Forum Non Conveniens & Lis Pendens under American Law - Chapter 2.5.4 - Transnational Litigation and Commercial Arbitration - 3rd Edition

Joseph Lookofsky is Professor of Private and Commercial Law at the University of Copenhagen. He received his B.A. in Economics from Lehigh University, his J.D. from the New York University School of Law, and was admitted to the New York State Bar in 1971. He received his Danish law degrees (cand.jur. and dr.jur.) from the University of Copenhagen and joined the Law Faculty there in 1982. Professor Lookofsky has lectured on the CISG and other international commercial law topics for the Danish Bar Association (Advokatsamfund), the Duke University Law School in North Carolina, the University of Bologna (Facoltá di Giurisprudenza), the Albert-Ludwigs-Universität Freiburg (Institut für Ausländisches und Internationales Privatrecht), and the Cornell-Paris I (Sorbonne) Summer Institute of International & Comparative Law. He is also Secretary General of the Danish Committee for Comparative Law (Association Internationale des Sciences Juridiques.

Ketilbjorn Hertz is Senior Consultant with the Danish Ministry of Justice, which he joined in 1997, and in that capacity he has participated in the drafting of important legislation, including the Bill, which led to the adoption of the Danish Arbitration Act 2005 He received degrees from the University of Copenhagen, B.A. in law in 1991, cand.jur. in 1993, B.A. in French in 1998, and Ph.D. in law in 1998.

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Originally from Transnational Litigation and Commercial Arbitration - 3rd Edition

2.5.4. Forum Non Conveniens & Lis Pendens under American Law

A. Forum Non Conveniens under American Law From a non-American plaintiff’s point of view, the “liberal” rules of procedure and substantive tort law which are often applicable in U.S. State and Federal Courts are likely to make these fora extremely attractive, especially when compared with the far more restrictive conditions applicable elsewhere. To take one notorious example, the possibility of recovering millions of dollars in “punitive damages” in a product liability action in an American court is likely to work like a powerful magnet when it comes to the litigation of a transnational claim.214

There may, however, be significant obstacles in store, and this is true even when a foreign plaintiff sues an American domiciliary, thus ensuring a clear-cut jurisdictional base.215 According to American law — and in marked contrast with both the Brussels I Regulation and the various national procedural codes of the European continent — the fact that a given American court enjoys the power to exercise jurisdiction in a given transnational case does not necessarily mean that it is under an obligation to use this power.216 By applying the Common law doctrine of forum non conveniens, an American State or Federal court may — in its discretion and provided certain conditions are met — dismiss an action which it deems might otherwise impose an undue burden upon the defendant or the forum, thus forcing the plaintiff to sue in a more “convenient” forum.

The potential significance of forum non conveniens in transnational litigation has been underlined by the United States Supreme Court’s approval of a basic distinction between American plaintiffs on the one hand and foreign plaintiffs on the other: “When the home [American] forum has been chosen it is reasonable to assume that this choice is convenient. When the plaintiff is foreign, however, this assumption is much less reasonable. The foreign plaintiff’s choice deserves much less deference.

Table of Contents:

CHAPTER 2 EXTRATERRITORIAL JURISDICTION

2.5.4 Forum Non Conveniens, Lis Pendens and Antisuit Injunctions A. Forum Non Conveniens Pain v. United Technologies (1980) Notes, Questions & Commentary In re. Union Carbide Disaster, Bhopal (1984) Notes, Questions & Commentary B. Lis Alibi Pendens Note re. Ingersoll Milling Machine Co. v. Granger C. Antisuit Injunctions