FORUM NON SATIS: SPILIADA AND AN INCONVENIENT TRUTH
1. AK Investment v. Kyrgyz Mobil Tel
Ever since the principle of forum non conveniens
took its place as the mainspring of the law on stays of proceedings and service out of the jurisdiction, the law has struggled to respond to the party who complains that justice on offer in the relevant foreign court is just not good enough. Occasional cases had accepted that, where the relevant foreign court was so overburdened by work that proceedings were liable to be delayed sine die
, or where the procedural complexity of the litigation might defeat a court with only limited experience of such cases, the ends of justice might not be served by a stay of English proceedings.1
In such cases, a departure was made from the result which would otherwise have been reached: more in sorrow than in anger, perhaps, but justice must be done.
It was also accepted, in principle at least, that, if the foreign court would withhold justice from a litigant for openly disgraceful reasons, the court would not stay the English proceedings and so condone an injustice to be perpetrated in the foreign natural forum. But, aside from egregious examples where the facts needed no commentary,2
the courts had gone out of their way to discourage litigants who, having no other cards to play, sought to resist a stay or to obtain permission to serve out on the basis that the relevant foreign jurisdiction was dreadful and not to be trusted. Never mind that litigants thought that they could show that they would suffer injustice at the hands of a foreign judiciary which was biddable, bribeable or just plain bad. The public interest would not be served by encouraging litigants to ask the English court to find and to rule that the foreign court could not be relied on to do justice. Clear and cogent evidence would be demanded,3
and this standard would certainly not be met by exhibiting newspaper clippings and “reports” from bodies which had assumed grand-sounding names like Transparency International or the Human Rights Institute.
LLOYD’S MARITIME AND COMMERCIAL LAW QUARTERLY