[5] A concern often raised in applications of the doctrine is forum shopping, or picking a court merely to gain an advantage in the proceeding.
This concern is balanced against the public policy of deferring to a plaintiff's choice of venue in claims where there may be more than one appropriate jurisdiction.
It was expanded and applied in the 1860s (in Clements v Macauley [1866] 4 S 224 and Longworth v Hope [1865] 3 S 1049), which led to its incorporation into English law.
The Civil Jurisdiction and Judgments Act 1982 as amended by the Civil Jurisdiction and Judgments Act 1991 states: Nothing in this Act shall prevent any court in the UK from staying, sisting [staying or stopping a process, or summoning a party[14]], striking out or dismissing any proceedings before it on the ground of forum non conveniens or otherwise, where to do so is not inconsistent with the 1968 [Brussels] Convention or, as the case may be, the Lugano Convention.The case of Owusu v Jackson and Others[15] before the European Court of Justice, was concerned with the relationship between Article 2 of the Brussels Convention and the scope of FNC within the European Community.
The Court held that the Brussels Convention was a mandatory set of rules designed to harmonise and so produce a predictable system throughout the EU.
If states were able to derogate from the Convention using their domestic rules of civil procedure, this would deny a uniform result to proceedings based on forum selection.
argue that the FNC rules may still apply to cases where the other proceedings are not in a Member state but this remains uncertain.
[17] In the jurisdictions where the FNC rule survives, a court will usually dismiss a case when the judge determines that the dispute would be better adjudicated in a different forum.
After a period of split approach to forum non conveniens, the High Court adopted a consolidated application of the rule in Voth v Manildra Flourd Mills (1990) 171 CLR 538.
[18] In Voth, the High Court of Australia refused to adopt the "more appropriate forum" approach and instead affirmed Justice Deane's test.
[19] This approach requires that continuation of proceedings in Australia would cause vexation or oppression on the defendant, to such an extent that it would amount to a serious injustice.
In Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491, the High Court affirmed the "clearly inappropriate forum" test as Australian law, while stating that even where the law of a foreign country had to be applied to decide a case, Australia would not be a "clearly inappropriate" forum for hearing the matter.
[22] The doctrine of FNC in Canada was considered in Amchem Products Inc. v. British Columbia Worker's Compensation Board, [1993] 1 S.C.R.
The Supreme Court has underlined that FNC inquiries are similar to but distinct from the Real and Substantial connection" test used in challenges to jurisdiction.
The most important difference is that applying FNC is a discretionary choice between two forums, each of which could legally hear the issue.
The 2nd Circuit stated that the fact that the New York court would need to apply “modest application” of Egyptian law was not a problem because “courts of this Circuit are regularly called upon to interpret foreign law without thereby offending the principles of international comity”.
Further, it was held that in an FNC scenario, a court applies the balance of conveniences, but preference (and weight) must be given to the fact that plaintiffs chose this particular forum for “legitimate reasons”.
The doctrine of FNC gained little footing in the civil law world, which prefers the approach of lis alibi pendens (see Articles 21-23 Brussels Convention).
The civil law jurisdictions generally base jurisdiction on the residence of the defendant and on choice of law rules favouring the habitual residence of the parties, the lex situs, and the lex loci solutionis (applying actor sequitur forum rei).
The Brussels Regime therefore represents a harmonised set of rules for the determination of all questions of jurisdiction throughout the EU and EFTA (but not Liechtenstein) excluding FNC.
The issue of FNC arises in shipping cases since different parties may be involved as charterers or consignees and because of the international nature of the law of the sea and maritime trade.
Made aware of the ship's presence, a local lawyer moves to impose a lien which involves a form of arrest by means of de novo proceedings in rem.
It also determines that neither the ship nor its owners have violated American law in any way, and the local court is not in a good position to hear witnesses who are all resident in other states.
Without a lien over the ship or the ability to obtain some form of control over the assets of the debtor, making a claim for money owing may not be cost-effective.