First of all, service being of utmost importance to a lawsuit since it determines the legitimacy of the entire litigation, Harrods should have either ensured that Dow Jones International Limited (DJI) was authorized to accept service on behalf of Dow Jones & Company Inc. (Dow Jones), or served out to the US in the first place. As a result of its not having done either, unnecessary costs were incurred.
In addition, Harrods could have questioned the American court's personal jurisdiction over it on top of its subject matter jurisdictional challenge. In the US, this essentially depends on whether it had minimum contacts there and whether there was purposeful availment on its part, both of which do not seem to hold in the present case. In fact, Harrods could have brought an argument of forum non conveniens too, since questions of personal and subject matter jurisdiction have some bearing on the application of this doctrine. Other factors to be taken into consideration by American courts include the overall appropriateness and convenience of the forum, as well as issues pertaining to due process, and traditional notions of fair play and substantial justice. All of these factors weigh in favor of having the case heard in an English court rather than an American court. Therefore, a motion for forum non conveniens could have been filed.
[...] Conclusion This case is a good demonstration of the primacy of the particular facts of each case in determining the application of legal norms. But for the detail that Harrods' claim was limited only to publication in England and Wales, one of the core strategies employed by Dow Jones, forum non conveniens, would have worked to great effectiveness. As it were, it turns out that the doctrine might have been more appropriately used by Harrods, oddly enough. Eugene THONG Bibliography International Commercial Litigation Dow Jones & Co., Inc. v. Harrods, Ltd F.Supp.2d 394 (S.D. N.Y. [...]
[...] 2002) Harrods Ltd v. Dow Jones & Co Inc. [2003] EWHC 1162 The Abidin Daver case [1984] AC 398 MacShannon v. Rockware Glass Ltd [1978] 1 All ER 625, [1978] AC 795 Spiliada Maritime Corporation v. Cansulex [1987] A.C. [...]
[...] It is abundantly clear that these criteria were not fulfilled in the present case, since claim was limited to publication in England and Wales”. By this sole point, two of the three requirements fail: since the claim is limited to jurisdiction within the UK, the US would not be a more appropriate forum; and this was so manifest that the American court itself ultimately dismissed Dow Jones' declaratory judgement claim, reiterating time and again in its decision that foreign litigation seems grounded on a British subject's wish to avail itself of the substantive or procedural law applicable in the jurisdiction where the alleged injury occurred”. [...]
[...] However, although the three requirements fail when tested cumulatively, Dow Jones could have availed itself of one of its components, namely, the requirement of personal jurisdiction. As Defendant, it would have bifurcated the proceedings thus. As stated by the American court, “Insofar as it may be ultimately determined that Dow Jones maintains sufficient presence or conducts substantial business activities in the United Kingdom, and has paying online or print subscribers to whom the April 5 Article may have been published there, or that its publication of the April 5 Article, even if it had occurred outside Britain, had a substantial, direct and foreseeable effect within the United Kingdom, Dow Jones may have subjected itself to the application of Britain's laws and the jurisdiction of its courts, at least with regard to those activities.” (My italics) In short, Dow Jones' personal jurisdiction was contingent on its purposeful availment of the British market. [...]
[...] On Dow Jones' strategy Although it was a smart move to challenge the validity of Harrods' service on them, the same might not be said of Dow Jones' motion to stay the London action on the grounds of forum non conveniens. This is because English courts are reluctant to apply this doctrine in transnational contexts unless there are very particular circumstances. The cumulative criteria, as refined through the three key cases discussed in class, MacShannon v. Rockware Glass (1978), the Abidin Daver case (1984), and Spiliada Maritime Corporation v. [...]
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