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Shipping being a global industry
that may involve various parties
from different countries with
dissimilar legal regimes, seeking
legal recourse to disputes may
sometimes present a problem to
pursue claims if the right or
correct jurisdiction is not chosen.
The choice of wrong jurisdiction, or
forum, could prove costly or
disastrous to the aggrieved party
than the defendant.
Parties that may choose a jurisdiction to pursue their claims could, thus,
do well if efforts are made to choose the correct forum and this could come
in the form of anti-suit injunction.
"An anti-suit injunction is an order of court that restraints a defendant
from either instituting or continuing proceedings in the court of another
jurisdiction," said Yap Wai Ming, a lawyer from a leading Kuala Lumpur-based
legal firm, Tay & Partners.
Yap narrated how this anti-suit injunction could be used by a potential
litigant with is a simple at a seminar held at Maritime Institute of
Malaysia in Kuala Lumpur recently.
"Although an anti-suit injunction
order appears to have
extra-territorial effect, it is not
intended to interfere with the
administration of the legal
proceedings in the foreign court,"
he said.
He said it is directed at the defendant and compels him to discontinue the
foreign legal proceedings.
Yap, who is the Malaysia
Jurisdictional Council Member for
the Inter-Pacific Bar Association
(2000-2003), said the principle of
forum non convenient is used widely
by commonwealth courts and is
adopted and followed in Malaysia.
"Basically, a party if sued in
Malaysia may apply to the Malaysian
courts to stay the action on account
that the dispute is more
appropriately litigated in a
different forum," he added.
Yap said the test that a court applies in staying or dismissing the
proceedings is largely based on a theoretical finding of what is commonly
termed as 'natural' or 'proper' forum for the resolution of the dispute.
"The courts will examine the nature
of the contract, the governing law,
any jurisdiction clause, the place
where the breach or dispute
occurred, the currency of the claim
and many other relevant factors of
the case all with a view of
establishing which law or
jurisdiction has the closest and
most natural connection for
resolving the dispute," he said.
As each jurisdiction in the common law system is different, judges of one
country must exercise its judicial discretion in staying or dismissing an
action in its own court, Yap said, an honorary fellow of the Association of
Fellows and Legal Scholars of the Centre for International Legal Studies,
Austria.
"Going further, where the proceedings in another jurisdiction are considered
unconscionable, vexatious or oppressive, the common law courts have vested
itself the power to stop those foreign proceedings as well," he said. |
