Abstract

The Spiliada test is central to the doctrine of forum non conveniens (FNC), guiding courts worldwide in determining the most appropriate forum for litigation. However, the coherence of this two-part structure is being challenged by modern realities of international litigation. What was once designed to identify the natural forum through physical connections now operates in a society where geography often offers little insight into legal justice. Cases such as Connelly v RTZ and Lubbe v Cape clearly illustrate this ongoing conflict: although the first limb implied holding court abroad, systemic shortcomings made foreign litigation practically unfeasible for delivering justice.

Additionally, in AK Investments v Kyrgyz Mobil, the court recognised that complete reliance on physical factors could not overcome concerns about fairness. Such decisions show how, although the test’s ambiguity allows judges to personally prevent injustice, it also leads to inconsistency as outcomes heavily depend on individual interpretations. This unpredictability is even more evident today with the rise of digital commercial activity with no fixed place of occurrence, ultimately rendering the first limb ineffective. As a result, the second limb has become the focus of the doctrine despite lacking clear guidance for its application. This paper argues that the Spiliada test needs significant reform to establish criterion based on justice rather than geographical factors so that the doctrine aligns with the demands of 21st-century legal conflicts.

Introduction

The two-stage Spiliada test governing forum non conveniens originated in Spiliada Maritime v Cansulex [1986] UKHL 10. However, recent cases (Lubbe v Cape [2000] 1 W.L.R. 1545; AK Investment v Kyrgyz Mobil [2011] UKPC 7, [2012] 1 W.L.R. 1804; Al Assam v Tsouvelekakis [2022] EWHC 451 (Ch)) show that systemic issues such as corruption or lack of legal aid now compel courts to prioritise the quality of justice over geographic convenience, indicating that the traditional test may be outdated. As the test often yields similar outcomes, its principles merit critical assessment to promote efficient justice. This paper contends that the Spiliada test necessitates substantial reform: the second stage should be developed into a more principled and structured approach to better reflect the English courts’ increasing responsibility to deliver justice in a more globalised world.

The Spiliada Test

Under the doctrine of forum non conveniens, courts aim to identify the most appropriate forum for trial while ensuring necessary protections are in place. In Spiliada, the court established what became known as the two-limb test to determine (1) the natural forum and (2) when it would not be suitable to litigate in that forum.

The facts in Spiliada are helpful. A Liberian shipping company, Spiliada, initiated proceedings in an English court against Cansulex, a Canadian sulphur supplier. The claim stemmed from damage to a ship caused by wet cargo. Although the contract between the companies was agreed to be governed by English law, the defendant argued that English jurisdiction was unsuitable. After applying the principles that later became the two-limb test, the court determined that England was the appropriate forum.

In delivering the leading judgment, Lord Goff outlined the following principles: (1) the other forum must be available and offer more effective substantive justice; (2) the burden of proving the availability of the forum rests with the claimant, which then shifts to the respondent to demonstrate special circumstances; (3) the defendant must prove that England is not the natural forum and must show the existence of a clearly or distinctly more appropriate forum; (4) the court will consider factors favouring the other forum; (5) a stay will be refused if no other clearly or distinctly appropriate forum exists; and (6) a stay will not be granted where justice would not be served.

Built on the principles discussed earlier, the traditional Spiliada test follows a two-step approach to determine whether a court should decline jurisdiction under forum non conveniens.

The first limb places the burden of proof on the defendant, who must demonstrate that another forum exists that is evidently or distinctly more appropriate for the trial. This is assessed by considering various geographical factors, such as where the events occurred, the relevant law and the location of witnesses and evidence. The aim in this limb is to find the forum with the strongest connection to the dispute. Crucially, the alternative must be clearly more suitable for the interests of all parties involved.

The second limb becomes relevant only if the first is satisfied. In this stage, the burden shifts to the plaintiff who must demonstrate that, despite the alternative forum being more suitable for the case, justice would not be served if the case were heard in that forum. This could be due to a wide range of factors, including corruption, a lack of legal representation or procedural advantages etc. The plaintiff must provide substantial evidence that their legal position would be significantly weakened in the foreign forum. Thus, this second limb ensures access to justice in the chosen forum, ensuring that the doctrine does not operate to the claimant’s detriment in practice.

How the Spiliada Test Has Evolved

This paper examines the development of the Spiliada test in the cases of Connelly v RTZ, Lubbe v Cape, AK Investments v Kyrgyz Mobil and Al Assam v Tsouvelekakis. Together, these cases show a growing judicial willingness to prioritise access to justice, while also exposing inconsistencies in the application of Limb 2.

In Connelly v RTZ, a former miner, Mr Connelly, developed cancer of the throat after working in a Namibian uranium mine for three years, operated by a subsidiary of RTZ, a multinational mining company headquartered in the UK. Connelly alleged that his illness was due to exposure to uranium dust and RTZ’s failure to provide proper protective equipment and safe working conditions. Overall, this resulted from negligence. Instead of suing the Namibian subsidiary he worked for, he brought proceedings against the UK parent company, arguing that it had a direct duty of care to oversee health and safety standards across all its corporate subsidiaries.

In Lubbe v Cape, over 3,000 claimants from South Africa argued that the English parent company was responsible for injuries caused by asbestos resulting from unsafe working conditions. The claimants maintained that Cape exercised effective control over safety policies in its South African subsidiaries and therefore owed them a duty of care. Utilising the Spiliada test, the House of Lords acknowledged that South Africa constituted the natural forum under the first limb since the exposure, witnesses and documentary evidence were situated there. However, regarding the second limb, the court concluded that achieving substantial justice in South Africa was not realistically feasible due to the lack of legal aid and the complexities and financial burdens of litigation. Ultimately, the court refused a stay and allowed the case to continue in England, concluding that access to justice was more significant than the forum’s factual connections. This case has become a key example in illustrating how the second limb of the Spiliada test operates when systemic barriers in the alternative forum could impede a fair trial.

In AK Investments v Kyrgyz Mobil, the court clarified the relevance of the justice factor. The Spiliada test requires identifying the “most appropriate forum” for a trial. This presents significant practical challenges, particularly when dealing with issues of substantive injustice, as demonstrated in AK Investments v Kyrgyz Mobil. The main difficulty lies in balancing the traditional Spiliada requirements. These include finding a “natural forum” where the case has the strongest connection against compelling evidence that substantial justice cannot be achieved elsewhere. Lord Goff, in Spiliada, emphasised that the key question is where the case can be most suitably tried, taking into account the interests of all parties and the pursuit of justice. However, AK Investment compelled the court to focus mainly on the justice aspect. The Privy Council noted that “substantial justice would not be achieved” if the claimants had to rely on a Kyrgyz remedy requiring a criminal conviction within a time limit. They described this outcome as “wholly unrealistic to suppose“. This indicates that the Spiliada test, originally intended for convenience and connection, must be expanded to include a basic human rights element. Such a change could undermine the predictability of the natural forum principle in forum non conveniens cases.

The decision in Al Assam v Tsouvelekakis illustrates the increasing difficulty for the judiciary in applying forum non conveniens principles to disputes shaped by digital globalisation. While the Spiliada test primarily centres on identifying the most appropriate forum, it is also crucial to consider connecting factors such as the location of parties, witnesses and governing law. Specifically, the rise of borderless communication, remote transactions and electronically stored evidence has diminished the significance of traditional territorial logistics in this case. In Al Assam, the court had to manage multi-jurisdictional digital interactions that blurred boundaries regarding the dispute and any single legal system, emphasising the need to modernise assessments of convenience and justice. The claimants of the two trusts, both established under the jurisdiction of the Republic of Cyprus, brought a claim against a former investment adviser. The claimants proved the defendant’s wrongdoing, including negligence in investment advice and breach of fiduciary duty. The proceedings of the case were served in England, where the defendant was a resident. As a result, the defendant partly agreed with the English Court’s jurisdiction, but argued that the courts of Cyprus were “clearly or distinctly most appropriate”, emphasising that the trusts at the heart of the dispute were established under Cypriot law and that investment decisions were made in Cyprus. This case demonstrates how courts are increasingly required to account for virtual operations and international online business relationships between the clientele and the two parties, thereby highlighting a progressive shift in forum analysis that aligns private international law with modern commercial realities.

While the courts’ decisions in Lubbe v Cape and Connelly v RTZ demonstrate the judiciary’s willingness to use Limb 2 as a safeguard against poverty and system failure, Al Assam v Tsouvelekakis (Mr Justice Jonathan Richards) reinforces the very high evidential threshold required to activate the second limb in commercial cases. The claimants in this case employed an expert to support their argument that delays in civil procedure in Cyprus, sometimes up to six years, may constitute a denial of justice (“The Claimants submitted that civil proceedings in Cyprus suffer from such substantial delays as to amount to a denial of justice”, page 19, paragraph 66). However, the judge, although considering the issue obiter (page 19, paragraph 65), rejected the submission, emphasising that “considerations of comity and caution” require English courts to be extremely slow to conclude that the legal system of a “friendly state” would not deliver justice (“…Considerations of comity and caution to which I have referred preclude me from concluding that the courts of Cyprus would not deliver the Claimants justice“, page 19, paragraph 67).

This judicial scepticism about the competence of foreign legal systems further deepens the critique that, in its application, Limb 2 is inconsistent. While the financial impecuniosity provided the necessary basis for the vulnerable claimants in Lubbe v Cape, a mere commercial inconvenience such as court backlog failed to meet the threshold in Al Assam v Tsouvelekakis, indicating that the second limb is effectively designated for cases involving fundamental barriers to legal access rather than procedural inefficiencies.

Challenges With the Test

The Spiliada test is often praised for its flexibility. However, implementing it can be quite challenging when courts must consider the “interests of justice“ in regions with socioeconomic and institutional differences. Ideally, the first limb guides judges in identifying the natural forum based on the facts and location. The second limb assesses whether fair justice can be achieved elsewhere. In reality, this test compels courts to address complex contextual issues that go beyond the traditional boundaries of private international law. Factors such as deficient legal infrastructure, limited access to qualified legal assistance and ongoing budget deficits in legal systems can significantly impede a claimant’s ability to effectively pursue a case in what might be regarded as the “natural” forum. In certain areas, weak procedural systems, prolonged delays and a lack of judicial independence can compromise the fairness and integrity of legal proceedings. Corruption or political interference can further undermine the reliability of outcomes, making it unrealistic to expect litigants to receive fair decisions or to access the expert testimony required for complex international cases.

Furthermore, proving that a foreign forum is inadequate requires detailed evidence of procedural flaws and the failure to secure expert representation or witnesses. In reality, this can be very challenging for claimants who are poor or cannot afford legal translation services. Courts demand clear proof of these flaws, even though claimants may have very limited resources to provide it, making the requirement both strict and, in some cases, nearly impossible to meet.

Another difficulty is the inconsistency in how the test is applied by different judges. The Spiliada test grants courts broad discretion. While this can be beneficial, it also allows for a variety of judicial reasoning and outcomes. This becomes particularly evident when different judges may place greater emphasis on factors like procedural ability and convenience than others do; this undermines confidence in the doctrine and introduces inconsistency, depending on whether a judge adheres closely to it or allows human judgement to influence their decision.

For example, in Lubbe v Cape, the House of Lords effectively prioritised the claimant’s access to justice over the natural forum, exercising judicial judgment to temper the formal application of the first limb. Such decisions, while fair in context, demonstrate how the outcome can depend on individual evaluation rather than a consistent criterion. At p.1560D, Lord Bingham, when considering the novelty of group actions in South Africa, said “[i]t cannot be assumed that all judges will respond to this new procedural challenge in the same innovative spirit“. Such acknowledgements show how much the test’s effectiveness depends on how individual judges approach difficulty.

By recognising that different authorities may handle disputes with varying degrees of flexibility, the judgment shows that outcomes can be influenced by specific mindsets or ethics rather than a universal standard. However, this discretion is also an essential aspect of the test. Judges are the most qualified to evaluate the evidence and understand the realities of the litigation. The doctrine inherently requires a certain level of evaluative judgement and without such flexibility, courts might apply the test in a mechanistic manner that could obstruct justice.

Additionally, the two-part test requires courts to consider these institutional problems in the second part, but it provides limited guidance on how to assess such issues or how extensively courts should investigate the conditions of a foreign legal system. This increases the risk of the same inconsistency and/or bias mentioned earlier. Furthermore, since access to justice is often the central issue, the second limb has become the primary focus of the test, while the first part primarily serves as a preliminary step. Therefore, courts face the challenge of distinguishing among different legal systems and adapting a legal test originally designed for a time when harms, evidence and forums were mostly physical rather than digital.

Special Circumstances

The two-limb structure of the Spiliada test is increasingly difficult to defend in today’s international litigation, particularly in digital transactions where disputes lack a clear geographical connection. The first limb depends on the concept of a natural forum, which is determined by physical factors such as where the wrong occurred, where evidence is located or where witnesses reside. This approach reflects the realities of late twentieth-century litigation but does not align well with disputes arising from online platforms, data exchanges or virtual business interactions.

In digital environments, relying on a single geographic centre can be misleading. Transactions may be processed across multiple servers in different states, parties could be in different legal jurisdictions with no direct physical contact and evidence might be stored online rather than in a specific location. As a result, applying the first limb often becomes more about forced classification than accurate analysis.

Due to this mismatch, the main focus of the Spiliada test shifts almost entirely to the second limb, which examines whether substantial justice can be achieved in the alternative forum. In practice, this limb has become the decisive factor, even in traditional cases like Connelly v RTZ and Lubbe v Cape, where courts permitted cases to proceed in England because barriers in the foreign forum made a fair trial impossible. When the second limb consistently outweighs the first, it raises the question of whether the test should be divided into two parts. The aim of forum non conveniens is to ensure litigation occurs in the forum that can deliver justice. If the justice issue is already central to the analysis, maintaining a separate first limb based on territorial assumptions offers little practical benefit.

The courts’ modern focus on legal aid, funding structures and practical access to justice does not stem from the Spiliada test itself but from later judicial developments. The original principles in Spiliada mainly concerned identifying the natural forum through connections and relevance to the case. Lord Goff did not require courts to consider whether the foreign legal system could provide factors such as group litigation funding, expert evidence or adequate legal representation. However, cases like Lubbe v Cape demonstrate that these issues have now become central to the second limb. This is further emphasised by the court’s own reasoning on p.1559F, which stated “in the special and unusual circumstances of these proceedings, lack of the means, in South Africa, to prosecute these claims to a conclusion provides a compelling ground, at the second stage of the Spiliada test”. Understanding Lubbe v Cape shows that this judicial assessment extends far beyond what the original Spiliada structure envisioned.

Reform

The current two-limb framework of the Spiliada test requires reform to better clarify the fundamental principle of justice. While the first limb considers the natural forum based on convenience and connection, the second limb, which pertains to “other factors” that may justify refusing a stay, must be structurally strengthened and given more substance.

In modern times, the modest role of the first limb can be outlined due to increasing digitalisation. Recalling the challenge the court faced in Assam v Tsouvelekakis, digital negotiations and commerce storage are not strictly tied to specific forums. Additionally, with heightened globalisation and the proliferation of virtual communication, an increasing number of multinational companies have emerged. Consequently, defining a forum based on geographical location becomes increasingly vague. Therefore, to avoid the formal approach to proceedings, which often results from the first limb, an emphasis must inevitably be shifted towards the second limb.

This vital second stage should transform from a fallback safety net into a structured public policy analysis. This analysis must thoroughly evaluate whether the claimant genuinely has access to justice, beyond mere procedural shortcomings, by addressing core deficiencies that endanger a fair trial. An appropriate investigation of the case’s context should be conducted. After De Dampiere, in which the Spiliada test was applied to divorce proceedings, it has been shown that the Spiliada test can be applied broadly to various cases. It can then be adapted to meet modern standards of living.

Matters such as Connelly v RTZ and Lubbe v Cape demonstrated how funding difficulties and resource limitations can prevent justice, but AK Investment showed that the court must also consider external factors such as political integrity and corruption. Returning to Assam v Tsouvelekakis, it highlights changes in business management and its shift into the online space. Therefore, it is essential for courts to consider modern commercial realities and adapt criteria, such as evaluating virtual cooperation, to align with the standards of modern life and deliver justice effectively. Incorporating criteria for state integrity and resource availability into the second limb would improve judicial predictability and better reflect the modern role of the English courts as arbiters of substantive global justice.

Recognising the increasing importance of the second limb and the disadvantaged position of the first one, in the specific circumstances discussed hitherto, it is possible to highlight the potential for their unification. However, the argument that the Spiliada test is no longer suitable lacks support, given that these special circumstances apply only in a few cases where there is no clear natural forum. 

In such cases, it is not that the first limb ceases to apply, but rather that it offers no satisfactory answer to the question of the natural forum’s location. Nonetheless, aiming to promote greater discretion over case selection, the modern criteria might be given greater weight and greater recognition, moving away from their vague perception as a form of special circumstances. Additionally, the geographical factor, when considered alongside these new factors and given equal weight, can be prevented from becoming a mere formality.

Conclusion

Overall, a key element in English private international law remains the forum non conveniens doctrine, with the Spiliada test as its main criterion. Although its use is widespread, the Spiliada test does not meet modern requirements of cross-border litigation.

Cases such as Connelly v Lubbe illustrate how the importance of the first limb is diminishing. The key issue today is no longer geographical convenience but rather the forum’s ability to deliver genuine justice. The focus should now shift to the concept of special circumstances that might prevent justice in the second limb. The dominance of the second limb highlights how the emphasis on the natural forum has become a preliminary step towards addressing systemic issues such as access to legal representation and a court’s capacity to handle international claims. In an ever-changing digital world, where modern cases are shaped by digital commerce and multinational corporate activities, as seen in Al Assam v Tsouvelekakis, the doctrine clearly requires reform to ensure fairness in light of each case’s specific circumstances.

A restructured approach that prioritises substantive justice alongside guidance on foreign legalities would better protect vulnerable litigants and reduce inconsistencies. Updating the test in this area would align with the flexibility of the forum non conveniens doctrine while meeting contemporary expectations of justice in a globalised legal environment.

Adrian Briggs, Forum non conveniens- the last word? (1987) LMCLQ 1.

AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2011] UKPC 7; [2012] 1 WLR 1804.

Al Assam v Tsouvelekakis [2022] EWHC 451 (Ch).

Connelly v RTZ Corp plc [1997] UKHL 30; [1998] AC 854.

De Dampierre v De Dampierre [1988] AC 92 (HL).

Deripaska v Cherney [2009] EWCA Civ 849, [2009] 2 CLC 408.

Louise Merrett, Uncertainties in the first limb of the Spiliada test (2005) 54(1) ICLQ 211-220.

Lubbe v Cape plc [2000] 1 WLR 1545 (HL).

Richard Garnett, Determining the appropriate forum by the applicable law (2022) 71(3) ICLQ 589-626.

Rhona Schuz, The further implications of Spiliada in light of recent case law: stays in matrimonial proceedings (1989) 38(4) ICLQ 946-953.

Spiliada Maritime Corp v Cansulex Ltd [1986] UKHL 10; [1987] AC 460.