Home | Business News | Browse by Publication | M | Melbourne Journal of International Law

Reflections on the past decade of transnational litigation.

Article Excerpt
The past decade of transnational litigation has seen a consolidation of the trend towards disputes about venue. Increasingly, transnational litigation takes the form of a battle about where the battle is to be fought. The proposed Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters (1) would have created a multilateral system of cooperation between countries about the exercise of jurisdiction, similar to that which exists within the European Union under EC Regulation 44/2001. (2) Its failure means that disputes about the selection and settlement of venue will continue, for the foreseeable future, to be decided using the traditional tools of forum non conveniens stays (or dismissal, in some countries), anti-suit injunctions and some more exotic variants such as negative declarations, anti-anti-suit injunctions and even anti-anti-anti-suit injunctions) The focus on venue means that time, money and intellectual energy are spent on questions that are, at best, only indirectly related to the merits of the case, and often completely unrelated to them.

The outcomes of the skirmishes about jurisdiction and venue often effectively determine the case, not by resolving anything on the merits but by establishing who has the upper hand in settlement negotiations. For example, in Armacel Pty Ltd v Smurfit-Stone Container Corp, (4) an Australian company sued an American company in...

View this article FREE - Now for a Limited Time, try Goliath Business News
Free for 3 Days!