Meeting the test

VTB Capital plc v Nutritek International Corp & Ors [2013] UKSC 5 is the latest in a series of cases in which the court has considered the availability of a fair trial for a claimant before a foreign court when deciding whether to grant a stay or permit service out of the jurisdiction on forum non conveniens grounds.

Given the popularity of the English courts as a neutral forum for resolving disputes, this topic looks set to be aired before the courts with increasingly regularity. However, this line of cases shows a reluctance by the courts to set rigid rules as to precisely what will and will not suffice as “positive and cogent evidence” for proving the “real risk” that justice will not be obtained in the foreign court by reason of “incompetence or lack of independence or corruption” (per Lord Collins in AK Investment CJSC v Kyrgyz Mobil Tel Limited & Ors