Change in the doctrine of forum non conveniens

Recently, the author had a hand in a case tried by a Hong Kong court that involved the application of “the doctrine of forum non conveniens”. Forum non conveniens is a concept found in common law, its most famous precedent being Spiliada Maritime Corp v Cansulex. The judge in that case determined the following rules relating to forum non conveniens:

1. A stay may only be granted where there is another extraterritorial court in which the case may be tried more suitably for the interests of all the parties and the ends of justice;
2. The burden of proving to the court that a stay ought to be granted rests with the defendant, but if the court preliminarily recognizes that there is another extraterritorial court which is more appropriate for the trial of the action, the burden will then shift to the plaintiff to show that trial in another extraterritorial court would not serve the cause of justice;
3. The burden resting on the defendant is not just to show that the accepting court is not the appropriate court for the trial, but to establish that the other extraterritorial court is “clearly and distinctly” more appropriate than the accepting court;
4. The court should review the factors that would make the other extraterritorial court more appropriate, e.g. whether appearance before such court would be convenient for witnesses, the law governing the dispute, the places where the parties respectively reside, etc.;
5. If the court finds that the other extraterritorial court is not distinctly more appropriate for trial of the case, it should refuse a stay; if, however, the court determines otherwise, it should grant a stay and the case should be tried by the extraterritorial court.

The effect of the Spiliada case is profound, with Canada, Hong Kong, Singapore and New Zealand all adopting the rules established by the case. The precondition for application of the “doctrine of forum non conveniens” is that the court in question has jurisdiction in the case. If the court itself does not have jurisdiction, there is no issue of “conveniens” or “non conveniens” worth discussing. Second, the “conveniens” here does not only refer to convenience, but more pointedly to trial by a court in the most appropriate jurisdiction.

Sally Wang is a partner at Martin Hu & Partners