Global Class Actions: Forum Shopping Just Ain’t What It Used to Be

Class actions, or representative proceedings as they are known in some jurisdictions, have many obvious benefits including resolving cases of similarly situated people equitably, avoiding burdening the judicial system with a multiplicity of actions, and facilitating access to justice and redress to individuals who might not have otherwise had the resources to fund an action themselves. However, global class actions present a unique set of challenges with plaintiffs residing in different jurisdictions to each other or to the defendants, giving rise to such issues as: lack of fairness for one of the litigants arising out of the judicial forum selected; concerns about procedural fairness for absent class members residing in different jurisdictions; and comity or the extent that one nation will recognise the legislative, executive or judicial acts of another nation. In this context, this Chapter will examine the approaches that courts in various jurisdictions have taken to manage these issues: first, the tests for assumption of jurisdiction, or jurisdiction simpliciter, including the ‘real and substantial connection test’ (‘the RSC test’) using various recognised presumptive factors such as the defendant’s domicile, the location of the defendant’s business practices, lex loci delicti (for torts) and lex loci contractus (for contract disputes); and, second, once jurisdiction is assumed by a court, the tests employed by the courts such as forum non conveniens and modified versions of that test, with particular focus on individual connecting factors surrounding the case such as the locations of parties and witnesses, the costs and impact on the proceedings of transferring the case to another court, problems with conflicting judgments or recognition or lack of enforceability of judgments in courts in other jurisdictions, as well as the strength of the parties’ connections to the different fora. After reviewing three common law jurisdictions (Australia, Canada and the US) the authors submit that, although courts in different jurisdictions in the emerging global scene have been guided by private international law rules such as presence in the jurisdiction, consent and submission to jurisdiction as determinants of the choice of judicial forum, the case law indicates that there is an emerging consensus that the requirements of fairness, justice, order and comity are paramount considerations to be taken into account and may even trump some of these rules where there is a clash between such rules and these considerations. Indeed, these considerations inform the courts’ more nuanced approach to determining the forum non conveniens rule and its variants than just a mechanical application of the rules of international law, particularly in the case of class actions where all of the litigants of an action are not necessarily parties and have not consented to the choice of forum. Embracing this trend, the authors endorse this holistic approach particularly the version of the forum non conveniens rule (‘the clearly inappropriate forum test’) adopted in their home jurisdiction of Australia as a basis for international rules resolving conflict of laws issues in global class actions and conclude with suggestions of some practical measures as to how this test may be adopted in practice.