International human rights plaintiffs and the doctrine of forum non conveniens

Cornell International Law Journal

Volumn 40, Issue 3, 2007, Pages 749-780

  Baldwin, Jeffrey E ^a  

^a MIT Sloan School of Management   (United States)

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EID: 36749003742     PISSN: 00108812     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (317)

1. Foreign plaintiffs find U.S. courts particularly attractive due to many practical and procedural advantages. Among these advantages are: (1) the wide availability of public interest litigators, (2) contingency fees, (3) punitive damages, (4) the availability of default judgments, (5) liberal pretrial discovery, and (6) the fact that the American legal system does not require the losing party to pay the winner's legal fees. See Beth Stephens, Translating Filartiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations, 27 YALE J. INT'L L. 1, 14-15 (2002).
2. See Michael Swan, International Human Rights Tort Claims and the Experience of United States Courts: An Introduction to the U.S. Case Law, Key Statutes and Doctrines, in TORTURE AS TORT: COMPARATIVE PERSPECTIVES ON THE DEVELOPMENT OF TRANSNATIONAL HUMAN RIGHTS LITIGATION 65, 74 (Craig Scott ed., 2001).
3. 28 U.S.C. § 1350 (2000).
4. See infra Part I.A.
5. Procedural and doctrinal obstacles to ATCA claims include: (1) forum non conveniens, (2) personal jurisdiction, (3) failure to join indispensable parties, (4) the doctrine of international comity, (5) the act of state doctrine, (6) the political question doctrine, and (7) statutes of limitations. See Richard T. Marooney & George S. Branch, Corporate Liability Under the Alien Tort Claims Act: United States Court Jurisdiction over Torts, 12-SUM CURRENTS: INT'L TRADE L.J. 3, 10-11 (2003);
6. Marisa Anne Pagnattaro, Enforcing International Labor Standards: The Potential of the Alien Tort Claims Act, 37 VAND. J. TRANSNAT'L L. 203, 257-61 (2004).
7. See infra Part II.
8. See infra text accompanying notes 56-62.
9. See Kathryn Lee Boyd, The Inconvenience of Victims: Abolishing Forum Non Conveniens in U.S. Human Rights Litigation, 39 VA. J. INT'L L. 41, 46 (1998).
10. See Lucien J. Dhooge, The Alien Tort Claims Act and the Modern Transnational Enterprise: Deconstructing the Mythology of Judicial Activism, 35 GEO. J. INT'L L. 3, 89 (2003).
11. 226 F.3d 88 (2d Cir. 2000), cert, denied, 532 U.S. 941 (2001).
12. See Aaron Xavier Fellmeth, Wiwa v. Royal Dutch Petroleum Co.: A New Standard for the Enforcement of International Law in U.S. Courts?, 5 YALE HUM. RTS. & DEV L.J. 241, 241 (2002).
13. See Wiwa, 226 F.3d at 101.
14. Judiciary Act of 1789, ch. 20, § 9(b), 1 Stat. 73, 77 (codified as 28 U.S.C. § 1350 (2000)).
15. Id.
16. See id.
17. See Sosa v. Alverez-Machain, 542 U.S. 692, 713 (2004). For a brief history of the ATCA,
18. see Aric K. Short, Is the Alien Tort Statute Sacrosanct? Retaining Forum Non Conveniens in Human Rights Litigation, 33 N.Y.U. J. INT'L L. & POL. 1001, 1006-14 (2001).
19. See Sosa, 542 U.S. at 712 (pointing out that "for over 170 years after its enactment [the ATCA] provided jurisdiction in only one case").
20. 630 F.2d 876 (2d Cir. 1980).
21. See id. at 884-85.
22. Id. at 887-88.
23. See, e.g., Doe v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002);
24. Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995).
25. 542 U.S. 692.
26. See id. at 713-14.
27. Id. at 712.
28. See id. at 720-21.
29. See id. at 725-27.
30. Id. at 725.
31. Offenses against the law of nations that were recognized in 1789 include violations of safe conducts, infringement of the rights of ambassadors, and piracy. Id.
32. Id. at 732.
33. See id. at 729 ("[J]udicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping, and thus open to a narrow class of international norms today.").
34. Under the facts of Sosa, which involved arbitrary detention, the Court surveyed international law and concluded that unlawful detention for less than one day, followed by transfer to lawful authorities and prompt arraignment, is not a violation of any binding norm of international human rights law. See id. at 734-38. However, this holding is very narrow and fact-specific; it is unclear whether long-term, unlawful detention would create a private right of action under the ATCA.
35. See Sarei v. Rio Tinto, 456 F.3d 1069, 1077 (9th Cir. 2006) (concluding that the principles of law that governed the lower court's pre-Sosa analysis remain sound post-Sosa);
36. Beth Stephens, "The Door is Still Ajar" for Human Rights Litigation in U.S. Courts, 70 BROOK. L. REV. 533, 534-35 (2005).
37. Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 (2000)).
38. See Beth Van Schaack, Unfulfilled Promises: The Human Rights Class Action, 2003 U. CHI. LEGAL F. 279, 332 (2003). In enacting the TVPA, Congress also intended to fulfill the United States' obligations under the recently ratified UN Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, which required signatories to make torture a crime under their domestic law.
39. See id.
40. See Sarei, 456 F.3d at 1089-100 (holding that the ATCA does not require the exhaustion of local remedies in foreign courts).
41. 28 U.S.C. § 1350 (2000).
42. Other differences between the ATCA and the TVPA include: (1) the TPVA does not grant jurisdiction but only creates a cause of action, (2) the TVPA extends only to torture and extrajudicial killing, (3) the TVPA has a state actor requirement, and (4) both aliens and U.S. citizens may sue under the TVPA but only aliens may sue under the ATCA. See Short, supra note 16, at 1035.
43. See H.R. REP. NO. 102-367(1), at 3 (1991) ("[The ATCA] has other important uses and should not be replaced.");
44. S. REP. NO. 102-249, at 4 (1991) ("[C]laims based on torture or summary executions do not exhaust the list of actions that may appropriately be covered by [the ATCA]. Consequently, that statute should remain intact.").
45. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947). A federal court has jurisdiction when it has (1) competency to hear the claim (subject matter jurisdiction), and (2) power over the defendant (personal jurisdiction).
46. See Eric S. Johnson, Note, Unsheathing Alexander's Sword: Lapides v. Board of Regents of the University System of Georgia, 51 AM. U. L. REV. 1051, 1061 (2002) (
47. citing Ins. Corp. of Ireland v. Compagnie des Bauxities de Guinee, 456 U.S. 694, 701 (1982)).
48. For a discussion of jurisdiction, see RICHARD H. FIELD ET AL., MATERIAL FOR A BASIC COURSE IN CIVIL PROCEDURE 396-649 (8th ed. 2003). Venue is proper in a federal district court (1) where any defendant resides if all defendants reside in the same state, (2) where the conduct giving rise to the claim took place, or (3) where the defendant is subject to personal jurisdiction if there is no district where venue is otherwise proper.
49. U.S.C. § 1391 (2000).
50. See Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981);
51. Gulf Oil Corp., 330 U.S. 501.
52. See, e.g., Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 100 (2d Cir. 2000),
53. cert, denied, 532 U.S. 941 (2001).
54. See e.g., id.
55. See Piper Aircraft, 454 U.S. at 254-55. Generally, the defendant need only be subject to personal jurisdiction in the alternative forum for the forum to be adequate.
56. See id. at 255 n.22. Often, if there are jurisdictional problems with the alternative forum, the court may make a conditioned dismissal. For example, if there may be problems with personal jurisdiction in the alternative forum, the court can condition its dismissal on the defendant agreeing to waive any objections to personal jurisdiction. For a detailed discussion of conditioned dismissals,
57. see John Bies, Note, Conditioning Forum Non Conveniens, 67 U. CHI. L. REV. 489 (2000).
58. Piper Aircraft, 454 U.S. at 247.
59. Id. at 254. In application, "no remedy at all" often literally means no remedy at all. Consider, for example, the infamous case of Gonzalez v. Chrysler Corp., 301 F.3d 377 (5th Cir. 2002). In Gonzalez, a products liability action in a Texas district court, the plaintiffs were the Mexican parents of a three-year-old child who was killed in Mexico by the air bag in their car.
60. Id. at 379. The plaintiffs argued that Mexico was an inadequate alternative forum because Mexican law caps the maximum award for the loss of a child's life at $2,500 and, therefore, the cost of litigating in Mexico would greatly exceed any potential recovery.
61. Id. at 380-81. The district court nevertheless ruled that Mexico was an adequate alternative forum and dismissed the suit on the grounds of forum non conveniens.
62. Id. at 383.
63. See e.g., Wiwa, 226 F.3d at 100.
64. For example, procedural deficiencies in the alternative forum usually do not render it inadequate. See, e.g., PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 73 (2d Cir. 1998) ("[C]onsiderations of comity preclude a court from adversely judging the quality of a foreign justice system absent a showing of inadequate procedural safeguards ⋯ so such a finding is rare."). Even allegations of corruption and bias in the alternative forum are unlikely to render the forum inadequate.
65. See Aguinda v. Texaco, Inc., 303 F.3d 470, 478 (2d Cir. 2002);
66. Eastman Kodak Co. v. Kavlin, 978 F. Supp. 1078, 1084 (S.D. FIa. 1997) ("The 'alternative forum is too corrupt to be adequate' argument does not enjoy a particularly impressive track record.").
67. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947).
68. Id. at 508.
69. Id. at 508-09.
70. See, e.g., Carlenstolpe v. Merck & Co., Inc., 819 F.2d 33, 35 (2d Cir. 1987) ("[T]he [lower] court rightly noted the public interest in having a United States court decide issues concerning possibly tortious conduct occurring in this country.");
71. Dahl v. United Techs. Corp., 632 F.2d 1027, 1033 (3d Cir. 1980) ("[T]he general national interest in aircraft regulation is not sufficient by itself to warrant retention of jurisdiction over an action when the other factors favor dismissal.").
72. Gulf Oil Corp., 330 U.S. at 508.
73. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981).
74. Id.
75. Id. at 255-56. However, in according less deference, a court still must accord some deference to a foreign plaintiffs choice of forum.
76. See, e.g., Ravelo Monegro v. Rosa, 211 F.3d 509, 514 (9th Cir. 2000) ("[L]ess deference is not the same thing as no deference.").
77. See Piper Aircraft, 454 U.S. at 251-52. The Court feared that, without a strict application of the forum non conveniens doctrine, foreign plaintiffs will find America to be an even more attractive forum than they already do, leading to a flood of lawsuits in America's already congested courts.
78. See id. at 252.
79. The Second Circuit, for example, uses the "sliding scale" approach to apply Piper Aircraft's lesser deference rule. See Iragorri v. United Techs. Corp., 274 F.3d 65, 70-72 (2d Cir. 2001) (en banc). As the Second Circuit explained, [t]he more it appears that a domestic or foreign plaintiffs choice of forum has been dictated by reasons that the law recognizes as valid, the greater the deference that will be given to the plaintiffs forum choice . ⋯ [T]he more it appears that the plaintiffs choice of a U.S. forum was motivated by forum-shopping reasons[,] ⋯ the less deference the plaintiffs choice commands.
80. Id. at 71-72. Therefore, in the Second Circuit, a foreign plaintiffs choice of forum is not automatically given less deference than a resident plaintiffs choice of forum; instead, the courts apply a balancing test, weighing convenience against the likelihood of forum shopping. In practice, however, the sliding scale approach typically results in courts giving a foreign plaintiffs choice of forum less deference.
81. See e.g., Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 73-74 (2d Cir. 2003) (applying the "sliding scale" approach and affirming dismissal of the foreign plaintiffs' claims on the grounds of forum non conveniens);
82. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 102 (2d Cir. 2000),
83. cert, denied, 532 U.S. 941 (2001) ("[O]ur caselaw ⋯ has clearly and unambiguously established that courts should offer greater deference to the selection of a U.S. forum by U.S. resident plaintiffs when evaluating a motion to dismiss for forum non conveniens"). Other federal courts have adopted the Second Circuit's approach.
84. See e.g., In re Ford Motor Co., 344 F.3d 648, 653 (7th Cir. 2003);
85. Miller v. Boston Scientific Corp., 380 F. Supp. 2d 443, 449-50 (D. NJ. 2005);
86. Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1134, 1141 (C.D. Cal. 2005). The Third Circuit also takes a similar approach.
87. See Lony v. E.I. Du Pont de Nemours & Co., 886 F.2d 628, 634 (3rd Cir. 1989) ("The district court must assess whether the ⋯ evidence of convenience ⋯ overcome[s] any reason to refrain from extending full deference to the foreign plaintiffs choice.").
88. See Boyd, supra note 8, at 46.
89. But see Short, supra note 16, at 1046-53 (arguing that courts are not necessarily more likely to dismiss ATCA cases on the grounds of forum non conveniens than other categories of cases).
90. See 28 U.S.C. § 1350 (2000).
91. See supra notes 51-55 and accompanying text.
92. See Fellmeth, supra note 11, at 243. If human rights plaintiffs sue wealthy defendants, particularly multinational corporations, however, they may be in a better position with regard to the private interest factors. A wealthy defendant's vast resources, combined with the advanced communications technology and easy transportation that such resources can provide, suggests that litigating in the U.S. forum will only slightly inconvenience such a defendant. Meanwhile, victims of human rights violations often have minimal resources, making it extremely inconvenient for the plaintiffs to reinstitute litigation in a different forum.
93. See Wiwa, 226 F.3d at 102;
94. Boyd, supra note 8, at 70 (noting that litigants today have access to overnight delivery, faxes, e-mail, and air travel).
95. See Fellmeth, supra note 11, at 243.
96. But see SARAH JOSEPH, CORPORATIONS AND TRANSNATIONAL HUMAN RIGHTS LITIGATION 99 (2004) (stating that caseload concerns are overstated because international human rights cases are a tiny percentage of the caseloads of U.S. courts).
97. See Phillip I. Blumberg, Asserting Human Rights Against Multinational Corporations Under United States Law: Conceptual and Procedural Problems, 50 AM. J. COMP. L. 493, 526 (2002).
98. See Boyd, supra note 8, at 69.
99. 630 F.2d at 876, 880 n.6 (2d Cir. 1980).
100. 226 F.3d 88. For further discussion of Wiwa and its impact on the forum non conveniens analysis, see Fellmeth, supra note 11;
101. Matthew R. Skolnik, Comment, The Forum Non Conveniens Doctrine in Alien Tort Claims Act Cases: A Shell of Its Former Self after Wiwa, 16 EMORY INT'L L. REV. 187 (2002).
102. Wiwa, 226 F.3d at 92.
103. Id.
104. Id.
105. Id. at 99-100.
106. Id. at 101 ("[W]e assume arguendo that there are no rules of British law that would prevent a British court from reaching the merits.").
107. Id. ("While any plaintiffs selection of a forum is entitled to deference, that deference increases as the plaintiffs ties to the forum increase."). Although not U.S. citizens, two of the four plaintiffs in Wiwa were U.S. residents at the time they initiated the law-suit.
108. Id. at 94.
109. Id. Disagreeing with the district court, the Second Circuit reasoned that it would be just as inconvenient for Nigerian witnesses to testify in England as it would be for them to testify in New York.
110. Id. at 107.
111. Also, the cost of shipping evidence from England to New York would not be excessively burdensome, especially in light of the defendant's vast resources. Id.
112. Meanwhile, it would be very inconvenient for the plaintiffs to litigate the lawsuit in England, considering the plaintiffs' limited resources. Id.
113. Finally, the Second Circuit concluded that, even though England has an interest in adjudicating disputes involving British corporations, the United States has an interest in adjudicating disputes involving its own residents. Id.
114. Id. at 101.
115. Id. at 105-06.
116. Id. at 105.
117. According to the Second Circuit, Congress drafted the TVPA in a manner that, when compared to the language of the ATCA, shifts the focus from the court's jurisdiction to the defendant's substantive rights. Id.
118. Id. at 106.
119. Id. at 105.
120. Id. at 106.
121. See Skolnik, supra note 64, at 219.
122. 142 F. Supp. 2d 534 (S.D.N.Y. 2001), aff'd as modified, 303 F.3d 470 (2d Cir. 2002).
123. Id. at 537-38.
124. Id.
125. Id. at 554.
126. Id.
127. Id.
128. The Second Circuit only addressed the issue of forum non conveniens in a single footnote. Aguinda, 303 F.3d at 480 n.13.
129. After refusing to decide whether the ATCA encompasses environmental torts, the court also refused to speculate whether the United States would have a strong national interest in providing a forum to litigate such claims if they were actionable under the ATCA. Id.
130. The Second Circuit, however, did add that, even if the ATCA covers environmental torts and the United States has a strong policy interest in adjudicating such claims, the private and public interest factors in the case require that the court affirm the lower court's dismissal on the grounds of forum non conveniens. Id.
131. 253 F. Supp. 2d 510 (S.D.N.Y. 2002).
132. Id. at 512-13.
133. Id.
134. Id. at 525.
135. Id. at 526.
136. Id. at 529 ("Wiwa cannot possibly be read to hold that forum non conveniens does not apply at all to ACTA-TVPA cases."). The Central District of California and the Northern District of Texas have also rejected the argument that the ATCA precludes a court from applying the doctrine of forum non conveniens.
137. See Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1134, 1142 (C.D. Cal. 2005);
138. Robert v. Bell Helicopter Textron, Inc., No. Civ.A.3:01-CV-1576-L, 2002 WL 1268030, at *2 (N.D. Tex. May 31, 2002). For an argument as to why forum non conveniens should not apply to any ATCA claims,
139. see Boyd, supra note 8.
140. For a detailed response to Boyd's arguments, see Short, supra note 16.
141. Flores, 253 F. Supp. 2d at 543.
142. Id. at 544 n.32.
143. Id. at 543-44.
144. See id. at 527-28.
145. Id. at 543 (citing Blanco v. Banco Industrial de Venezuela, 997 F.2d 974, 981 (2d Cir. 1993)).
146. Id. at 543-44.
147. Id.
148. No. 01 Civ. 8118, 2002 WL 31082956 (S.D.N.Y. Sept. 16, 2002), vacated in part, 77 Fed. Appx. 48 (2d Cir. 2003).
149. Id. at * 1-2.
150. Id. at * 3-6.
151. See id. at * 6-12.
152. 244 F. Supp. 2d 289, 296 (S.D.N.Y. 2003).
153. Id.
154. Id. at 306, 318, 329.
155. Id. at 335.
156. See id. at 335-36.
157. Id. at 336.
158. Id.
159. Id.
160. Id. at 337.
161. See id.
162. See id.
163. Id.
164. Id. at 336-37.
165. Id. at 338-41.
166. Id. at 339.
167. See id. at 306.
168. Id. at 340. The court explained that the United States still has an interest in adjudicating ATCA claims of non-jus cogens violations of international law, but the U.S. interest is much greater when dealing with violations of jus cogens norms.
169. Id. at 339.
170. Id. at 340-41.
171. In weighing the private interest factors, the court found that the great inconvenience the plaintiffs would face if they had to litigate in Canada substantially outweighed any inconvenience to the defendant in litigating the case in New York. Id. at 341.
172. In reaching its conclusion, the court compared the vast wealth and resources of the defendant to the relative poverty of the plaintiffs. Id.
173. Id. at 340.
174. Id.
175. Id.
176. 460 F. Supp. 2d 507 (S.D.N.Y. 2006).
177. Id. at 509-11.
178. Id.
179. Id. at 511-21.
180. Id. at 512
181. (citing Dattner v. Conagra Foods, Inc., 458 F.3d 98, 102 (2d Cir. 2006)). The D.C. Circuit agrees with the Second Circuit that a finding of forum non conveniens is a non-merits decision and that courts may dismiss on such grounds before determining jurisdiction.
182. Id. at 511-12
183. (citing In re Papandreou, 139 F.3d 247 (D.C. Cir. 1998)). The Third Circuit agrees that dismissal on grounds of forum non conveniens is a non-merits decision but, nevertheless, holds that a court must verify that it has valid jurisdiction before it can dismiss on such grounds.
184. Id. at 512
185. (citing Malaysia Int'l Shipping Corp. v. Sinochem Int'l Co., Ltd., 436 F.3d 349, 359 (3d Cir. 2006)). According to the Fifth Circuit, however, a dismissal on the grounds of forum non conveniens necessarily involves a consideration of the merits and, therefore, courts cannot make such a dismissal without first confirming jurisdiction.
186. Id. at 511
187. (citing Dominguez-Cota v. Cooper Tire & Rubber Co., 396 F.3d 650, 654 (5th Cir. 2005)).
188. Id. at 517.
189. Id. at 518-20.
190. Id. at 519-20.
191. Id.
192. Id. at 522-23.
193. Id.
194. Id.
195. (citing Aguinda v. Texaco, Inc., 142 F. Supp. 2d 534, 553 (S.D.N.Y. 2001),
196. aff'd as modified, 303 F.3d 470 (2d Cir. 2002)).
197. Id.
198. (quoting Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 105-06 (2d Cir. 2000),
199. cert, denied, 532 U.S. 941 (2001)).
200. Id.
201. Id. at 523-26.
202. See Plaintiffs Joint Memorandum of Points and Authorities in Opposition to All Defendants' Motions to Dismiss, Turedi v. Coca Cola Co., 460 F. Supp. 2d 507 (S.D.N.Y. 2006) (No. 05 Civ. 9635).
203. Turedi, 460 F. Supp. 2d at 525.
204. Id. at 526-29. With regard to the private interest factors, the court pointed out that the events occurred in Turkey and that the witnesses and documentary evidence were all located in Turkey.
205. Id. at 526-27.
206. As for the public interest factors, the court stressed Turkey's interest in having a local matter decided in the local forum and that adjudicating many of the plaintiffs' claims would require the application of Turkish law. Id. at 527-28.
207. Id. at 528.
208. Id.
209. Id.
210. Id. at 529. The dismissal was conditioned on the defendants agreeing to: (1) accept service of process and personal jurisdiction in Turkey, (2) not assert any statutes of limitations defenses that would be unavailable if the litigation were to proceed in the Southern District of New York, and (3) satisfy any final judgment rendered by a Turkish court.
211. Id.
212. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 101 (2d Cir. 2000),
213. cert. denied, 532 U.S. 941 (2001).
214. See id. at 105. For a strong and extremely detailed criticism of the Wiwa court's legislative and statutory interpretation of the TVPA,
215. see Short, supra note 16, at 1034-81.
216. See, e.g., U.S. DEP'T OF STATE, SUPPORTING HUMAN RIGHTS AND DEMOCRACY: THE U.S. RECORD 2003-2004 VII (2004) (explaining how the United States' strategy of promoting respect for human rights is "both appropriate in itself and beneficial for U.S. security").
217. See Boyd, supra note 8, at 79.
218. See Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d Cir. 1980).
219. See Wiwa, 226 F.3d at 105 (stating that a violation of international human rights law is "ipso facto a violation of U.S. domestic law").
220. Id. at 106.
221. See id. at 101, 105.
222. See supra notes 40-45 and accompanying text.
223. See Wiwa, 226 F.3d at 100.
224. Congress recognized this state of affairs when it passed the TVPA. See, e.g., H.R. REP. NO. 102-367, pt. 1, at 3 (1991),
225. as reprinted in 1992 U.S.C.C.A.N. 84, 86. ("Judicial protections against flagrant human rights violations are often least effective in those countries where such abuses are most prevalent").
226. See Swan, supra note 2, at 95-102 (surveying the international norms which courts have found actionable under the ATCA, the majority of which require state action).
227. See Wiwa, 226 F.3d at 106 ("Most likely, the victims cannot sue in the place where the torture occurred. Indeed, in many instances, the victim would be endangered merely by returning to that place.");
228. Presbyterian Church of Sudan v. Talisman Energy, 244 F. Supp. 2d 289, 336 (S.D.N.Y. 2003) ("[I]t would be perverse, to say the least, to require plaintiffs to bring suit in the courts of the very nation that has allegedly been conducting genocidal activities to try to eliminate them.").
229. See Wiwa, 226 F.3d at 100. Similarly, in Presbyterian Church, the alleged human rights abuses occurred in Sudan but the defendant's argued that, even if Sudan was not an adequate alternative forum, Canada would serve as an adequate forum.
230. See Presbyterian Church, 244 F. Supp. 2d at 336-37.
231. See Presbyterian Church, 244 F. Supp. 2d at 337-38.
232. Id.
233. See Sarei v. Rio Tinto, 221 F. Supp. 2d 1116, 1177-78 (C.D. Cal. 2002),
234. aff'd in part, vacated in part, rev'd in part, 456 F.3d 1069 (9th Cir. 2006). In Sarei, the district court noted that the plaintiffs' ATCA claims were not cognizable in Australia in part because that nation does not have a statute similar to the ATCA.
235. See id. The court did acknowledge that the subject matter of the claims might potentially be cognizable under Australian tort law, but the court found this insufficient to make Australia an adequate alternative forum.
236. See id.
237. See Stephens, supra note 1, at 31-32. Stephens's article discusses in great detail the difficulty in "translating" ATCA-style civil lawsuits into many non-American legal systems.
238. See id. 17-34.
239. See id. at 34 ("We should not expect to find identical means of enforcing international law in the domestic courts of different jurisdictions.").
240. See id.
241. See Beth Stephens, Corporate Liability: Enforcing Human Rights Through Domestic Litigation, 24 HASTINGS INT'L & COMP. L. REV. 401, 408 (2001).
242. Presbyterian Church of Sudan v. Talisman Energy, 244 F. Supp. 2d 289, 337 (S.D.N.Y. 2003) (arguing that domestic tort remedies do "not reflect the gravity of the alleged offenses, and in particular, the universally condemned nature of these acts").
243. Human rights plaintiffs can often re-conceptualize violations of international human rights law as violations of domestic tort law. For example, instead of suing the defendant for torture or summary execution in violation of international law, the plaintiff can sue for assault and battery or wrongful death in violation of domestic tort law. See Stephens, supra note 1, at 31.
244. Granted, the remedies available in non-U.S. jurisdictions might not be as appealing to human rights plaintiffs because, in many legal systems, civil plaintiffs cannot recover punitive damages and are limited to compensatory damages. See Stephens, supra note 1, at 26.
245. See, e.g., U.S. DEP'T OF STATE, CANADA: COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES - 2005 (2006), available at http://www.state.gov/g/ drl/rls/hrrpt/2005/61719.htm.
246. See supra notes 139-40 and accompanying text.
247. See, e.g., PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 74 (2d Cir. 1998) ("The availability of an adequate alternative forum does not depend on the existence of the identical cause of action in the other forum.").
248. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 101 (2d Cir. 2000),
249. cert. denied, 532 U.S. 941 (2001).
250. See id. at 106 ("This is not to suggest that the TVPA has nullified, or even significantly diminished, the doctrine of/orum non conveniens.").
251. Id.
252. See id. at 107-08 (considering England's interest in adjudicating the case).
253. See Short, supra note 16, at 1088-89.
254. For example, if the plaintiffs charge a country's former government officials with human rights abuses, the country might have a strong public interest in correcting past governmental wrongs through litigation. Id.
255. Arguably, the occasional dismissal of a human rights claim helps to expand the ATCA's jurisdictional reach because the Supreme Court's Sosa's standard requires that a modern international norm reach a high level of acceptance before it can provide a cause of action under the ATCA. See Sosa v. Alverez-Machain, 542 U.S. 692, 732 (2004). Achieving the required level of acceptance will necessitate the input of many foreign courts. Therefore, the rare forum non conveniens dismissal might help expand the ATCA's jurisdiction by allowing foreign courts to adjudicate human rights claims and join in an emerging consensus.
256. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947).
257. Dismissal on the grounds of forum non conveniens is usually fatal to the plaintiffs lawsuit because foreign plaintiffs, after dismissal, almost invariably abandon their cases or settle for a small amount.
258. See FIELD ET AL., supra note 37, at 622;
259. Jacqueline Duval-Major, Note, One-Way Ticket Home: The Federal Doctrine of Forum Non Conveniens and the International Plaintiff, 77 CORNELL L. REV. 650, 671-72 (1992) (exploring the legal and practical barriers that prevent foreign plaintiffs from recovering in their home countries).
260. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981).
261. See id. at 251-56.
262. The Supreme Court accounts for the lesser-deference rule by contending that it is "much less reasonable" to assume that a foreign plaintiff chose a U.S. forum for reasons of convenience rather than a desire to take advantage of favorable American law. Id.
263. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 102 (2d Cir. 2000),
264. cert. denied, 532 U.S. 941 (2001).
265. See, e.g., id. at 107 (weighing the U.S. "interest in adjudicating matters affecting its residents" when balancing the private and public interest factors).
266. One can certainly argue, however, that the convenience rationale for the lesser-deference rule is a fiction, a mere excuse for making the dismissal of foreigners' claims easier. See Stephen B. Burbank, Jurisdictional Conflict and Jurisdictional Equilibration: Paths to a Via Media?, 26 HOUS. J. INT'L L. 385, 396 (2004) (arguing that the lesser-deference rule "was built, or at least is sustained, on fictions, if not hypocrisy"). Indeed, the Supreme Court of Washington, in formulating the application of the forum non conveniens doctrine to claims brought in Washington state courts, rejected Piper Aircraft's lesser-deference rule.
267. See Myers v. Boeing Co., 794 P.2d 1272, 1280-81 (Wash. 1990). In doing so, the court argued that Piper Aircraft's reasoning "does not withstand scrutiny": The [Piper Aircraft] Court purports to be giving lesser deference to the foreign plaintiffs choice of forum when, in reality, it is giving lesser deference to the foreign plaintiffs, based solely on their status as foreigners. More importantly, it is not necessarily less reasonable to assume that a foreign plaintiffs choice of forum is convenient. Why is it less reasonable to assume that a plaintiff from British Columbia, who brings suit in Washington, has chosen a less convenient forum than a plaintiff from Florida bringing the same suit?
268. Id. at 1281. Twisting the knife, the Supreme Court of Washington suggested that Piper Aircraft's reasoning "raises concerns about xenophobia."
269. Id. Finally, the court explained that Piper Aircraft's lesser-deference rule is unnecessary because "application of the Gulf Oil [private and public interest] factors alone will lead to fair and equitable results."
270. Id.
271. Flores v. S. Peru Copper Corp., 253 F. Supp. 2d 510, 543 (S.D.N.Y. 2002)
272. (citing Blanco v. Banco Indus., 997 F.2d 974, 981 (2d Cir. 1993)).
273. See id.
274. See supra Part III.B.
275. See Presbyterian Church of Sudan v. Talisman Energy, 244 F. Supp. 2d 289, 339-40 (S.D.N.Y. 2003).
276. See id. at 306;
277. Armin Rosencrantz & Richard Campbell, Foreign Environmental and Human Rights Suits Against U.S. Corporations in U.S. Courts, 18 STAN. ENVTL. L.J. 145, 153 (1999).
278. See David D. Christensen, Note, Corporate Liability for Overseas Human Rights Abuses: The Alien Tort Statute after Sosa v. Alvarez-Machain, 62 WASH. & LEE L. REV. 1219, 1247 (2005).
279. See Presbyterian Church, 244 F. Supp. 2d at 339.
280. See Sosa v. Alverez-Machain, 542 U.S. 692, 732 (2004).
281. See 460 F. Supp. 2d 507, 522-23 (S.D.N.Y. 2006).
282. See id. Adding to the confusion is the fact that Turedi discusses Wiwa and the U.S. policy favoring receptivity by our courts to ATCA and TVPA claims in the portion of its analysis dealing with the amount of deference it should give the plaintiffs' choice of forum.
283. Id. This is an erroneous application of Wiwa because, as previously explained, the Wiwa approach does not implicate the rationale of the lesser-deference rule.
284. See supra Part IV.A.3.
285. See Plaintiffs Joint Memorandum of Points and Authorities in Opposition to All Defendants' Motions to Dismiss, Turedi v. Coca Cola Co., 460 F. Supp. 2d 507 (S.D.N.Y. 2006) (No. 05 Civ. 9635).
286. Turedi, 460 F. Supp. 2d at 523.
287. Id. at 509-11.
288. See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 99-100 (2d Cir. 2000),
289. cert, denied, 532 U.S. 941 (2001).
290. See id. at 103-06.
291. See id.
292. See 28 U.S.C. § 1350 (2000).
293. See supra notes 176-78 and accompanying text.
294. See Turedi, 460 F. Supp. 2d at 528.
295. See Dattner v. Conagra Foods, Inc., 458 F.3d 98, 102 (2d Cir. 2006);
296. Mone gasque de Reassurances S.A.M. v. NAK Naftogaz of Ukraine, 311 F.3d 488, 497 (2d Cir. 2002);
297. Turedi, 460 F. Supp. 2d at 511-12.
298. Turedi, 460 F. Supp. 2d at 520.
299. See supra notes 26-30 and accompanying text.
300. See Turedi, 460 F. Supp. 2d at 519.
301. Given this temptation, it should come as no surprise that the Turedi decision is not the first time that the Southern District of New York has dismissed an ATCA claim on the grounds of forum non conveniens without first establishing jurisdiction. In Aguinda, the court bypassed the
302. aff'd as modified, 303 F.3d 470 (2d Cir. 2002).
303. See supra notes 26-30 and accompanying text.
304. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 106 (2d Cir. 2000),
305. cert. denied, 532 U.S. 941 (2001).
306. See Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1134, 1162 n.17 (C.D. Cal. 2005)
307. (citing Wiwa, 226 F.3d at 106;
308. Presbyterian Church of Sudan v. Talisman Energy, 244 F. Supp. 2d 289, 342-43 (S.D.N.Y. 2003)) (acknowledging that the United States, due to the legislative enactment of the ATCA and TVPA, "arguably has an interest in seeing the instant case proceed");
309. Bauman v. DaimlerChrysler AG, No. C-04-00194, 2005 WL 3157472, at *17 (N.D. Cal. Nov. 22, 2005);
310. Sarei v. Rio Tinto, 212 F. Supp. 2d 1116, 1175 (C.D. Cal. 2002).
311. Sarei, 221 F. Supp. 2d at 1175.
312. Abiola v. Abubakar, 267 F. Supp. 2d 907, 918 (N.D. Ill. 2003) (referring to Wiwa's reasoning in the context of determining the existence of an adequate alternative forum).
313. See JOSEPH, supra note 60, at 99.
314. See supra notes 26-29 and accompanying text.
315. See Swan, supra note 2, at 78-82.
316. See Joel Slawotsky, Doing Business Around the World: Corporate Liability Under the Alien Tort Claims Act, 2005 MICH. ST. L. REV. 1065, 1101-03 (2005).
317. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 106 (2d Cir. 2000), cert. denied, 532 U.S. 941 (2001).