A Call for the Codification of the Unocal Doctrine

Cornell International Law Journal

Volumn 32, Issue 1, 1998, Pages 183-207

  Becker, David I ^a,b  

^a MIT Sloan School of Management   (United States)

^b DUKE UNIVERSITY   (United States)

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EID: 0032237084     PISSN: 00108812     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (174)

1. Dow Chem. Co. v. Castro Alfaro, 786 S.W.2d 674, 680 (Tex. 1990) (Doggett, J., concurring).
2. See U.S. CONST, art. III, § 2 ("The judicial power shall extend . . . to Controversies . . . between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.").
3. See CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULATORY STATE 21-24 (1990).
4. See Sibaja v. Dow Chem. Co., 757 F.2d 1215 (11th Cir. 1985) (discussing tort claims by Costa Rican agricultural workers harmed in Costa Rica by exposure to defendant's pesticides on grounds of forum non conveniens); Torres v. Southern Peru Copper Corp., 965 F. Supp. 899 (S.D. Tex. 1996) (discussing tort claims by Peruvian citizens harmed by toxic emissions stemming from defendant's smelting operations in Peru on grounds of forum non conveniens); Sequihua v. Texaco, Inc., 847 F. Supp. 61 (S.D. Tex. 1994) (discussing tort claims by Ecuadoran plaintiffs against U.S. corporation for the alleged contamination of the air, ground, and water in Ecuador on grounds of forum non conveniens).
5. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 46, at 322-24 (5th ed. 1984); RESTATEMENT (SECOND) OF TORTS §§ 875, 876, 877 (1977). See also Developers Must Pick Local Partners Carefully, POWER GENERATION TECHNOLOGY & MARKETS, Aug. 8, 1997, available in LEXIS, World Library, Allwld File ("Hire local partners to smooth the way when developing a power project abroad is the usual sage advice offered at U.S. power development seminars.").
6. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 46, at 322-24 (5th ed. 1984); RESTATEMENT (SECOND) OF TORTS §§ 875, 876, 877 (1977). See also Developers Must Pick Local Partners Carefully, POWER GENERATION TECHNOLOGY & MARKETS, Aug. 8, 1997, available in LEXIS, World Library, Allwld File ("Hire local partners to smooth the way when developing a power project abroad is the usual sage advice offered at U.S. power development seminars.").
7. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 46, at 322-24 (5th ed. 1984); RESTATEMENT (SECOND) OF TORTS §§ 875, 876, 877 (1977). See also Developers Must Pick Local Partners Carefully, POWER GENERATION TECHNOLOGY & MARKETS, Aug. 8, 1997, available in LEXIS, World Library, Allwld File ("Hire local partners to smooth the way when developing a power project abroad is the usual sage advice offered at U.S. power development seminars.").
8. 963 F. Supp. 880 (C.D. Cal. 1997).
9. A related action was also filed by the National Coalition Government of the Union of Burma, the Federation of Trade Unions of Burma, and four Burmese refugees. See National Coalition Government of the Union of Burma v. Unocal, No. 96 Civ. 6112 RAP (C.D. Cal. filed Sept. 3, 1996). On November 5, 1997, the district court issued a ruling granting in part and dismissing in part Unocal's motion to dismiss. See National Coalition Government of the Union of Burma v. Unocal, No. 96 Civ. 6112, 176 F.R.D. 329 (C.D. Cal. Nov. 5, 1996). Judge Paez' ruling parallels its analysis and holding in Doe v. Unocal.
10. See Doe, 963 F. Supp. at 884.
11. 28 U.S.C. § 1350 (1994).
12. See id.
13. See Carmichael v. United Tech. Corp., 835 F.2d 109 (5th Cir. 1988). In Carmichael, a British national was imprisoned and tortured by Saudi Arabian authorities because of his outstanding debts to various creditors (including five U.S. businesses). He brought suit against the U.S. creditors under the ATCA alleging that they were vicariously responsible for his maltreatment. The Fifth Circuit denied his claim holding that the district court lacked jurisdiction over the action as there was no evidence that the U.S. defendants "in any way conspired with or aided and abetted" the Saudi officials. Id. at 115.
14. See Doe, 963 F. Supp. at 896.
15. A term coined by Gregory Wallace in Fallout From Slave-Labor Case is Troubling, 150 N.J. L.J. 896, Dec. 8, 1997, at 24, available in LEXIS, World Library, Allwld File.
16. The SLORC assumed power in 1988. It is known for its repression of a vigorous pro-democracy movement as well as its mistreatment of minority tribes. The SLORC has been widely reviled internationally; even its attempt to change Burma's name to Myanmar has been rejected by the U.S. State Department, by human rights groups, and by the democratically elected government-in-exile. See Steve Earth, U.S. Stands Alone on Burma Sanctions, WORLD TRADE, July 1997, at 13, available in 1997 WL 7470910.
17. See Joseph D. Pizzurro & Nancy E. Delaney, New Peril for Companies Doing Business Overseas; Alien Tort Claims Act Interpreted Broadly, N.Y. L.J., Nov. 24, 1997, at S5.
18. See id.
19. See Dev George, Unocal or Unoburm, OFFSHORE, July, 1997, at 8, available in LEXIS, World Library, Allwld File.
20. See Tristram Korten, Unocal on Trial for Burma Crimes: L.A. Case Could Change the Rules of World Trade, L.A. WEEKLY, Oct. 24, 1997, at 15.
21. Total S.A. is a French oil company implicated in the Yadana project.
22. See Doe, 963 F. Supp. at 883-84.
23. Frank G. Long, Social Policy: Abuses Can Cost You, ARIZ. BUS. GAZETTE, Sept. 11, 1997, at 14.
24. Id.
25. Id.
26. 28 U.S.C. § 1350 (1994).
27. The first case to definitively hold that the ATCA provided a private cause of action was Filartiga v. Pena-Irala, 630 F.2d 876, 881 (2d Cir. 1980). See generally Hon. John M. Walker, Jr., Domestic Adjudication of International Human Rights Violations Under the Alien Tort Statute, 41 ST. Louis U. L.J. 540 (1997). The Filartiga decision and the controversy surrounding its interpretation of the Act will be addressed in turn.
28. Doe, 963 F. Supp. at 883-84. The complaint also asserted various state law claims pursuant to the supplemental jurisdiction provision 28 U.S.C. § 1367. These state claims include wrongful death, battery, false imprisonment, assault, intentional infliction of emotional distress, conversion, and negligent supervision. See id. at 884-85.
29. Doe, 963 F. Supp. at 884.
30. FED. R. Civ. P. 19.
31. 28 U.S.C. §§ 1330, 1601-11 (1976). Under the FSIA, foreign states and state-related entities are immune from civil suits in U.S. federal (and state) courts unless such suits fall within one of six enumerated exceptions. 28 U.S.C. § 1605.
32. See Doe, 963 F. Supp. at 889.
33. FED. R. Civ. P. 12(b)(1).
34. Torture Victim Protection Act of 1991, 28 U.S.C. § 1350 (1992).
35. See Doe, 963 F. Supp. at 892 n.11.
36. FED. R. Civ. P. 12(b)(6).
37. See Doe, 963 F. Supp. at 896.
38. Had it done so, Judge Paez maintained, the 12(b)(6) motion would have been granted. Id. ("[U]nocal contends that plaintiffs' allegations establish the presence of a business relationship with SLORC and MOGE and nothing more. Were this the case, Unocal would clearly be entitled to a dismissal.").
39. See id. Two other affirmative defenses raised by Unocal but omitted from the discussion above were (1) the running of the applicable statutes of limitation for the plaintiffs' claims, and (2) the prudential concerns embodied in the act of state doctrine, judge Paez rejected the former on the ground that the defense raised a question of fact and the latter on the grounds that the only defendant remaining in the suit was a domestic entity and that the conduct alleged was so universally condemned. Id. at 892-97.
40. See id. at 880.
41. See Holden v. Canadian Consulate, 92 F.3d 918, 920 (9th Cir. 1996), cert. denied, Canadian Consulate v. Holden, 519 U.S. 1091 (1997); Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 619 (1992); Randolph v. Budget Rent-A-Car, 97 F.3d 319, 323 (9th Cir. 1996); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 706 (9th Cir. 1992).
42. A jus cogens norm "'is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.'" Siderman de Blake, 956 F.2d at 714 (citing Vienna Convention on the Law of Treaties), May 23, 1969, art. 53, 1155 U.N.T.S. 332, 8 I.L.M. 679.
43. See In re Estate of Ferdinand E. Marcos Human Rights Litigation, 25 F.3d 1467, 1473 (9th Cir. 1994) ("Estate U"); In re Estate of Ferdinand E. Marcos Human Rights Litigation, 978 F.2d 493, 498-500 (9th Cir. 1992) ("Estate I").
44. See Pizzurro & Delaney, supra note 15, at 85.
45. 28 U.S.C. § 1350 (1994).
46. Judiciary Act of 1789, ch. 20, § 9(b), 1 Stat. 73, 77 (1789).
47. Id.
48. See Joseph Modeste Sweeney, A Tort Only in Violation of the Law of Nations, 18 HASTINGS INT'L & COMP. L. REV. 445, 448-49 (1995). Congress first modified the clause in rendering Section 563 (Sixteenth) in the Revised Statutes of 1873. Id. The second modification by Congress occurred when Section 563 became Section 24 (Seventeenth) of the Act of March 3, 1911. Id. Congress made its third and final modification when the clause in Section 24 became Section 1350 of Title 28 of the United States Code. Id.
49. 28 U.S.C. § 1350 (1994).
50. See Sweeney, supra note 46, at 450 ("The changes in the text of the clause, whether useful or pointless, did not affect the jurisdiction originally granted by the clause to the federal courts.").
51. See GARY B. BORN, INTERNATIONAL CIVIL LITIGATION IN UNITED STATES COURTS 36 (1996).
52. See id.
53. Professor Born is a prominent scholar in the field of international civil litigation.
54. Bolchos v. Darrel, 3 F. Cas. 810 (D.S.C. 1795) (No. 1607) (ruling that the Alien Tort Statute provides an alternative basis of jurisdiction over a suit to determine title to slaves on board an enemy vessel taken on the high seas).
55. See Adra v. Clift, 195 F. Supp. 857 (D. Md. 1961) (ruling that the Alien Tort Statute serves as basis for jurisdiction over a child custody suit between aliens); See BORN, supra note 49, at 36.
56. See BORN, supra note 49, at 36.
57. ITT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975).
58. 630 F.2d 876 (2d Cir. 1980).
59. See id. at 880.
60. See id.
61. See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).
62. See id. at 880-84.
63. See id. at 881 ("[I]t is clear that courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today.").
64. Id. at 884.
65. Id. at 878.
66. See id. at 886.
67. See id. at 889.
68. See id.
69. See Walker, supra note 25, at 540.
70. See id. at 546-47.
71. See id. at 547.
72. th Cir. 1996); Estate II, 25 F.3d at 1475-76; Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984) (per curiam), cert. denied, 470 U.S. 1003 (1985).
73. See Estate II, 25 F.3d at 1475 ("We thus join the Second Circuit in concluding that the Alien Tort Act, 28 U.S.C. § 1350, creates a cause of action for violations of specific, universal and obligatory international human rights standards. . . .").
74. See Abebe-Jira v. Negewo, 72 F.3d at 848 ("[The ATCA] establishes a federal forum where courts may fashion domestic common law remedies to give effect to violations of customary international law.").
75. See Tel-Oren, 726 F.2d at 774.
76. Id.
77. See id. at 775 ("We affirm the dismissal of this action.").
78. See id. at 777-82.
79. See id. at 777.
80. Id. at 776.
81. See id. at 801.
82. See id. at 809-10.
83. See id. at 811. Quoting Judge Bork: To say that international law is part of federal common law is to say only that it is nonstatutory and nonconstitutional law to be applied, in appropriate instances, in municipal courts. It is not to say that, like the common law of contract and tort . . . by itself it affords individuals the right to ask for judicial relief. Id.
84. See id. at 825-26.
85. Id. at 823.
86. See id. at 824.
87. 28 U.S.C. § (2)(a) (1992).
88. Id.
89. Walker, supra note 25, at 551.
90. See id.
91. H.R. Rep. No. 102-367, at 4 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 86.
92. Id. See also Lafontant v. Aristide, 844 F. Supp. 128, 138 (E.D.N.Y. 1994) ("The TVPA codifies the holding in Filartiga v. Pena-Irala . . . .").
93. See, e.g., Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), reh'g denied, 74 F.3d 377 (2d Cir. 1996), cert, denied, 518 U.S. 1005 (1996) (involving a suit against a non-state actor for human rights violations whose military regime was not a recognized state); Beanal v. Freeport-McMoran, Inc., 969 F. Supp. 362 (E.D. La. 1997) (involving a suit against private U.S. corporations for human rights abuses and environmental torts committed abroad).
94. Kadic, 70 F.3d at 232.
95. Id. at 236-37.
96. See id. at 237.
97. See id.
98. See id. at 237.
99. See id. at 239. According to the court, § 702 of the RESTATEMENT (THIRD) OF FOREIGN RELATIONS sets forth a list of conduct that qualifies as such if precipitated by a state actor; this list includes: "(a) genocide, (b) slavery or slave trade, (c) the murder or causing the disappearance of individuals, (d) torture or other cruel, inhuman, or degrading treatment or punishment, (e) prolonged arbitrary detention, (f) systematic racial discrimination, or (g) a consistent pattern of gross violations of internationally recognized human rights." Id. at 240 (citing the RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 702 (1986)). Similarly, § 404 of the Restatement sets forth a partially overlapping list of offenses capable of being committed by non-state actors; this list includes, "piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism." Id. at 240 (citing the RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 404 (1986)).
100. See Kadic, 70 F.3d at 239-42.
101. See id. at 243.
102. See Beth Stephens, Conceptualizing Violence Under International Law: Do Tort Remedies Fit the Crime?, 60 ALB. L. REV. 579, 597 (1997).
103. See id. See also Forti v. Suarez-Mason, 672 F. Supp. 1531, 1541-42 (N.D. Cal. 1987) (finding ATCA cause of action stated against Argentine general for abuses committed by troops under his command), rev'd on other grounds, 694 F. Supp. 707 (N.D. Cal. 1988); Paul v. Avril, 812 F. Supp. 207, 212 (S.D. Fla. 1993) (finding ATCA cause of action stated against Haitian military leader for abuses committed by troops under his command); Xuncax v. Gramajo, 886 F. Supp. 162, 198-99 (D. Mass. 1995) (finding ATCA cause of action stated against Guatemalan Minister of Defense for abuses committed by military forces under his command).
104. See Mushikiwabo v. Barayagwiza, No. 94 Civ. 3627, 1996 WL 164496, at *2 (S.D.N.Y. filed Apr. 9, 1996) (finding ATCA cause of action stated against Rwandan political leader for his role in the torture and murder of thousands of citizens); Belance v. FRAPH, No. 94 Civ. 2619 (E.D.N.Y. filed June 1, 1994) (pending suit brought by a woman allegedly tortured by members of a Haitian paramilitary group who established an office in New York).
105. th Or. 1988).
106. 969 F. Supp. 362 (E.D. La. 1997).
107. Id. The district court dismissed the complaint holding that, inter alia, (1) the plaintiff failed to allege facts sufficient to establish the state action component necessary for non-genocide related claims, and (2) the plaintiff failed to state a genocide claim under the ATCA. Id. at 373-80.
108. Civ. No. 96-8386 (S.D.N.Y. filed Nov. 8, 1996).
109. See Gail Appleson, Royal Dutch/Shell Sued in Human Rights Case, REUTERS, Nov. 8, 1996, available in LEXIS, World Library, Allwld File.
110. 963 F. Supp. 880 (C.D. Cal. 1997).
111. As addressed above, the Doe plaintiffs were successful from a jurisdictional perspective.
112. See Pizzurro & Delaney, supra note 15.
113. Indeed, our legal regime's inefficacy in dealing with tort claims by aliens against U.S. corporations is the topic of much scholarly debate. See, e.g., WARREN FREEDMAN, FOREIGN PLAINTIFFS IN PRODUCTS LIABILITY ACTIONS: THE DEFENSE OF FORUM NON CONVENIENS (1988); David W. Robertson & Paula K. Speck, Access to State Courts in Transnational Personal Injury Cases: Forum Non Conveniens & Antisuit Injunctions, 68 TEX. L. REV. 937 (1990); Molly M. White, Comment, Home Field Advantage: The Exploitation of Federal Forum Non Conviens by United States Corporations and its Effects on International Environment Litigation, 26 LOY. L.A. L. REV. 491 (1993); Jacqueline Duval-Major, Note, One-Way Ticket Home: The Federal Doctrine of Forum Non Conveniens and the International Plaintiff, 77 CORNELL L. REV. 650 (1992); Stephen J. Darmody, Note, An Economic Approach to Forum Non Conveniens Dismissal Requested by Multinational Corporations - The Bhopal Case, 22 GEO. WASH. J. INT'L L. & ECON. 215 (1989).
114. Indeed, our legal regime's inefficacy in dealing with tort claims by aliens against U.S. corporations is the topic of much scholarly debate. See, e.g., WARREN FREEDMAN, FOREIGN PLAINTIFFS IN PRODUCTS LIABILITY ACTIONS: THE DEFENSE OF FORUM NON CONVENIENS (1988); David W. Robertson & Paula K. Speck, Access to State Courts in Transnational Personal Injury Cases: Forum Non Conveniens & Antisuit Injunctions, 68 TEX. L. REV. 937 (1990); Molly M. White, Comment, Home Field Advantage: The Exploitation of Federal Forum Non Conviens by United States Corporations and its Effects on International Environment Litigation, 26 LOY. L.A. L. REV. 491 (1993); Jacqueline Duval-Major, Note, One-Way Ticket Home: The Federal Doctrine of Forum Non Conveniens and the International Plaintiff, 77 CORNELL L. REV. 650 (1992); Stephen J. Darmody, Note, An Economic Approach to Forum Non Conveniens Dismissal Requested by Multinational Corporations - The Bhopal Case, 22 GEO. WASH. J. INT'L L. & ECON. 215 (1989).
115. Indeed, our legal regime's inefficacy in dealing with tort claims by aliens against U.S. corporations is the topic of much scholarly debate. See, e.g., WARREN FREEDMAN, FOREIGN PLAINTIFFS IN PRODUCTS LIABILITY ACTIONS: THE DEFENSE OF FORUM NON CONVENIENS (1988); David W. Robertson & Paula K. Speck, Access to State Courts in Transnational Personal Injury Cases: Forum Non Conveniens & Antisuit Injunctions, 68 TEX. L. REV. 937 (1990); Molly M. White, Comment, Home Field Advantage: The Exploitation of Federal Forum Non Conviens by United States Corporations and its Effects on International Environment Litigation, 26 LOY. L.A. L. REV. 491 (1993); Jacqueline Duval-Major, Note, One-Way Ticket Home: The Federal Doctrine of Forum Non Conveniens and the International Plaintiff, 77 CORNELL L. REV. 650 (1992); Stephen J. Darmody, Note, An Economic Approach to Forum Non Conveniens Dismissal Requested by Multinational Corporations - The Bhopal Case, 22 GEO. WASH. J. INT'L L. & ECON. 215 (1989).
116. Indeed, our legal regime's inefficacy in dealing with tort claims by aliens against U.S. corporations is the topic of much scholarly debate. See, e.g., WARREN FREEDMAN, FOREIGN PLAINTIFFS IN PRODUCTS LIABILITY ACTIONS: THE DEFENSE OF FORUM NON CONVENIENS (1988); David W. Robertson & Paula K. Speck, Access to State Courts in Transnational Personal Injury Cases: Forum Non Conveniens & Antisuit Injunctions, 68 TEX. L. REV. 937 (1990); Molly M. White, Comment, Home Field Advantage: The Exploitation of Federal Forum Non Conviens by United States Corporations and its Effects on International Environment Litigation, 26 LOY. L.A. L. REV. 491 (1993); Jacqueline Duval-Major, Note, One-Way Ticket Home: The Federal Doctrine of Forum Non Conveniens and the International Plaintiff, 77 CORNELL L. REV. 650 (1992); Stephen J. Darmody, Note, An Economic Approach to Forum Non Conveniens Dismissal Requested by Multinational Corporations - The Bhopal Case, 22 GEO. WASH. J. INT'L L. & ECON. 215 (1989).
117. Indeed, our legal regime's inefficacy in dealing with tort claims by aliens against U.S. corporations is the topic of much scholarly debate. See, e.g., WARREN FREEDMAN, FOREIGN PLAINTIFFS IN PRODUCTS LIABILITY ACTIONS: THE DEFENSE OF FORUM NON CONVENIENS (1988); David W. Robertson & Paula K. Speck, Access to State Courts in Transnational Personal Injury Cases: Forum Non Conveniens & Antisuit Injunctions, 68 TEX. L. REV. 937 (1990); Molly M. White, Comment, Home Field Advantage: The Exploitation of Federal Forum Non Conviens by United States Corporations and its Effects on International Environment Litigation, 26 LOY. L.A. L. REV. 491 (1993); Jacqueline Duval-Major, Note, One-Way Ticket Home: The Federal Doctrine of Forum Non Conveniens and the International Plaintiff, 77 CORNELL L. REV. 650 (1992); Stephen J. Darmody, Note, An Economic Approach to Forum Non Conveniens Dismissal Requested by Multinational Corporations -The Bhopal Case, 22 GEO. WASH. J. INT'L L. & ECON. 215 (1989).
118. Forum non conveniens has been promulgated in federal courts through its implementation in three U.S. Supreme Court Decisions: (1) Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981); (2) Koster v. (American) Lumbermens Mutual Casualty Co., 330 U.S. 518 (1947); and (3) Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).
119. See BORN, supra note 49, at 298. A minority of states has either rejected the forum non conveniens doctrine or remained uncommitted. States that have declined to adopt the doctrine include Georgia, Louisiana, Mississippi, North Dakota, and Texas. Id.
120. UNIFORM INTERSTATE AND INTERNATIONAL PROCEDURE ACT, 13 U.L.A. § 1.05 (1986).
121. th Or. 1986) ("Before deciding a motion to dismiss a case under the doctrine of forum non conveniens, a district court 'should first ascertain whether U.S. or foreign law governs the suit.'").
122. See J. HAZARD, CIVIL PROCEDURE § 2.31 (1985).
123. See Gulf Oil, 330 U.S. at 506-07.
124. th Cir. 1987).
125. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 84 cmt. c at 251 (1971) ("[T]he action will not be dismissed unless a suitable alternative forum is available to the plaintiff.").
126. See Gulf Oil, 330 U.S. at 511-512.
127. See id. at 508.
128. See Delgado v. Shell Oil Co., 890 F. Supp. 1324, 1365-66 (S.D. Tex. 1995) ("[district courts] ordinarily should respect an American plaintiffs forum choice.").
129. See Gulf Oil, 330 U.S. at 508.
130. See id. at 508-09.
131. See id.
132. th Cir. 1985) (dismissing tort claims by Costa Rican agricultural workers harmed in Costa Rica by exposure to defendant's pesticides on grounds of forum non convenient); Torres v. Southern Peru Copper Corp., 965 F. Supp. 899 (S.D. Tex. 1996) (dismissing tort claims by Peruvian citizens harmed by toxic emissions stemming from defendant's smelting operations in Peru on grounds of forum non conveniens); Sequihua v. Texaco, Inc., 847 F. Supp. 61 (S.D. Tex. 1994) (dismissing tort claims by Ecuadoran plaintiffs against U.S. corporation for the alleged contamination of the air, ground, and water in Ecuador on grounds of forum non conveniens).
133. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS §§ 145, 146, 156 (1971). § 145. (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties . . . . (2) Contacts to be taken into account . . . to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue. § 146. In an action for personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship . . . in which event the local law of the other state will be applied. § 156. (1) The law selected by an application of the rule of § 145 determines whether the actor's conduct was tortious. (2) The applicable law will usually be the local law of the state where the injury occurred.
134. 965 F. Supp. 899 (S.D. Tex. 1996).
135. Id. at 903.
136. See Piper Aircraft, 454 U.S. at 256 n.23 ("Citizens or residents deserve somewhat more deference than foreign plaintiffs[.]").
137. Applying the aforementioned forum non conveniens analysis to a case involving an abetted extraterritorial tort, it is likely that a U.S. court would retain jurisdiction only where that court first determined that municipal tort law was the rule of decision.
138. RESTATEMENT (SECOND) OF TORTS § 876(b) (1979).
139. Id. § 876(b) cmt. d.
140. RESTATEMENT (SECOND) OF AGENCY § 219(1) (1958) ("A master is subject to liability for the torts of his servants committed while acting in the scope of their employment.").
141. RESTATEMENT (SECOND) OF TORTS § 876(b) cmt. d, illus. 11 (1979).
142. KEETON ET AL., supra note 5, at 323-24.
143. 28 U.S.C. § 1350. See also Alomang v. Freeport-McMoran Inc., 1996 WL 601431, 4 (E.D.La. 1996) ("[T]here is simply no indication that the Alien Tort Statute makes federal courts the exclusive forum for all tort claims asserted by aliens.").
144. See Zschernig v. Miller, 389 U.S. 429 (1968) (invalidating an Oregon probate statute on the ground that it affects international relations and subsequently must give way because it impairs the effective exercise of the Nation's foreign policy). Justice Stewart's concurrence in Zschernig illustrates the court's rationale: "We deal here with the basic allocation of power between the States and the Nation. . . . [T]he conduct of our foreign affairs is entrusted under the Constitution to the National Government, not to the probate courts of the several states." Id. at 443. See also Tel-Oren, 726 F.2d at 804-05 n.11 (Bork, J., concurring) ("A state court suit that involved a determination of international law would require consideration . . . [of] the principle that foreign relations are constitutionally relegated to the federal government and not the states.").
145. 28 U.S.C. § 1350.
146. See Tel-Oren, 726 F.2d at 808 (Bork, J., concurring) ("Treaties of the United States, though the law of the land, do not generally create rights that are privately enforceable in courts.").
147. See Kadic, 70 F.3d at 239-40 (citing the RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 404 (1986)).
148. th Cir. 1996)) ("Both the Ninth Circuit and the Supreme Court have recognized that 'cases deciding when private action might be deemed that of the state have not been a model of consistency.'").
149. See Kadic, 70 F.3d at 240 (citing the RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 702 (1986)).
150. See U.S. CONST, art. I, § 8. Of Congress's enumerated powers set forth in Article I, Section 8, only two deal with the regulation of extraterritorial affairs outside the realm of national defense. Id. The Commerce Clause (Section 8, Clause 2) discusses only the power "to regulate commerce with foreign Nations" and would clearly fail as the justification for U.S. law proscribing human rights violations among wholly foreign parties on foreign soil. Id. Section 8, Clause 10, however, grants Congress the Power "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." Id. On its face, this provision could serve as the grounding for such legislation, but would be valid only insofar as Congress' codification of "the Law of Nations" was accurate.
151. See Equal Employment Opportunity Comm'n v. Arabian American Oil Co., 499 U.S. 244, 248 (1991) ("It is a long standing principle of American law 'that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States,'"); J. STORY, COMMENTARIES ON THE CONFLICT OF LAWS § 32, at 32 ("It is difficult to conceive, upon what ground a claim can be rested, to give to any municipal laws an extra-territorial effect, when those laws are prejudicial to the rights of other nations, or to those of their subjects."). See also BORN, supra note 49, at 511 ("Congress has the power to enact legislation that violates international law if that is what it wishes to do. Nevertheless, U.S. Courts have long relied upon the related 'territoriality presumption': . . . that federal legislation will not be interpreted as to apply extraterritorially absent express language requiring this result.").
152. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS, supra note 127, §§ 145, 146, 156. There is a tangible difference between international limits on legislative jurisdiction ("extraterritoriality" concerns) and national choice of law rules. BORN, supra note 49, at 623. Quoting Born: There is a fundamental distinction between: (a) the limits that international law imposes on a nation's exercise of legislative jurisdiction; and (b) the decision that a nation makes whether to make use of its rights under international law to assert legislative jurisdiction. . . . [I]nternational law will frequently permit two (or more) states to assert legislative jurisdiction over the same conduct or transaction. . . . In these circumstances, national choice of law rules determine whether a nation will apply its laws to conduct that it could properly regulate under international law. Id.
153. First, no one would doubt that domestic law regulating the extraterritorial conduct of U.S. businesses is within Congress's Constitutional authority under the Commerce Clause. U.S. CONST, art. I, § 8 ("Congress Shall have the power . . . [t]o regulate Commerce with foreign nations."). Second, such domestic law could not fairly be regarded as "extraterritorial" as it is well established that a nation may regulate the conduct of its citizens abroad. See EEOC v. Aramco, 499 U.S. at 248 (1991) ("Both parties concede, as they must, that Congress has the authority to enforce its laws beyond the territorial boundaries of the United States."). See also Restatement (Second) of Foreign Relations Law of the United States § 30 (1965) ("A state has jurisdiction to prescribe a rule of law . . . attaching legal consequences to conduct of a national of the state wherever the conduct occurs."). Third, domestic legislation would most likely obviate any choice of law controversy as it is generally accepted that in a U.S. court, "[U.S.] law prevails over inconsistent jurisdictional limits." BORN, supra note 49, at 510. See also United States v. Alcoa, 148 F.2d 416, 443 (2d Cir. 1945) ("We are concerned only with whether Congress chose to attach liability to the conduct outside the United States. . . . [A]s a court of the United States, we cannot look beyond our own law.").
154. Pub. L. No. 95-213, 91 Stat. 1494 (codified as amended at 15 U.S.C. §§ 78dd-1 & 78dd-2). The Act was amended as part of an omnibus trade bill passed in 1988. See Omnibus Trade and Competitiveness Act of 1988, Foreign Corrupt Practices Act Amendments, Pub. L. No. 100-418, tit. V, subtit. A, pt. i, §§ 5001-03, 102 Stat. 1107, 1415-25 (1988).
155. The term "domestic business concern" is borrowed from the FCPA. 15 U.S.C. § 78dd-2(a).
156. Like the FCPA, the proposed legislation is rooted in the Commerce Clause. It is this grounding in the Commerce Clause that renders the statute more constitutionally (as well as ideologically) sound than the ATCA.
157. 28 U.S.C. § 1404 (1948) ("For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer a civil action to any other district or division where it might have been brought.").
158. See JEFFREY P. BIALOS & GREGORY HUSISIAN, THE FOREIGN CORRUPT PRACTICES ACT: COPING WITH CORRUPTION IN TRANSITIONAL ECONOMIES 24 (1997) (explaining that Congress and the Ford Administration pushed for the FCPA "to restore public confidence in the integrity of the American business community.").
159. The FRCP contains such a list at § 78dd-2(a). See 15 U.S.C. § 78dd-2(a).
160. See 15 U.S.C. § 78dd-2(g) ("Any domestic concern that violates [the anti-bribery proscriptions] shall be fined not more than $2,000,000 . . . [and] shall be subject to a civil penalty of not more than $10,000 imposed in an action brought by the Attorney General."). One point of divergence between the two statutes is that the proposed legislation's civil suit provision is available to private litigants as well as the Attorney General.
161. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS §§ 404, 702, supra note 97.
162. The statute restricts its scope to human rights violations committed within the last twenty years - an interval arbitrarily chosen - to limit its application. Without some form of temporal restriction, most, if not all government affiliates could potentially trigger liability.
163. The statute assumes that a parent company generally has sufficient knowledge of and/or control over the activities of its subsidiaries to know whether they are predisposed to commit a human rights violation.
164. See 15 U.S.C. § 78dd-2(g).
165. The use of legislation to preempt the application of forum non-conveniens in transnational tort actions is by no means unprecedented. In 1913, the Texas legislature statutorily abolished the doctrine in suits brought under section 71.031 of the Texas Civil Practice and Remedies Code, a provision that in limited circumstances creates a cause of action for the death or personal injury of "a citizen of [Texas], of the United States, or of a foreign country" that occurs abroad. TEX. CIV. PRAC. & REM. CODE ANN. § 1.001(a) (West Supp. 1989). See Dow Chem. Co. v. Castro Alfaro, 786 S.W.2d 674, 679 (Tex. 1990) ("We conclude that the legislature has statutorily abolished the doctrine of forum non convenient in suits brought under section 71.031.").
166. See BIALOAS & HUSISIAN, supra note 152, at 55. Key transitional markets include: Burma, China, Indonesia, India, Malaysia, the Phillippines, and Thailand. See Developers Must Pick Local Partners Carefully, supra note 5.
167. See generally Wiwa v. Royal Dutch Petroleum Co., Civ. No. 96-8386 (S.D.N.Y. filed Nov. 8, 1996); Beneal v. Freeport-McMoran, 969 F. Supp. 362 (F.D. La. 1997); Doe v. Unocal, 963 F. Supp. 880 (C.D. Cal. 1997).
168. Wallace, supra note 13 (emphasis added).
169. Again, a domestic concern is "engaged principally" where it maintains a majority or controlling interest in the affiliate or the enterprise or where it commits $5,000,000 to the venture.
170. Stephens, supra note 100, at 604.
171. As laid out above, Section 1(b)(1) of the proposed legislation authorizes up to $4,000,000 in criminal fines for a violation of its substantive provisions.
172. See Foreign Corrupt Practices Act of 1977, Pub. L. No. 95-213, 91 Stat. 1494 (codified as amended at 15 U.S.C. §§ 78dd-1, 78dd-2).
173. See WILLIAM F. FELICE, TAKING SUFFERING SERIOUSLY: THE IMPORTANCE OF COLLECTIVE HUMAN RIGHTS 91 (1996).
174. Id. at 105-06.