9 - Agents of Cross-Fertilization

Summary

This chapter explores forum choice at the international and regional levels, advancing three arguments. First, forum shopping as an arbitrary exercise or an exercise bordering on abuse of rights is rare. Second, parties nearly always have legitimate reasons for their forum choice. Factors impacting forum choice include receiving a favourable decision, the finality of that decision and the prospects for enforcement. As regulators, states should deal with the challenge of overlapping jurisdiction among international courts and tribunals (ICTs) by regulating forum choice explicitly. Third, ICTs have to assess the reasons proffered by the litigating parties, whereby they may consider precedent-setting and long-term repercussions, so as to accept or decline jurisdiction. Forum shopping can raise issues of legitimacy, fairness, cost and integrity. Forum choice, however, is a fundamental obligation of counsel to a client, in order to search for the tribunal or jurisdiction that will best recognize its rights, consistent with the fair administration of justice. Healthy competition between jurisdictions is overall beneficial to the evolution of ICTs.