Forum shopping: a legal loophole or a strategic advantage? A glance at the Italian experience

Luciano Castelli,
LCA Studio Legale, Milan
luciano.castelli@lcalex.it

Camilla Arzini
LCA Studio Legale, Milan
camilla.arzini@lcalex.it

Rosanna Stancampiano
LCA Studio Legale, Milan
rosanna.stancampiano@lcalex.it

Introduction to forum shopping

Forum shopping refers to the practice of selecting the most favourable jurisdiction or court for initiating legal action.

Two conditions define forum shopping: first, there must be multiple jurisdictions (or local courts) where a case can be brought; second, the options available must differ enough that one may be perceived as more advantageous than another. In fact, the differences between legal systems allow parties to assess their chances of success and the potential economic consequences of pursuing action in one jurisdiction over another, creating an incentive for forum shopping.[1]

This practice has become increasingly common, especially in commercial contracts. The emergence of forum shopping is determined both by the practical need to reduce the risk of having multiple legal systems regulating the contract and by the need to guarantee legal certainty.

Generally, forum shopping is seen negatively, as it is portrayed as a strategy to choose a jurisdiction for its favourable substantive law or to avoid unfavourable procedural laws in another forum (for example, selecting a specific jurisdiction can impose significant financial burdens on the opposing party or influence the evidentiary regime by expanding or limiting the range of admissible evidence). Scholars also see it as a strategy to gain illegitimate advantages or higher compensation.

An Italian case defined forum shopping as ‘an activity aimed at finding the most favourable jurisdiction for the applicant’s interests’.[2] This definition raises two points: first, forum shopping is typically associated with the plaintiff, not the defendant, who may only challenge the court’s jurisdiction. Second, forum shopping here does not focus on exploiting favourable laws but on selecting a court that best serves the plaintiff’s interests, regardless of the specifics of the jurisdiction.[3]

It is, therefore, clear that all the existing debates on this topic, particularly the discussion on ethics, are fuelled by this negative and biased perception of forum shopping.

The dual nature of forum shopping

As mentioned, forum shopping is often perceived negatively, particularly in global litigation. The main criticisms include (1) decisional disharmony, (2) inefficiency, and (3) the idea that it may lead to a ‘race to the bottom’.

First, critics argue that forum shopping undermines the principle of decision-making harmony, which suggests that similar cases should lead to similar legal outcomes, regardless of the forum. Achieving such consistency is inherently tricky, as legal systems differ not only in substantive law but also in procedural rules, remedies and cultures. These disparities are even more significant on a global scale, fuelling transnational forum shopping. This can be particularly problematic in areas like international commercial law, where businesses tend to rely on stable legal frameworks to manage risks effectively.

Another criticism concerns the inefficiency of forum shopping, which can lead to unnecessary and ineffective litigation. A forum that appears advantageous for one party may be ill-suited for the case, leading to disruptions. Additionally, forum shopping is often used strategically to pressure opponents into accepting a settlement, mainly when a party cannot afford the costs of litigating in a foreign jurisdiction. This results in delays, wasted resources and clogged judicial systems. Managing simultaneous or serial proceedings in multiple courts further compounds these inefficiencies, duplicating efforts and prolonging disputes.

Finally, some scholars warn that forum shopping could trigger a ‘race to the bottom’, where courts seek to attract cases by offering overly favourable procedures for domestic plaintiffs, potentially disadvantaging foreign defendants.

To mitigate these concerns, many legal systems have implemented measures to curb abusive forum shopping. Courts increasingly apply doctrines such as forum non conveniens[4] – which allows them to dismiss cases that would be more appropriately heard elsewhere – or impose stricter jurisdictional requirements to prevent frivolous or opportunistic claims. At the international level, treaties like Regulation (EU) no 1215/2012 of the European Parliament and the Council (commonly known as Bruxelles I bis)[5] establish strict rules to limit forum shopping in cross-border disputes, though the interpretation of these rules often leads to uncertainty. Additionally, soft law instruments such as international conventions (eg, the United Nations Convention on Contracts for the International Sale of Goods adopted in Vienna on 11 April 1980, or CISG), allow the parties to select the substantive law governing the dispute, regardless of the jurisdiction in which the case is heard.

However, while generally criticised, forum shopping can equally be seen as positive. In particular, it is seen as a way to foster experimentation and reform in both substantive and procedural law. It forces courts to engage in dialogue and establish jurisdictional standards, as well as to address legal gaps, ultimately promoting the modernisation and efficiency of legal systems.

Similarly, it encourages procedural innovation, as courts adapt to new demands by expanding jurisdictional reach or refining their procedures. This competitive dynamic can drive advancements such as digital case management, alternative dispute resolution mechanisms and increased transparency in rulings. While not all changes result in meaningful reform, many are essential for legal progress. Furthermore, forum shopping facilitates procedural experimentation and cross-jurisdictional learning. As lawyers and litigants bring experiences from different legal systems, courts engage in a process of ‘cross-pollination’, integrating best practices from various jurisdictions. In this way, rather than merely being an opportunistic tool, forum shopping can serve as a catalyst for legal evolution and systemic improvement.[6]

The challenges of forum shopping in international and commercial courts

Recently, it has been observed that forum shopping encourages courts to attract lawsuits. The benefits derived from increased court revenues and prestige in specific legal fields drive courts to actively seek out cases, engaging in what has been called ‘forum selling’. The main players in this practice are international commercial courts (ICCs), which promote procedural advantages such as fast-tracked processes, high quality and predictable rulings, and favour litigants who choose their court, all with the goal of attracting more cases.

In recent years, several international commercial courts have been established in Europe and Asia, such as the Netherlands Commercial Court (NCC), the International Chambers in Paris, the Dubai International Financial Centre (DIFC) and the Singapore International Commercial Court (SICC). These courts, specialised in cross-border commercial disputes, are largely modelled on the London Commercial Court (LCC) experience, featuring new and innovative characteristics tailored to the specific needs of international commercial disputes. The idea is that by adopting procedures that facilitate contract enforcement, they contribute to a positive business climate, build investor confidence and attract capital markets. In addition to benefiting and attracting foreign investors, these courts are also designed to benefit domestic businesses.

However, not everything that glitters is gold. Some argue that forum selling benefits certain players while disadvantaging others, particularly due to high costs. Procedural rules – often based on common law systems – may also put litigants unfamiliar with these frameworks at a disadvantage, creating an uneven playing field. This raises concerns about whether ICCs genuinely serve global commerce or primarily cater to elite multinational corporations.

Moreover, there is no global consensus on the role and aim of these courts. Some focus on providing comprehensive dispute resolution services, others prioritise investment-related cases (potentially to protect local investors), and some aim to boost the local ‘legal economy’. For instance, in certain jurisdictions, an ICC decision can only be appealed with the assistance of a local lawyer. As a result, evaluating the quality of decisions or the efficiency of dispute management becomes highly subjective.

Debate also continues over whether ICCs are truly necessary or whether, as some scholars suggest, they have emerged partly due to lobbying by lawyers seeking new legal markets. Further concerns arise over the risk of these courts being influenced by private interests, leading to a form of privatisation of public judicial functions.

Additionally, questions remain about their ability to remain neutral, given that they are often financially supported by the very jurisdictions that benefit from their caseload.[7]

Forum shopping at a national level: the Italian experience

Forum shopping can also occur at a national level, as parties may attempt to shift territorial jurisdiction to a court perceived as more favourable. This may be driven by various factors, such as proximity to their principal place of business, the specialised competence of certain courts in specific matters, or the traditional perception of some courts as being less efficient than others. For this reason, the Italian legal system includes, in addition to general criteria for determining competence, provisions designed to prevent the abuse of jurisdictional rules.

For example, Article 27 of the Code of Crisis and Insolvency establishes that jurisdiction in insolvency cases lies with the court where the debtor’s centre of main interests is located. Article 28 clarifies that a transfer of the debtor’s centre of main interests within the year before filing does not affect jurisdiction.

In consumer contracts, Article 66-bis of the Consumer Code provides that territorial jurisdiction belongs exclusively to the court of the consumer’s place of residence or domicile for all disputes between consumers and professionals. This prevents businesses from forcing consumers to litigate in distant cities or jurisdictions that are more favourable to companies.

In labour law, Article 413(2) of the Code of Civil Procedure sets the competent court as the one where the employment relationship was formed or where the employer’s business is located. Paragraph 3 specifies that jurisdiction remains with that court even after the company or branch is transferred or closed, if the claim is filed within six months. The idea is preventing the employer from manipulating the choice of jurisdiction to delay or complicate the employee’s legal action.

In corporate administrative liability, Article 4 of Legislative Decree 231/2001 limits forum shopping in corporate criminal law by establishing the jurisdiction of Italian courts when the offence is committed, even partially, on Italian territory, regardless of whether the company is based abroad (unless the state where the offence was committed acts against them).

These are just a few provisions under Italian law aimed at ensuring that cases are not transferred arbitrarily to exploit procedural advantages.

Forum shopping and fair play: navigating the line between tactics and ethics

Forum shopping is often criticised for its perceived unethical nature, with opponents arguing that it undermines the legal system by allowing parties to manipulate the outcome by choosing a forum that favours their desired result. This could lead to contradictory rulings, eroding public trust. Supporters, however, view it as a legitimate strategy to protect interests and ensure a fair outcome.

The ethical implications of forum shopping remain a debated topic. In general, an attorney’s conduct is considered ethical when they act in the client’s best interest while respecting procedural and substantive laws. While seeking a more favourable forum is not inherently wrong, it could be considered unethical if it is aimed at achieving an unfair outcome, such as delaying proceedings or disadvantaging the opposing party. For instance, an abuse occurs when a lawyer chooses an inappropriate forum with the intention of obtaining a default judgment by exploiting the absence of the opposing party or their inability to defend themselves in the selected forum.

Numerous courts, including the United States Supreme Court, have clarified that there is nothing inherently wrong with forum shopping as long as it is carried out within the attorney’s professional obligations such as diligence, competence and zeal in representing their client.

This concept seems aligned with the ethical principles of the Italian legal profession. Article 13 of the Forensic Code of Ethics (CDF, Law 272/2012) states that an attorney must act in the client’s interest, which can include choosing a forum different from the natural one if it benefits the client, without being seen as unethical. Similarly, Article 12 of the CDF requires attorneys to uphold their duty of diligence, ensuring the quality of their professional services.

In conclusion, an attorney must act in the client’s best interest by selecting the most legitimate and advantageous forum while following ethical guidelines. Forum shopping is only unethical if it aims to harm the opposing party or abuse the legal system.[8], [9]