COMPARISON OF RECOGNITION
AND APPROPRIATENESS STANDARD TO DISMISS A CASE IN A COURT PROCEEDING UNDER FORUM NON CONVENIENS DOCTRINE BETWEEN the UNITED STATES OF AMERICA AS A COMMON LAW COUNTRY AND INDONESIA AS A CIVIL LAW COUNTRY
Fransiska Ade Kurnia Widodo
A. Introduction
In litigating a case, a court might refuse to exercise its jurisdiction on the ground that the chosen court is inappropriate to adjudicate the case.[1] Such power to reject is well-known as forum non conveniens. The Doctrine of forum non conveniens was established and found in common law countries, and was later spread to civil law countries with several differences compared to common law countries. This paper will discuss further on the recognition of forum non conveniens and the appropriateness standard in a court proceeding to determine forum non conveniens as its basis to decline or reject a case in its jurisdiction. The discussion is going to be based on a comparative analysis between United States of America as a common law country and Indonesia as a civil law country. In addition, it will further analyse whether the doctrine of forum non conveniens has been implemented by civil law countries or not, in this case in Indonesia, compare to the well establishment of the doctrine in United States as common law country.
B. Forum Non Conveniens is Widely Recognized and Accepted in the United States of America
Forum non conveniens is more recognized in common law countries compared to civil law countries. The history of the doctrine dated back to the nineteenth century in Scotlatnd, then developed further in the United States of America,[2] Specifically in Alfaro case.[3] In that particular case, the judge decided that the chosen court was not appropriate to litigate the case because the place where the case took place, was not under the jurisdiction of Texas District Court. As such, the court did not have jurisdiction to litigate the case. The United States of America, through its Supreme Court, implemented the doctrine for the first time in its federal court in the case of Golf Oil Corp v. Gilbert in 1947.[4] In this case, the court gave a standard to define the appropriateness in applying the doctrine of forum non conveniens[5] in which will be discuss further in the next part of this paper. However, the recognition of forum non conveniens in the United States of America is prohibited in certain fields, such as international human rights law, international antitrust and securities law, international employment contracts, admiralty case, and RICO litigation.[6]
C. United States of America Applies a Three-Pronged Test to determine Forum Non Conveniens as its Appropriateness Standard
To see further whether the court chosen by the Plaintiff is convenient enough, American Law established a three-pronged test to evaluate motions to dismiss a case under forum non conveniens.[7] This test does not appear in several civil law countries which already implemented forum non conveniens. It evidences that American Law is more structurized and detailed in applying forum non conveniens as its choice of forum.
Firstly, the test requires a court to determine the degree of deference to accord to the plaintiff’s choice of forum. Secondly, it requires a court to determine whether the alternative forum proposed by the defendants is adequate to adjudicate the parties’ dispute. Finally, it requires a court to do a balancing test between public and private interest factors implicated in the choice of forum[8].
A determination to see the degree of deference of the plaintiff’s choice of forum in the first part of the test has a purpose to see whether the plaintiff’s choice of forum is merely a forum shopping and what plaintiff’s seek is not justice but blended with harassment, if this can be proven, it will be easier for the defendant to dismiss the case.
The next test regarding the alternative forum is more adequate to adjudicate the case compare to the current forum, can be proven by the court who will assess the argument from the defendant’s point of view whether the alternative forum is more convenient to the case. This can be seen in Gulf Oil Case, where the doctrine of forum non conveniens assumes the existence of no fewer than two fora where a defendant is amenable to service the process[9]. To deepen the process of the second test, the court has to see the alternative forum whether it already provides adequate procedural safeguards or not.
The last test is a public and private interest balance test. The court measures the balance between public and private factors in the case, and see whether the choice of the jurisdiction of the court is convenient enough for both parties or not. The measurements in private interest factors to do the balance test are ; (1) the relative ease of access to sources of proof; (2) the availability of cost of witnesses in the forum; (3) the possibility of view of premises, if such view would be appropriate to the action; (4) the enforceability of a judgment if obtained; and (5) all other practical problems that make trial of a case easy, expeditious, and inexpensive[10]. On the other hand, in the public sectors, a judge should consider these requirements to do a balance test, which are: (1) the administrative difficulties found in "congested centers" of litigation; (2) the unfairness of burdening citizens of a forum unrelated to the operative facts with jury duty; (3) the desire of the public to view the trial; (4) the local government's interest in having local controversies decided at home; (5) the interest in having the trial of a diversity case in a forum that is at home with the state law that governs the case; and (6) the need to minimize conflict of laws[11]. Moreover, a judge shall dismiss on a case on the basic of forum non conveniens in rare circumstances where the forum is inconvenient for the court, the litigants, or both.[12] The fulfillment of one of public interest factors might not dismiss a case on the ground of forum non conveniens. In Gulf Oil Case, the court stated that the Plaintiff’s choice of forum should only be challenged when the balance test of public and private interest factors are strongly in favor of the defendant.[13]
However, the recognition and the implementation of forum non conveniens in United States of America might lead to some problem in international litigation cases since it will be easier for defendant to argue that the forum is not in favor for him and the plaintiff wants to oppress him. [14] From the above reason, therefore it might lead problem for the judges to see which court is more convenient, since it is in the international context, and this problem might lead the defendant to forum-shopping. [15]
D. Forum Non Conveniens is not Widely Recognized in Civil Law Countries, however It already Implemented in Indonesia’s Judicial Decisions.
Unlike American law which follows the common law system, civil law countries usually do not recognized forum non conveniens since when the court already find jurisdiction, the court rarely to decline it hence the recognition of an alternative forum rarely presence.[16]
The recognition of this doctrine does not appear in civil law countries as for example in the Brussels Regulation and Lugano Convention, furthermore the European Court of Justice stated that forum non conveniens can not be invoked under Brussels Regulation.[17] This can be happened because the doctrine is not widely known in civil law countries therefore when making the proposed regulations, many European countries opposed to add this doctrine in the regulations.[18]
However, Indonesia as one of civil law countries already implemented this doctrine in its judicial decisions. This can be seen from Richard Ness.v.NY Times case where the judges in their interlocutory decision is in favor of the defendants and agree with the exception from the defendants that the court does not have jurisdiction to litigate the case on the ground of forum non conveniens. [19]
Moreover, as one of civil law countries Indonesia as well does not recognized forum non conveniens in its law on the contrary as what United States of America does. However, the doctrine still appears in its law in which integrated with actor sequitur forum rei principle.[20] According to this doctrine, a court does not have jurisdiction to adjudicate if there is other court, which is more qualified to litigate the case. This can be seen in article 118 of HIR.
E. Appropriateness Standard in Indonesia to Dismiss a case under Forum non Conveniens.
Indonesian law does not apply appropriateness tests as American law does to dismiss a case under forum non conveniens. While the appropriateness test given by American law is more to seek justice between both parties in which can be proven by the public-private factors balance test, Indonesia applies the appropriateness standard to see which jurisdiction is more convenient to adjudicate the case and lead the parties to choose which court’s jurisdiction is more suitable to litigate the case.
As what has been mentioned in the previous section, Article 118 of HIR is one of sources of law in Indonesia which integrated forum non conveniens doctrine. However, the appropriateness standard is limited and there are several qualifications the defendants should fulfill in order to ask for an alternative jurisdiction from the current court. The alternative forum might be decided by one of the defendant’s domicile[21] or where there is a debt, is in the domicile of prioritize debtor.[22]
In the event that the defendants’ domicile cannot be found, the pleading might be submitted in plaintiff’s domicile. [23] If the pleading is related to immovable goods, it should be submitted in the court where the immovable goods are located. [24]
F. Conclusion
Forum non conveniens first established in common law countries, and developed in United States of America. This doctrine is more recognizable in United States of America, compare to Indonesia as one of civil law countries. The recognition of this doctrine can be seen in American cases dated back from 1947, while in Indonesia, the recognition of this doctrine is only integrated in actor sequitur forum rei principle.
The appropriateness standard to dismiss a case under forum non conveniens in United States of America is more deepen and relied to justice as American law implemented three part test to dismiss a case under forum non conveniens and to avoid forum shopping and court’s jurisdiction harassment by the plaintiffs. It is then can be concluded that in the event the court gives motion to dismiss a case under forum non conveniens, it shall see whether the adequate choice of forum or choice of law has been established, and if not, the court might do a three pronged test to see the convenience of choice of forum and choice of law for the defendant. Meanwhile, Indonesia has implemented forum non conveniens, however the appropriateness standard is only limited to guide the plaintiff in choosing the right court’s jurisdiction and there is no test to contest the jurisdiction of a court and therefore, forum non conveniens in Indonesia only limited to procedural law, not substance of the case.
[1] Mardirosian, ‘Forum Non Conveniens: Introduction to Forum Non Conveniens,’ Vol. 37:1643 , Loyola Los Angeles Law Review, (2005), p.1.
[3] The case is about workers from Costa Rica who sued because they were required to handle pesticides allegedly manufactured by Dow Chemical and Shell Oil. The Supreme Court found that a Texas state district court could not refuse to hear the case because the Legislature had expressly authorized that all civil suits based on personal injury or death may be tried in Texas no matter who the parties were or where the injury occurred. The 1993 law permits a Texas court to decline to hear the case of a claimant who is not a legal resident of the United States on grounds of forum non conveniens "on any conditions that may be just." See Capitol Research Service of Texas, Reports Forum Non Convenies, (1997 Amendment), at http://capitolresearch-texas.com/reports/civil_practice/forum1997.html, at.p2.
[4] Rosemary H. Do, ‘Not Here, Not There, Not Anywhere: Rethinking the Enforceability of Foreign Judgements with Respect to the Restatement (Third) of Foreign Relations and the Uniform Foreign Money-Judgments Recognition Act of 1962 in Light of Nicaragua’s DBCP Litigation,’14 Sw. J.L. & Trade Am. 409 Southwestern Journal of Law and Trade in the Americas (2008), pp.416-417.
[6] Dante Figueroa, ‘Conflicts of Jurisdiction Between the United States and Latin America in the Context of Forum non Conveniens Dismissals,’ 37 U. Miami Inter-Am. L. Rev. 119, University of Miami Inter-American Law Review, (2005), p.129.
[7] Michael Greenberg, ‘The Forum Non Conveniens Motion and the Death of the Moth : A Defense Perspective in the Post Sinochem Era,’ 72 Alb. L. Rev. 321, Albany Law Review, (2009),p.339.
[10] J. Stanton Hill, ‘Towards Global Convenience, Fairness, and Judicial Economy: An Argument in Support of Conditional Forum Non Conviniens Dismissals before Determining Jurisdiction in United States Federal District Courts,’ 41 Vand. J. Transnat'l L. 1177, Vanderbilt Journal of Transnational Law, (2008), p.1182.
[13] Emily J.Derr, ‘Striking a Better Public-Private Balance in Forum Non Conveniens,’ 93 Cornell L. Rev. 819, Cornell Law Review, (2008), P.819.
[14] Dan Jerker B. Svantensson, ‘In Defense of The Doctrine of Forum Non Conveniens,’ 35 HKLJ 395, Hongkong Law Journal, (2005), p.408.
[16] Joost Pauwelyn and Luiz Eduardo Salles, ‘Forum Shopping Before International Tribunals : (Real) Concerns, (IM)Possible Solutions,’ 42 Cornell Int'l L.J. 77, Cornell International Law Journal, (2009), p.110.
[17] Matthew H.Adler, Michele Crimaldi Zarychta, ;The Hague Convention on Choice of Court Agreements: The United States Joins the Judgment Enforcement Band,’ 27 Nw. J. Int'l L. & Bus. 1, Northwestern Journal of International Law and Business, (2006), p.22.
[18] Allan I.Mendelsohn, ‘The United States and the European Union in International Aviation,’ 55-AUG Fed. Law. 36, Federal Lawyer, (2008), p.42.
[19] LBH Pers, Gugatan Baru Dengan Jurus Baru Richard Ness vs NY Times, April 2008,at http://www.lbhpers.org/?dir=beritatampil&id=1050, p.1
[20] Masjayadi, Doktrin Separability,January 2009, http://masjayadi.blogspot.com/2009_01_01_archive.html,p.1
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