Dr. Arzandeh's objective is to produce “an authoritative and comprehensive reference point for those with an interest in the origins, current application, and potential future developments of forum (non) conveniens in England” (p. 72). But the first two sentences of the book's preface pinpoint where he has fallen short of that objective: “This is the first monograph devoted to forum non conveniens in England. It does not attempt to set out in detail the English case law on this plea” (p. v). As a result, while the book does “past” and “future” very well, its take on “present” is nearly not as fulsome as it might be. That does not stop this being a serious piece of scholarship. But if this was to be the book on forum conveniens and forum non conveniens, one would expect it to comprehensively cover the current doctrinal position as well as trace the doctrine's roots and propose reforms to it.
Beginning with the past, Arzandeh consciously presents a revisionist account of the doctrine's origins. The narrative usually given is that English law started with a relatively restrictive attitude to the discretionary non-exercise of jurisdiction. The discretion was only exercised to decline jurisdiction where the claimant was acting vexatiously and oppressively by suing in the English courts. That gave way to the more liberal approach of forum conveniens and forum non conveniens. Developments began after The Atlantic Star [1974] A.C. 436 (HL) and culminated with Spiliada Maritime Corp v Cansulex Ltd. [1987] A.C. 640 (HL). Since Spiliada, the English courts have adopted a two stage test for forum conveniens in service out cases and forum non conveniens in service in cases. First, is England the appropriate or natural forum? Second, if not, are there special circumstances that require the English court nonetheless to exercise jurisdiction? At the second stage, the real question is whether the circumstances are such that depriving the claimant of a trial in England would lead to injustice.
In excellently presented research, Arzandeh adds new nuance to that narrative. He identifies a trilogy of English cases between 1906 and 1908 which appear to have applied principles reminiscent of forum non conveniens. That was then reversed by the well-known decision of the Court of Appeal in St. Pierre v South American Stones (Gath & Chaves) Ltd. [1936] 1 K.B. 382 (CA). Arzandeh argues that the judgment in St. Pierre itself did not necessitate the revival of the restrictive approach to declining jurisdiction; that came with the way in which St. Pierre was subsequently perceived and applied. In this context, Arzandeh argues that The Atlantic Star did not make new law but returned it to its pre-St. Pierre state, thus paving the way for the two stage test articulated by Lord Goff in Spiliada.
A great strength of Arzandeh's historical analysis comes in his detailed examination of the case law in the period of The Atlantic Star and Spiliada. He is at pains to pinpoint individual contributions to the developing jurisprudence. That focus on the individual – both academic and judicial – helps makes real sense of the significant shift in the thinking to jurisdictional rules in the 1970s and 1980s. But the analysis is perhaps light on legislative reform. The late nineteenth century reforms such as the Common Law Procedure Act 1854 are summarised rather than unpacked, and the revisions of early 1960s (SI 1962/2145) pass by without remark. Nor is there any attempt to explain the interaction between the “gateways” for service out and the question of discretionary non-exercise of jurisdiction. However, these are relatively minor quibbles and do not detract from the general quality of Arzandeh's historical work.
The chapter on the present law is where the book does not fulfil its potential. The chapter investigates a number of matters, but these are largely rushed. Two examples suffice for present purposes. First, the chapter considers the extent to which the law has moved on since Spiliada. If this book was to be “authoritative and comprehensive”, one would expect to find an extensive commentary of the case law that has followed Spiliada with an analysis of the weight tended to be placed on particular factors. Instead, Arzandeh covers the topic in under 10 pages, and his “assessment” that the law is “much the same” now as after Spiliada is supported by a single footnote referring to various editions of Cheshire and North's Private International Law and Dicey & Morris on the Conflict of Laws in the service out cases (p. 80) and no footnote at all in the service in cases (p. 76). Any changes introduced by the Civil Procedure Rules 1998 are not considered. There is also cursory treatment of the role of choice of court agreements in the modern law. Arzandeh briefly notes both the confluence between the Spiliada principles and those articulated in The Eleftheria [1970] P. 94, and the courts’ continued preference to direct themselves by reference to The Eleftheria rather than Spiliada when a choice of court agreement is at play. But he refrains opining on the debate about whether the better explanation of the present law is that choice of court agreements stand apart or are simply a weighty factor within the Spiliada exercise.
Second, the chapter also considers the extent of Spiliada's influence in other legal systems. The understandable focus is on its reception in Australia and Canada. But what could be chapter-length is instead dealt with at speed within six pages. Arzandeh argues that, despite the High Court of Australia's rejection of Spiliada, it has nonetheless shaped Australian jurisprudence, moving it on from the vexatious-and-oppressive test to the test of clearly-appropriate-forum. Arzandeh also briefly considers the reasons for Canada's adoption of a one stage test rather than a two stage test for forum conveniens and forum non conveniens. Again, the doctrinal analysis is far from comprehensive. The exclusive focus is on the two leading High Court of Australia judgments in 1988 and 1990 (Oceanic Sun Line Special Shipping Co. Inc v Fay (1988) 165 C.L.R. 197 and Voth v Manildra Flour Mills Pty Ltd. (1990) 171 C.L.R. 538) together with the Supreme Court of Canada's decision in Amchem Products Inc v Workers Compensation Board [1993] 1 S.C.R. 897. There is no discussion of subsequent development of the law in those jurisdictions in the last 25 years, nor on the literature that has been generated by Australian and Canadian scholars on their respective jurisdictional laws.
Arzandeh's chapter on the future on forum conveniens and forum non conveniens is the most valuable in terms of contribution of scholarship. Noting that Spiliada's discretionary approach can lead to unpredictability and uncertainty, Arzandeh argues for greater structure to be given to its second limb that asks whether there are special circumstances such that jurisdiction ought not to be exercised to reflect the dispute's natural or appropriate forum. Arzandeh focuses on the line of case law which began with Cherney v Deripaska [2008] EWHC 1530 (Comm), [2009] 2 C.L.C. 408 (CA) and ended up in the Privy Council in AK Investments CJSC v Kyrgyz Mobil Tel Ltd. [2011] UKPC 7, [2012] 1 W.L.R. 1804. In these cases, the claimants argued that the court should not refuse jurisdiction in deference to the natural forum because of a real risk that justice could not be obtained in that natural forum. Arzandeh identifies clear problems with the law's current approach. Huge amounts of evidence tend to be put before the court going to this question, leading to outcomes that are not easily reconcilable, and sometimes supported by reasoning that could be characterised as displaying judicial chauvinism rather than judicial comity. Arzandeh's perceptive diagnosis of the issues confounding the second limb of Spiliada continues to be true: see most recently, the Supreme Court's decision in Vedanta Resources Plc. v Lungowe [2019] UKSC 20, 2 W.L.R. 1051.
What to do about this problem? Abolition of the second limb simpliciter has the demerit of requiring cases to be heard in a natural forum even where justice would not be done, as Arzandeh points out. His alternative solution would be to apply by analogy the standard required under Article 6(1) of the European Convention on Human Rights in extradition cases. That would move the threshold from being a real risk of a denial of justice to being a real risk of a “flagrant” denial of justice. That of course begs the question of what “flagrant” means: there is no clear definition, although it is undoubtedly a higher threshold than currently applies in the second limb of the Spiliada test. Arzandeh's argument appears to be that the real benefit of adopting this analogy would be the clarity of a narrow definition of what constitutes a denial of justice, namely a serious procedural irregularity that would prevent a fair trial taking place. An additional advantage of this reform is that it would give greater primacy to the first limb of the Spiliada test, striking a better balance between the natural forum and the claimant's desire to litigate in England. There is much to commend this approach, although it is not clear that it would necessarily solve the practical problem of the ever increasing evidential burden on the courts in a jurisdiction challenge.
The book does not meet its ambition of being an authoritative and comprehensive reference point when it comes to the present state of the law of forum conveniens and forum non conveniens. It is, however, a go-to book for understanding the origins of forum conveniens and forum non conveniens, and its proposals for reform are thought-provoking and deserve careful consideration.
