Forum Shopping in the International Commercial Arbitration Context: Setting the Stage
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Description
For many, “forum shopping” is, if not a dirty word, at least a term with disparaging or pejorative connotations, indicating something that commentators and courts consider to be “evil” and, therefore, must be avoided. And it is to reach that result that various policies against forum shopping exist. In the United States, for instance, the doctrine laid down in Erie is, among others, a manifestation of such a policy on an intra-State level: it tries to avoid forum shopping between state and federal jurisdictions by imposing upon federal courts the application of state law on issues of substantive law when sitting in diversity. Similarly, Guaranty Trust Co. v. York and Klaxon Co. v. Stentor Electric Manufacturing Co., cases following the wake of Erie, also are evidence of an anti-forum shopping attitude of federal courts in the intra-State context, i. e., where the choice is between state and federal court. On an inter-State level, the policy against forum shopping is behind, for instance, the Uniform Conflict of Laws—Limitations Act (promulgated in 1982). This Act was introduced to prevent the inter-State forum shopping possibilities originating from the statute of limitations traditionally being characterized as “procedural” for conflict of laws purposes—which resulted in the application of the limitation period prescribed by the forum state’s law. Unlike the “borrowing statutes” the Act intended to replace, i. e., those statutes which try to prevent forum shopping by providing that a cause of action, irrespective of whether it has a statutory basis or a judge-made one, is barred in the forum if it is barred in the state where the claim accrued, the Act tried to prevent forum shopping by characterizing the statute of limitations as substantive for conflict of laws purposes, thus pairing the state law applicable to questions of liability and recovery with that state’s statute of limitations, regardless of whether it would be longer or shorter than that of the lex fori.
Source Publication
Forum Shopping in the International Commercial Arbitration Context
Source Editors/Authors
Franco Ferrari
Publication Date
2013
Recommended Citation
Ferrari, Franco, "Forum Shopping in the International Commercial Arbitration Context: Setting the Stage" (2013). Faculty Chapters. 570.
https://gretchen.law.nyu.edu/fac-chapt/570
