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Evidence Relevant to Foreign Proceedings

It is hard to pretend that the doctrine imports an open-ended, discretionary balancing procedure when the procedure in tort cases is biased in favour of the lex loci, just as it seems biased in favour of an expressly agreed forum in contract cases (cf. The Chaparral [1968] 2 Lloyd's Rep. 158), and the court first seised in cases of lis alibi pendens (cf. The Abidin Daver [1984] A.C. 398). In practical terms, such a view has the potential to deprive the courts of jurisdiction over claims based upon foreign torts in those cases where it depends upon their discretion under that doctrine. But Metall und Rohstoff's most striking feature is the most obvious. It is the fact that the plaintiffs sued in England at all. Their prospect of success in New York was plainly slim, with no action for conspiracy existing there, and any action for procuring breach of contract time-barred. Except in such exceptional cases, however, commercial litigants and their advisers eschew courts whose laws are confused or discouraging. Given the state of England's choice of law rule for tort, and the jurisdictional obstacles to suing here in tort, there are powerful reasons for taking your claim elsewhere.