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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(9)
"Since the question is whether there exists some other forum which is clearly more appropriate for the trial of the action, the court will look first to see what factors there are which point in the direction of another forum .... I respectfully consider that it may be more desirable .... [to refer] to the 'natural forum' as being 'that with which the action had the most real and substantial connection.' So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction .... and the places where the parties respectively reside or carry on business".
Lord Goff concluded by addressing the question of what the consequences of that inquiry should be. At p. 478B-D, he said:
"If the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, it will ordinarily refuse a stay .... It is difficult to imagine circumstances where, in such a case, a stay may be granted .... If however the court concludes at that stage that there is some other available forum which prima facie is clearly more appropriate for the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. In this inquiry, the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions. One such factor can be the fact, if established objectively by cogent evidence, that the plaintiff will not obtain justice in the foreign jurisdiction ... [O]n this inquiry, the burden of proof shifts to the plaintiff."


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