Suppose A enters into a contract with B for supply of certain goods. A is a
company incorporated in Mauritius and B is a company incorporated in India. B
fails to make the payment on time and consequently A rescinds the contract. B
files a suit in their home country against A.
A tries to resist the suit on the basis of forum non coneveniens. In such a case
where both the forums have jurisdiction to decide the matter, where should the
matter be decided? This paper aims to compare and analyse how the courts of
United States, India and Australia have decided the motions on forum non
conveniens in different situations.
It compares the factors that are taken into consideration while deciding whether
a suit should be dismissed in favour of an alternate forum or not. It also
discusses whether the rules of International comity are in line with the purpose
of this doctrine or not. Broadly, this paper tries to answer which is the most
suitable approach for deciding a motion of forum non conveniens.
Forum non conveniens, a common law doctrine was introduced in Scotland. Before
such a doctrine came into being, the principle of determining the appropriate
venue of trial was widely contested.  Once a plaintiff was vested with the
power of determining venue of the trial, the power started getting widely
While the power was being abused by the plaintiffs, the defendants started to
file motions for changing the venue of the trial as it caused undue hardship and
burden on them. This clearly meant that there was uncertainty as to which was an
appropriate forum to file a suit from where adequate relief could be obtained.
The courts, as a consequence of this uncertainty, came up with the idea of Forum
non competens which meant that the court lacked jurisdictional competence in
cases where the court possessed the jurisdiction to try a case, but the trial
seemed inconvenient. Soon, when the courts recognized that convenience and
expediency must also be taken into consideration and merely factoring
Jurisdictional competence was not enough, the doctrine of Forum non
came into being.
Forum Non Conveniens in the United States of America
The Forum non
conveniens doctrine gives discretionary powers to the US courts to dismiss a
suit when there is a more appropriate and convenient forum
Prior to the publishing of a law review article, the phrase forum non
conveniens was hardly in use in the United states judicial system.
After the article was published, the doctrine started getting used in many
United states federal court decisions by the Judges and counsels alike.
Initially the doctrine of Forum non conveniens was used in Admiralty cases. 
In most of these cases, the plaintiffs were non residents and initiated the
suits while their ships were docked at the American ports. However, the supreme
court in the case of Canadian Malting co. V Paterson Steamship
Courts of equity and of law also occasionally decline, in the interest of
justice, to exercise jurisdiction, where the suit is between aliens or
non-residents, or where for kindred reasons the litigation can more
appropriately be conducted in a foreign tribunal.  Also, in the case of
Broderick V Rosner, the court said that the court may, in appropriate cases,
apply the doctrine of forum non conveniens. 
Thus, it is evident from the early application of this doctrine that it was not
only used in Admiralty cases where the plaintiffs were non residents of the
United states but also between two resident parties and wherever it was
appropriate to use it as the main objective was to meet the ends of justice.
The landmark judgement that is responsible for the foundation of this doctrine
in the United States is Gulf Oil Corporation V. Gilbert.
 This was a
case in which an action was brought in the federal court of New York for a tort
committed in Lynchburg, Virginia. A suit was filed by the plaintiff whose
warehouse was destroyed as result of defendant's negligence in delivering
gasoline. The plaintiff was a resident of Virginia and the defendant was doing
business in Virginia and New York.
The Plaintiff, instead of filling the suit in Virginia where most of the
witnesses lived and the place where the tort occurred, filed the suit in New
York, thinking that the New York Jury would award better amount of damages than
a Virginia Jury.
The Supreme court upheld the decision of the district court
that Virginia is a more appropriate forum and listed two set of factors that
must be balanced when ruling on a such a motion. The first set consists of
private factors like Access to evidence, transportation costs and availability
of subpoenas in securing witnesses and similar problems of expense and
The second set consists of factors that pertain to Public Interests. These
include questions like do the parties abdicate some rules of the court by
filling a suit there or whether the dockets of that forum are being
unnecessarily burdened which is causing hardship to the local plaintiffs?
Essentially what the court in Gulf Oil Corporation V. Gilbert
to do is balance the Public and Private factors when deciding a motion based on
Forum non Conveniens. Subsequently in Koster V. Lumbermens
, the US court
held that in applying the doctrine of forum non conveniens, the ultimate
inquiry is where trial will serve the convenience of the parties and meet the
ends of justice.
However, post the Gilbert decision, the application of this doctrine has been
narrowed down by the legislative action of enacting the 1404(a) of Judicial
code. This code requires the case to be transferred and not dismissed when
the alterative forum is another federal court. This meant removing the
application of forum non conveniens in domestic matters.
In another landmark decision of Piper Aircraft Co. V. Reyno, the United
States Supreme Court tried to address two questions which asks the relevance of
the change in the substantive law and the weight to be given to plaintiff's
residence. The plaintiffs filed a suit in America claiming damages out of an
air-crash that took place in Scotland, killing all the Scottish passengers. The
district court dismissed the suit in favour of the Scottish forum.
The Supreme court held that a foreign plaintiff's choice of forum deserves less
deference because foreign plaintiff's choice is less likely to be convenient
for the defendant. So, it upheld the decision of the district court and sent
the case back to the Scottish forum.
Indian Application of Forum Non Conveniens
The concept of forum non conveniens as explained by the Indian courts is the
discretionary power of the court to not exercise jurisdiction in a matter
because there exists a more appropriate forum to try the matter and conversely,
an anti-suit injunction is granted by the court to stop the parties from
instituting a suit in another competent court. But the principle stands that
in order for the court to apply the principle of Forum non-conveniens, the other
more appropriate forum should be a court of competent Jurisdiction. 
This doctrine is not used in domestic matters as the subsequent suit is barred
by section 10 of Civil procedure code but the principles thereof can be invoked
by the High courts under its writ jurisdiction as an exercise of their
This principle was clarified by the Delhi High Court when the defendant pleaded
that the forum in Delhi is an inappropriate forum and the suit shall be better
decided in a more appropriate forum
which was the Bombay High Court.
The learned single judge sent the matter back to the Bombay HC on the principles
of Forum non conveniens under section 151 of the code. This position was later
reviewed by the same court in Horlicks V. Heinz
 and it was held that:
The principle of forum non conveniens applies to foreign forums and Indian
courts can apply the said principle vis-�-vis foreign forums or while exercising
discretionary jurisdiction under Article 226 of the Constitution of India.
The court also held that the said doctrine does not apply to civil suits in
India which are governed by the Civil Procedure code.
In the Landmark case of Modi Entertainment V. WSG Cricket
Supreme court of India has laid down the principles for this doctrine which are
in use till date. Although the matter pertained to grant of an anti-suit
injunction against the party initiating an action outside the country of Natural
Jurisdiction, the same principles apply when a court in India is deciding a
motion on Forum non conveniens.
The parties had a contract under which the party in India obtained a license to
broadcast the ICC knockout tournament that was being organised in Kenya. Soon
after the commencement of the telecast, the broadcaster noticed that the
satellite transmission had a spill-over effect to the Middle East and threatened
the party in India that they might rescind the contract.
The Indian party filed a suit in India fearing loss of advertisement revenue.
Consequently, as per the non-exclusive jurisdiction clause in the contract, the
broadcaster brought an action in Queens bench, England. The Indian party asked
the court in India to grant an anti-suit injunction.
The court while denying the relief asked for by the party, laid down certain
conditions to be fulfilled when granting an anti-suit injunction
- The defendant against whom an anti-suit injunction is sought, is
amenable to the personal jurisdiction of the court.
- If injunction is declined, ends of justice will be defeated and
injustice will be perpetuated. The principle of comity must be borne in
mind which stipulates that sovereignty of a court from which continuance of
a proceeding is sought to be restrained to decide the matter must be
- In a case where more than one forum is available, the court in exercise
of it's discretion to grant an anti-suit injunction will examine as to which
is the more appropriate forum to decide the matter giving weightage to
convenience of the parties and whether the present forum will be oppressive
and vexatious for the defendant
The above-mentioned principles were also applied by the Supreme Court in
Krishna Nigam V. Harish Nigam
while deciding Jurisdiction and it held that
this doctrine can also be applied in matrimonial proceedings. It noticed that
under the said doctrine, the court exercises it's inherent jurisdiction to stay
the proceedings when it is not considered to be a convenient forum and there is
a more convenient and appropriate forum that should decide the matter in the
interests of all parties and meeting the ends of justice. 
This doctrine was also invoked in the case of Anuradha V. Divyanshu Gautam
in which the court, while denying to grant an anti-suit injunction said:
While deciding appropriateness of forum, It is necessary to see where justice
can be done at substantially less inconvenience and expense and where the action
had most real and substantial connection such as availability of witnesses and
the law governing the relevant transaction and the places where the parties
respectively reside or carry on business. And unless the balance is strongly in
favour of party seeking injunction, the choice of forum of opponent party should
rarely be disturbed.
Even in the case of India Tv Independent V. India Broadcast Live Inc
was stated that for determining whether a more appropriate forum exists,
factors such as convenience of parties, expenses involved and law governing the
relevant transaction need to be looked into.
The Australian Approach
The landmark Judgement of the Australian High court which laid down the test to
apply this doctrine in the courts of Australia is Oceanic Sunline Special
Shipping Co. Inc. V. Fay. The facts of the case pertain to a contract
between Fay (plaintiff) and Oceanic Sunshine Shipping Co. (defendant). The
plaintiff booked a cruise of the Greek islands on a ship owned by the defendant.
Fay could not read the terms and conditions of the tickets as he didn't have
them for inspection.
One of the clauses in the ticket mentioned that any action against the defendant
must be brought in the court of Athens and Jurisdiction of any other court was
excluded. Fay suffered injuries on the voyage and then sued the defendant in the
New South Wales Supreme Court.
While the defendant argued that the Australian court is not the appropriate
forum to decide the matter and pleaded for a Forum non conveniens dismissal,
Dean J. suggested that the test to be applied is the Clearly inappropriate
test which follows from Maritime Insurance Co.
What is to be proved is not that whether there is a more appropriate forum
to decide the matter that has been brought in front of the court but that the
local forum is a clearly inappropriate
one.  Dean J. rightly held
that just because there is a more suitable forum to decide the matter doesn't
mean that the local jurisdiction is a clearly inappropriate one
But the position of this doctrine remained unclear and the underlying principles
of this doctrine was clarified in Voth V. Manildra Flour mills Pvt Ltd
According to the court, the clearly inappropriate forum test consists of two
Firstly, defendant will have to give reasons as to why the local forum is a
clearly inappropriate one. While deciding this, the majority accepted the
discussion in Spilada that:
the factors that will be taken into consideration are factors affecting
expense, law governing the relevant transaction and the places where the parties
reside or carry on business. 
Secondly, the plaintiff has to show the advantages of continuing the proceeding
in the local forum.
Factors such as damages, costs and limitation periods of the local forum is to
be taken into account. This clearly means that in order for the court to
consider these factors, it has to compare them with factors of the courts
The principles settled in Voth are to be applied in the Australian courts
when the issue of forum non conveniens arises. The above-mentioned principles
were recently applied in the case of CMA CGM SA V. The Ship Chou Shan
wherein the court applied the clearly inappropriate forum test and stayed the
proceeding in federal court.
The test laid down in Gilbert and Piper aircraft requires weighing the Private
and Public interests along with considering whether the trial will serve the
convenience of the parties and meet the ends of justice.
The Indian doctrine of Forum non convenience lays down a similar test. It sees
whether the defendant is amenable to the personal jurisdiction of the court and
if jurisdiction is denied, whether it will meet the ends of justice. After
weighing all the factors, whichever is the most suitable forum, it dismisses the
case in favour of that forum. The Australian doctrine while considering the same
factors, takes a rather different approach in concluding whether the doctrine
must be applied or not.
Factors such as Expense of the litigation, defendant's place of carrying on
business, and the relevant law of that transaction are taken into account. The
plaintiff has to discharge the onus of showing the advantages of continuing the
suit in the same forum. The Australian courts also weigh the factors of the
alternate forum such as limitation period, the damages that might be offered,
and the cost of litigation.
While the courts in US might dismiss a case in favour of an alternate forum if
there is a more suitable forum which is available and considering other factors
like transportation cost of witnesses, evidence, subject matter of the suit,
meeting the ends of justice, the courts in India take a similar approach and sum
it up by considering whether the plaintiff has instituted the suit in order to
cause vexation or oppression to the defendant.
In such cases, if the alternate forum meets the ends of justice, then the courts
will readily provide forum non conveniens dismissal, but it will do so only if
it thinks it is necessary to do so. Australian courts will only dismiss a case
in favour of an alternate forum if the forum where the suit has been instituted
is a clearly inappropriate one
Like US and India, it does not consider whether there exists a more suitable
where the case can be decided. Even if the witnesses are present in a
different forum and the subject matter of the suit lies elsewhere, it will still
not dismiss a suit if the local forum has some connection with the determination
of the case. It places a onerous threshold on the party applying for a stay.
Private factors such as access to evidence, cost and transportation of witnesses
and subject matter of the suit might be the same in case of US and India. It is
the Public interest factors on the basis of which a distinction can be made.
The United states has a legal environment which is favourable to non-residents
as compared to forums in other countries because of various factors. These
factors include better amount of compensation, favourability for plaintiffs, the
American rule according to which a plaintiff who has lost need not pay the
defendant's attorney. On the other hand, it is quite evident from the 188th
Law commission report that most cases do not get dismissed in favour of the
Indian forum as there is a general assumption that it can take as long as 25
years for disposal a case. 
So, in general foreign plaintiffs do not prefer to institute suits in India as
dismissal of a case can take years and the amount of compensation/damages
awarded is below the reasonable amount. The Australian courts on the other hand
witness foreign plaintiffs instituting suits in order to get the adequate relief
even if the subject matter of the suit is outside Australia. They do so
because if an Australian national/resident has done any wrong, then the
Australian courts deem it to be liability of that national/resident or company
under the country's local law.
As the situation in US stands, the US Supreme court has stated in Sinochem
that the plaintiff need not be amenable to the jurisdiction of the court in
which the case has been instituted in order to be granted a Forum non conveniens
dismissal. The US supreme court seem to have taken a departure from the
principles of Gilbert which mandated that the forum in which case is instituted
must have jurisdiction of the matter.
In India, the Delhi HC as recently as in 2019 has reiterated the decision of the
Supreme Court that in order for the court to grant a forum non conveniens
dismissal, the parties must be amenable to the jurisdiction of the forum where
the suit is instituted. Since the basic requirement of this doctrine is that
two forums must be competent is exercising jurisdiction, the courts in US seem
to have taken a departure from that principle.
However, it cannot be denied that by dismissing cases in favour of some other
forum in a foreign country, the United States is condoning the wrongful harm
done by the MNC's in other nations whose nationals later ask for damages as a
consequence of the injuries suffered from these activities.
These Multinational giants, knowing that they won't be liable under the laws of
their home state, set up high-risk industries which sometimes cause a lot of
damage to the nationals of those states. One of the prime examples of this will
be the Union Carbide case in which most of the injured plaintiffs filed a
suit against the Union Carbide Corporation Limited, the parent company of Union
carbide India limited which caused injuries to the habitants as well as the
environment following a leak of methyl isocyanate from their plant in Bhopal,
The suit was filed in southern district of New York but after weighing in the
factors of the doctrine, the court dismissed the suit in favour of Indian Courts
stating that the subject matter of the Suit lies in India and most of the
witnesses were also in India. This is how a United States incorporated MNC
escaped the law of its home country. Such is not the case in India and
Australia. The Indian courts have also from time to time dismissed the plea of
anti-suit injunction, saying that if granting the anti-suit injunction is
causing vexation or oppression to the defendant, then it will not do so and try
to comply with the rules of International comity
The same principle from the Supreme court case has been reiterated and all the
factors are ultimately weighed in so the ends of justice can be met. Amongst
these forums, the Australian forum is the most suitable one as the courts
do not dismiss a suit unless the local forum is a clearly inappropriate one
The Australian courts have adopted an approach which is distinct from the one
used in United States courts and the Indian courts.
It's application of Forum non conveniens has provoked criticism from certain
scholars who have outrightly said that the western model of Forum non conveniens
is the most appropriate one  These legal scholars and advocates of
International comity have criticized the manner in which Australian Courts have
declined to stay a proceeding instituted under its jurisdiction and said that
the Australian courts have failed to comply with the practices of International
As evident from the decisions in Oceanic and Voth that the court made a
departure from the most suitable forum and provided the plaintiffs with
adequate relief when it was necessary. The Australian courts noticed how the
doctrine was being used ironically in United States to promote chauvinistic
If the Unites States intended on following the rules of comity, then it should
have taken cognizance of cases like Piper and Bhopal and ensured that
the local MNC's don't have the chance of escaping from liability of US
courts. It will not be wrong to say that the factors taken into account by
US like where are the witnesses, evidences, place where the event happened have
been adopted by the US courts so that MNC's can escape from liability of US
As ironic as it might sound, it can rightly be said that the Australian approach
of applying the doctrine of Forum non Conveniens is the Most Suitable
. The suitability of this approach is with respect to the foreign
plaintiffs who are trying to get the adequate relief or the local defendants who
try to escape the liability of their local courts. The rationale with the
plaintiffs choice of forum being that even if a court has one reason to exercise
jurisdiction in a case, then denying the request if forum non conveniens will
meet the ends of justice as a court's power to exercise jurisdiction should
always be upheld.
As Oliver Wendell Holmes rightly stated in his essay The Path of law, The
Social end which is aimed at by a rule of law is obscured and only partially
attained in consequence of the fact that the rule owes its form to a gradual
historical development, instead of being reshaped as a whole, with conscious
articulate reference to the end in view.
Therefore, it is high time the United States of America and Indian does not lay
down a hard and fast rule to give effect to the principles of comity. The
doctrine as it stands should be applied on a case to case basis and sovereignty
of a court, even if there exists some connection with the subject matter or the
parties to the suit, should always be upheld. The ultimate factor should be to
ensure that ends of Justice is met.
- John Bies Conditioning ForumNonConveniens 2 CLR 489 493 (2000)
- Christopher Whytock ForumNonConveniens and
- Paxton Blair The Doctrine of ForumNonConveniens in Anglo-AmericanLaw 1
CLR 1 (1929)
- John Bies Conditioning ForumNonConveniens 2 489 496 (2000)
- 285 US 413 (2932)
- 294 US 629 (1935)
- 330 US 501 (1947)
- 330 US 518 (1947
- 28 US � 1404
- 454 US 235 (1981
- John Bies Conditioning ForumNonConveniens 2 CLR 489 (2000)
- Modi Entertainment Network V. WSG Cricket (2003) 4 SCC 341 (India)
- Glaxosmithkline Consumer Healthcare Limited V. Heinz Pvt Ltd.
- (2009) SCC OnLine Del 9 (India)
- Article 226 Constitution of India, 1950
- Ibid at 18
- Krishna Veni Nigam V. Harish Nigam (2017) 4 SCC 150 (India)
- Ibid at 23
- (2016) SDC 564 (India)
- 2007 SCC OnLine Del 960 (India)
- (1988) 165 CLR 197 (Austl.)
- Maritime Insurance Co. Ltd. V. Geelong Harbour Trust Commissioners
(1908) 6 CLR 194 (Austl.)
- Ibid at 27
- Ibid at 27
- Voth V. Manildra flours Mills Pty. Ltd. (1990) 171 CLR 538 (Austl.)
- Spilada Maritime Corp. V. Cansulex Ltd. (1987) A.C. 460 (H.L.)
- Ibid at 32
- Ibid at 31
- (2014) FCA 74 (Austl.)
- John Bies Conditioning ForumNonConveniens 2 CLR 489 (2000)
- Law Commission of India Report no. 188 (2003)
- Peter Prince Bhopal, Bougainville and OK Tedi: Why Australia's Forum
Non Conveniens Approach Is Better 3 TICLQ 573 (1998)
- Ibid at 37
- Sinochem International Co. V. Malaysia International Shipping Corp. 549
US 422 (2007)
- Ibid at 18
- Ibid at 19
- Jacqueline Duval-Major One-way Ticket Home: The Federal Doctrine of
Forum Non Conveniens and the International Plaintiff 77 CLR 650 673 (1992)
- In Re: Union Carbide Corp. Gas Plant Disaster 634 F. Supp. 842 (S.D.N.Y.
- India bulls Real Estate Ltd. v Geeta Anand MANU/DE/0445/2019 (India)
- Ibid at 37
- Ibid at 27
- Ibid at 31
- Ibid at 15
- Ibid at 43
- Ibid at 37
- Ibid at 37
- Oliver Wendell Holmes Jr. The Path of Law 10 HLR 457 (1897)