Debunking the Seventeenth-Century “Roots” of Forum Non Conveniens

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Courts and commentators will sometimes assert that forum non conveniens is an “ancient common law doctrine” that has “deep roots” tracing back to the 1600s. As I recount in a forthcoming book chapter, those assertions all appear to trace back to a 1947 law review article and the three Scottish cases on which the author relied. The problem is, that law review article misunderstood those early cases and the Scottish approach to personal jurisdiction which they incorporated. As Professor Ardavan Arzandeh has similarly explored, those early Scottish cases turned on a lack of jurisdiction, not a discretionary decision to decline jurisdiction.

This post describes the most frequently invoked of the seventeenth-century Scottish cases, Vernor v. Elkins, and explains why U.S. lawyers have misunderstood it. It then describes an eighteenth-century Scottish case, Graham v. Stevenson, to illustrate how the Scottish courts were affirmatively rejecting the discretionary power to decline jurisdiction long past the 1600s. The Scottish history of forum non conveniens instead dates from the mid-1800s: the roots of forum non conveniens, both in the United States and abroad, are actually quite shallow.

Vernor v. Elkins

The oldest and most frequently invoked of these early Scottish cases is Vernor v. Elkins (1610), which consists of a single sentence:

THE LORDs will not find themselves Judges betwixt two Englishmen, being in this country not animo remanendi sed negociandi tantum [with the intention of remaining but only to conduct business], specially in matters of debt contracted forth of this country; but if any debt have been convened amongst them to be paid in this, the LORDS will be judges in that case.

That is, the case involved a foreigner temporarily in Scotland without the intention of remaining who was sued in Scotland by another foreigner regarding a dispute that arose outside of Scotland. For a U.S. lawyer writing in the mid-twentieth century, this looks like a case in which there was “tag” jurisdiction over the defendant, but the court declined to hear the case because it was too foreign. But that assumes Scotland recognized blanket “tag” jurisdiction of the Pennoyer v. Neff (1878) variety: that anyone present in a jurisdiction, even briefly, can be sued there over a dispute that is unconnected to the forum.

Under Scottish law, however, the Scottish court would not have had personal jurisdiction on those facts. Universal jurisdiction based on service within the forum required continued residence in Scotland for forty days prior to service. The defendant in Vernor, however, was not in Scotland with the intention to remain, even if only to conduct business—an indication that this forty-day requirement was not met. Serving someone only transiently in Scotland could establish jurisdiction over them, but only for causes of action that arose within Scotland. The final caveat in Vernor was not an indication of when the court would not decline jurisdiction, but an explanation for why it didn’t have jurisdiction over the foreign claim.

Graham v. Stevenson

More than 150 years after Vernor, the Court of Session was actively disclaiming any discretion to decline to hear cases against defendants properly served. In Graham v. Stevenson (1788), an English innkeeper (Stevenson) abandoned his English inn to set up a new establishment just over the border in Scotland. He was then sued in Scotland by his English landlord and the new keeper of the abandoned English inn for lost business and damages from neglect. Stevenson asserted that the Scottish court had discretion not to hear such “an action between Englishmen, laid on an English contract, concerning an English tenement, and one which must be determined according to the law and practice of England.”

Stevenson raised arguments that are now common in forum non conveniens motions: that the evidence was in England, the applicable English law was “very liable to be mistaken or misapplied” by the Scottish courts, and the plaintiffs were forum shopping “in the hope that the Scotch law on such subjects may be different, or that they may mislead the Court with respect to the law of England.” Nonetheless, the Scottish court held it had (what we would today call) general jurisdiction over Stevenson because he was residing and operating a business in Scotland, and “they [the courts] were not possessed of any such discretion as [Stevenson] alleged, of refusing to proceed in the action.”

Conclusion

It wasn’t until the mid-1800s that the Court of Session first clearly recognized a discretion to stay in favor of a foreign forum a case over which the Scottish courts had jurisdiction. The term “forum non conveniens” itself dates only to 1873. The suggestion that forum non conveniens stretches back to the seventeenth century is based on the anachronistic and anatopic reading of just a few cases.

The lesson here is two-fold: First, that forum non conveniens is a relatively modern procedural device that can be reformed or rejected as societal needs require, not an inherent part of the common law that has always been and thus must always be. And second, as I’ve argued at greater length elsewhere, that reading old cases is a comparative law exercise that requires immersion into the entire procedural ecosystem of the time. Originalism or history-and-tradition approaches that rely on old cases are not as easy as simply “doing law”; they require sensitivity to historical context and a healthy dose of humility.