 |
| 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 · Dépeçage |
| 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. Conflict of laws (or private international law) is that branch of International law and intranational interstate law that regulates all Lawsuits involving In Conflict of Laws, characterisation is the second stage in the procedure to resolve a Lawsuit involving a foreign law element In the Roman 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" or "to return unopened" is a subset of the Choice of law rules 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 The Choice of law rules in the Conflict of Laws in the United States have diverged from the traditional rules applied internationally Public policy is the body of fundamental principles that underpin the operation of legal systems in each state. The 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 The term State has several meanings in law in Private international law and Conflict of laws, State can refer to a well-defined jurisdiction with its own set In Law, jurisdiction (from the Latin ius iuris meaning "law" and dicere meaning "to speak" is the practical Authority In all Lawsuits involving Conflict of Laws, questions of procedure as opposed to substance are always determined by the Lex fori, i In the Conflict of laws, lex causae ( Latin: Lex + Causa, "cause the law" is the law or laws chosen by the Forum court from In Conflict of Laws, the Latin term lex fori literally means the "law of the forum" and it is distinguished from the lex causae which is the law the The principle of lis alibi pendens (literally "dispute elsewhere pending" applies both in municipal Public international law, and Private international law In Conflict of Laws, domicile (sometimes termed domicil in the U The lex domicilii is the Latin term for "law of the domicile" in the Conflict of Laws. In the Conflict of Laws, habitual residence is the standard civil law connecting factor used to select the Lex causae in cases characterised Nationality is a relationship between a Person and their State of Origin, Culture, association Affiliation and/or Loyalty 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 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. lex loci actus law of the place where the act occurred that gave rise to the legal claim 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 or proper law clause in a contract is one in which the parties specify which Law (i In Law, dépeçage refers to the concept in the Conflict of laws whereby different issues within a particular case may be governed by the laws of different states A 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 A person's status is a set of social conditions or relationships created and vested in an individual by an act of Law rather than by the consensual acts of the Discussion As an aspect of the Social contract between a state and its Citizens the state adopts a role of protector to the weaker and more vulnerable members 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 In Conflict of Laws, the Choice of law rules for Tort are intended to select the Lex causae by which to determine the nature and scope In Conflict of laws, the issue of Marriage has assumed increasing public policy significance in a world of increasing multi-ethnic multi-cultural Community 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 In modern Society, the role of marriage and its termination through Divorce have become political issues See also Get (divorce document For the religious process see Get (divorce document A get or gett ( גט) is In Sunni Islamic Law there are two forms of divorce known as the talaq and its less well-regulated Sunni 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 In Conflict of Laws, the Hague Convention on the Law Applicable to Trusts and on Their Recognition was concluded on 1 July 1985 and entered In the Conflict of Laws, issues relevant to the enforcement of foreign Judgments are frequently regulated by Bilateral Treaty or Multilateral The Mareva injunction (variously known also as a freezing order, Mareva order or Mareva regime) in Commonwealth jurisdictions is a court In the area of Conflict of law, anti-suit injunction is an order issued by a court or Arbitral tribunal that prevents an opposing party from commencing A colloquialism is an expression not used in formal speech, writing or Paralinguistics. In law a lawsuit is a civil action brought before a Court in which the party commencing the action the Plaintiff, seeks a legal or equitable remedy A legal case is a dispute between opposing parties resolved by a Court, or by some equivalent legal process A court is a forum used by a power base to adjudicate disputes and dispense civil, labour administrative and criminal Justice under its 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. The term State has several meanings in law in Private international law and Conflict of laws, State can refer to a well-defined jurisdiction with its own set In Law, jurisdiction (from the Latin ius iuris meaning "law" and dicere meaning "to speak" is the practical Authority 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. Personal jurisdiction in United States law refers to a court's power over a particular defendant ( In personam jurisdiction or an item of property The United States of America —commonly referred to as the In law a lawsuit is a civil action brought before a Court in which the party commencing the action the Plaintiff, seeks a legal or equitable remedy In Law, damages refers to the money paid or awarded to a Claimant (England Pursuer (Scotland or Plaintiff (US following a successful Alimony, maintenance or spousal support is an obligation established by Law in many countries that is based on the premise that both spouses have an absolute In Law, discovery is the pre-trial phase in a Lawsuit in which each party through the law of Civil procedure can request documents and other evidence A contingent fee in the United States or conditional fee in the United Kingdom is any Fee for services provided where the fee is only payable 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. The Alien Tort Statute ( ATS, also called the Alien Tort Claims Act and Alien Torts Claim Act) is a Federal law of the United States Product liability is the area of law in which manufacturers distributors suppliers retailers and others who make products available to the public are held responsible for the injuries
Contents |
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. Personal jurisdiction in United States law refers to a court's power over a particular defendant ( In personam jurisdiction or an item of property Venue is the location where a case is heard In the United States, the venue is either a county (for cases in state court or a district or division (for cases in federal court 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. Latin ( lingua Latīna, laˈtiːna is an Italic language, historically spoken in Latium and Ancient Rome. 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. An injunction is an Equitable remedy in the form of a Court order, whereby a party is required to do or interact with in certain ways all right or to refrain from
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. Comity, in Law, refers to legal Reciprocity &mdashthe principle that one Jurisdiction will extend certain courtesies to other nations (or other jurisdictions 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. An injunction is an Equitable remedy in the form of a Court order, whereby a party is required to do or interact with in certain ways all right or to refrain from 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 federal government of the United States is the central United States Governmental body established by the United States Constitution. A US state is any one of the fifty subnational entities of the United States of America that share Sovereignty with the federal government 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%. The United States District Court for the Eastern District of Texas is the Federal district court with jurisdiction over the eastern part of Texas and is a part of Marshall is a city of the northeastern region of the US state of Texas. A patent is a set of Exclusive rights granted by a State to an inventor or his assignee for a fixed period of time in exchange for a disclosure of an [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. In the United States, removal jurisdiction refers to the right of a Defendant to move a Lawsuit filed in state Court to the Federal 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. The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different Jurisdictions whose common characteristic is the potential 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 intermediate appellate courts It is often claimed that the U. S. Federal trials of alleged terrorists were forum shopped. Terrorism is the systematic use of terror especially as a means of coercion
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. The Erie Doctrine provides that a federal court sitting in diversity jurisdiction over a state law claim must apply state substantive common law in resolving the dispute In United States law, diversity jurisdiction is a concept used in Civil procedure to refer to the situation in which a U Another policy practised by states is the use of choice of law principles to apply the law of another state. 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
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. 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 A 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 A choice of law clause or proper law clause in a contract is one in which the parties specify which Law (i 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.
See also
References
- ^ 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. Jurisdiction shopping is a form of economic behavior by which a private business interest seeks to locate its operations in a political unit with the least regulation and/or lowest " Race to the courthouse " is an informal name given to a form of " Forum shopping " where both parties are allowed to file a Lawsuit in Tort reform in the United States refers to a topic of debate over the changes to the Tort law system of liability and damages Moore
- Forum Shopping in Patent Cases: Does Geographic Choice Affect Innovation? by Kimberly A. Moore
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