Forum Shopping - 1


Forum shopping has emerged as a utility tool for policy analysis both at the national as well as the global level. Litigants usually indulge in forum shopping when there is a realistic possibility to move around several access points and when the new location is chosen over other locations for accomplishing specific policy objectives. Forum shopping (also called ‘venue shopping’) can be either horizontal (between the same levels of government) or vertical (across different levels of government), or both.

Analyzing the global IPR regime since the 1980s, forum shopping strategies have occurred horizontally between different international regimes. This is in sync with the concept of state actors operating in a disorganized environment, lacking clear hierarchy of norms. Thus, forum shopping is subtly associated with a legalistic reading of sovereignty. The institutional location of a particular regulatory standard matters in as much as it attributes more or less influence to specific actors to accomplish their regulatory goals. In the international IPR regime, nations have switched between forums with limited as well as inclusive membership.

Forum shopping occurs at various stages of the policy process, which, in global politics, is the equivalent of the subsequent phases of negotiations: (1) the agenda-setting phase, (2) the bargaining phase, (3) the decision-making phase, and (4) the implementation phase. A few writers refer to forum shopping in international law exclusively in this last sense. During implementation, litigants can strategically decide the jurisdiction of the quasi-judicial institution at which they wish to bring a specific case or complaint about insufficient or incorrect national implementation of international norms.

However, even though an agreement is made and the implementation of the accord is under progress, in several instances, it implies that the negotiation game starts again afresh. The primary reasons for this are the existence of contractual gaps – those specific issues that have been left out or have not been captured in the agreement with an intention to be discussed at a later stage – or specific provisions of the agreement are subject to a review. Moreover, certain litigants or groups of litigants might be dissatisfied with the negotiated outcomes and wish to re-negotiate the terms of the agreement. In simple terms, it is likely that a specific regulatory outcome in one venue – thought of as unfavorable by some – sparks off a new regulatory initiative in the agenda-setting phase of negotiations in another, implying that the negotiation phases across regimes are interlaced and coincide. Negotiations typically take place under the pretext of future negotiations – in this sense post-negotiation is pre-negotiation.

What Is ‘Forum Shopping’?

Forum shopping is the practice followed by a few litigants to have their case heard in the court that is most likely to give them a favorable verdict. In India, the so-called forum shopping, as such, is prohibited. However, the prevalence of complex procedural laws makes forum shopping in IP cases in India a regular feature.

‘Forum shopping’ generally refers to the act of choosing the most advantageous venue to try a case. In other words, forum shopping is a plaintiff’s decision to file a lawsuit in one court rather than another potentially available court within the available jurisdiction. The term ‘forum shopping’ is widely used to refer to the strategy of a plaintiff to have his lawsuit tried in a specific court or jurisdiction where he feels he will receive the most favorable judgment. The term is generally used when a plaintiff wishes to circumvent the ‘natural forum’ for a dispute and is motivated by factors ranging from favorable laws to juror prejudices.

Horizontal & Vertical Forum Shopping

Forum shopping can be either ‘horizontal’ or ‘vertical’. Horizontal forum shopping takes place when a party shops for the best venue among courts within the same court system, i.e., when a party shops for the best court within the state where it wants to litigate the case. Vertical forum shopping takes place when a party tries to move from a state court to a federal court or vice-versa. Irrespective of the type of forum shopping, advocates filing lawsuits or defending lawsuits largely have the same objective when it comes to determining or choosing a venue – they look for a venue where their clients not only get a fair trial, but might also secure some edge, or begin with the odds in their favor.

Domestic & International Forum Shopping

Forum shopping happens both at domestic and international levels. Domestic forum shopping happens within a nation’s borders. Domestic forum shopping happens when a plaintiff chooses between two or more courts within a particular nation's legal system. Transnational or international forum shopping happens when the choice is between the courts of two or more nation’s legal systems. For instance, in the U.K., forum shopping between the U.K. and Scotland happened in matrimonial disputes. International forum shopping has been denounced on grounds that it is introverted and weakens international goodwill.

Some experts of law use the term ‘forum shopping’ to refer to lawsuits filed by foreign plaintiffs in U.S. courts. However, a U.S. plaintiff’s decision to file a transnational suit in a U.S. court is also regarded as forum shopping since the decision represents a choice between that court and an available court in another nation.

Forum shopping depends on two conditions:

1.More than one court must be potentially available for resolving the plaintiff’s dispute/claim.
2.The potentially available legal systems must be disparate.

If all legal systems were the same, plaintiffs would have no reason to prefer one court over another. It is the heterogeneity of legal systems that creates an incentive to plaintiffs to forum shop as the plaintiff may be more likely to win – and, subsequently, likely to recover more – in some legal systems than others.

In transnational disputes, these two conditions are often met. By definition, transnational disputes have association with more than one nation. These associations may be territorial when the activity or its effects pertain to the territory of more than one nation; or they may be based on legal relationships between a nation and the people involved in or affected by that activity, such as citizenship. Because of these multi-country associations, there will frequently be a potentially available court in more than one nation. Since the world's legal systems are not consistent, transnational disputes will also usually meet the heterogeneity condition. By comparing potentially available courts, a plaintiff can decide the court in which he prefers to pursue his claim. From a normal rational choice perspective, he will choose the court in which the expected value of his claim (keeping aside the costs of litigation) is the maximum based on the substantive and procedural rules of that court's legal system. For instance, several political experts usually believe that compared with foreign courts, U.S. forums offer a plaintiff lower costs coupled with higher recovery.

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More by :  P. Mohan Chandran

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