Dismissing ATCA Claims by Invoking the Doctrine of Forum Non Conveniens

Article DISMISSING ATCA CLAIMS BY INVOKING THE DOCTRINE OF FORUM NON CONVENIENS: A COMPARISON OF DEFENSIVE TACTICS AND A PRACTICAL ASSESSMENT Aaron L Levenstadt I Introduction A rejuvenated debate over the legal doctrine of forum non conveniens (FNC) is attributed to an increase in international trade and the rise of multinational corporations.1 The global activity of these companies renders them potentially amenable to legal proceedings in several countries.2 The FNC doctrine is a tool to help select the most appropriate host nation.3 It encourages U.S case dismissal if a foreign legal system better serves the ends of justice and judicial economy.4 An increase in the frequency of FNC defenses has resulted from a revitalized Alien Tort Claims Act (ATCA).5 The ATCA was passed as part of the Judiciary Act of 17896 It granted jurisdiction to U.S federal courts for an action brought by an alien alleging a tort in violation of the law of nations.7 Due to the traditionally narrow definition of international law, for over 190 years, the ATCA was used sparingly However, since the watershed decision of Filartiga v Pena-Irala (1980) it has increasingly been invoked.9 In Filartiga, the family of Joelito Filartiga, a Paraguyan tortured to death in Paraguay by a local police officer, sued the officer after learning he was living in Brooklyn, New York The court awarded the claimant $10.4 million for torturous acts committed overseas This ruling disturbed multinational corporations because these companies are involved in projects where torture is routinely used to coerce slave labor Ill-treated foreigners are increasingly seeking compensation through the American judicial system Corporations are deploying the doctrine of FNC in an attempt to deflect these cases away from America to countries where the Rule of Law is less entrenched Thus, FNC motions to dismiss have been deployed to oppose a sharp rise in ATCA claims.10 I will begin this note by discussing the origins and the objectives of the FNC doctrine I proceed to examine two groups of ATCA cases The first pair was dismissed on FNC grounds The second set survived the motions to dismiss Juxtaposing these cases will emphasize the significance attributed to specific public and private interests I propose that many of these interests can be subdivided into two classes: A) Those that have evolved to oppose dismissal and B) Those that steadfastly resist evolution and continually promote case deportation My findings indicate that when judges analyze fact patterns that contain interests from both classes, ‘B’ factors overpower ‘A’ factors and dismissals tend to be awarded I contend that this power imbalance exists because one of the factors that resists change is the substantially less judicial deference accorded to foreign (non-American) plaintiffs Alien claimants face additional, and often detrimental, hardships in foreign forums For this reason, I argue that the plaintiff’s citizenship should not factor into U.S dismissal decisions II The Alien Tort Claims Act The Alien Tort Statute is one of the most widely discussed provisions in modern international law.11 The Alien Tort Claims Act grants federal district courts jurisdiction to hear “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” One of the major controversies surrounding ATCA claims is over what constitutes the “law of nations”? In the fourth volume of his Commentaries, Blackstone has a chapter on “Offences against the Law of Nations.” Guided by Blackstone, the Founding Generation viewed the law of nations as a system of rules deducible by natural reason, and established by universal consent among the civilized inhabitants of the world Justice Story would later put it, “every doctrine that may be fairly deduced by correct reasoning from the rights and duties of nations, and the nature of moral obligation, may be said to exist in the law of nations.” Story explained that where the individuals of any state violate the general law of nations, it is then in the interest as well as the duty of the government under which they live to right the wrong In the United States, the Continental Congress became concerned with how to redress individual violations of the law of nations as early as 1781 Congress recommended to the States to authorize all lawsuits for damages to the party injured, and for compensation to the United States for damage sustained by them from an injury done to a foreign power by an American citizen The purpose of the Act was to motivate business relations with the European powers American businesses were just burgeoning at the time and well-established British and French enterprises were reluctant to deal with the less credible new American companies To encourage business relations the First Congress passed the ATCA in 1789 to prove that the United States would be motivated to pay the damages directly when the injury was done by one of its citizens Thus, the British and French were compelled to engage in commercial relationships with the States because if the American enterprises reneged on contractual agreements, compensation could be sought in America The corporate climate has changed drastically since that time Today, a foreigner who suffers an environmental or human rights injury outside of the United States at the hands of an American corporation or a multinational corporation with business operation in the U.S may sue the corporation and its foreign business partners in U.S courts Although American courtroom doors are slowly opening, numerous jurisdictional barriers remain for lawsuits brought by foreign claimants against U.S multinationals in U.S courts Claimants must demonstrate that the court has subject matter over their claims They also must defeat dismissal on the basis of forum non conveniens The FNC has a powerful hold on U.S federal courts and have frequently been held to be sufficient grounds for dismissal of foreigners’ complaints III The History of the Forum Non Conveniens Doctrine Forum Non conveniens refers to the discretion of a court to refuse to hear a case if the forum is inappropriate or inconvenient for the defendant or the jurisdiction The FNC doctrine has determined the practical outcome of some prominent international cases, including personal injury cases of global significance The doctrine originated as an equitable remedy in the common law of Scotland.12 The concept then migrated to England and onwards to the American states 13 Admiralty courts were the first to use the FNC, as it helped organize cases regarding international maritime commerce 14 American admiralty magistrates recognized that although they had jurisdiction over cases involving aliens, they reserved the right to dismiss these cases if a more convenient and judicious forum presented itself.15 The Supreme Court’s decision in Gulf Oil v Gilbert (1947)16 extended the doctrine of FNC beyond its maritime roots The Court held that federal courts should use the FNC to dismiss an action if inconvenience to the parties, witnesses or local courts would render an alternative forum more appropriate.17 Under the doctrine of forum non conveniens, a court may dismiss an action when there is an alternative forum in which the defendant is amenable process and where the most convenient legal arena fashions itself The debate in common law countries, such as the United States, has been about what constitutes inconvenience in international cases In Gilbert, the Court established criteria for consideration when weighing the countervailing forces militating for and against dismissal.18 These public and private interests are referred to as Gilbert factors.19 Lower courts were instructed to assign subjective significance to these interests with the aim of discovering the most suitable and sensible forum.20 Despite the Supreme Court’s instructions, lower District Courts could not develop reliable standards to balance the conflicting Gilbert factors.21 In Piper Aircraft Co v Reyno (1981) 22 the Court diminished the disparity by proposing the comprehensive twostage “Reyno test”: First, an adequate alternative forum must be identified.23 If an acceptable forum exists, then the dismissal decision should be based on a careful weighing of the Gilbert factors.24 This balancing task requires prudence because of the Supreme Court’s decision in Koster v Lumbermens (1947)25, which shifted the preliminary advantage to the plaintiffs.26 The majority opinion in Koster decided “When the plaintiff has chosen the home forum, it is reasonable to assume that the choice is convenient; but when the plaintiff or real parties in interest are foreign, this assumption is much less reasonable and the plaintiff's choice deserves less deference.” This comment has been interpreted to mean that from the onset of the motion, defendants face the arduous task of showing that public and private interest factors tilt strongly in favor of dismissal 27 In a number of high profile ATCA cases, defendants have successfully carried this burden to a foreign, and more lenient, forum IV ATCA Cases Dismissed from America on FNC Grounds A In Re: Union Carbide Corp Gas Plant Disaster at Bhopal, India (1984) On the night of December 2, 1984 the most tragic industrial disaster in history occurred in the city of Bhopal, India (see Appendix I) 28 Forty tons of methyl isocyanate were released from a chemical plant owned and operated by Union Carbide India Limited (UCIL).29 Methyl isocyanante is a highly toxic gas The deadly gas was blown into the overpopulated hutments adjacent to the plant The results were horrendous Estimates of death ran as high as 10,000 Over 200,000 persons suffered serious injuries These victims sought relief from The Union Carbide Corporation (UCC) of New York because UCC owned a controlling share of 50.9% in the Indian subsidiary.30 In April 1985, the Indian government brought suit against UCC in the U.S District Court of Southern New York.31 The Indian government hoped that an American jury would sympathetically award substantial damages.32 Before the plaintiffs could plead their case, it was dismissed back to India on FNC grounds.33 The Indian government ardently attempted to continue the proceedings in American courtrooms by portraying their own legal system as antiquated and unqualified.34 This argument lost merit when the District Court discovered that India’s Supreme Court capably handled a similar case 35 Judge Keenan, who presided over the American trial, appreciated India’s expediency in dealing with tragic situations that demanded swift justice.36 The plaintiffs asserted Indian inadequacy on the grounds of procedural differences.37 It was proposed that India’s discovery methods would hinder the plaintiffs’ search for proof.38 The District Court agreed However, instead of denying the defendant’s motion to dismiss, Judge Keenan circumstanced his FNC affirmation on a UCC agreement to follow American discovery procedures in India.39 Thus, the corporation was able to easily promote a dismissal decision by promising to follow American standards abroad UCC supported their demand for dismissal by asserting strong contentions pertaining to the whereabouts of relevant sources of proof.40 Union Carbide argued that nearly all of the evidence was in Bhopal.41 Carbide’s defensive position stressed that almost all of the records relating to liability were in India, not the United States Furthermore, critical safety inspection documents and the safety inspectors themselves were located in Bhopal.42 Forcing the inspectors to testify in a U.S court would have been problematic.43 By the express terms of the Foreign Sovereign Immunities Act, 44 Indian nationals were not obliged to testify in America The inability of a United States court to compel the live testimony of witnesses supports an FNC dismissal 45 UCC bolstered its motion by convincing the court that only a weak bond connected its New York headquarters to the Bhopal plant.46 Judge Keenan examined the contracts between the enterprises and was “struck by the assertion that the agreements were negotiated at arms-length pursuant to Union Carbide corporate policy.” 47 UCC successfully distanced itself from its Indian operations The main focus of Judge Keenan’s final Gilbert analysis centered on the nationality of the plaintiffs Keenan noted, “The additional presence in India of all but less than handful of claimants underscores the convenience of holding the trial in India.” He cited Koster when he decided that because the plaintiffs are non-Americans, their Ameican forum choice is not entitled much deference.48 The lack of regard for the plaintiff’s preference was complemented by a heavy American-borne judicial burden.49 This combination prompted the court to dismiss the case because of U.S interest deficiency.50 B Aguinda v Texaco Inc (2001) Ecaudorian plaintiffs sued Texaco Inc for severe contamination and destruction of rainforests (see Appendix II).51 Claimants allege that Texaco’s transnational environmental abuse negatively affected thousands of people in Ecuador and Peru.52 The District Court found that Texaco had carried the burden of showing that Ecuador was an adequate forum, and that it would be oppressive to continue with this case in the United States.53 Hence, the defendant passed both stages of the Supreme Court’s Reyno test.54 The American District Court approved the Ecuadorian forum because tort claims similar to those alleged in this case had been successfully prosecuted in Ecuador.55 Furthermore, several United States courts had previously found that Ecuador was a reasonable venue to address similar claims 56 With this support, the first portion of the Reyno test had been satisfied The second-stage of the test required the defendants to demonstrate that the Gilbert factors weighed so heavily in their favor as to tip the plaintiff-biased scale in their direction.57 The defendants waged a three-pronged argument to satisfy this criterion First, all plaintiffs were foreigners Based on past precedent, this type of plaintiff is granted less deference.58 Secondly, relevant governmental officials resided in Ecuador.59 These key witnesses would be silenced in an American trial because the Government of Ecuador refused to waive sovereign immunity.60 Thirdly, only minimal and insignificant ties linked TexacoAmerica to its Ecuadorian subsidiary.61 After years of discovery, the plaintiffs were unable to establish any strong connection.62 A well-supported link existed between the Government of Ecuador and the alleged environmental damage.63 District Judge Rakoff noted that this dispute is in large part between Ecuadorian citizens and the Republic of Ecuador.64 Ecuador’s interest in the controversy is substantial, whereas American interest is relatively modest.65 In Rakoff’'s opinion, this case has “everything to with Ecuador and nothing to with the United States”.66 The trial was dismissed from the U.S and is currently ongoing in Ecuador Richard Herz, a lawyer for Earth Rights International, believed the dismissal decision to be wholly inappropriate Herz submitted an amicus curiae brief to the District Court in support of the foreign claimants In the brief, he reminds the court that the InterAmerican Commission on Human Rights has already concluded that the companies conducting oil exploitation are responsible under international law for their damages pertaining to the exploration activities.67 Moreover he cites a recent decision from the International Court of Justice which held the “obligation of States to ensure that activities within their jurisdiction respect the environment of other states is now part of the corpus 10 B The Prebysterian Church of Sudan v Talisman Energy Inc (2003) Plaintiffs, current and former residents of Sudan, brought this action against Talisman Inc seeking injunctive relief and damages.87 Plaintiffs claim that Talisman, motivated by a desire to secure petroleum resources, conspired with the Sudanese government in the acts of extrajudicial killing, kidnapping, rape and enslavement.88 Talisman, a Canadian based corporation, motioned for dismissal.89 Talisman claimed that Canada was an adequate forum and the court assumed this to be true.90 Talisman thus provided a satisfactory alternative forum, and thus satisfied the first prong of the Reyno test However, because the plaintiff's choice of forum should rarely be disturbed, the defendant still had to meet the burden of showing that pertinent private and public interest factors tilt strongly in favor of dismissal 91 In an effort to carry this burden, Talisman mirrored Texaco’s defense in Aguinda.92 Talisman, like Texaco, claimed that its corporate headquarters were in a different country and pointed out that unnecessary costs would be incurred if this case proceeded in the United States.93 Although the court accepted this argument, it was not granted much significance Throughout the entire proceeding, Talisman could not offer a substantial reason to explain why litigating the case in New York would be excessively burdensome.94 Judge Schwartz, in denying the motion to dismiss, highlighted the main difference between this case and Aguinda Talisman features American plaintiffs who have selected their home forum.95 These plaintiffs are entitled substantially more deference than the non-American plaintiffs in Aguinda.96 13 Talisman countered by claiming that the U.S had little interest in hearing a case on behalf of Sudanese citizens against a Canadian corporation.97 This claim fails to acknowledge the precedent set by the Wiwa court: “suits should not be facilely dismissed on the assumption that the ostensibly foreign controversy is not our business.” 98 The decision in Talisman was supported by the TVPA, which expresses a strong U.S interest in hearing cases concerning universally recognizable international law transgressions.99 This act of Congress strongly promoted retention VI Interests That Have Evolved to Favor Retention The Supreme Court laid out the original Gilbert factors in 1947 100 At the time, little importance was attributed to a U.S interest in furnishing a forum for international law violations This dearth of interest remained relevant to Gilbert analyses until the early 1980s when Filartiga paved the way for ATCA claims to be entertained by American courts Carbide, was the most conspicuous of the early ATCA cases The three billion dollar settlement that India sought captured the public’s attention.101 The defendant’s FNC strategy proved very cost effective as the case was transferred from America to India In the foreign forum, Union Carbide Corporation was settled for a mere US$ 470 million.102 Judge Keenan dismissed the Carbide case because in his cost-benefit analysis, the real administrative expenses to be borne by the American judicial system outweighed any 14 U.S profit that might accrue The U.S District Court could not justify why, “with its already hectic civil calendar, it should be burdened with cases like these.”103 This argument seemed credible because, at the time, there was no legislation to support the opposing viewpoint The opposition stance was bolstered in 1991 with the passing of the Torture Victims Protection Act This act recognized that specific violations of the law of nations also breach domestic law In blurring the boundary between U.S and international law, Congress clarified its intentions: American courts were to host cases pertaining to universally recognized international law violations In Wiwa, the Second Circuit Court factored the TVPA into its decision The appellate court sensed a strong U.S public interest in keeping the doors of American courtrooms open for cases involving human rights abuses In the 25 years between Wiwa and Carbide an evolution of interests took place: The clear public interest that the Wiwa court detected was completely invisible to Judge Keenan during the Carbide litigation In analyzing Gilbert factor trends from 1984 to 2000, I have discovered that the degree of importance attributed to the U.S public interest in furnishing a legal forum evolved from negligible to predominant This significant shift edged forum non conveniens analysis in favor of ATCA plaintiffs in all but the most inconvenient of cases.104 The next perplexing legal question is if Wiwa effectively raised the bar for FNC dismissals, why would the same circuit court dismiss Aguinda one year later? VII Factors that Advocate For Dismissal 15 ATCA cases that have been dismissed on FNC grounds share certain traits that stand the test of time Aguinda and Carbide were decided nearly 25 years apart but were dismissed for, by and large, the same two reasons: 1) The alleged violations were not universally recognized and 2) the plaintiffs were not American citizens or residents The allegations in both Aguinda and Carbide can be classified as environmental violations that not meet the universally recognizable jus cogens criterion Lawyers Armin Rosencranz and Richard Campbell note that a lack of international agreement on what constitutes an environmental abuse explains why American courts have been reluctant to hear these cases.105 In the Aguinda case, the District Court abstained from directly commenting on whether U.S courts should consider massive and intentional environmental destruction to be violations of the law of nations Judge Rakoff implicitly predicted that even if he denied the FNC motion, the claim would later be discarded based on the decision in Beanal v Freeport-McMoran (1997)106 In that case, it was decided that a lack of international concurrence on environmental abuses merits dismissal.107 Richard Herz, a lawyer with EarthRights International disagreed with the prediction.108 Both the International Court of Justice and the Rio Declaration hold that it is the obligation of states to control and respect transnational environmental impact.109 The Beanal claim failed because the plaintiffs did not allege transboundary environmental damage On the other hand, Aguinda plaintiffs significantly claim transnational damage In Aguinda, Herz argued that there was enough international recognition to justify classifying Texaco’s environmental rampage as a jus cogens, universally recognized, violation 16 It seems reasonable to surmise that until the U.S classifies environmental abuses under the umbrella of its recognized international law violations, American courtrooms will refuse to entertain these claims An environmental analogue of the TVPA is necessary before judges will consider denying motions to dismiss When the Supreme Court first outlined the grounds for an FNC dismissal it discriminated against foreign plaintiffs In Koster, the Court decided, “When the home forum has been chosen, it is reasonable to assume that this choice is convenient When the plaintiff is foreign, however, this assumption is much less reasonable”.110 This prejudiced policy was reiterated in Reyno, when the Court restated that a foreign plaintiff's choice deserves less deference.111 The plaintiffs in both Aguinda and Carbide were non-Americans and lacked significant ties to the United States To the contrary, in both Wiwa and Talisman the plaintiffs were American residents These plaintiffs were granted more deference and these cases were not relegated to foreign courts The irresolute and discriminatory actor of plaintiffs’ nationality has been significant in Gilbert analyses since 1947 and seems to tilt the court toward dismissal On the basis of my analysis, it appears that whenever the plaintiffs are American, there is a much better chance that the motions to dismiss to another country will be denied VIII Is the Forum Non Convenience’s Discriminatory Policy Just? 17 The FNC doctrine was designed as an instrument of justice.112 It has two stated goals: 1) To discover which forum is most convenient for all parties concerned and 2) To locate the forum that best serves the ends of justice Its current application presents an unjust set of obstacles for foreign plaintiffs bringing actions in United States’ courts The high likelihood that a foreign plaintiff’s claim will be dismissed is complemented by the high probability that the same individual will not be able to pursue the claim elsewhere An FNC dismissal may prevent a relatively penurious plaintiff from undertaking the costly task of reinitiating the litigation in another forum Most other nations not offer a contingent fee system Thus, if the plaintiff cannot afford a lawyer in another country, the proceeding will be halted and he will be barred from recovery Furthermore, even if the plaintiff is able to afford a lawyer, the substantive law in an alternative forum may prevent the plaintiff from seeking compensation Reyno teaches that it is within the court’s discretion to dismiss an action from America even if the plaintiff shows the law of a foreign forum to be less favorable.113 Thus, a plaintiff forced to sue in a foreign forum may be subjected to a detrimental change in law that could severely limit recovery The courts should carefully limit the use of the FNC in cases involving foreign plaintiffs A decision to dismiss not only denies the plaintiff the privilege of choosing a forum, but also may cause him to forfeit his cause of action Compelling this forfeiture would thwart the very goals of fairness and convenience that the doctrine of Forum Non Conveniens was designed to achieve IX Conclusion 18 In this note I proposed that a spectrum of public and private interests exists in the psyche of the American judiciary On one end rests class ‘A’ interests- U.S public interests that have evolved through acts of Congress to oppose dismissal On the opposing end lie class ‘B’ interests- Private factors that have resisted evolution and continue to advocate for dismissal on FNC grounds Through an analysis of four ATCA cases I hypothesized that judges deposit each Gilbert factor on one side of this spectrum Interests that favor dismissal, which tend to be public, are gathered and scored In a similar fashion, interests that oppose dismissal, which tend to be private, are also marked and weighed This FNC balancing act is equitable for the most part, unless the plaintiffs are non-American In these cases, defendants easily obtain their motions to dismiss, while only carrying a minimal burden The historic and precedential weight associated with having an American citizen on the docket trumps many relevant side ‘A’ factors In this note I have argued that this overpowering discriminatory feature of the FNC is unjust and contrary to the goals of the doctrine Foreign citizenship alone does not warrant imposing a higher burden on a plaintiff or lessening the normally heavy burden to be borne by the defendant Foreign citizenship alone does not warrant imposing a higher burden on a plaintiff opposing a FNC motion because the objectives of the FNC are to ensure fairness and to balance the convenience of all the parties involved Because a decision to dismiss not only denies the plaintiff the privilege of choosing the forum but also may cause him to forfeit the cause entirely, the courts should carefully limit the use of the FNC It must be remembered that the ultimate purpose of the FNC is 19 to find the forum that best serves the ends of justice Under the auspices of the ATCA, U.S courts’ concern with providing procedural safeguards to American plaintiffs should extend equally to foreign plaintiffs who have chosen to assume the burden of litigating in the United States Foreign plaintiffs, like their American counterparts, may encounter substantial procedural obstacles if forced to litigate in a foreign forum The advances of modern technology and the development of a global economy severely undercut FNC claims In the year 2003, an age of multinational corporations, Talisman’s argument that it is headquartered in a different country should not hold much weight As more U.S courts recognize the precedent set in Talisman, the FNC scale should continue to tip in favor of plaintiffs, regardless of their nationality In the digital age, one of global connectedness, it is unjust to discriminate based on nationality 20 References: 21 Skolnik The Forum Non Conveniens Doctrine In Alien Tort Claims Act Cases: A Shell of Its Former Self After Wiwa Emory Intn’l L Rev 2002; 16: 190 (“Wiwa fundamentally changes- but does not prescribe or resolve- the way forum non conveniens should be invoked in ATCA cases in the future.”) Duval-Major One-Way Ticket Home: The Federal Doctrine of Forum Non Conveniens And The International Plainitiff One-Way Ticket Home: The Federal Doctrine of Forum Non Conveniens And The International Plainitiff Cornell L Rev 1991-1992; 77: 650 Id at Koster v Lumbermens Mutual Casualty Co 330 U.S 518; 67 S Ct 828; 91 L Ed 1067; 1947 U.S LEXIS 2552 (“The ultimate inquiry is where trial will best serve the convenience of the parties and the ends of justice.”) See Skolnik, supra note at 188 (“Since Filartiga, many defendants in ATCA cases have invoked the common law forum non conveniens doctrine in an effort to avoid adjudication in U.S courts.”) 28 U.S.C §1350 (“The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”) Id Bridgeman, Human Rights Litigation Under The ATCA AS A Proxy For Environmental Claims Yale Hum Rts & Dev L.J.1 2003; 6:3 (“During the 190 years following its passage, the ATCA was used only 21 times.”) Id at (“Filartiga v Pena-Irala opened the door to subsequent use of the ATCA for litigation of human rights abuses.”) See Skolnik, supra note at 188 (“Since Filartiga, many defendants in ATCA cases have invoked the common law forum non conveniens doctrine in an effort to avoid adjudication in U.S courts.”) 10 11 28 U.S.C 1350 (1993): “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 12 Barrett The Doctrine of Forum Non Conveniens, CALIF L REV 380 1947; 35: 386-87 (“Scottish practice permitted courts to decline hearing cases where justice was better served by trial in another forum”) 13 Braucher The Inconvenient Federal Forum, HARV L REV 908 1947; 60: 914 (“state courts effectively have applied forum non conveniens doctrine in since 1817”) 14 Bickel The Doctrine of Forum Non Conveniens as Applied in the Federal Courts in Matters of Admiralty CORNELL L.Q 12, 1949; 35:20 (“in determining whether to exercise jurisdiction, admiralty courts considered reasons for existence of distinct admiralty jurisdiction.”) 15 Id at 20 (“in determining whether to exercise jurisdiction, admiralty courts considered reasons for existence of distinct admiralty jurisdiction.”) 16 Gulf Oil v Gilbert, 330 U.S 501; 67 S Ct 839; 91 L Ed 1055; 1947 U.S LEXIS 2551 17 Id 18 Id at Headnote [3]: (“Among the considerations to be weighed in determining whether a court will decline to exercise jurisdiction on the ground that another forum is more convenient are the relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing witnesses, possibility of view of the premises if view would be appropriate to the action, and all other practical problems that make trial of the case easy, expeditious and inexpensive, questions as to the enforceability of a judgment if one is obtained, and relative advantages and obstacles to a fair trial.”) 19 Id at [***HR4]: (“Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Public interests include, “Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation”.) 20 Id 21 Note The Convenient Forum Abroad, STAN L REV 1967-1986; 20: 58 (“even in cases that involve no foreign elements, courts have failed to develop reliable forum non conveniens guidelines”) 22 Piper Aircraft Co v Reyno, 454 U.S 235; 102 S Ct 252; 70 L Ed 2d 419; 1981 U.S LEXIS 133; LEXIS 133; 23 Id 24 Id 25 See Koster v Lumbermens, supra note 26 Id at Headnote [6]: (“the residence of the suitor is a fact of high significance, and he should not be deprived of the presumed advantages.”) 27 Id at Headnote [6]: (“except upon a clear showing of facts which either establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff's convenience.” 28 Prince Bhopal, Bougainville and Ok Tedi: Why Australlia’s Forum Non Coveniens Approach is Better 47 Int'l & Comp L.Q (1998) at 573 (“most notably the worst industrial accidents in modern times- the 1984 Bhopal disaster in India.”) 29 Divan, Rosencranz ENVIRONMENTAL LAW AND POLICY IN INDIA- Cases, Materials and Statutes Second Edition: Oxford University Press, 2001: 547 30 IN RE: UNION CARBIDE CORPORATION GAS PLANT DISASTER AT BHOPAL, INDIA IN DECEMBER, 1984; 634 F Supp 842; 1986 U.S Dist LEXIS 25624 31 See Divan, Rosencranz, supra note 29 at 548 Id at 548 (“The government’s preference for an American court stemmed from a lack of confidence in its own judicial system, the lure of large damages that an American jury might award…”) 32 33 See Carbide litigation, supra note 30 34 Id at Galanter Affidavit: (“Indian legal institutions still reflect their colonial origins.”) Id at Dadachanji Affidavit: (“another Indian case which arose from a gas leak in New Delhi The Chief Justice and another Justice of the Supreme Court of India ordered the presiding court to expedite adjudication of claims.”) 35 36 Id at LEXIS Section 1B: (“This Court is persuaded, by the example of the Bhopal Act itself and other cases where special measures to expedite were taken by the Indian judiciary, that the most significant, urgent and extensive litigation ever to arise from a single event could be handled through special judicial accommodation in India, if required.”) 37 Id at LEXIS Section 1C: (“two other procedural deficiencies which plaintiffs assert preclude a finding that India offers an adequate alternative forum.”) 38 Id at LEXIS Section 1C: (“Similar discovery tools are used in Great Britain today This Court finds that their application would perhaps, however, limit the victims' access to sources of proof.”) 39 Id at LEXIS Section 1C: (“Any dismissal of the action now before this Court is thus conditioned on defendant's consent to submit to discovery on the American model, even after transfer to another jurisdiction.”) 40 Id at LEXIS Section 2A: (“The first example of a private interest consideration discussed in Gilbert is ‘relative ease of access’ to sources of proof.”) 41 Id at LEXIS Section 2A: (“Union Carbide argues that virtually all of the evidence which will be relevant at a trial in this case is located in India Union Carbide's position is that almost all records relating to liability, and without exception, all records relevant to damages, are to be found in and around Bhopal.”) 42 Id at LEXIS Section 2A: (“Union Carbide asserts that the Bhopal plant was managed and operated entirely by Indian nationals, who were employed by UCIL.”) 43 28 U.S.C § 1602 44 Id 45 Schertenleib v Traum 589 F.2d 1156; 1978 U.S App LEXIS 6964 at Section III: (“Perhaps the most significant problem is presented by the inability to bring plaintiff and his alleged co-conspirator here for live cross-examination before a factfinder.”) 46 See Carbide litigation, supra note 30 at Affidavit of Warren J Woomer: (“the Bhopal plant is part of UCIL's Agricultural Products Division, which has been a separate division of UCIL for at least 15 years, and that the plant had "limited contact" with UCIL's Bombay headquarters, and almost no contact with the United States.”) 47 Id 48 See Koster v Lumbermens, supra note at Headnote [6]: (“he should not be deprived of the presumed advantages of his home jurisdiction.”) 49 See Carbide litigation, supra note 30 at LEXIS Section 3A: (“the mere size of the Bhopal case, with its multitude of witnesses and documents to be transported and translated, obviously creates administrative problems.”) Id at LEXIS Section 3B: (“The Court concludes that the public interest of India in this litigation far outweighs the public interest of the United States This interest is of paramount importance.”) 50 51 Herz STATEMENT OF THE ISSUE ADDRESSED BY AMICUS: EarthRights International Press (2001) Available at: www.earthrights.org/texaco/index.shtml 52 Id 53 Aguinda v Texaco Inc 142 F Supp 2d 534; 2001 U.S Dist LEXIS 6981 At LEXIS Section: OPINION AND ORDER (“Because Texaco has carried its burden on every element of the motion, and because the record establishes overwhelmingly that these cases have everything to with Ecuador and nothing to with the United States, the Court grants the motion and dismisses the cases on the ground of forum non conveniens.”) Id (“that the ordinarily strong presumption favoring the plaintiff's chosen forum is overcome by a balance of the relevant factors of private and public interest weighing heavily in favor of the alternative forum”.) 54 Id (“Furthermore, several United States courts have previously found Ecuador to be an adequate forum to address similar (and, in some cases, identical) tort claims to those of plaintiffs here.”) 55 56 See Delgado v Shell Oil Co., 890 F Supp 1324, 1359-60 and see Sequihua v Texaco, Inc., 847 F Supp 61, 63 (S.D Tex 1994) 57 Piper Aircraft Co v Reyno , supra note 21 58 Id 59 See Aguinda v Texaco, supra note 53 See LEXIS OPINION AND ORDER: (“the Government of Ecuador, which, either directly or through the state-owned corporation PetroEcuador, regulated the Consortium.”) 60 Id See LEXIS OPINION AND ORDER: (“Not only is the Government of Ecuador not named as a party but also it cannot be sued as a third-party defendant, since it has now formally affirmed that it will not waive sovereign immnity with respect to these cases.”) 61 Id See LEXIS OPINION AND ORDER: (“By contrast, what, if anything, occurred in the United States?”) 62 Id See LEXIS OPINION AND ORDER: (“The simple fact of the matter is that, after having deposed numerous Texaco witnesses and reviewed tens of thousands of Texaco documents in an effort to establish a meaningful nexus between the United States and the decisions and practices here complained of, plaintiffs have come up bone dry.”) Id See LEXIS OPINION AND ORDER: (“While, if these allegations are true, the United States still has an interest in not permitting its companies to participate in such misconduct, the uncontested role of the Government of Ecuador in authorizing, directing, funding, and profiting from these activities necessarily lessens the United States' interest in the litigation while further increasing that of Ecuador.”) 63 64 Id See LEXIS OPINION AND ORDER: (“The Ecuadorian local interest in the controversy is, on plaintiffs' own showing, very substantial, whereas the public interest of the United States is much more modest According to plaintiffs, the acts complained of resulted in environmental pollution of Ecuador's rainforest regions and other property, and thereby injured tens of thousands of Ecuadorian and Peruvian citizens in their property and/or persons.”) 65 Id 66 Id 67 E-mail Interview with Richard Herz, Counsel for EarthRights International 68 Herz Wiwa v Royal Dutch Petroleum: EarthRights International (2002) Available at: www.earthrights.org/shell/index.shtml 69 Wiwa v Royal Dutch Petroleum, supra note 69 70 Herz Wiwa v Royal Dutch Petroleum: EarthRights International (2002) Available at: www.earthrights.org/shell/index.shtml 71 Wiwa v Royal Dutch Petroleum; 226 F.3d 88; 2000 U.S App LEXIS 23274 72 Id 73 Id 74 Id at LEXIS:(“We believe that, as a matter of law, in balancing the competing interests, the district court did not accord proper significance to a choice of forum by lawful U.S resident plaintiffs or to the policy interest implicit in our federal statutory law in providing a forum for adjudication of claims of violations of the law of nations.”) 75 Id at LEXIS: (“a plaintiff's choice of forum is entitled to substantial deference and should only be disturbed if the factors favoring the alternative forum are compelling.”) 76 Id 77 Id 78 Murray v British Board Corp.81 F.3d 287; 1996 U.S App LEXIS 7454 79 Id at LEXIS Section 1: (“Murray argues, he is deemed to be in the shoes of an American plaintiff and entitled to greater deference in his choice of forum”.) 80 Piper Aircraft Co v Reyno , supra note 21 81 Wiwa v Royal Dutch Petroleum, supra note 69 82 Id at LEXIS: (“In arguing that England is a more appropriate forum, defendants rely upon arguments such as the inconvenience of shipping documents from England to the United States and the additional cost for a Nigerian witness of flying to New York rather than London.”) 83 Koster v Lumbermens, supra note 84 See Skolnik, supra note at 194: (“Congress expressly ratified the holding in Filartiga.”) 85 28 U.S.C § 1350 Wiwa v Royal Dutch Petroleum, supra note 69 at LEXIS Section B2: (“The TVPA thus recognizes explicitly what was perhaps implicit in the Act of 1789-that the law of nations is incorporated into the law of the United States and that a violation of the international law of human rights is (at least with regard to torture) ipso facto a violation of U.S domestic law.”) 86 87 The Presbyterian Church of Sudan v Talisman Energy Inc 244 F Supp.2d 289; 2003 U.S Dist LEXIS 4085 88 Id Weidner, Lindsay, Cyr REPLY MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT TALISMAN’S ENERGY INC.’S MOTION TO DISMISS (2002) at 16 89 90 The Prebysterian Church of Sudan v Talisman Energy, supra note 85 91 See Gulf Oil v Gilbert, supra note 15 92 See Motion to Dismiss, supra note 87 at 17 93 94 Id The Prebysterian Church of Sudan v Talisman Energy, supra note 85 95 Id 96 Id at 26: (“That several plaintiffs are U.S residents differentiates the case from a recent Second Circuit case … Aguinda v Texaco”.) 97 See Motion to Dismiss, supra note 87 at 20 98 Wiwa v Royal Dutch Petroleum, supra note 69 99 28 U.S.C § 1350 100 Wiwa v Royal Dutch Petroleum, supra note 69 at Section B3: (“In order to be granted dismissal based on forum non conveniens, the defendants bear the burden of establishing that the Gilbert factors ‘tilt strongly in favor of trial in the foreign forum.’ ”) 101 See Divan, Rosencranz, supra note 29 at 548 102 Id at 549 103 See Carbide litigation, supra note 30 104 Skolnik, supra note at 190., Rosencranz, Campbell Foreign Environmental and Human Rights Suits Against U.S Corporations in U.S Courts, 187 STAN ENVTL L.J 145 (1999) at 156 (“lack of international consensus on environmental norms is one reason why courts have been reluctant to recognize environmental abuses, absent accompanying human rights violations, as causes of action under the ATCA.”) 105 106 Beanal v Freeport-McMoran 197 F 3d 161; 1999 U.S App LEXIS 31536 107 See Aguinda v Texaco, supra note 53 at LEXIS OPINION AND ORDER: (This case “lacks any meaningful precedential support and appears extremely unlikely to survive a motion to dismiss See Beanal v FreeportMcMoran, Inc”.) 108 See http://www.earthrights.org/texaco/amicus.shtml 109 Id See Koster v Lumbermens, supra note 110 111 Id 112 Duval-Majo, supra note at 650 113 Piper Aircraft Co v Reyno, supra note 21 (“plaintiffs may not defeat a motion to dismiss on the ground of forum non conveniens merely by showing that the substantive law that would be applied in the alternative forum is less favorable to the plaintiffs.”) ... prescribe or resolve- the way forum non conveniens should be invoked in ATCA cases in the future.”) Duval-Major One-Way Ticket Home: The Federal Doctrine of Forum Non Conveniens And The International... jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 12 Barrett The Doctrine of Forum Non Conveniens, CALIF... dismisses the cases on the ground of forum non conveniens. ”) Id (“that the ordinarily strong presumption favoring the plaintiff's chosen forum is overcome by a balance of the relevant factors of private