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Encyclopedia > Forum shopping
Conflict of Laws
Preliminary matters
Characterisation  · Incidental question
Renvoi  · Choice of law
Conflict of Laws in the U.S.
Public policy  · Hague Conference
Definitional elements
State  · Jurisdiction  · Procedure
Forum non conveniens  · Lex causae
Lex fori  · Forum shopping
Connecting factors
Domicile  · Lex domicilii
Nationality  · Lex patriae
Lex loci arbitri  · Lex situs
Lex loci contractus
Lex loci delicti commissi
Lex loci solutionis  · Proper law
Lex loci celebrationis
Choice of law clause
Forum selection clause
Substantive legal areas
Status  · Capacity  · Contract  · Tort
Marriage  · Nullity  · Divorce
Get divorce  · Talaq divorce
Property  · Succession
Enforcement
Enforcement of foreign judgments

Forum shopping is the informal name given to the practice adopted by some plaintiffs to get their legal case heard in the court thought most likely to provide a favourable judgment, or by some defendants who seek to have the case moved to a different court. This is an increasingly serious problem because it balances the concept of party autonomy against broader concerns of justice and fairness. Some states have become notorious as plaintiff-friendly jurisdictions and so have become litigation magnets even though there is little or no connection between the legal issues and the jurisdiction in which they are to be litigated. For example, through its expansive acceptance of personal jurisdiction, the United States has attracted foreign litigants wishing to take advantage of the more generous awards of damages and alimony, the extensive discovery rules and, most importantly, the contingent fee system. In addition, the Foreign Trade Antitrust Improvements Act, the Alien Tort Statute and product liability laws create legal rights that often do not exist in other jurisdictions. Image File history File links SmallLadyJustice. ... Private international law comprises provisions of national law regarding contracts and lawsuits involving foreign laws or jurisdictions. ... In Conflict of Laws, characterisation is the second stage in the procedure to resolve a lawsuit involving a foreign law element. ... In the Conflict of Laws, an incidental question is a legal issue that arises in connection with the major cause of action in a lawsuit. ... In Conflict of Laws, renvoi (from the French, meaning send back) is a subset of the choice of law rules and it is potentially to be applied whenever a forum court is directed to consider the law of another state. ... Choice of law is a concept within the field of the conflict of laws, relating to relationships between different nations, and in the United States between individual states. ... The choice of law rules in the Conflict of Laws in the United States have diverged from the traditional rules applied internationally. ... Public policy or ordre public is the body of fundamental principles that underpin the operation of legal systems in each state. ... The Hague Conference on Private International Law is the preeminent organisation in the area of private international law. ... For the purposes of Public International Law and Private International Law, a state is a defined group of people, living within defined territorial boundaries and subject, more or less, to an autonomous legal system exercising jurisdiction through properly constituted courts. ... In law, jurisdiction refers to the aspect of a any unique legal authority as being localized within boundaries. ... In all lawsuits involving Conflict of Laws, questions of procedure as opposed to substance are always determined by the lex fori, i. ... Forum non conveniens is Latin for inconvenient forum or inappropriate forum. ... The lex causae is the Latin term for law of the case in the Conflict of Laws. ... Lex fori is a private international law doctrine meaning the law of the court in which proceedings are being conducted. ... In Conflict of Laws, domicile (termed domicil in the U.S.) is the basis of the choice of law rule operating in the characterisation framework to define a persons status, capacity and rights. ... The lex domicilii is the Latin term for law of the domicile in the Conflict of Laws. ... Nationality is, in English usage, the legal relationship between a person and a country. ... The term lex patriae is Latin for the law of nationality in the Conflict of Laws which is the system of public law applied to any lawsuit where there is a choice to be made between several possibly relevant laws and a different result will be achieved depending on which... The lex loci arbitri is the Latin term for law of the place where arbitration is to take place in the Conflict of Laws. ... The term lex situs (Latin) refers to the law of the place in which property is situated for the purposes of the Conflict of laws. ... The lex loci contractus is the Latin term for law of the place where the contract is made in the Conflict of Laws. ... The lex loci delicti commissi is the Latin term for law of the place where the tort was committed in the Conflict of Laws. ... The lex loci solutionis is the Latin term for law of the place where relevant performance occurs in the Conflict of Laws. ... The Doctrine of the Proper Law is applied in the choice of law stage of a lawsuit involving the Conflict of Laws. ... The lex loci celebrationis is the Latin term for law of the place where the marriage is celebrated in the Conflict of Laws. ... A choice of law clause in a contract is one whereby the parties to that contract specify which law (i. ... A forum selection clause is a clause in a contract in which the parties agree that any litigation resulting from that contract will be brought in a specific forum. ... The capacity of both natural and artificial persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will. ... In the Conflict of Laws, the validity of a contract with one or more foreign law elements will be decided by reference to the so-called proper law of the contract. ... In Conflict of Laws, the choice of law rule for tort is the proper law. ... In Conflict of Laws, the issue of marriage has assumed increasing public policy significance in a world of increasing multi-ethnic, multi-cultural community existence. ... In Conflict of Laws, the issue of nullity (known as annulment in the United States) in Family Law inspires a wide response among the laws of different states as to the circumstances in which a marriage will be valid, invalid or null. ... In modern society, the role of marriage and its termination through divorce have become political issues. ... For the religious process, see Get (divorce document) A get or gett (גט) is the Jewish form of divorce which, when one is available in the state of residence, is supervised by a Beth Din (בית דין), a rabbinical court. ... In Islamic Law, there are two forms of divorce known as the talaq and its less well-regulated version of triple talaq. ... In Conflict of Laws, the subject of Property Law follows the terminology of the civil law systems out of Comity. ... In the Conflict of Laws, the subject of succession deals with all procedural matters relevant to estates containing a foreign element whether that element consists of the identity of the deceased, those who may inherit or the location of property. ... In the Conflict of Laws, issues relevant to the enforcement of foreign judgments are frequently regulated by bilateral treaty or multilateral international convention to facilitate the reciprocal recognition and enforcement of judgments between states. ... A colloquialism is an expression not used in formal speech or writing. ... A plaintiff, also known as a claimant or complainant, is the party who initiates a lawsuit (also known as an action) before a court. ... A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. ... A court is an official, public forum which a sovereign establishes by lawful authority to adjudicate disputes, and to dispense civil, labour, administrative and criminal justice under the law. ... A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute. ... A party is a person or group of persons that compose a single entity which can be identified as one for the purposes of the law. ... Lady Justice - allegory of Justice as woman with sword and with book - statue at court building. ... Justice is a concept involving the fair and moral treatment of all persons, especially in law. ... For the purposes of Public International Law and Private International Law, a state is a defined group of people, living within defined territorial boundaries and subject, more or less, to an autonomous legal system exercising jurisdiction through properly constituted courts. ... In law, jurisdiction refers to the aspect of a any unique legal authority as being localized within boundaries. ... Personal jurisdiction, jurisdiction of (or over) the person, or jurisdiction in personam is the power of a court to require a party (usually the defendant) or a witness to come before the court. ... Categories: Move to Wiktionary | Law stubs | Legal terms ... In law, damages refers either to the harm suffered by a plaintiff in a civil action, or to the money paid or awarded to the plaintiff in compensation for such harm. ... In many countries alimony, maintenance or spousal support is an obligation established by law that is based on the premise that both spouses have an absolute obligation to support each other during the marriage (or civil union) unless they are legally separated, though in some instances the obligation to support... A contingent fee is any fee for services provided where the fee is only payable if there is a favourable result. ... The Alien Tort Statute, 28 U.S.C. Sec. ... Product liability encompasses a number of legal claims that allow an injured party to recover financial compensation from the manufacturer or seller of a product. ...

Contents


Concepts

The standard preliminary issue in every case, whether purely domestic or including a foreign element, is the test to determine whether the court of first instance has jurisdiction and, if it has, whether it is the most appropriate forum. The principle expressed as forum non conveniens is the Latin for "inconvenient forum", and a judge may decline to hear, or to transfer, a case if the court selected is not the most convenient for the case. Every state drafts rules to determine where a lawsuit must be filed and, sometimes, a centralised but distant location may be inconvenient for the parties or witnesses. So long as the case is domestic, there can be no cause for complaint. The state has no brief to make often specialised resources available in the parties' home towns. But if the courts in two states would accept civil jurisdiction, the plaintiff must be able to show that justice requires the trial to take place in the plaintiff's proposed forum. This is a significant issue because the plaintiff might have selected one forum because: Forum non conveniens is Latin for inconvenient forum or inappropriate forum. ... Latin is an ancient Indo-European language originally spoken in the region around Rome called Latium. ...

  • it is believed that the defendant or key witnesses will not be able to travel to the state selected. There may be problems of cost, physical health or visa/entry permit eligibility. This strategy would enable the plaintiff to win the case by default.
  • the court or judge or body of law or rules of evidence are most likely to favour the plaintiff's case.

Hence, there are two different forms of action that may arise:

  • the defendant may appear in the forum court to argue that it should reject the jurisdiction; tactical considerations will determine whether there should also be an application to transfer the case to an allegedly more convenient forum; or
  • if a case has been filed in another jurisdiction, the defendant may seek injunctive relief against the plaintiff in a second state, requiring that the plaintiff discontinue the action in the first forum and instead submit the case for hearing in this allegedly more convenient forum.

In both cases, the first step is to determine whether the first instance forum is the natural forum, i.e. the forum that has the closest connection with the action and the parties. This requires the court to determine whether there is another forum that is clearly more appropriate. The basis of the test is the Doctrine of Comity, i.e. the immediate forum court must respect the right of a foreign court to assume jurisdiction. The Canadian case of Braintech, Inc. v. Kostiuk [1999] B.C.J. No. 622 considered the effect of the internet in relation to defamation and recognised that if every jurisdiction in the world which has access to the internet took jurisdiction, it would have a crippling effect on the freedom of expression. Domestic courts therefore test the results arising from the choice of venue against criteria such as "oppressive" or "vexatious". Because the court is balancing practical issues of justice, there may be injustice to the defendant if the plaintiff is allowed to pursue the immediate proceedings, but also of injustice to the plaintiff if he or she is not allowed to do so. So, as a general rule, the court will not grant an application to transfer or an injunction if, by doing so, it will unjustly deprive the plaintiff of advantages in the first instance forum. Nevertheless, there should be a real and substantial connection between the venue and the cause(s) of action to provide some protection against defendants from being pursued in jurisdictions having little or no connection with the transaction or the parties. An injunction is an equitable remedy in the form of a court order that either prohibits or compels (restrains or enjoins) a party from continuing a particular activity. ... Comity is a term used in international law (and in the law governing relations between U.S. states) to describe an informal principle that nations will extend certain courtesies to other nations, particularly by recognizing the validity and effect of their executive, legislative, and judicial acts. ... In English and American law, and systems based on them, libel and slander are two forms of defamation (or defamation of character), which is the tort or delict of making a false statement of fact that injures someones reputation. ...


But, if the alternative venue court concludes that the first instance court has assumed jurisdiction either without considering whether there was an alternative forum or reached an obviously unreasonable conclusion on the merits, an injunction would be a reasonable response. Equally, if the foreign court has reasonably concluded that there was no more convenient forum, Comity requires the second venue court to respect that decision and the application for an injunction and transfer should be dismissed. In cases where there is a sound argument to be made in favour of both courts, the court in the second venue should not arbitrarily claim a better right to decide for both jurisdictions. In most cases it will be obvious whether the foreign court has acted on principles similar to those applied in the second venue court and, if so, the second venue court should refuse relief.


The rules in the United States

Forum shopping by the plaintiff

A plaintiff frequently has a choice of bringing a case in one of several jurisdictions, by picking a federal rather than a local jurisdiction, or a local rather than federal jurisdiction, or one of several geographic localities. The defendant in a civil case can usually be sued where he lives, or where the wrong was committed leading to the suit, or where the injury from that wrong was felt. // Legislative branch Article I of the Constitution grants all legislative powers of the federal government to the Congress, which is divided into two chambers, a Senate and a House of Representatives. ... A U.S. state is any one of the fifty states (four of which officially favor the term commonwealth) which, with the District of Columbia, forms the United States of America. ...


Forum shopping by the civil defendant

A defendant can use various methods to attempt to have a case removed from the court where the plaintiff originally filed it. These include invoking the removal jurisdiction of a federal court to take a claim out of the state court, requests for a change of venue contending that the case was brought in the wrong court within a system, and motions for forum non conveniens asserting that the case was brought in an inappropriate forum based on the locations of the parties or evidence. In the United States, removal jurisdiction refers to the power of a defendant to move a lawsuit filed in state court to the Federal district court of the original courts district. ... A change of venue is the legal term for moving a trial to a new location. ...


Forum shopping in criminal cases

Forum shopping also happens, albeit less frequently, in U.S. Federal criminal trials, especially as certain Districts and Circuits are widely thought to be more likely to favour the Government's case in particular issues or trials. It is often claimed that the U.S. Federal trials of alleged terrorists were forum shopped. Criminal law (also known as penal law) is the body of law that punishes criminals for committing offences against the state. ... The United States district courts are the general trial courts of the United States federal court system. ... The United States courts of appeals (or circuit courts) are the mid-level appellate courts of the United States federal court system. ... Terrorism is not defined. ...


Criminal defendants have much less power to change the forum in which the case against them has been brought. Generally, they can do so only where they can show that notoriety or publicity makes it impossible for an impartial jury to be selected in the district where charges were brought.


Efforts to dissuade forum shopping

Courts may object to forum shopping for several reasons. Philosophically, the fair resolution of a case should not hinge on technical differences from one juridiction to the next. On a more practical level, many judges feel that their courts are overburdened, and fear that having the reputation of a forum favourable to certain types of plaintiffs will lead to an increase in their workload, thus delaying the dispensation of justice in other cases.


One policy that has arisen from such concerns is the Erie doctrine, which holds that a federal court hearing a case under its diversity jurisdiction must apply the law of the state in which the court is sitting. Another policy practised by states is the use of choice of law principles to apply the law of another state. The Erie doctrine is a fundamental legal doctrine of Civil procedure in the American legal system that stems from Supreme court Justice Louis Brandeis watershed opinion in the landmark decision of Erie Railroad Co. ... Diversity jurisdiction is a term used in civil procedure to refer to the situation in which a United States district court has subject matter jurisdiction to hear a civil case because the parties are diverse, meaning that they come from different states. ... Choice of law is a concept within the field of the conflict of laws, relating to relationships between different nations, and in the United States between individual states. ...


Parties to a contract may seek to prevent forum shopping in advance by inserting a forum selection clause and/or a choice of law clause in their contract. Such clauses are now generally recognised and enforced by the courts. In the Conflict of Laws, the validity of a contract with one or more foreign law elements will be decided by reference to the so-called proper law of the contract. ... A forum selection clause is a clause in a contract in which the parties agree that any litigation resulting from that contract will be brought in a specific forum. ... A choice of law clause in a contract is one whereby the parties to that contract specify which law (i. ...


See also

Race to the courthouse is an informal name given to a form of so-called forum shopping where both parties are allowed to file a lawsuit in a favorable court. ...

External links


  Results from FactBites:
 
Forum shopping - Wikipedia, the free encyclopedia (1422 words)
Forum shopping is the informal name given to the practice adopted by some plaintiffs to get their legal case heard in the court thought most likely to provide a favourable judgment, or by some defendants who seek to have the case moved to a different court.
The principle expressed as forum non conveniens is the Latin for "inconvenient forum", and a judge may decline to hear, or to transfer, a case if the court selected is not the most convenient for the case.
Forum shopping also happens, albeit less frequently, in U.S. Federal criminal trials, especially as certain Districts and Circuits are widely thought to be more likely to favour the Government's case in particular issues or trials.
  More results at FactBites »

 
 

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