The doctrine of forum non conveniens
The doctrine of forum non conveniens aims to allow cases to be heard in the most appropriate venue , generally the jurisdiction in which the tort occurred. In the U.S., the doctrine calls upon the court hearing a case under the ATS to consider whether U.S. courts are best placed to hear the case, or whether a foreign court seems more appropriate, given the circumstances of the case. If a U.S. court is best placed to hear the case, the court is to grant the relief requested. 1
Applying this theory to our situation, however, often raises difficulties related to the fact that the legislative and judicial systems of countries with human rights violations – typically developing countries – are defective or incomplete and do not provide optimal conditions for the legal pursuit of multinational corporations that commit violations. Multinational defendants 2 frequently invoke forum non conveniens. 3
Grounds for refusing jurisdiction
For forum non conveniens to apply and for a U.S. court to decline jurisdiction:
- The court must be convinced not only that another court exists to which the plaintiff could turn to seek redress for the harm he or she claims to have suffered;
- The court must also be convinced that an assessment of all the interests involved (including the public interest 4 ) leads to a conclusion that the alternative forum is the most appropriate.
In principle, the burden of proof for each of these issues lies with the defendant. 5
Adequate alternative forum
When considering the plaintiff’s arguments, the proposed alternative forum (usually that of the place the damage occurred or where the defendant(s) is/are domiciled) can be considered adequate if it provides an effective solution, that is to say, if it authorizes the legal action in question on proper grounds and provides an acceptable remedy.
A judiciary of questionable independence or in which similar cases have never been heard or never been successful does not meet these criteria. 6
By contrast, it has been held, for example, that the lack of such a contingency fees system, under which an attorney is paid only for positive results, does not necessarily preclude the application of forum non conveniens. 7 The court may consider this factor, although it is not determinative on its own.
Sequihua v. Texaco, Inc
Ecuadorian citizens who felt that Texaco’s operations were causing air, water and soil pollution filed suit in U.S. courts under the ATS. A New York federal court dismissed the suit on appeal, on the basis of forum non conveniens. The court ruled that crucial factors indicated Ecuador’s courts would be more appropriate to handle the case, including: access to evidence and witnesses, the opportunity to visit the disputed areas, the cost of travel between Ecuador and the U.S. and uncertainty regarding the ability to enforce in Ecuador a court ruling made in the U.S. 8
Whether a plaintiff be national or foreigner, his or her residence in a territory generally has a favourable effect upon the selection of that territory as the forum for the case. 9 For non-resident plaintiffs, the doctrine of forum non conveniens still applies. 10
Because the facts of ATS cases (and therefore the parties, evidence, witnesses, etc.) are generally located abroad, forum non conveniens is an obstacle to suits brought under the ATS. 11 In addition, exercising forum non conveniens can result in the de facto rejection of civil liability 12 and few cases lead to legal proceedings in the foreign forum.
In the U.S., exercising forum non conveniens involves the definitive rejection of the suit from U.S. courts. Plaintiffs may bring new legal action if and only if the defendant (in our situation, the corporation) fails to meet the conditions set forth by the court that handled the case at the time it was referred to an adequate alternative forum. 13
In Aldana v. Del Monte Fresh Produce, Guatemalan union leaders residing in the United States sued Del Monte under the ATS and TVPA, for taking them hostage and threatening them. 14 Plaintiffs argued that forum non conveniens should not apply: firstly because Guatemala was not safe for them, and secondly because Guatemalan courts were corrupt, ill-equipped to address a case implicating politics and officials, and judges often turned a blind eye to violence against unionists. The Court found the forum was adequate because the plaintiffs would not necessarily have to return to Guatemala, and the Guatemalan courts were adequate. The Court then considered the interests of the litigants and the public. The Court found that the plaintiffs’ selection of courts where they resided, the United States, strongly pointed towards the U.S. being an appropriate forum. However, other interests of the litigants outweighed this: the evidence and witnesses were in Guatemala and the U.S. had no power to compel necessary witnesses to attend. Finally, the Court found that public interest concerns are given minimal weight; but they pointed to having the case in Guatemala: that it was an important issue for Guatemalan people to be resolved in their courts, the need to protect comity, and more. In light of all of these, the Court rejected the case on forum non-conveniens grounds.
In Mastafa v. Australian Wheat, Iraqi plaintiffs sued Australia’s Wheat Board and others under the ATS and TVPA for providing funds to the Saddam Hussein regime, which purportedly funded the torture, killing, and illegal imprisonment of the plaintiffs’ husbands. 15 Plaintiffs alleged Australia was not an adequate forum, since the causes of action it recognized (such as negligence, battery, and wrongful death) did not “recognize the gravity” of the international law claims of crimes against humanity, war crimes, genocide, torture etc. The Court rejected this argument, finding the difference largely semantic. The Court then found the litigants’ interests weighed in favor of Australia rather than the U.S. taking the case: the plaintiffs had no particular connection to the U.S., as they were in Iraq, the activities in question (planning for the funding of Hussein) took place in Australia and evidence was there, and the useful witnesses were AWB’s staff in Australia. The Court found public considerations weighed in favor of Australia too: it made more sense to burden Australian citizenry with being on a jury, since Australian jurors would be more affected by the litigation than American ones. In light of these factors, the Court rejected the case on forum non-conveniens grounds.
In Sarei v. Rio Tinto PLC, Papau New Guinean plaintiffs sued a mining group under the ATS for war crimes, murder and other crimes. 16 The District Court found that there were procedural differences to Papua New Guinea’s law of class actions, hiring of lawyers on a contingency basis, and discovery law; but it found these did not render Papua New Guinean courts inadequate. The Court then assessed the interests of the litigants, finding the preceding issues, and fact that the plaintiffs faced harm in Papua New Guinea pointed against it exercising jurisdiction. It also found that the local interest in the controversy and appropriateness of putting the obligation of judging on their citizenry, pointed towards Papua New Guinea; however this was outweighed by the fact that Courts there are extremely congested. Taking all the considerations into account then, the Court found that forum non conveniens was not appropriate here, and permitted the case to go forward.
Filártiga v. Peña-Irala
In 1979, two Paraguayan citizens filed an ATS lawsuit in U.S. federal court after a Paraguayan police officer carried out acts of torture on U.S. soil that resulted in the death of a family member of the two Paraguayans. This was the first case dealing with acts of torture under the ATS. In 1984, the plaintiffs received U.S.D 10,375,000 in damages. Forum non conveniens was briefly discussed in the case, but because it was impossible for the victims to expect reasonable chances of success before Paraguayan courts, 17 the U.S. court accepted jurisdiction.
Wiwa v. Royal Dutch Petroleum co. and shell Transport
In this case (cited earlier in Chapter I.A.2), the doctrine of forum non conveniens has played an important role. Action was brought under both the ATS and the TVPA. Although several of the plaintiffs resided in the U.S., Royal Dutch/Shell is domiciled in the U.K., and the U.S. trial judge that heard the case ruled that English courts were best placed to hear the Ogoni people’s representatives’ call for redress from Royal Dutch/Shell’s Nigerian subsidiary. 18 The appeals court, however, reversed that decision, identifying several criteria that preclude the application of forum non conveniens : 19
In particular, the court noted that several of the alleged victims, the plaintiffs, resided in the United States, a particularly favourable fact for the admissibility of their claim. Under the ATS, foreigners residing in the U.S. receive preference over foreigners living abroad. In addition, requiring persons residing in the U.S. to bring claim in the courts of another state would be particularly expensive, and could lead to impunity for the perpetrators charged. 20
In rejecting the admissibility of the claim on the basis of forum non conveniens, the trial judge did not give adequate weight to the federal legislature’s expressed intention and to the idea that it is in the interest of the United States to provide a forum for victims of international law breaches committed by persons on U.S. soil.
The court stated the need to consider international human rights law in assessing the interest of the United States in hearing the case and, thus, the pre-eminence of public interest over private interests. 21 According to the court, torture contradicts both international law and U.S. domestic law. This resulted in the 1991 adoption of the TVPA which establishes the ability of U.S. courts to rule on torture and extrajudicial executions committed by public officials or under color of law. 22 According to the court, it would be paradoxical to deny U.S. courts jurisdiction under the ATS for acts of torture in the name of forum non conveniens when the legislature has clearly expressed its willingness to aggressively pursue perpetrators of torture under the TVPA. In some ways, Congress’s adoption of the TVPA tipped the scales in favour of U.S. courts recognizing jurisdiction over acts of torture under the ATS, provided the criteria for the case’s referral to another forum are not fully met. 23
It is important to analyze the impact of these important, yet isolated decisions on subsequent jurisprudence involving forum non conveniens, particularly the extent to which forum non conveniens is applicable to claims under the ATS. Some, however, believe that a judge’s unfettered discretion in the matter 24 and the multiplicity of factors at work prevent any consistency or predictability. 25
It is also worth noting that if one pursues state tort claims (see section I.D, infra), states have their own doctrines of forum non conveniens which may differ significantly from the federal doctrine outlined above, and from each other. 26 The doctrine of forum non conveniens cannot be discussed without mentioning the Bhopal case.
The Bhopal case
One of the largest industrial disasters recorded to date occurred on the night of 2-3 December 1984 in India. A toxic cloud escaped from a chemical plant operated by Union Carbide India Limited (UCIL), an Indian subsidiary of the U.S. multinational Union Carbide Corporation (UCC). Large quantities of toxic substances from the accident spread through the atmosphere, with disastrous human and environmental consequences. According to Amnesty International, between 7,000 and 10,000 people died shortly after the disaster, and 15,000 others in the twenty years that followed. More than 100,000 people were affected. 27
The Indian government’s legal framework was not equipped to handle this type of harm, and was inundated with requests for action. In response, the government adopted the Bhopal Act on 29 March 1985, a law authorizing the Indian government to represent the interests of victims before the courts. India filed a claim in the Southern District Court of New York, relying precisely on the inability of India’s legal system and judiciary to deal with such disputes 28 on the one hand, and the direct involvement of the multinational UCC on the other. Holding the parent company liable was all the more necessary because the subsidiary did not have sufficient financial resources to meet the victims’ needs.
The case was dismissed under the doctrine of forum non conveniens, notably because witnesses and evidence were located on Indian soil. The Court of Appeals for the Second Circuit upheld the lower court’s decision but did not retain one of three conditions established by the trial judge: the requirement that UCC provide all files requested by the opposing party in accordance with the discovery procedure applicable in the United States (the discovery procedure requires parties to disclose all exhibits in their possession, whether favourable or not). 29 The court maintained conditions barring the invocation of statute of limitations to avoid the jurisdiction of Indian courts, and the obligation to carry out the foreign judgement to be adopted by the alternative forum.
In India, the trial was held on 5 September 1986. The Indian Union demanded “fair and full” compensation as well as punitive damages to deter UCC and other multinational corporations from repeating such acts with wilful, free and malicious disregard for the rights and safety of Indian citizens. After a long legal battle, the parties reached an agreement whereby UCC would pay the sum of U.S.D 470 million in return for a guarantee of no future civil or criminal claims from any individuals.
Several cases have called the constitutionality of the Bhopal Act into question on the grounds that it infringed upon the right of Indian citizens to individually pursue UCC. The plaintiffs also cite the Indian government’s lack of consultation with victims prior to the agreement. Although the Supreme Court of India upheld the validity of the Bhopal Act it has also permitted criminal prosecutions.
The Bhopal case led the Indian government to strengthen its legal system in terms of liability for environmental damage and tort liability following a major accident. It should be noted, however, that the slowness and complexity of trials has prevented victims from accessing justice. The relief granted to victims was also inadequate and litigation concerning the redress continues. More than 30 years after the disaster, victims are still fighting to obtain justice and the site has still not been decontaminated. 30
Restrictions on transnational litigation
The Supreme Court has recently made it more difficult for transnational litigation to proceed before U.S. federal courts 31 . For example, the Supreme Court has restricted the extraterritorial reach of numerous federal statutes, tightened the requirements for personal jurisdiction over foreign defendants, and heightened the pleading standards required of plaintiffs, all of which help to limit transnational litigation before U.S. federal courts. 32 The forum non conviens doctrine remains a key tool for defendants seeking the dismissal of complaints with extensive foreign connections, but the Supreme Court has not altered the landscape of appellate review for forum non conviens motions in its recent decisions despite otherwise increasing restrictions on transnational litigation.