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香港法院审理案件中的法律论证过程 ——以United Phosphorus LTD v. China Merchants Shipping & Enterprises Co Ltd 上诉审为例/陈汉瑛(10)
Lord Goff's speech in Spiliada was considered by the Court of Appeal in Hong Kong in "The Adhiguna Meranti" [1987] HKLR 904. In giving the judgment of the court, Hunter JA said at pp. 907E-908A that as a result of Lord Goff's speech in Spiliada,
".... [t]he court has now to answer a single question namely: 'Is there some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice' (p. 476B). Although this may no longer be necessary, .... we still think it convenient for the purposes of analysis to view the problem at three separate stages namely:
(I) Is it shown that Hong Kong is not only not the natural or appropriate forum for the trial, but that there is another available forum which is clearly or distinctly more appropriate than Hong Kong (p. 477I). The evidential burden is here upon the applicant. The emphasis is upon 'appropriate' rather than 'convenient' because this is not simply a matter of practical convenience. The purpose is to identify the forum 'with which the action has the most real and substantial connection' .... The principal factors are enumerated at p. 478A. Failure by the applicant at this stage is normally fatal.


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