UK: Forum Non Conveniens – The English Approach to Deciding Which Jurisdiction Governs a Dispute


It is common practice for commercial contracts to stipulate which country’s laws will govern that particular contract. Such stipulations, often contained in clauses entitled "governing law" or "jurisdiction" are, more often than not, of little consequence to the parties as the either the performance of the contract takes place within that jurisdiction, all parties are based in that jurisdiction or the chosen jurisdiction has a favourable legal system in place.

Problems arise in cases where there is a dispute under a contract with an international element. The parties in question may not be based in the same country, or the performance of the contract might take place in a different country, or the "governing law" clause is poorly drafted or, in some cases, absent entirely. One party may have a preference for a particular country’s laws to govern the contract, which the other party disagrees with. Parties may find themselves applying to the Courts of different jurisdictions to have the dispute heard by recourse to the doctrine of ‘forum non conveniens’. This article will discuss how the Courts have addressed these problems in the past and outline the modern approach in the English jurisdiction.

The doctrine of forum non conveniens – traditional approach

The phrase forum non conveniens is Latin for ‘a forum which is not convenient’. Today, it is a legal doctrine which is utilised by a party to Court proceedings who wishes to transfer the case to another, more convenient, jurisdiction.

The traditional doctrine of forum non conveniens originated in Scotland in the nineteenth century and was adopted by the English courts in the late 1960s.1 Essentially it provided that a court could not refuse to consider a case within its jurisdiction unless the plaintiff’s choice was oppressive or vexatious to a defendant (i.e. by issuing Court proceedings in a distant and inconvenient location), or an abuse of process.2

Lord Goff summarised the English approach to the doctrine in Spiliada Maritime Corp. v Cansulex Ltd [1986] 3 WLR 972 at 983 as follows:

"In cases where jurisdiction has been founded as of right, i.e. where in this country the defendant has been served with proceedings within the jurisdiction, the defendant may now apply to the court to exercise its discretion to stay the proceedings on the ground which is usually called forum non conveniens. That principle has for long been recognised in Scots law; but it has only been recognised comparatively recently in this country. In The Abidin Daver [1984] A.C. 398, 411, Lord Diplock stated that, on this point, English law and Scots law may now be regarded as indistinguishable. It is proper therefore to regard the classic statement of Lord Kinnear in Sim. v. Robinow (1892) 19 R. 665 as expressing the principle now applicable in both Jurisdictions. He said, at p. 668:

"the plea can never be sustained unless the court is satisfied that there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of all the parties and for the ends of justice.""

Significantly, the doctrine of forum non conveniens only exists in common law countries. It does not exist in civil law jurisdictions.

Change of Approach

In the 1980s, largely due to an overload of commercial litigation in the US and the UK Courts, both jurisdictions abandoned the traditional forum non conveniens rule3: Instead, both the US and the UK adopted a ‘most suitable’ or ‘more appropriate’ forum approach. This involved balancing foreign and local factors to decide the most ‘natural’ country to host the litigation.4 This effectively prevented foreign plaintiffs from pursing a defendant in the defendant’s own country, as the evidence and most of the witnesses were invariably located in the plaintiffs’ own country – rendering the plaintiffs’ legal forum arguably more convenient and ‘more appropriate’.

Forum non conveniens and Exclusive Foreign Jurisdiction Clauses

In some cases, the contract will specify which country’s laws will govern the contract and any disputes arising out of the contract. The case of The El Amria [1981] 2 Lloyd's Rep. 119 (C.A.) provides some guidance in that regard. In that case, Lord Brandon (following the earlier decision of The Eleftheria [1969] 1 Lloyd's Rep. 237 at p. 242) set out a number of principles by which a question of forum non conveniens should be decided in cases where the plaintiff sues in England in breach of an exclusive foreign jurisdiction clause. His criteria laid down in that case have now been taken as the basic statement on the question, reiterated by the House of Lords in Donohue v. Armco Inc. [2002] 1 Lloyd’s Rep. 425 at pp. 432-433 (H.L. per Lord Bingham).

Lord Brandon's principles are as follows:

"(1) Where plaintiffs sue in England in breach of an agreement to refer disputes to a foreign Court, and the defendants apply for a stay, the English Court, assuming the claim to be otherwise within its jurisdiction, is not bound to grant a stay but has a discretion whether to do so or not.

(2) The discretion should be exercised by granting a stay unless strong cause for not doing so is shown.

(3) The burden of proving such strong cause is on the plaintiffs.

(4) In exercising its discretion the Court should take into account all the circumstances of the particular case.

(5) In particular, but without prejudice to (4), the following matters, where they arise, may properly be regarded:

(a) In what country the evidence on the issues of fact is situated, or more readily available, and the effect of that on the relative convenience and expense of trial as between the English and foreign Courts.

(b) Whether the law of the foreign Court applies and, if so, whether it differs from English law in any material respects.

(c) With what country either party is connected, and how closely.

(d) Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages.

(e) Whether the plaintiffs would be prejudiced by having to sue in the foreign Court because they would:

(i) be deprived of security for their claim;

(ii) be unable to enforce any judgment obtained;

(iii) be faced with a time-bar not applicable in England; or

(iv) for political, racial, religious or other reasons be unlikely to get a fair trial"

"Beyond a mere matter of foreseeable convenience"

In British Aerospace v Dee Howard [1993] 1 Lloyd’s Rep 368 , the Court held that where a contract contained an exclusive jurisdiction clause providing for a case to be tried in the UK, it was relevant that the circumstances which might now suggest a trial elsewhere were perfectly foreseeable at the time of the contract.

In Dee Howard, the new circumstances had to point to some factor which could not have been foreseen on which they can rely for displacing the bargain which they made, i.e. that they would not object to the jurisdiction of the English court. In those circumstances, inconvenience for witnesses, location of documents, the timing of a trial, and all similar matters were aspects which they were precluded from raising. It was held that the proper approach was to consider the proceedings as equivalent to proceedings commenced as of right, and therefore it was right to consider only the matters which would not have been foreseeable when the bargain was struck.

Lord Bingham in the leading case of Donohue v Armco Inc & Ors [2001] UKHL 64 [HL] held at paragraph 25:

"Where the dispute is between two contracting parties, A and B, and A sues B in a non-contractual forum, and A's claims fall within the scope of the exclusive jurisdiction clause in their contract, and the interests of other parties are not involved, effect will in all probability be given to the clause."

In the more recent case of Import Export Metro Ltd & Anor v Compania Sud Americana De Vapores SA [2003] EWHC 11 (Comm), the Court found that factors such the importance of Chilean law (the law of the place of performance of the bill of lading contract under the Rome Convention 1980) and the greater availability of evidence in Chile, and even arguments as to multiple proceedings, were found not to be strong enough reasons to overturn the English jurisdiction selection clause.


"Governing law" clauses should not treated lightly in contract negotiations, especially if there is an international element to the contract in question. Should a dispute arise and a party wishes to transfer proceedings, the Court will assess whether a trial elsewhere was foreseeable at the time the contract was entered into. Prima facie, the Court will be reluctant to transfer proceedings away from a jurisdiction that the parties have contractually agreed to.

It is of central importance that parties who wish to transfer proceedings away from a particular jurisdiction are able to show that Court that to do so would be beyond a mere matter of foreseeable convenience. This may be very difficult in some instances, especially if there are only two parties involved and the other is based in the jurisdiction the former wishes to avoid. Added to that is the difficulty the location of witnesses and evidence. If the witnesses and evidence are in a single jurisdiction, that too may weigh against the party wishing to move. Parties are best advised to turn their minds to jurisdictional matters before the contract is entered into or, better still, avoid a dispute altogether.


1.The Eleftheria [1969] 1 Lloyd's Rep. 237

2. St Pierre and others v South American Stores (Gath & Chaves) Ltd [1936] 1 KB 383 at 398

3. Piper Aircraft Co. v Reyno (1981) 454 US 235 and Spiliada Maritime Corp. v Cansulex Ltd [1986] 3 WLR 972

4. Parliament of Australia, “Bhopal 20 years on: forum non conveniens and corporate responsibility” 8 February 2005, no. 26 2004-05

To read further articles and papers from Fenwick Elliott, please visit our website –

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.