국제적 소송경합과 국제재판관할권의 불행사 - 부적절한 법정지의 법리(Forum Non Conveniens)의 국제적·비교법적 의의 및 구현 방안 -

Due to the increase in commercial and cultural exchanges, disputes now often involve multiple parties and multiple jurisdictions in different states. Combined with the tendency of parties to engage in forum shopping, this phenomenon often leads to parallel proceedings, which entail the concern of irreconcilable judgments. When addressing the issue of parallel proceedings, states have used different approaches according to their own legal traditions. The civil law states largely support the “First in time rule”, based on the legal doctrine of “Lis Pendens”, which in principle does not allow proceedings on the same facts to be commenced if there is a proceeding pending in another court. On the other hand, the common law states show strong preference in the “Better forum approach”, based on the legal doctrine of “Forum Non Conveniens”, which allows courts to decline to exercise jurisdiction that otherwise exists, in deference to litigation in a more appropriate forum in another state. The international community has tried to develop a comprehensive instrument on jurisdiction and parallel proceedings under the lead of the HCCH (Hague Conference on Private International Law) since the 1990s. This led to a compromise, in the form of the “2001 Interim Text”, but the HCCH has not made much progress since. The revised Korean Act on Private International Law (No.18670) which came into force in July, 2022., adopted articles titled “Lis Pendens (Art.11.)” and “Non-exercise of International Jurisdiction (Art.12.)”. This reflects the compromise in the “2001 Interim text” and further, the doctrine of forum non conveniens. As the new Korean law acknowledges the discretionary power of courts to dismiss the case, it is crucial to study precedents in other common law jurisdictions as a foundation for building best judicial practice. In this regard, this study provides an overview of how the doctrine of Forum Non Conveniens has developed in other common law legal systems. It then discusses relevant issues when applying the doctrine from a comparative perspective, such as standard of review, burden of proof, factors considered and the conditions for the decisions. It would also be imperative for Korean legal community to follow the resumed discussion at the HCCH Jurisdiction project to understand how the new framework for transnational litigation is being crafted.