(Br)exit Strategy: The Future of the Forum Non Conveniens Doctrine in the United Kingdom After ‘Brexit’

In 2016, the United Kingdom voted in a historic national referendum to withdraw from the European Union (“EU”). In the following year, the British government passed legislation and utilized the appropriate European mechanisms to trigger its withdrawal from the EU. Despite discontent with the referendum’s results, former Prime Minister Theresa May had quipped, “Brexit means Brexit.” Since the referendum, former Prime Minister May had faced resounding opposition and an overwhelming rebuke to the deal her government negotiated with the EU. Nonetheless, she had remained committed to the Brexit process. The opposition to May’s Brexit deal and leadership during the withdrawal process, however, finally became insurmountable; she announced her resignation on May 24, 2019. Following her resignation, Boris Johnson became the new Prime Minister and continued Theresa May’s commitment to leave the EU. After a resounding 2019 General Election victory, Boris Johnson has vowed to “get Brexit done.” In the midst of the seemingly disastrous withdrawal and exit strategy, it comes as no surprise that pervasive uncertainty concerning the United Kingdom’s future — including that of its legal system — persists. The application of the forum non conveniens doctrine has been especially vulnerable to the lingering legal uncertainty in the United Kingdom. Traditionally, beginning with Scottish courts in the Nineteenth Century, courts in the United Kingdom have applied the forum non conveniens doctrine to decline jurisdiction and dismiss cases in favor of a more convenient and appropriate forum. This doctrine later spread to other countries that subscribe to the Anglo-common law legal system. The United States Supreme Court has long recognized the doctrine. In the historic Gulf Oil v. Gilbert case, Justice Jackson identified the forum non conveniens doctrine and described the doctrine as: “The principle . . . that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.” The doctrine has been well-established in United States courts ever since. While the forum non conveniens doctrine or some variant of the doctrine has been well-established in the United States and throughout the common law world, the doctrine is foreign to the civil law world — including most of Europe. Indeed, civil law countries and their legal systems do not permit their courts to discretionarily decline jurisdiction. Accordingly, in 2005, the European Court of Justice (“ECJ”) held that British courts could not apply the forum non conveniens doctrine to cases involving an international element. Instead, the ECJ concluded, the Brussels I Regulation — an instrument negotiated by civil law states — controlled, and the provisions of the Regulation mandated that the British courts not decline jurisdiction in favor of a different forum. This ECJ decision severely limited the application of the forum non conveniens doctrine in the United Kingdom. With the United Kingdom’s withdrawal from the EU — and presumably the ECJ — the United Kingdom and its courts have the opportunity to reinstitute the forum non conveniens doctrine. This Note’s principle contribution is prescriptive: It argues that the United Kingdom and its courts should reject the ECJ’s preclusive model of the forum non conveniens doctrine and instead look to either its own common law model or the American common law model of the doctrine. In particular, the Iragorri sliding scale model of the doctrine is particularly attractive. The forum non conveniens doctrine is beneficial to legal systems because it is conducive to judicial economy, guards against forum shopping, and is entirely discretional. The doctrine is particularly apt in the United Kingdom given foreign parties’ proclivity for adjudicating international commercial contracts as well as marital agreements in the United Kingdom’s jurisdiction. Furthermore, the United Kingdom has experience and history applying the doctrine and has conformed to the Brussels I Regulation — which precluded the doctrine’s application — only in recent decades.