Information about 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
Lis alibi pendens
Connecting factors
Domicile · Lex domicilii
Habitual residence
Nationality · Lex patriae
Lex loci arbitri · Lex situs
Lex loci contractus
Lex loci delicti commissi · Lex loci actus
Lex loci solutionis · Proper law
Lex loci celebrationis
Choice of law clause · Dpeage
Forum selection clause
Substantive legal areas
Status · Capacity · Contract · Tort
Marriage · Nullity · Divorce
Get divorce · Talaq divorce
Property · Succession
Trusts
Enforcement
Enforcement of foreign judgments
Mareva injunctions · Anti-suit injunctions

Forum shopping is the informal name given to the practice adopted by some litigants to get their legal case heard in the court thought most likely to provide a favorable judgment. Some states have, for example, 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. Through its expansive acceptance of personal jurisdiction, the United States has also attracted foreign litigants wishing to take advantage of the more generous awards of damages and alimony, extensive discovery rules, and the contingent fee system. In addition, the Foreign Trade Antitrust Improvements Act, the Alien Tort Claims Act, and many state product liability laws create legal rights that often do not exist in other jurisdictions.

Concepts

The standard preliminary issue in every case is the determination of whether the court has jurisdiction and, if so, whether it is the most appropriate forum. These determinations are generally referred to as personal jurisdiction and venue. The principle expressed as forum non conveniens, Latin for "inconvenient forum", allows a judge to transfer a case if the court selected is not the most convenient for the case. 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.

The plaintiff might have selected one forum because:

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 instances, 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. The current forum court must respect the right of a foreign court to assume jurisdiction. 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.

If the alternative court concludes that another 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 sometimes be a reasonable response. If, on the other hand, the alternative court has reasonably concluded that there was no more convenient forum, comity requires it to respect the decision of the court that has already assumed jurisdiction and dismiss the application for an injunction and transfer. 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. In the United States, the District Court for the Eastern District of Texas in Marshall, Texas has become a popular forum for patent lawsuits, finding in favor of the plaintiff 78% of the time, compared to a national average of 59%.^[1]

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.

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 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 jurisdiction 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.

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 Philippines

Forum shopping is considered a serious offense which can be made by a complainant. The law in the Philippines explicitly prohibits the filing of more than one case for the same cause of action in any forum or court of law. The prohibition is done so that the courts will not be clogged by complaints of people who may file more than one complaint in an effort to gain a favorable decision in any of the numerous cases filed.

References

1. ^ So Small a Town, So Many Patent Suits, New York Times Magazine, September 24, 2006

External links

Forum shopping in US Terrorism Cases and the "DC Sniper" Case
Forum Shopping in Patent and Antitrust Cases (PDF)
Rethinking Forum Shopping in Cyberspace by Kimberly A. Moore
Forum Shopping in Patent Cases: Does Geographic Choice Affect Innovation? by Kimberly A. Moore

Conflict of laws, private international law, international private law, or international law (private), in common law systems, is that branch of international law and intranational interstate law that regulates all lawsuits involving a "foreign" law
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characterisation is the second stage in the procedure to resolve a lawsuit involving a foreign law element. This process is described in English law as classification and as qualification in French law.
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incidental question is a legal issue that arises in connection with the major cause of action in a lawsuit. The forum court will have already decided that it has jurisdiction to hear the case (resolving any issue relating to forum shopping) and will be working through the next two
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renvoi (from the French, meaning "send back" or "to return unopened") 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.
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Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as states, federated states (as in the US), or provinces.
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Conflict of Laws in the United States have diverged from the traditional rules applied internationally. Choice of law is a procedural stage in the litigation of a case when it is necessary to reconcile the differences between the laws of different states, and in the U.S.
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Public policy or ordre public is the body of fundamental principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change over time.
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Hague Conference on Private International Law (or HCCH, for Hague Conference/Conférence de la Haye) is the preeminent organisation in the area of private international law.
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State is a defined group of people, living within defined territorial boundaries and more or less subject to an autonomous legal system exercising jurisdiction through properly constituted courts.
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jurisdiction (from the Latin ius, iuris meaning "law" and dicere meaning "to speak") is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to
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procedure as opposed to substance are always determined by the lex fori, i.e. the law of the state in which the case is being litigated.

What issues are procedural?

This is a part of the process called characterisation.
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Forum non conveniens (Latin for "inconvenient forum" or "inappropriate forum") is a discretionary power of mostly common law courts to refuse to hear a proceeding that has been brought before it.
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lex causae (Latin: lex+causa, "cause [for the] law") is the law or laws chosen by the forum court from among the relevant legal systems to arrive at its judgement of an international or interjurisdictional case.
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lex fori literally means the "law of the forum" and it is distinguished from the lex causae which is the law the forum actually applies to resolve the particular case.
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lis alibi pendens (literally, "dispute elsewhere pending") applies both in municipal, public international law, and private international law to address the problem of potentially contradictory judgments.
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domicile (termed domicil in the U.S.) is the basis of the choice of law rule operating in the characterisation framework to define a person's status, capacity and rights. The international term for this as a connecting retard is the lex domicilii, i.e.
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lex domicilii is the Latin term for "law of the domicile" in the Conflict of Laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are applied.
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habitual residence is the standard civil law connecting factor used to select the lex causae in cases characterised as status, capacity and family law. It matches the common law connecting factor of lex domicilii.
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Nationality is a relationship between a person and their state of origin, culture, association, affiliation and/or loyalty. Nationality affords the state jurisdiction over the person, and affords the person the protection of the state.
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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 law is
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lex loci arbitri is the Latin term for "law of the place where arbitration is to take place" in the Conflict of Laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are
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lex situs (Latin) refers to the law of the place in which property is situated for the purposes of the Conflict of laws. For example, property may subject to tax pursuant to the law of the place of the property or by virtue of the domicile of its owner.
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lex loci contractus is the Latin term for "law of the place where the contract is made" in the Conflict of Laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are
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lex loci delicti commissi is the Latin term for "law of the place where the tort was committed" in the Conflict of Laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws
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lex loci actus law of the place where the act occurred that gave rise to the legal claim. This is often confused with lex loci delicti commissi which is where the tort is committed.
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lex loci solutionis is the Latin term for "law of the place where relevant performance occurs" in the Conflict of Laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are
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Doctrine of the Proper Law is applied in the choice of law stage of a lawsuit involving the Conflict of Laws.

Explanation

In a Conflicts lawsuit, one or more state laws will be relevant to the decision-making process.
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lex loci celebrationis is the Latin term for "law of the place where the marriage is celebrated" in the Conflict of Laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws
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choice of law clause or proper law clause in a contract is one in which the parties specify which law (i.e. the law of which state or nation if it only has a single legal system) will be applied to resolve any disputes arising under the contract.
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forum selection clause in a contract with a Conflict of Laws element allows the parties to agree that any litigation resulting from that contract will be initiated in a specific forum.
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