Court Of Appeal Clarifies The Rule On Forum Conveniens: The 'Natural' Forum Is Not Necessarily The 'Appropriate' Forum

It has long been established that, in cases not covered by the Brussels Regulation or Lugano Convention, the English courts will only accept jurisdiction if England is the most appropriate forum to determine the claim, i.e. the forum conveniens. This typically raises questions such as where the parties respectively carry on business, where witnesses are resident and which are the laws governing the relevant transaction.

In Deripaska v Cherney, the Court of Appeal was called upon to go further and make clear that there was a two stage test at issue and that a claimant might serve its claim form in another jurisdiction to the one that was the "natural" jurisdiction if there were unusual circumstances which indicated that another jurisdiction was more suitable in the interests of justice. One such circumstance to be taken into account was whether there was any risk that the claimant would not obtain a fair trial in the "natural" jurisdiction.

The judge at first instance duly followed the principles articulated by Lord Goff in The Spiliada Maritime Corporation v Cansulex (The Spiliada) [1987] AC 460 that although it was usual for cases to be heard in their "natural" jurisdiction, i.e. the place with which the case had the most real and substantial connection, the court had to consider any unusual circumstances which might affect that presumption. One such circumstance was whether the claimant would be likely to obtain a fair trial in the "natural" jurisdiction. If, in the courts view, there was "cogent evidence" that the claimant could not obtain justice in the "natural" jurisdiction, a stay of the proceedings could be granted.

Applying those principles to this case, the judge considered that there was sufficient evidence of a risk of the claimant (Michael Cherney) being assassinated, being vulnerable to prosecution based on trumped-up charges in Russia or being subject to state interference by Russia in the judicial process. On the other hand, the parties were no strangers to England, as they had made their contract in this jurisdiction and the defendant (Oleg Deripaska) himself owned properties and held a large number of assets here. Taking these factors together, the judge decided that, while Russia was the natural forum, England was the most appropriate jurisdiction in which the claim could be tried in the interests of the parties and in the interests of justice.

Mr Deripaska appealed against the court's decision on two grounds. Firstly, he...