A Court in Ontario has recently suggested that the principles of forum non conveniens i.e. which jurisdiction is the most convenient for the dispute, are as obsolete as the VCR player because in the digital and Zoom age hearings to resolve disputes may take place any place and any time. Whilst no doubt times are a’changing perhaps the likeness to a VCR player is a step too far.

In Kore Meals LLC v Freshii Development LLC, 2021 ONSC 2896, in hearing an application to stay Canadian court process in favour of arbitration in Chicago, the Ontario Superior Court debated whether the doctrine of forum non conveniens has “gone the way of the VCR player”. The Court suggested;  “In the age of zoom… no one forum is more convenient than another”. The court did grant a stay, but contrary to the suggestion by one of the parties that in the circumstances of the dispute and the parties, that a hearing should take place in Chicago breached principles of forum non conveniens.

Those principles are well displayed by the recent decision in the United States with a UK connection; Behrens et al. v. Arconic Inc. et al., 2:19-cv-02664 in the U.S. District Court for the Eastern District of Pennsylvania. This claim was brought by the families of the deceased and other victims of the June 2017 Grenfell fire, against Arconic Inc., the manufacturers of the Reynobond PE insulation panels that contributed to the fire.  Arconic Inc. is a Pittsburgh company, the designer of the cladding and parent of the suppliers of the cladding in Europe and the UK.  After moving the claim to the federal court Arconic applied to strike out the claim on the grounds of forum non conveniens on the grounds that it had no meaningful connection to the U.S. and that all the relevant evidence, including documents and witnesses, was located almost entirely in the U.K., suggesting that the proper forum was London. The judge agreed.  He concluded that most of the evidence based in the U.S. could be sent electronically to the U.K., and that a greater volume of evidence that related to the fire itself was located in the U.K.

“In stark contrast to the U.S.-based evidence — most of which could be made available in the U.K. without much difficulty — it would be burdensome for defendants to obtain the U.K.-based evidence that is relevant to their defenses for use in this court”

The judge also considered choice-of-law issues between Pennsylvania and the U.K., including that punitive damages of any consequence are not available in the UK.

Under US case law, however, the differences in the availability of damages was not something the court could consider in deciding Arconic’s application to transfer the case to the U.K.

“If this court were free to consider … that punitive damages as understood in Pennsylvania law are likely unavailable in England, the decision very well may have been a denial of defendants’ motion to dismiss,”

He suggested, however, that a judge in England might choose to apply Pennsylvania law to the case, or transfer the damages phase of the claim back to the U.S.

Both the Kore and the Grenfell decisions in different jurisdictions indicate the effect of the digital age on the old concepts of forum non conveniens, a dynamic that will undoubtedly have been pressed on during the pandemic. It’s far too early to be taking forum non conveniens to the metaphorical garbage dump, unlike the vast majority of VCR players, but no doubt in a Zoom world the principles of convenience that underlie it are in a process of change

If you have any queries about this topic, please contact David Greene or any member of the Commercial Litigation team.

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

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