Forum non-convenience as a basis for determination of jurisdiction

This article is dedicated to the analysis of Ukrainian national legislation and domestic scientific doctrine regarding the presence of a formed and established definition of the concept «enforcement of foreign court decisions» as one of the integral elements of the entire institution of recognition and enforcement of foreign court decisions in Ukraine. The article contains an analysis of both current Ukrainian legislation (in particular, some provisions of the Law of Ukraine «On International Private Law» and the Civil Procedure Code of Ukraine), as well as some acts that have lost their validity over time (for example, the Law of Ukraine «On Recognition and Enforcement of Foreign Court Decisions in Ukraine»), but contained important provisions, in a historical context, regarding the enforcement of foreign court decisions. The authors emphasize that the Ukrainian legislator did not consider it necessary to distinguish the concept of «enforcement of foreign court decisions» and to legally establish its comprehensive definition, despite the fact that this concept is repeatedly mentioned in the texts of various legal acts. The article emphasizes the importance of establishing a definition of the studied concept in the texts of legal acts. As a result, the authors present a number of definitions of «enforcement of foreign court decisions» proposed by scientific doctrine. These definitions, although partially, give some idea about the essence of the concept under study. However, no scientific source has provided a comprehensive and exhaustive answer to the question of defining «enforcement of a foreign court decision». Considering this, the authors highlighted their own approach to forming the definition of «enforcement of foreign court decisions». It is proposed to consider that this concept is «compound» and contains two other, more understandable and simple legal categories: «enforcement of court decisions» and «foreign court decision». The authors analyzed the semantics of each of these concepts, conducted an analysis of existing scientific works, and identified their own characteristic features. The authors proposed their own interpretation of both the concept of «enforcement of court decisions» and «foreign court decision». Based on the results of the conducted scientific research, the authors formulated their own definition of the concept «enforcement of foreign court decisions», which will serve as a basis for further research on this topic. The authors emphasized that this study still leaves quite a few debatable issues regarding the concept of «enforcement of foreign court decisions», which will be addressed by them in future works.

Comparison of the phenomenon of property rights in two unrelated legal systems is an interesting task from the point of view of methodology. A simplifying factor is that English law in its origins was strongly influenced by Roman law, but developed apart from continental legal systems. As a result, using the same terminology in the field of property rights in the Russian Federation and Great Britain, different views have been formed on the nature of property rights to land plots. The paper analyzes the legal structures of real law in both countries and achieves the goal of clarifying the content of controversial terms and classifications existing in the real law of the Russian Federation; taking into account foreign experience the author determines the prospects for the development of domestic concepts of real and absolute rights. The admissibility of comparing property rights to land plots is predetermined by the use of similar legal techniques in both countries, as well as terminology borrowed from Roman law. The paper substantiates the thesis on the admissibility of using the analytical concept of law of W. N. Hochfeld as a comparative legal method of research. Fundamental differences in both legal systems will be in the idea of the object of property rights to land plots, the place of property rights in the classification of rights, in the structure and content of the corresponding legal relationship. Taking into account the analysis of the legal regulation of property rights to land plots in the two countries, theoretical provisions substantiate the conclusion about the need to preserve the idea of the absolute nature of property rights in domestic law.

The countries of the Western Balkans have gone through radical social and political changes over the last three decades. The region is composed of small states that are economically inter-dependent and that aspire full membership into the European Union (EU). The regional co-operation between the countries is scarce, and judicial co-operation is often hindered by political and legalistic obstacles. The obligation to exercise jurisdiction whenever there is one, even in cases when exchange of evidence among these countries is impracticable, affects the efficiency and even the entire adjudication of a matter. This article suggests that introducing the doctrine of forum non conveniens - a form of judicial discretion in exercising jurisdiction - in national jurisdictions of the countries of the Western Balkans, would be beneficial to their legal systems and the regional judicial co-operation. The aim of this article is not to say the final word on the matter, but rather to build a basic argument on the benefits of this doctrine to this region. The article will start with an explanation of the applicability of this doctrine in common law countries by exploring the cases of the United States and the United Kingdom. Then, it will identify and address some of the main problems of applicability of the doctrine of forum non conveniens in civil law countries in general, including the Western Balkans. Given their aspirations to join the EU, the EU law context and their lis pendens solution to parallel proceedings or potentially concurring jurisdiction problems, will be taken into account and thoroughly analysed. In the concluding part, the article will argue that despite criticism, there are substantial arguments showing the doctrine would be beneficial for the countries of the Western Balkans to resolve their jurisdictional conflicts, whilst promoting their EU integration.

This paper primarily analyses the contribution of the Indian legal system for international law and the doctrine of forum non conveniens, which is a piece of American legislation mostly utilised to fend off accountability of faulty management governance from American companies. We look into the historical background of multilateral organisations, the Indian legislation to remediate the unfairness to the local communities affected by the Bhopal disaster, and particularly to the lawsuit brought in the Southern District of New York by the government of India to explain the legal argument of this doctrine applied to transnational lawsuits. We conclude that the doctrine of forum non conveniens is a judicial retrogression for legal remedies involving the protection of the national and international environment, local ecosystems, human health and the unborn. As a result, Bhopal local communities experienced injustice, inequality and health insecurity in a century of sustainable practices thus far. The Bhopal tragedy and that dismissed transnational litigation in the American jurisdiction illustrated that we all have a fiduciary and custodianship role to secure health and environment safety for future generations. Thus, we argue that the doctrine of forum non conveniens may have no place in the present times of transnational corporate liability and misconduct against the local and global environment. The Indian government being defeated by a defunct doctrine in the mid-80s illustrates forum non conveniens as a doctrine of anachronistic nature in the times of climate change.

Scotland is a mixed jurisdiction and the development of its legal system has been open to broader global influences and hence is open and liberal in its approach to international legal relations. This can provide an exceptionally good opportunity for Scottish jurists to contribute to the development of global international law projects. The Chapter supports these propositions by reflecting on some selected areas in which Scottish law has shown itself capable of being influenced by and in turn influencing other systems. Scotland had a tradition of openness to the civil law world, notably in France and the Netherlands, and had developed a set of rules of direct jurisdiction based on residence as the prime connecting factor. This openness was also demonstrated in the reception into the internal law of Scotland of the rules of the Brussels Convention as the basis for the rules on the competence of the Scottish courts. Also as regards recognition and enforcement the Scottish practice was to be rather liberal in enabling orders of foreign courts to be enforced. No requirement for reciprocity or an international convention was made nor did Scottish courts seek to impose their own jurisdictional criteria but rather took a global view as regards the competence of the courts of the requesting legal system. Scotland was also an early recipient of international arbitration law by applying the UNCITRAL model law in its domestic system and this strengthened an already lively tradition of supporting arbitration as a method of dispute resolution. The support which the Scottish system gave to party autonomy in general and also as regards arbitration reflects very much the modern global approach in international commercial law. The Scottish doctrine of Forum non Conveniens since received by many jurisdictions also supports a liberal open approach to the competence of the courts and would tend to minimise the effects of a strict adherence to lis pendens. Finally Scottish jurists have frequently played an important role in the world of Private International Law as for example their involvement in the work of the Hague Conference on Private International Law has shown. That has also demonstrated that Scottish law can be seen to be a bridge between the major law systems of the world.

The work introducing the detailed rules of international adjudicatory jurisdiction (“jurisdictional rules”) by amending the 2001 Private International Law Act of Korea (“Former PILA”) finally came to fruition; the Private International Law Amendment Act was promulgated on January 4, 2022, and the amended Private International Law Act of Korea (“New PILA”) entered into force on July 5, 2022. The Former PILA had only three articles on jurisdictional rules, i.e., Article 2 (declaring the general principles of international jurisdiction) and Articles 27 and 28 (establishing the protective jurisdictional rules to protect consumers and employees, the socio-economically weaker parties). There are now thirty-six articles on jurisdictional rules. The general part is set forth in Chapter 1, Section 2 of the New PILA, and special parts are set forth for various legal relations in the first section of each chapter of the New PILA, most of which are rules on special jurisdiction. As its general part, the New PILA includes general principles of international jurisdiction and jurisdictional rules on general jurisdiction, place of office (business office) and business activities, location of property, related cases and counterclaims, jurisdiction agreements, jurisdiction based upon appearance, exclusive jurisdiction, lis pendens, non-exercise of international jurisdiction, exclusion of application, jurisdiction on preservation orders and non-contentious matters. As its special parts, each chapter of the New PILA includes jurisdictional rules on persons (Chapter 2), intellectual property rights (Chapter 5), claims (Chapter 6), family matters (Chapter 7), inheritance (Chapter 8), bills of exchange, promissory notes and checks (Chapter 9) and maritime commerce (Chapter 10).
 By stipulating, for the first time in Korea’s history, the jurisdictional rules in the New PILA, the international jurisdiction law of Korea entered a new era. On the one hand, the New PILA secures legal certainty and enhances predictability of the courts and the parties by specifying the detailed jurisdictional rules. On the other hand, jurisdictional justice is guaranteed in individual cases through the principle of lis pendens and non-exercise of international jurisdiction under exceptional circumstances (the latter is an improvement of the special circumstances theory of the Supreme Court precedents and was influenced by the doctrine of forum non conveniens of the common law jurisdicitons) by giving certain limited discretion to the courts. If the New PILA is to be successful, the Korean courts must correctly understand the gist of the jurisdictional rules of the New PILA and use their discretion appropriately in order to achieve the purpose of the New PILA. The author looks forward to a collection of excellent Korean courts precedents faithful to the New PILA in the future. The structure of the New PILA is noteworthy in that the jurisdictional rules and the choice of law rules, in each chapter, stand side by side like two wings, while putting the detailed detailed jurisdictional rules in the New PILA. Korea’s transition to a two-wing system, from the Former PILA which, like Germany, only contained choice of law rules, is noteworthy not only from the Korean point of view, but also from a comparative private international law perspective. An important reason for the transition is that the jurisdictional rules and the choice of law rules are closely related, and the decision to transit was influenced by the attitudes of the common law jurisdicitons, the Swiss Private International Law Act, and the Hague Conference on Private International Law, all of which have a broad understanding of private international law not limited to choice of law rules.

In this article, the significance of international treaties in the regulation of interstate relations in the recognition and enforcement of court decisions (decisions) of foreign states is analyzed. The author examines the regulation of interstate legal relations through universal, regional, and bilateral international treaties. In particular, universal, regional, and bilateral international treaties are considered, and the specific features of each of them in the process of recognition and enforcement of judgments (decisions) of foreign states are highlighted. In particular, issues such as state sovereignty, national interests, and confiscation of proceeds from crime in the recognition and enforcement of court decisions (decisions) of foreign states are covered within the framework of international cooperation. The article analyzes bilateral agreements signed by the Republic of Uzbekistan with such countries as Kazakhstan, Azerbaijan, and the Czech Republic, including agreements on the continuation of serving sentences and the provision of legal assistance to persons sentenced to imprisonment. Also, attention is paid to the requirements of the Minsk and Chisinau Conventions “On Legal Assistance and Legal Relations in Civil, Family and Criminal Matters,” as well as bilateral agreements of the Republic of Uzbekistan on the recognition and enforcement of court decisions (decisions) of foreign states. At the same time, attention was drawn to the differences between the general approach of universal conventions and the procedural procedures in regional, bilateral agreements.

In Russian legal science there is a wide-spread belief according to which legal precedents are not sources of Russian law, because Russian legal system forms a part of continental legal system. Various researchers believe that judicial practice does not contain legal norms and consequently case law is not a component of Russian legal framework.
 The present paper contains the theoretical and historical legal research of the place and role of case law in Anglo-American and continental legal systems. It’s shown that for long historical periods legal precedents were recognized as sources of law not only in Great Britain and the USA, but also in major European legal systems, while at the present time differentiation of legal systems with respect to their attitude towards case law is becoming outdated. Furthermore, based on the research of various legal scholars’ traditions (principally of the positivistic and the sociological traditions) this article demonstrates that negative attitude towards case law is largely determined by the formalistic and obsolete understanding of the term ”source of law”, coming from the misinterpretation of positivism.
 The paper also presents the current development trends of case law as a source of law. In particular the article outlines the proactive interpretations of new statutory provisions issued by the Plenum of the Supreme Court of the Russian Federation, the global uniqueness of such interpretations and the influence of scientific–technological progress and public needs on the highest court’s interpretations. The mutual interference of case law and statutory law is shown.

This study discusses mediation strategies as a legal instrument in overcoming the obstacles of the doctrine of forum non conveniens in international lawsuits for compensation due to aircraft accidents, especially in product defect cases against aircraft manufacturers in the United States. Non-conveniens forums are often an obstacle for victims from other countries to access justice through the U.S. legal system, as courts may dismiss lawsuits if alternative forums are deemed more appropriate. In this context, mediation serves as an efficient, flexible, and more humane dispute resolution mechanism. The Lion Air JT 610 accident case study is used as a prime illustration, where the victim's family managed to obtain compensation through mediation with Boeing, despite the potential lawsuit being dismissed based on a non-conveniens forum. This research shows that mediation can be an effective litigation strategy to speed up settlement, avoid complex litigation processes, and strengthen the victim's position in cross-jurisdictional negotiations. The research method used is normative juridical with a case approach and legal comparison. Data were obtained through literature review, analysis of legal documents, and review of court decisions and mediation practices in U.S. federal courts. The results of the study recommend the need to harmonize cross-border mediation procedures and strengthen access to alternative dispute resolution mechanisms for victims from developing countries.

The paper compares the Anglo-American and continental legal systems in parallel with a comparison of the philosophical foundations for each. The defining philosophical distinction between the two legal traditions (viz., the Anglo-American system is predicated on idealism and the continental system on materialism) is shown to influence the way in which criminal justice is handled by the two systems as applied to citizens, and how this influence is carried across to the regulation of business as applied to corporations. The idealistic (possibly theological) worldview inherent in the Anglo-American legal system explains its moral presumptions regarding human freedom, dignity, and responsibility, while the materialist worldview inherent in the continental legal systems explains its amoral assumptions about human motivations and behavior. I suggest that while the Anglo-American legal system may be justified in its moral philosophical presumptions as applied to citizens, the continental legal system, with its amoral assumptions, more accurately reflects corporations than citizens. Understanding how the philosophy behind the two legal systems influences the application of law in modern society can lead to improvements in public policy.

The article deals with the issue of the features of the system of sources of law in various legal systems, which were formed in accordance with local traditions, taking into account external influences. One of the main problems considered in this article is the determination of the place of judicial precedent in the Anglo-American legal system, its significance in solving a particular case. This study raises the issue of the history of the emergence, development of judicial precedent as a legal phenomenon, its constituent elements and their role as an auxiliary element in the creation of the rule of law by the court and law enforcement, regardless of the level of the judiciary in the countries of the Anglo-American legal system. Unlike the system of sources of law in the continental legal system, where the main source of law is a law or a codified legal act, in the Anglo-American legal system, it is judicial precedent that is the main source of law, as a manifestation of common law. Historically, due to the large number of cases that needed to be decided first by non-professional judges, and then by qualified lawyers and the underdevelopment of the legal framework, such persons had to carry out an extensive interpretation of legal norms and sometimes create new ones with their own hands, interpreting them each time. So, after a certain period of time, the lawyers unified the decision of the judges, such collections became important when the court could refer to an already decided plot with the same factual circumstances and apply the “ratio decidendi” in a new case. After such a rapid development of judicial law in the Anglo-American legal system, it became quite clear that not only the highest courts can create a judicial precedent by their decision, but other courts of the general system have the right to do so: as courts of first instance (district courts), as well as appellate courts and, for example, the US Supreme Court. This raises the question of the legal force of such precedents, depending on the level of the court that created it. Therefore, this question is the next one, which is considered in this article. An important factor is the use of the comparative method of studying the above issues, and therefore a rather interesting point in the analysis of information is the comparison of the essence of judicial precedent in the continental legal system and the Anglo-American legal system.

Tactical litigation is a reality of the adversarial litigation framework that is currently in place. However, there is a difference between the tactical litigation of choosing a forum which may have more favorable law or be more convenient and choosing a forum with the intent to drive the opposing party to failure. The latter has been the issue with some of the tactical litigation that has occurred under the European Union’s framework of lis pendens. While the Recast Brussels I Regulation has alleviated some of those issues, it has not addressed all of them. While some scholars have argued that these issues of lis pendens may be answered by introducing the common law doctrine of forum non conveniens to these proceedings, that is not the case. This Article explores the pitfalls of lis pendens and forum non conveniens and ultimately finds that forum non conveniens is unable to solve the issues lis pendens creates in tactical litigation. Furthermore, the Article finds that forum non conveniens, inherently and acting as it should, has its own problems which echo lis pendens’ own issues in the European Union. Furthermore, forum non conveniens is simply incompatible with the policies the European Union implemented with lis pendens. Ultimately, forum non conveniens is unable to answer the problems lis pendens has created and solutions must be found from within the European Union’s own civil system.

Court proceedings in the field of medical law are currently a growing issue given the increasing migration of doctors and medical staff. Because of that fact, it is crucial to establish the standard of quality of health protection in the European Union (EU). Following the presentation of the existing levels of protection connected with the prevention of malpractice, the paper distinguishes between the legal documents of the EU and the Council of Europe because many documents related to health care and quality are adopted in the EU and in the Council of Europe. The general conclusion is that there is no uniform or cross-sectoral definition of quality in health care, however it has been found that important elements of health care quality include effectiveness, efficiency, access, safety, equity, appropriateness, timeliness, acceptability, satisfaction, patient responsiveness or patient-centeredness, and continuity of care. The health care aspect is analysed in the continental legal system and the common law legal system. The issue of causation is observed through different theories in the continental legal system and various case law examples in the common law legal system. The authors concluded that it would be preferable to adopt a theory of objective imputation as a legal standard for causation in criminal liability in medicine, because it analyses several possible causes in close or remote connection with the resulting consequence, i.e. said theory considers as relevant only the legal causes that result in a harmful event through the violation of due diligence. The paper primarily deals with criminal liability for malpractice, but it also presents the civil aspects in the states (for example the USA) which recognise only civil liability for malpractice.

This article briefly analyzes the sources of law used in modern legal systems, analyzes the understanding and application of judicial precedent as a source of law in Anglo-American, religious (mixed) and continental legal systems. The characteristic features and peculiarities of understanding judicial precedent in these systems are highlighted. It is revealed that understanding in the continental legal system is exclusively as judicial practice, which is not formally mandatory, but is enforced by courts, unlike Anglo-American legal and some mixed legal systems, which understand judicial precedent as creating a new legally binding norm. A comparison of the judicial precedent with the institution of prejudice in Russian civil law is made.

The Perils of Comparative Law Research