Piyush Agrawal
Aquilaw, Kolkata
piyush.agrawal@aquilaw.com 

Shivangi Thard 
Aquilaw, Kolkata
shivangi.thard@aquilaw.com
 

Just like in a game of chess, where the opening move determines who controls the board, a litigant’s first move can set the course for victory or defeat. Deciding on not just an ‘appropriate‘ but also the ‘best’ forum for filing their client’s proceedings is a reflection of a shrewd litigant and sets the trajectory of the case. Crafting an effective litigation strategy includes multiple aspects, which includes opting for jurisdictions or forums that provides an advantage to the party ‘lighting the fuse’. Jurisdiction may be opted by a party based on multiple factors such as favourable laws, streamlined procedures, relaxed norms or regulations or including the experience of a judge in a particular niche or their nature, ideology, sympathy towards a particular party (pro-government/pro-corporation etc). Though, the plaintiff may be able to make the first move, the defendants are not without recourse and can mitigate the plaintiff’s advantage in the form of counterstrategies. This article explores:

• the jurisdictional gameplay of forum shopping versus forum selection, including difference and barriers;
• plaintiff’s strategic selection of jurisdiction;
• defendants’ strategic use of reverse forum shopping; and
• use of the ‘anchor defendant’ strategy to invoke certain identified jurisdictions.

Jurisdictional gameplay of forum shopping versus forum selection: difference and challenges

Difference – forum shopping and forum selection

Forum shopping and forum selection might seem related, but they serve different purposes. Forum shopping carries with it a negative connotation, as it is often perceived as legal manipulation. It entails a party deliberately picking a jurisdiction that provides the most benefits, in terms of leniency or favourable precedents, to gain an upper hand. The Supreme Court of India, in its judgment delivered in Kamini Jaiswal v Union of India,^[1] has held that courts are required to adopt a functional test vis-à-vis the litigation and the litigant and see whether there is any functional similarity in the proceedings between one court and another, or whether there is some sort of subterfuge on the part of a litigant.

The Supreme Court of India has concurred with various judgments and observed that forum shopping takes several shades and hues such as:

• levying allegations of conflict to transfer matter to another bench;^[2]
• approaching another court if, in case relief is denied by one court;^[3] creating circumstances to confer jurisdiction on any particular court;^[4] and
• approaching different courts for the same relief by making a minor changes in the reliefs sought.^[5]

In contrast, forum selection is when both parties have a predetermined choice of forum, typically specified in a contract, on which jurisdiction will handle any disputes. Unlike forum shopping, which is a tactical decision, forum selection is a proactive measure to ensure predictability and a fair ground. Courts often discourage excessive forum shopping through the application of rules like forum non conveniens, which allows them to refuse cases better suited for another jurisdiction.

Barriers to forum shopping

Well-drafted agreements

While forum shopping can be a hurdle to efficiently and effectively litigating disputes, well drafted contracts/agreements can mitigate such measures. Incorporating clauses such as forum selection clauses, exclusive jurisdiction clauses and mandatory mediation may compel plaintiffs to litigate in pre-designated venues and prevent frivolous suits from being instituted to merely attract jurisdiction. The Supreme Court of India, in Union of India v Reliance Industries,^[6] has addressed the issue of disputes over jurisdiction clauses in an arbitration agreement. The case highlighted how forum shopping can be restricted when exclusive jurisdiction clauses are upheld, preventing parties from bypassing agreed dispute resolution forums.

Procedural hurdles

Procedural mechanisms, such as jurisdictional challenges, stays of proceedings and forum non conveniens motions, allow defendants to prevent cases from proceeding in plaintiff-friendly courts. Courts in the United States are known for having used forum non conveniens dismissals to avoid hearing cases that are deemed to be better suited for foreign jurisdictions. As seen in the case of Piper Aircraft Co v Reyno,7 the US Supreme Court set a key precedent for applying forum non conveniens in transnational litigation.

Plaintiff’s strategic selection of jurisdiction

The plaintiff’s initial thought process, when deciding on a jurisdiction or forum, may be influenced some of the following factors.

Cross-border considerations

Since international disputes are often between parties from various jurisdictions, factors like treaties between countries, bilateral agreements and reciprocity between nations for enforcement of decrees come into play. Some jurisdictions have a reputation for being more arbitration-friendly, lenient towards certain offences or hostile to certain types of claims, as is evident from the precedents of that jurisdiction. Simply obtaining a favourable adjudication is not enough. The plaintiff needs to be capable of recovering the damages or enforcing the decree, or else a ruling in their favour bears no fruit. Therefore, jurisdiction can significantly impact the plaintiff’s ability to recover damages or enforce remedies across borders.^[7] In cross-border disputes, enforceability is a key consideration, particularly when dealing with jurisdictions that may not have strong reciprocal enforcement agreements.

Speed and efficiency of court processes

Commercial disputes are time-sensitive and involve high stakes, therefore requiring faster adjudication. Approaching a court with a high case load and constant delays can prove to be counterproductive even if it provides other favourable advantages for the litigant. Jurisdictions such as Singapore and London are often preferred as they have specialised commercial benches, digital case management systems, fast-track procedures for high-value disputes, and offer streamlined procedures that resolve disputes more quickly. The Singapore International Commercial Court (SICC), for example, has flexible procedural rules designed to expedite case resolution.

Predictability and consistency of rulings

Litigants look out for jurisdictions that are consistent with the kinds of damages they award and whether they cap the damages or allow punitive damages. Different jurisdictions have various methods of interpreting certain laws and applying them. Such substantive and procedural law considerations are key in influencing the choice of jurisdiction for the litigant. Courts with well-established commercial jurisprudence and consistent precedents make it easier for the litigants to identify potential outcomes and prepare their strategy, and pre-emptively aids businesses in accurate risk assessment before engaging in litigation.

Cost and logistical considerations

Litigants often face various hindrances which influence the plaintiff’s choice of jurisdiction as well as the decision to litigate. Geographical advantages play a significant role. Similarly, identifying jurisdictions that offer cost recovery mechanisms may incentivise parties to opt for them over other jurisdictions.9 The financial burden of litigation, including attorney fees and procedural expenses, can sometimes outweigh the benefits one may accrue from getting a favourable adjudication. It thus rightfully influences the decision-making process, particularly for medium and small enterprises which must tread carefully when it comes to legal costs.

Defendants’ strategic use of reverse forum shopping

Defendants, once seen as passive in jurisdictional disputes, are now proactively engaging in reverse forum shopping. By pre-emptively filing cases in jurisdictions they deem advantageous, defendants control litigation strategy and restrict the plaintiff’s ability to select a preferred forum. Defendants may, inter alia, choose to prefer courts which may be geographically convenient to them, and/or courts where they can obtain certain interim protection and/or delay or prolong litigation and/or to prevent the counterparty from approaching another court better suited/equipped to handle such disputes. Certain strategies opted by the defendants in this case are as follows.

Seeking declaratory relief

Defendants may initiate lawsuits in favourable jurisdictions seeking declaratory judgments to establish jurisdictional primacy before plaintiffs can file elsewhere. This tactic has been widely used in intellectual property and contract disputes.7 For instance, Qualcomm Inc. v Apple Inc. (US District Court and UK High Court) serves as a key example of reverse forum shopping, involving multiple jurisdictions, including the US, United Kingdom, Germany, and China, as both parties sought favourable legal environments for their claims.

Anti-suit injunctions

An anti-suit injunction is a court order that restrains a party from initiating or continuing legal proceedings in another jurisdiction, ensuring that litigation occurs in the agreed forum. For instance, in the case of AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC (UK Supreme Court),^[8] the court upheld an anti-suit injunction to prevent parallel proceedings in Kazakhstan.

‘Anchor defendant’ strategy – invoking identified jurisdiction

The anchor defendant strategy is used by a plaintiff to institute a proceeding in an identified court by including a local defendant, even though the primary dispute may involve foreign parties beyond the jurisdiction of such court to gain an advantage over the counterparty. Courts may allow such proceedings if the anchor defendant has a real connection to the dispute.

This strategy’s acceptance varies across different legal systems, with some courts turning a blind eye and other courts rejecting such defendants being impleaded to prevent misuse of the court’s processes. European courts have seen an increase in competition and consumer protection claims leveraging anchor defendants to establish jurisdiction.4 An anchor defendant is typically domiciled in the jurisdiction chosen by the plaintiff, thereby allowing the plaintiff to sue other defendants in the same court. This allows actions or mass claims to be filed before one forum which is consumer-friendly or strictly anti-competition. Notably, in CDC Hydrogen Peroxide SA v. Akzo Nobel NV (European Court of Justice),^[9] the EU courts allowed jurisdiction based on anchor defendant arguments.

Conclusion

As we have understood, the plaintiff, akin to White, makes the first move to dictate the tempo of the dispute, possibly influencing everything from procedural costs to the enforceability of the outcome based on their choice of jurisdiction. The defendants, much like Black, must anticipate and counteract these moves. For the longest time in international commercial litigation, London and Singapore have served as the Queen’s gambit with their predictability, efficiency and expertise.

However, with Brexit, London’s position on the chessboard has irrevocably been altered. This has led to the rise of commercial courts in Europe and Asia, providing litigants with an expanding array of tactical options. Just like a chess grandmaster, business must approach international commercial dispute resolution with foresight, to navigate the openings, middlegames and endgames, meaning their choice of forum aligns with both short-term procedural advantages and long-term enforcement needs. Mastering the intricacies of forum selection remains essential to win this ever-evolving legal game.