'Forum shopping' despite international uniform contract law conventions

摘要

One of the asserted advantages and goals of the unification of substantive law lies in the prevention of 'forum shopping', i.e. the lawyer's act of seeking the forum that is most beneficial to his client's interest. This has been pointed out not only in discussions on unification of law in general, but also in discussions on specific international uniform contract law conventions, such as the United Nations Convention on Contracts for the International Sale of Goods (hereinafter CISG), the Geneva Convention on the Contract for the International Carriage of Goods by Road (hereinafter CMR) and the UNIDROIT Convention on International Factoring (hereinafter IFC). This short paper attempts to show that the entry into force of international uniform contract law conventions cannot prevent 'forum shopping'. It can reduce the possibility for 'forum shopping', but it cannot prevent it. There are various reasons for this. This paper merely deals with the reasons closely relating to international uniform contact law conventions as such. It does not deal with other, more 'classical' reasons for 'forum shopping', as they have been dealt with frequently already. This does not mean that they should not at least be mentioned. The different rules of evidence as well as any other procedural differences, for instance, may lead a plaintiff to pick a specific forum rather than a different one. The same is true with regard to the varying degree of efficacy and speed of judicial proceedings in the various countries. The language to be used in a Court, the forum's reputation for fairness (or pro-plaintiff bias), the cost of Court proceedings may also prompt a specific choice, as may the differences in the private international law rules and the enforceability of the desired decision. Some authors also refer to the 'legal climate' as one of the reasons for favouring one forum over another one. It should be mentioned, however, that not only can international uniform contract law conventions not prevent 'forum shopping', but in some instances the entry into force of international uniform contract law conventions even promotes it. In this respect, it may suffice to point out that the close relationship between the CISG and the international procedural law of some countries promotes 'forum shopping' as it allows the claimant to sue the defendant in a court in which the defendant could otherwise not be sued. The CMR also promotes 'forum shopping', as it contains a provision on jurisdiction, Article 31, which makes it clear that the claimant can freely choose among several fora.