court can be said to have asserted jurisdiction when it has been asked to decline its jurisdiction over the matter and has refused to do so, holding that it is the appropriate forum to hear the dispute.”

“Teck argues that where a foreign court has asserted jurisdiction on the basis of factors similar to those found in 11 of the CJPTA,  11 does not apply and the court may decline jurisdiction simply on the basis that the foreign court has asserted jurisdiction, and that comity requires that the domestic court recognize that prior assertion of jurisdiction.”

“An alternative, slightly softer version of this argument is that assertion of jurisdiction by the foreign court is a factor of overwhelming significance in the determination of whether the local forum is appropriate (forum conveniens) and that, since the U.S. District Court has positively asserted jurisdiction, the British Columbia courts are effectively bound to stay the parallel actions in British Columbia.” [17‑19].

“The first argument is that  11 of the CJPTA does not apply where a foreign court has asserted jurisdiction. I cannot agree. The CJPTA creates a comprehensive regime that applies to all cases where a stay of proceedings is sought on the ground that the action should be pursued in a different jurisdiction (forum non conveniens) [FNC]. It requires that, in every case, including cases where a foreign judge has asserted jurisdiction in parallel proceedings, all the relevant factors listed in  11 be considered in order to determine if a stay of proceedings is warranted. This includes the desirability of avoiding multiplicity of legal proceedings. But the prior assertion of jurisdiction by a foreign court does not oust the  11 inquiry.”

“Section 11 of the CJPTA was intended to codify the [FNC] test, not to supplement it. The CJPTA is the product of the Uniform Law Conference of Canada. In its introductory comments, the Conference identified the main purposes of the proposed Act, which included bringing ‘Canadian jurisdictional rules into line with the principles laid down by the Supreme Court of Canada. Section 11 of the CJPTA thus constitutes a complete [Canadian] codification of the common law test for [FNC]. It admits of no exceptions.”

“Teck submits that the usual multifactored test under 11 of the CJPTA must give way to a ‘comity‑based’ test when a foreign court positively asserts jurisdiction. To the extent this argument implies that the usual test does not give due comity to foreign courts, it must be rejected. Section 11 of the CJPTA is itself a comity‑based approach. As will be discussed, comity is not necessarily served by an automatic deferral to the first court that asserts jurisdiction. It follows that Teck’s argument, that  11 does not apply where a foreign court has already asserted jurisdiction over the matter, cannot succeed.”

“Alternatively, it is argued that, if  11 applies, the assertion of jurisdiction by the foreign court is an overriding and determinative factor in the  11 analysis. This argument also must be rejected.”

“First, had actual assertion of jurisdiction by a foreign court been seen as a factor that should override all others, one would have expected the legislature to have stated this expressly [in the CJPTA]. Rather, avoidance of multiplicity of proceedings is simply listed along with other factors. This suggests that the existence of foreign proceedings is only one factor, among many, to be considered in a [FNC] analysis.”

Second, the authorities are against this contention. … [One of the main cases] relied on by Teck is Ingenium Technologies Corp. v. McGraw‑Hill Cos. , 2005 BCCA 358, 49 B.C.L.R. (4th) 120 (B.C.C.A.). In Ingenium, the [BCCA] reviewed the chambers judge’s decision not to stay the [BC] action in the face of a positive assertion of jurisdiction by the U.S. District Court [in New York] over parallel proceedings [there]. The Court of Appeal found that the chambers judge was correct in concluding that ‘the existence of parallel proceedings does not trump all other factors’.”

“However, the court went on to allow the appeal on the basis that the chambers judge erred in attaching no significance to the fact the U.S. Court had positively asserted jurisdiction in her analysis. I do not consider that Ingenium laid down a new test for the determination of [FNC] in cases where a foreign court has assumed jurisdiction in parallel proceedings.” [ 21‑26].

“Finally, policy considerations do not support making a foreign court’s prior assertion of jurisdiction an overriding and determinative factor in the [FNC] analysis. To adopt this approach would he to encourage a first‑to‑file system, where each party would rush to commence proceedings in the jurisdiction which it thinks will be most favourable to it and try to delay the proceedings in the other jurisdiction in order to secure a prior assertion in their preferred jurisdiction.”

“Technicalities, such as how long it takes a particular judge to assert jurisdiction, might be determinative of the outcome. In short, considerations that have little or nothing to do with where an action is most conveniently or appropriately heard, would carry the day. Such a result is undesirable and inconsistent with the language and purpose of  11, discussed above.”

“Also, the extent to which approaches to the exercise of jurisdiction differ on an international level also weighs in favour of rejecting Teck’s approach. A distinction should be made between situations that involve a uniform and shared approach to the exercise of jurisdiction (e.g. inter‑provincial conflicts) and those, such as the present, that do not. In the latter, blind acceptance of a foreign court’s prior assertion of jurisdiction carries with it the risk of declining jurisdiction in favour of a jurisdiction that is not more appropriate. A holistic approach, in which the avoidance of a multiplicity of proceedings is one factor among others to be considered, better serves the purpose of fair resolution of the [FNC] issue with due comity to foreign courts.”

“For the foregoing reasons, I conclude that 11 of the CJPTA applies to the motions before the British Columbia courts to decline jurisdiction, and that the prior assertion of jurisdiction by the U.S. District Court is merely one factor to be considered, among others.”

“As set out earlier, the chambers judge dismissed Teck’s motions to stay the BC Coverage Action. In arriving at this conclusion, the chambers judge carefully considered all of the factors mandated for consideration by  11(2) of the CJPTA, namely: the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum ( 11(2)(a)); the law to be applied to issues in the proceeding ( 11(2)(b)); the desirability of avoiding multiplicity of legal proceedings ( 11(2)(c)); the desirability of avoiding conflicting decisions in different courts ( 11(2)(d)); the enforcement of an eventual judgment ( 11(2)(e)); and the fair and efficient working of the Canadian legal system as a whole ( 11(2)(f)).”

“Before this Court, Teck argued that the chambers judge erred in disregarding the fact that the insurance coverage sought was in relation to damages claimed in Washington State [litigation.] Teck submits that the U.S. District Court’s assertion of jurisdiction should be respected because the issues in the environmental action brought by Washington residents under U.S. legislation may impact on the issue of insurance coverage in this action.”

FORUM NON CONVENIENS

Where Irish Company filed first‑time suit against two English companies in Georgia federal court alleging securities fraud under U.S. statutes and common law and English companies sued Irish company in Irish courts denying commission of substantially same frauds, Supreme Court of Ireland held that, since case originally filed in non‑Contracting State, European Court of Justice precedent failed to resolve availability of lis alibi pendens defense under Community Law, making it necessary to submit question to that Court for resolution under Article 234 of the Treaty

In this Irish litigation, Goshawk Dedicated Ltd., and Kite Dedicated Ltd., are the Plaintiffs. Life Receivables Ireland Limited, is the Defendant. The Plaintiffs are companies incorporated in England. The Defendant is an Irish company and a subsidiary of International Investment and Underwriting. Plaintiffs filed these proceedings in Ireland by way of a plenary summons issued on September 6, 2007.

Defendant, however, had already sued the Plaintiffs on June 29, 2007 in the U.S. District Court in Georgia. In those proceedings, the Defendant seeks certain remedies against the present Plaintiffs and against others who are not party to these Irish proceedings. Those proceedings seek relief for, inter alia, alleged misrepresentation, fraud, securities fraud, and other relief.

The Plaintiffs here seek a series of negative declarations in the Irish proceedings that mirror the relief sought in the Georgia federal court, except that the parties are reversed. The relevant subject matter involves (a) the Defendant’s purchase of a partnership interest in Life Receivable II, LLP; (b) a series of contingent cost insurance policies underwritten and issued by the first and second named Plaintiffs between September 2000 and early 2003, (c) in the management of the run off of Syndicate 102. The prior Georgia proceedings, therefore, relate to the same matters.

The issue that arises at this stage between the parties concerns the proper interpretation of Regulation 44/2001 of December 22, 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial matters ([2001] O.J. L12/1), the “Brussels I” Regulation).

The Defendant moved the Irish High Court for an order staying these Irish proceedings, pending the final determination of the U.S. proceedings . The High Court denied the application on April 22, 2008, following upon the judgment delivered on February 27, 2008. This is an appeal by the Defendant from the order and judgment of the High Court.

The facts found by the High Court judge are as follows. The Defendant is incorporated in, and has its principal place of business in, Ireland. The Plaintiffs are companies incorporated in England and have their principal places of business in London. In June 2005, the Defendant bought a partnership interest in a Delaware partnership known as Life Receivables II LLP. The Defendant and Life Receivables Holdings are the only partners but the Defendant would appear to be the only partner with a financial stake. The partnership is, in turn, a beneficiary of Life Receivables Trust; the extent of its commercial value derives from trust property, being life insurance policies bought in the early years of this decade together with a contingent cost insurance issued by Plaintiff Goshawk with respect to those policies.

The Defendant (as plaintiff in the U.S. proceedings) alleged that Defendant’s misrepresentation in the U.S. proceedings induced it to buy into the partnership The present Defendant has launched proceedings in Georgia against the Plaintiffs and a number of others who were involved in a series of transactions which were at the heart of the dispute between the parties.

The complaint in the Georgia proceedings, briefly, alleges securities fraud under U.S. statutory law, common law fraud, negligent misrepresentation and conspiracy to commit fraud in connection with a transaction involving more than U.S. $14 million. The primary jurisdiction invoked arises under U.S. securities fraud law and a supplemental jurisdiction is alleged over the common law claims, again pursuant to U.S. law.

Apart from the securities claims, one of the major allegations made is that Plaintiff Goshawk, relied on fraudulent material furnished through, or by, American Viatical Services. The latter is an actuarial company located in Atlanta, Georgia. It allegedly made representations appearing on the face of the life policies to persons including Life Receivables, the Defendant in the Irish proceedings. It is also alleged that Cavell, acting through one of its principals, devised a run‑off scheme to commute Goshawk’s obligations to, inter alia, Life Receivables. It is alleged that, at certain times, that principal, acting on behalf of both Goshawk and Cavell, made material misrepresentations and omissions.

The proceedings that Defendant filed in Georgia are clearly first in time. On September 6, 2007, the Plaintiffs commenced these Irish proceedings ; they seek declarations that the Plaintiffs did not make the alleged misrepresentations, together with other similar relief,. The Irish proceedings are a mirror image of the Georgia proceedings, except that none of the additional co‑Defendants in Georgia are parties in the Irish proceedings. On September 5, 2007, the Plaintiffs here moved in the U.S. Court to dismiss the Defendant’s complaint. They argued that that court lacks “subject matter jurisdiction” over the Defendants because the transactions in issue are “predominantly foreign” and lack the necessary domestic effects to permit that court to apply American securities laws. The Defendant in these proceedings opposed that motion, and a ruling by the U.S. District Court was, at the time of this appeal, awaited.

“Article 34 refers to the recognition of judgments between Member States and a third State. It provides: ‘A judgment shall not be recognised: … ‘ if it is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed.’”

“In Owusu v Jackson (C‑281/02) [2005] E.C.R. I‑1383; [2005] I. L. Pr. 25, the ECJ considered the interpretation of art. 2 of the Brussels Convention. It first addressed the question: Does the Brussels Convention preclude a court of a Contracting State which is seised of an action against a person domiciled in the territory of that State and therefore has jurisdiction to hear such an action on the basis of art. 2 from exercising, under its national law, a discretion to decline to exercise such a jurisdiction, on the ground that a court of a non‑Contracting State would be a more appropriate forum to determine the dispute?”

“The ECJ [then] considered the doctrine of forum non conveniens and the Brussels Convention. That Court held: ‘38. Respect for the principle of legal certainty, which is one of the objectives of the Brussels Convention [Cites] would not be fully guaranteed if the court having jurisdiction under the Convention had to be allowed to apply the forum non conveniens doctrine.’”

“‘According to its preamble, the Brussels Convention is intended to strengthen in the Community the legal protection of persons established therein, by laying down common rules on jurisdiction. These seek to guarantee certainty as to the allocation of jurisdiction among the various national courts before which proceedings in a particular case may be brought.’”

“The Court has thus held that the principle of Legal Certainty requires, in particular, that the jurisdictional rules which derogate from the general rule laid down in art.2 of the Brussels Convention should be interpreted in such a way as to enable a normally well‑informed Defendant reasonably to foresee before which courts, other than those of the State in which he is domiciled, he may be sued.” [Cites].

“Application of the forum non conveniens doctrine, which allows the seised court a wide discretion as regards the question whether a foreign court would be a more appropriate forum for the trial of an action, is liable to undermine the predictability of the rules of jurisdiction laid down by the Brussels Convention, in particular that of art.2, and consequently to undermine the principle of legal certainty, which is the basis of the Convention.”

“ The legal protection of persons established in the Community would also be undermined. First, a Defendant, who is generally better placed to conduct his defence before the courts of his domicile, would not be able, in circumstances such as those of the main proceedings, reasonably to foresee before which other court he may be sued. Second, where a plea is raised on the basis that a foreign court is a more appropriate forum to try the action, it is for the claimant to establish that he will not be able to obtain justice before that foreign court or, if the court seised decides to allow the plea, that the foreign court has in fact no jurisdiction to try the action or that the claimant does not, in practice, have access to effective justice before that court, irrespective of the cost entailed by the bringing of a fresh action before a court of another State and the prolongation of the procedural time‑limits.”

“Moreover, allowing forum non conveniens in the context of the Brussels Convention would be likely to affect the uniform application of the rules of jurisdiction contained therein in so far as that doctrine is recognised only in a limited number of Contracting States, whereas the objective of the Brussels Convention is precisely to lay down common rules to the exclusion of derogating national rules.’[¶¶ 37‑43].

“. … [S]uch considerations, which are precisely those which may be taken into account when forum non conveniens is considered, are not such as to call into question the mandatory nature of the fundamental rule of jurisdiction contained in art.2 of the Brussels Convention . …’

“In the light of all the foregoing considerations, the answer to the first question must be that the Brussels Convention precludes a court of a Contracting State from declining the jurisdiction conferred on it by art.2 of that Convention on the ground that a court of a non‑Contracting State would be a more appropriate forum for the trial of the action even if the jurisdiction of no other Contracting State is in issue or the proceedings have no connecting factors to any other Contracting State.’” [¶¶ 37‑43]’”

¶40 “The second question here was hypothetical in the circumstances of that case. It raised the issue, inter alia, of proceedings pending before non Contracting states. The European Court of Justice declared that: “

¶41 “Two primary issues arise in this case for decision. At the commencement of the appeal, … [Defendant] confirmed that he was not seeking to rely on a discretionary jurisdiction of the type contended for in the Owusu case, the judgment in which he accepts as dealing definitively with that question. He argues that Owusu is of interest only in relation to the clarification tendered by the ECJ on the discretion claimed to have existed at common law under the doctrine forum non conveniens , and to the approach of the ECJ to the second question which was posed, but not responded to.”

¶42 “The Defendant has relied, for its primary submission, on the doctrine of lis alibi pendens which, it is argued, is given explicit recognition in the Brussels I Regulation (albeit in the context of a contest between proceedings commenced in two different Member States). Counsel contends that, even if he is wrong in his submission as to the existence and application of the doctrine of lis alibi pendens, there may remain an aspect of the forum non conveniens doctrine available to the court. In that regard he submits that art.2 of the Brussels I Regulation is the primary rule as to jurisdiction. Articles 27 to 30 deal only with jurisdiction as between Member States, but not between Member States and third party States.”

“The declarations sought in the present proceedings are a mirror image of the claims in the U.S. proceedings. The determination of the ECJ in Owusu, which determined the position where there were no proceedings in being, is not sufficiently clear to enable this court to resolve the issues between the parties, without a reference to the ECJ, pursuant to art.234 of the Treaty, the ECJ having expressly declined to rule on the issue arising in the present appeal, and there is therefore no guidance in the case law of the ECJ upon which this Court may with certainty rule on the issue.”