The Unsung Virtues of Global Forum Shopping
58 Pages Posted: 25 Apr 2016 Last revised: 8 Feb 2017
Date Written: May 6, 2016
Forum shopping gets a bad name. This is even more true in the context of transnational litigation. The term is associated with unprincipled gamesmanship and undeserved victories. Courts therefore often seek to thwart the practice. But in recent years, exaggerated perceptions of the “evils” of forum shopping among courts in different countries have led U.S. courts to impose high barriers to global forum shopping. These extreme measures prevent global forum shopping from serving three unappreciated functions: protecting access to justice, promoting private regulatory enforcement, and fostering legal reform.
This Article challenges common perceptions about global forum shopping that have supported recent doctrinal developments. It traces the history of concerns about global forum shopping and distinguishes between domestic and global forum shopping to discern the core objections to the practice. It then identifies these unappreciated virtues of global forum shopping and suggests balanced ways for courts to protect them.
Keywords: transnational litigation, forum shopping, forum non conveniens, choice of law, comity, statutory interpretation, Erie, legitimacy, race to the bottom, access to justice, experimentation, civil procedure, volkswagen, dieselgate
JEL Classification: K10, K33, K41
Suggested Citation: Suggested Citation