Where to Sue: Finding the Most Effective Forum in the World

• Author: Louise Ellen Teitz
• Pages: 61-80

61

CHAPTER 7

Where to Sue: Finding the Most

Effective Forum in the World

Louise Ellen Teitz1

“‘Forum shopping’ is a d irty word; but it is only a pejorative way of sayin g that, if

you offer a plaintiff a choice of jurisd ictions, he will naturally choose the one in

which he thinks his case can be most favourably presented: this should be a mat-

ter neither for sur prise nor for indignation.”2

If you are making a shopping list, three crucial questions should be asked

before you go “foru m shopping.” First, where can I bring su it? Second, where can

I get the best “law” a nd procedure? And third, where c an I enforce any judgment

or award?

Of the three questions, the potential recovery is often determinative,

alt hough you r decis ion to in itiat e litig ation ma y also b e part o f a stra tegy of b ring-

ing multiple proceedings, of obtaining provisional measures or preliminary

relief, or of putting pressure on a party as part of negotiating a settlement. T he

location of a defendant’s assets to satisfy any potentia l judgment and the likeli-

hood or ease of having the asset forum recognize a foreig n judgment will also

inf luence the initial choice of where to litigate. With a world of possibilities, in

sum, one needs to evaluate t he strategic rami fications of forum select ion not only

on the physical location of the suit, but also on the substa ntive law applied, the

procedures used, a nd the potential for subsequent enforcement.3

1. Melis sa Chalek of the Class of 2013 at Rog er Williams Un iversity School of Law pro-

vided invalua ble research assista nce.

2. The Atl antic Star, 1974 App. Cas. 436, 471 (appeal taken from En g.) (H.L.) (Lord Simon

of Glaisd ale).

3. See ge nerally Lo E  T, T L  233–50 (996 & 999

Supp.); W W. P, I  F S  (995); G B. B 

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62 CHAPTER 7

HWHERE CAN I FILE A LAWSUIT?

Is There Personal Jurisdiction?

The first question of where suit can be brought encompasses a range of issues.

The first of these is the existence of personal jurisdiction. Personal or adjudica-

tive jur isdiction in t he United States is subjec t to applicable long-ar m statutes (for

absent defendants) and U.S. constitutional standards of due process, the latter

looking at the defendant’s contacts with the foru m rather than just at the rela-

tionship of the litigation to the forum. These contacts must be such that they

don’t offend “traditional notions of fair play and substa ntial justice.”

4 The stan-

dard, applicable to aliens as well, is generally broken into two components—

minimum contacts and fairness—both of which require a very fact-based

approach to personal jurisdiction.5 Certain forms of U.S. jurisdiction—“doing

business” and “tag” or transient jurisdiction—as well as our emphasis on the

relationship of the defendant’s activities to the forum differ from personal juris-

diction concepts el sewhere. In addition, our concepts of personal ju risdiction are

not defined by the c lass of plaintiff, such as “consumer,” or the nature of the

claim, such as employment or insurance, an approach quite different from that

illust rated by the European Union’s Brussels Reg ulation.6

P B. R , I  C L   U S  C (5th ed.

20); D E, J  L. S,  C  S. B  IV, I L -

: A G  J , P ,  S (2003).

4. Int’l Sho e Co. v. Washington, 326 U.S. 30, 36 (945) (quoting Mil liken v. Meyer, 3

U.S. 457, 463 (940)).

5. The United State s Supreme Court issued two recent op inions on personal ju risdiction,

the fir st in over 20 years, both concern ing foreign defendant s. One was in the general

jurisd iction context, Goodyear D unlop Tires Operat ions, S.A. v. Brown, 3 S. Ct. 2846

(20), and one was in the speci fic jurisdic tion context, J. McIntyr e Machinery, Ltd. v.

Nicastro, 3 S. Ct. 2780 (20), both fi nding no personal ju risdiction, even t hough at least

in Nicastro there would be jur isdiction under t he current provision s of Article 5(2) of

the Brussel s Regulation. See infra note 6. For d iscussion of these two ca ses, see generally

Patrick J. Borc hers, J. McIntyre Machiner y, Goodyear, and the Incoherence of the Minimum Co n-

tacts Test, 44 C  L. R. 245 (20); Symeon C. Symeonides, Choice of L aw in the

American Co urts in 2011: Twenty-Fifth Annual Sur vey, 60 A. J. C. L. 29 (202).

6. EU Regu lation 44/200 on Jurisdiction a nd the Enforcement of Judgments i n Civil

and Commercia l Matters, Mar. , 2002, 200 O.J. (L 2) , as ame nded, 2002 O.J. (L 225)

. The Brussel s Regulation replaced the Br ussels Convention. See Convention on Jur is-

diction and t he Enforcement of Judgments in C ivil and Commercia l Matters, Sept. 27,

968, 990 O.J. (C 89) 2. A major revision was propose d on 4 December 200 and final-

ized in Decemb er 202 and is known as Br ussels I (Recast). Regulat ion (EU) No. 1215/201

of the European Parliame nt and of the Council of 12 Dece mber 2012 on Jurisdict ion and the Rec-

ognition and E nforcement of Judgme nts in Civil and Commerci al Matters (Recast), L. B5/ O.J.

(202). It will only apply to leg al proceedings i nstituted on or after 0 Ja nuary 205.

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