Developing a legal framework to govern forum shopping in transnational intellectual property litigation

As globalisation facilitates transnational intellectual property litigation, the number of available forums has increased and led to the need to more effectively govern the practice of forum shopping. ‘Forum shopping’ refers to a litigant’s strategic choice of a court or tribunal which has the highest probability of achieving a favourable outcome. The term has traditionally been used in a derogatory manner as the practice can lead to inconvenience and inequity. However, an emerging group of scholars argue that forum shopping is a justifiable and rational choice by litigants which can advance the efficient administration of justice in transnational litigation. In such a context, the central research question to be addressed in the thesis is: what criteria should be utilised as a legal framework by the judiciary and policy makers to determine when global forum shopping can be appropriately used in transnational IP litigation? While there are many opportunities to forum shop in the intellectual property regime complex, there is limited literature on the use of the practice within transnational intellectual property litigation. This thesis seeks to address this gap by using rational choice theory as the foundation for an approach towards forum shopping that balances the interests of the litigants’ forum choices with the perceived risks caused by the practice to advance an effective legal framework for the governance of forum shopping. The central research question will be addressed by evaluating the key risks and benefits of forum shopping, undertaking a doctrinal analysis of the current factors the judiciary examine when assessing the practice and considering whether forum shopping can be appropriate in prescribed circumstances. This thesis will then present criteria, including jurisdiction rules, convenience, efficiency, motivations and policy relating to public interest, which can be applied by the judiciary to promote the administration of justice in this field.