¹ Whether for the purpose of this discussion a suit is commenced by filing notice of suit with a court or by perfecting service is a subplot not here addressed. See, e.g., J. J. Fawcett , Declining Jurisdiction in Private International Law 32–33, and conflicting sources there cited (1995).

² The Adantic Star, 1974 App. Cas. 436, 471.

³ See the report on Japan by Prof. Masato Dogauchi in Fawcett , note 1 supra, at 303.

⁴ For accounts of the work of the Hague Conference, including conventions concerning service of legal documents, gathering of evidence, and transnational abduction of children, see, e.g., George A. L. Droz & Adair Dyer, The Hague Conference and the Main Issues of Private International Law for the Eighties, 3 Nw. J. Int ’ l L. & Bus. 155 (1981); fund, Peter H. P, The Hague Conference Celebrates its 100th Anniversary , 28 Tex. Int ’ l L.J. 531 (1993).Google Scholar

⁵ See pp. 321–23 infra.

⁶ The discussion here focuses on commercial disputes among substantial enterprises operating in the international economy. It is worth pointing out that forum shopping and competing litigation are serious problems also in the family area, particularly in connection with child custody. For a discussion of attempts to address this problem through a multilateral treaty, see Silberman, Linda J., The Hague International Child Abduction Convention: A Progress Report , 57 Law & Gontemp. Probs. 209 (1994).Google Scholar

⁷ I should state that I served as an expert witness on behalf of the Australian company in proceedings before the Commercial Division of the Supreme Court of New South Wales. However, my observations here are not made on behalf of that company, and do not necessarily represent its views or interests.

⁸ Cigna Ins. Austl. v. CSR Ltd, Case No. 50133/95 (N.S.W. Aug. 15, 1995). The litigation is not over at this writing, as various appeals and further proceedings lie ahead in Australia, and possibly in the United States as well. For present purposes, however, the description in the text is sufficient to illustrate the points here made.

⁹ I came across this case from the account by Prof. Dogauchi, note 3 supra, at 313. The decision of the Tokyo District Court discussed hereafter was issued on May 30, 1989, and is reported in Hanrei Jihǽ No. 1348, 1989, at 91. I am grateful to Ms. Natsuko Sakata for translating the text. Related litigation in the United States is reported as Gould Inc. v. Mitsui Mining & Smelting Co., Ltd., 750 F.Supp. 838 (N.D. Ohio 1990); Gould Inc. v. Mitsui Mining & Smelting Co., 825 F.2d 676 (2d. Cir. 1987); Gould v. Pechiney Ugine Kuhlmann & Trefimetaux, 853 F.2d 445 (6th Cir. 1988), and Gould, Inc. v. Mitsui Mining & Smelting Co., 947 F.2d 218 (6th Cir. 1991). Mr. D was also originally a defendant, but the action against him was settled. The company I have referred to as M is not Mitsui, the named defendant, but Miyakoshi Machine Tools Co., Ltd., which was served but did not appear in the Ohio action, for reasons stated in the text.

¹⁰ The sovereign immunity plea was based on the fact that the French defendants were, at the time, owned by the French Government. Eventually, sovereign immunity was denied on the basis that the transactions in question were commercial activity in the United States within the meaning of the Foreign Sovereign Immunities Act, 28 U.S.C. §1605(a)(2), except for claims brought under the civil action provision of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §1964.

¹¹ Having thus in effect assured M that it could not be exposed to a default judgment in Ohio that might be enforced against it, the Tokyo court appears to have taken no further action in the case. The litigation in the United States proceeded through several interlocutory appeals and eventually went to trial before a judge without a jury. After the trial ended, but before the judge announced his decision, the parties settled. The terms of the settlement remain confidential.

¹² The case here discussed is entitled Amoco v. TGTLI (Q.B. 1996 Folio No. 889, June 26, 1996) (Waller, J.).

¹³ Such an injunction was granted by the U.S. district court in the Laker litigation in the early 1980s, to prevent additional parties from joining in the antisuit injunction proceeding brought by British Airways against laker Airways. See Laker Airways Ltd. v. Pan American World Airways, 559 F.Supp. 1124 (D.D.C. 1983), aff’d sub nom. Laker Airways Ltd. v. Sabena Belgian World Airlines, 731 F.2d 909 (D.C. Cir. 1984). Ultimately, die (English) antisuit injunction was discharged by the House of Lords, British Airways Board v. Laker Airways, Ltd., [1984] 3 W.L.R. 413, 1985 App. Cas. 58, and the (American) anti-antisuit injunction became moot. For detailed accounts of the Laker litigation by the present writer, see Andreas F. Lowenfeld , International Litigation and Arbitration 118–34, 138–46 (1993), and International Litigation and the Quest for Reasonableness 5–14, 44–45 (1996).

¹⁴ The issue of discovery, often a major difference between litigation in the United States and elsewhere, was interesting in the present context. Enron pointed out that, under American but not under English practice, discovery could be had from third parties, including the parent companies of the various litigants in the English proceeding. Justice Waller pointed out that all the UK companies were substantial companies in their own right, and that on all the technical issues raised in the English action it was “difficult to contemplate that technical material and/or documentation is not in the power and possession of those companies even if also in the power and possession of their parent companies.” Thus, he doubted the advantage claimed for litigation in Texas, even if greater opportunity for discovery were to be recognized as a benefit entitled to protection.

¹⁵ Société Nationale Industrielle Aérospatiale v. Lee Kui Jak, [1987] 1 App. Cas. 871, 896 (P.C.).

¹⁶ The Enron parties appealed Justice Waller’s decision, but when their application for expedited consideration of the appeal was refused, the appeal was dropped and die trial on the merits went forward.

¹⁷ For a recent illustration of an injunction against multiple litigation in Sierra Leone granted by an English court that had good reason to suspect collusion between the local courts and the proprietor of a “claims industry” preying on ships and their insurers as they came into port, see A/S D/S Svendborg v. Wansa, [1996] 2 Lloyd’s Rep. 559 (Comm’l Ct). My argument against antisuit injunctions would not reach a case such as that one, though I would place a fairly heavy evidentiary burden on the applicant for the injunction.

¹⁸ See, e.g., Haimo Schack, Die Versagung der deutschen intemationalen Zustdndigkeit wegen forum non conveniens und lis alibi pendens, 58 Rabels Zeitschrift für auslänmsches und internationales Prtvatrecht [RabelsZ] 40 (1994), translated in Fawcett , note 1 supra, at 189. Of course, within the domain of the European Union/EFTA, that is, where die Brussels or Lugano Convention governs, there is no room for forum non conveniens, because jurisdiction is either specifically authorized or precluded.

¹⁹ I am less certain about a genuine claim (i.e., a claim for relief other than a negative declaration) filed in F–2—Australia in my example—arising out of the same controversy as that pending in F–1, which could be filed as a counterclaim in F–1. To be consistent with my opposition to parallel litigation, such a claim should be barred in F–2 as well, but it may be going too far to, in effect, impose a compulsory counterclaim rule internationally. At a minimum, the court in F–2 should consider the circumstances and motivation of the parties before permitting such a claim to go forward.

²⁰ Amchen Prods., Inc. v. British Columbia (Workers’ Compensation Board) [1993] 1 S.C.R. 897, 102 D.L.R. 96 (Can. 1993).

²¹ In view of the notoriety achieved by Texas after the statutory limitation of forum non conveniens was upheld in Dow Chem. Co. v. Alfaro, 786 S.W.2d 624 (Tex. 1990), cert, denied, 498 U.S. 1024 (1991), it is worth pointing out (1) that the statute only applied in personal injury and wrongful death actions; (2) that the statute has been substantially modified effective September 1, 1993, see Russell J. Weintraub, International Litigation and Forum non Conveniens, 29 Tex. Int ’ l LJ. 321, 343–50 (1994); and (3) that federal courts sitting in Texas are apparently not bound to follow the Texas rules on forum non conveniens, see Delgado v. Shell Oil Co., 890 F.Supp. 1324 (S.D. Tex. 1995).

²² United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 UST 2517, 330 UNTS 3.

²³ EEC Convention on Jurisdiction and the Enforcement of Judgments In Civil and Commercial Matters, Sept. 27, 1968, 1990 O.J. (C 189) 2 (consolidated text); Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, Sept. 16, 1988, 1988 O.J. (L 319) 9.

²⁴ I say “to a large extent” because litigation about arbitrability of a given dispute cannot be completely eliminated. Even in such cases, it would be very unusual for two proceedings to be in progress at the same time.

²⁵ In such a case, the second court may (not shall) stay its proceedings until the first action is concluded; it may also decline to exercise its jurisdiction if the first court permits consolidation and has jurisdiction over both actions.

²⁶ Collins, Lawrence , Essays in International Litigation and the Conflict of Laws 278, 283–87 (1994).Google Scholar

²⁷ The Maciej Rataj, [1991] 2 Lloyd’s Rep. 458.

²⁸ The Maciej Rataj, [1992] 2 Lloyd’s Rep. 552 (C.A.).

²⁹ The Maciej Rataj, Tatry (cargo owners) v. Maciej Rataj (owners), Case C–406/92, 1994 ECR 5439, 1995 All E.R. (EC) 229 (Eur. Ct. J. 1994).

³⁰ See Report on the Convention on the Association of Denmark, Ireland and the United Kingdom to the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 1979 O.J. (C 59) 71, 97, para. 78 (the Schlosser Report): “Where the courts of several States have jurisdiction, the plaintiff has deliberately been given a right of choice, which should not be weakened by application of the doctrine of forum conveniens.”

³¹ We have seen some such thinking in England in speculation about whether the criteria for service out of the jurisdiction under Order 11 and for a stay under the doctrine of forum non conveniens are the same. See Seaconsar Far East Ltd. v. Bank Markazijomhouri Islami Iran, [1993] 3 W.L.R. 756 (H.L.). See also the speech of Lord Goff of Chievely in the leading English case on forum non conveniens, Spiliada Maritime Corp. v. Consulex Ltd, 1987 App. Cas. 460, 478–82. One sees it also in the Australian decision in Voth v. Manildra Flour Mills Pty, Ltd (1990) 97 A.L.R. 24, 140, 65 A.L.J.R. 83, 92 (High Ct. 1990), involving a suit against an accountant residing in Missouri, who had given advice to a U.S. firm that, it was alleged, caused injury to its parent company in New South Wales.

³² Piper Aircraft Co. v. Reyno, 454 U.S. 235, 248–52 (1981).

³³ See, e.g., Schack, note 18 supra, Rabels Zat 47, Fawcett at 196.

³⁴ Accord Juenger, Friedrich K., Forum Shopping, Domestic and International , 63 Tulane L. Rev. 553, esp. 572–74 (1989);Google Scholar Kurt Siehr, “Forum Shopping” im intemationalen Rechtsverkehr, 1984 Zeitschrift für Rechtsvergleichung 124.

³⁵ See, in regard to Italy, the chapter by Nicolo Trocker in Fawcett , note 1 supra, at 279, 284; in regard to France, the chapter by Hélène Gaudemet-Tallon in id. at 175, 181; in regard to Germany, Schack, supra note 18, at 196–97.

³⁶ Compare, for example, note 10 supra.

³⁷ See Hague Conference on Private International Law, Recognition and Enforcement of Foreign Judgments, Prel. Docs. Nos. 2–6 (Dec. 1995–Aug. 1996) [hereafter Hague Prel. Doc.]. See also Arthur von Mehren, Recognition and Enforcement of Foreign Judgments: A New Approach for the Hague Conference, 57 Law & Contemp. Probs. 271 (1994); Andreas F. Lowenfeld, Thoughts About a Multinational Judgments Convention: A Reaction to the von Mehren Report, 57 Law & Contemp. Probs. 289 (1994).

³⁸ Hague Prel. Doc. No. 2, at 21 (Dec. 1995).

³⁹ Id.

⁴⁰ Hague Prel. Doc. No. 3, at 18, 19 (Apr. 1996).

⁴¹ Hague Prel. Doc. No. 6, at 15 (Aug. 1996).

⁴² I was interested to see the report that a court of first instance (Landgericht) in Germany had adopted a form of forum non conveniens, in dismissing a suit brought in Frankfurt by an American plaintiff against a Spanish defendant solely on the basis of the presence of property of the defendant in Germany, as authorized by the notorious Article 23 of the Code of Civil Procedure (ZPO). I was disappointed to see that the Court of Appeals (Oberlandesgericht) reversed the Landgericht and reinstated the action. See report by Dr. Burck-hardt Löber, Forum Shopping, Forum non Conveniens oder Schlicht: justizgewährungsanspruch, 6 IP rax 283 (1986).

⁴³ Compare First Nat’l Bank of Boston v. Union Bank of Switz., [1990] 1 Lloyd’s Rep. 32 (C.A.), in which the Court of Appeal, reversing the court of first instance, granted the motion to dismiss on grounds of a prior action pending in Switzerland, notwithstanding the effort of the plaintiff in England (defendant in Switzerland) to join additional parties not amenable to suit in Switzerland.

⁴⁴ See Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, adopted at the Hague Conference on Private International Law, Eighteenth Session, Oct. 19, 1996, Arts. 8, 9. A similar proposal for consultation between courts in different countries, in the context of provisional measures sought in F–2 to prevent hiding of assets by a defendant in F–1, is put forward, somewhat diffidendy, in Committee on International Civil and Commercial Litigation of the International Law Association, Helsinki Conference, Second Interim Report on Provisional and Protective Measures in International Litigation, Principle 15 (1996).

⁴⁵ See the chapter on Canada (common law jurisdictions) byjost Blom in Fawcett , note 1 supra, at 121; Amchem Prods., Inc. v. British Columbia (Workers Compensation Board) [1993] 1 S.C.R. 897, 102 D.L.R. 96 (Can. 1993).

* An earlier version of this paper was prepared for a symposium at the 26th Biennial Conference of the International Bar Association, Berlin, Oct. 23, 1996. I acknowledge with thanks the suggestions of my colleagues Prof. Dagmar Coester-Waltjen and Prof. Linda Silberman.