How to fix the inconsistent application of forum non conveniens to Latin American jurisdiction - and why consistency may not be enough

New York University Law Review

Volumn 83, Issue 5, 2008, Pages 1607-1642

  Muttreja, Rajeev ^a  

^a NEW YORK UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 56849132038     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (285)

1. See, e.g., Linda J. Silberman, Developments in Jurisdiction and Forum Non Conveniens in International Litigation: Thoughts on Reform and a Proposal for a Uniform Standard, 28 TEX. INT'L L.J. 501, 502 (1993)
2. (citing Friedrich K. Juenger, Forum Shopping, Domestic and International, 63 TUL. L. REV. 553, 561-62 (1989)) (discussing attractiveness of U.S. courts to foreign plaintiffs);
3. Brennan J. Torregrossa & Steven Clark, Global Big Suits: America and England May Be New Meccas for Suits, NAT'L L.J., Jan. 13, 2003, at 1, available at http://dechert.com/library/Torregrossa-US-England-01- 13-03.pdf (noting doctrinal and procedural features of U.S. courts that may attract foreign plaintiffs).
4. See, e.g., Bhatnagar v. Surrendra Overseas Ltd., 52 F.3d 1220, 1229 n.7 (3d Cir. 1995) (discussing extreme congestion in Indian courts);
5. Ben H. Sheppard, Jr. & John M. Townsend, Holding the Fort Until the Arbitrators Are Appointed: The New ICDR International Emergency Rule, DISP. RESOL., May-July 2006, at 75, 77 (2006) ("[M]any [countries'] court systems have poorly developed procedures and are plagued by docket congestion and delay.").
6. See, e.g., HSBC USA, Inc. v. Prosegur Para., S.A., No. 03 Civ. 3336, 2004 WL 2210283, at *3-4 (S.D.N.Y. Sept. 30, 2004) (noting that plaintiff "would likely be unable to obtain basic justice in Paraguay" because of corruption and political pressures);
7. Nanping Liu, A Vulnerable Justice: Finality of Civil Judgements in China, 13 COLUM. J. ASIAN L. 35, 52 n.60 (1999) (discussing corruption in Chinese judiciary);
8. Sheppard & Townsend, supra note 2, at 77 ("Some national courts lack independence and in extreme cases may be suspected of bias or corruption.").
9. Even if a foreign plaintiffs cause of action arises from activity outside a U.S. forum, that forum can assert general jurisdiction over defendants having "continuous and systematic" contacts with it. See 4 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1067.5 (3d ed. 2002) (discussing general jurisdiction). U.S. defendants will necessarily have sufficient contacts with at least one U.S. forum.
10. See infra Part I (setting out FNC doctrine and underlying policy concerns).
11. See infra notes 83-85 and accompanying text.
12. See Am. Dredging Co. v. Miller, 510 U.S. 443, 455 (1994) ("The discretionary nature of [FNC] doctrine, combined with the multifariousness of the factors relevant to its application, . . . make uniformity and predictability of outcome almost impossible." (citation omitted)).
13. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981) ("The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion . . . .").
14. For example, Costa Rica, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Panama, and Venezuela all have preemptive systems. See infra Parts II-III.
15. See infra notes 74-78 and accompanying text (explaining how preemptive systems of jurisdiction operate).
16. See infra Part I.A.
17. See 14D CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3828 (3d ed. 2007) ("The motion to dismiss for forum non conveniens serves as an important tool for dealing with those plaintiffs ... who bring cases in American courts when their claims have only nominal or tangential connection to this country.").
18. See generally Donald J. Carney, Forum Non Conveniens in the United States and Canada, 3 BUFF. J. INT'L L. 117 (1996) (reviewing doctrine in United States and Canada);
19. Dan Jerker B. Svantesson, In Defence of the Doctrine of Forum Non Conveniens, 35 H.K.L.J. 395 (2005) (discussing Hong Kong, Australia, and other jurisdictions).
20. 330 U.S. 501 (1947). While Gilbert remains an essential part of modern FNC doctrine,
21. see infra text accompanying notes 16-20, its result "would be improper today because of the federal venue transfer statute." Am. Dredging Co. v. Miller, 510 U.S. 443, 449 n.2 (1981)
22. (citing 28 U.S.C. § 1404(a) (2000));
23. see also infra note 48.
24. 330 U.S. 518 (1947).
25. 454 U.S. 235 (1981).
26. Id. at 247.
27. Id. at 255-56.
28. Id. at 257.
29. WRIGHT ET AL., supra note 12, § 3828.1.
30. Martin Davies, Time To Change the Federal Forum Non Conveniens Analysis, 11 TUL. L. REV. 309, 315 (2002) (noting that federal courts, thirty states, District of Columbia, and all U.S. territories engage in "effectively identical" FNC analysis). Thirteen states use a Gilbert-like factor-based analysis.
31. Id.
32. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07 (1947) ("In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them.").
33. Piper, 454 U.S. at 254 n.22.
34. See id. (stating that availability requirement is ordinarily satisfied "when the defendant is 'amenable to process' in the other jurisdiction"
35. (quoting Gilbert, 330 U.S. at 506-07)).
36. See id. ("[Dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute.").
37. Id.
38. Julius Jurianto, Forum Non Conveniens: Another Look at Conditional Dismissals, 83 U. DET. MERCY L. REV. 369, 399 (2006).
39. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) ("[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety.");
40. CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3522 (2d ed. 1984) (stating that parties in federal court cannot waive lack of subject matter jurisdiction "by express consent, or by conduct, or even by estoppel");
41. Lonny S. Hoffman, Forum Non Conveniens-State and Federal Movements, in CIVIL PRACTICE AND LITIGATION TECHNIQUES IN FEDERAL AND STATE COURTS, at 441, 451 (ALI-ABA Course of Study Materials, No. SG046, 2002) (noting that "a defendant may not be able to waive its objections to subject matter jurisdiction in [a] foreign tribunal," as in federal court).
42. Piper, 454 U.S. at 254 n.22.
43. Id.
44. See infra Part III.A.
45. See, e.g., Calgarth Inv., Ltd. v. Bank Saderat Iran, 108 F.3d 329 (2d Cir. 1997) (unpublished table decision) (conditioning FNC dismissal on foreign forum's acceptance of jurisdiction). The Fifth Circuit even requires such "return jurisdiction clauses" with FNC dismissals. Davies,
46. supra note 21, at 318. The Ninth Circuit disagrees, holding that such conditions are always discretionary.
47. Id.
48. See infra notes 83-85 and accompanying text.
49. E.g., Trivelloni-Lorenzi v. Pan Am. World Airways, Inc. (In re Air Crash Disaster near New Orleans), 821 F.2d 1147, 1164 (5th Cir. 1987) ("[The defendant's] burden of persuasion runs to all the elements of the forum non conveniens analysis."),
50. vacated on other grounds sub nom. Pan Am. World Airways, Inc. v. Lopez, 490 U.S. 1032 (1989); Lacey v. Cessna Aircraft Co., 862 F.2d 38, 43-44 (3d Cir. 1988) ("It is settled that the defendant bears the burden of persuasion as to all elements of the forum non conveniens analysis."
51. (citing Trivelloni-Lorenzi, 821 F.2d at 1164)).
52. See Piper, 454 U.S. at 255 ("[T]here is ordinarily a strong presumption in favor of the plaintiff's choice of forum, which may be overcome only when the private and public interest factors clearly point towards trial in the alternative forum.").
53. See infra Part III.B.
54. Piper, 454 U.S. at 254 n.22.
55. Philip I. Blumberg, Asserting Human Rights Against Multinational Corporations Under United States Law: Conceptual and Procedural Problems, 50 AM. J. COMP. L. 493, 507 (2002).
56. Piper, 454 U.S. at 247.
57. Id. at 251.
58. Id.
59. See, e.g., Lisa, S.A. v. Gutierrez Mayorga, 441 F. Supp. 2d 1233, 1237-38 (S.D. Fla. 2006) ("In any event, the Plaintiff has presented no evidence that its remedy would be 'altogether lost' in the instant action, and the possibility of Plaintiff being deprived of some relief is not sufficient to find that the Guatemalan forum is inadequate.").
60. Piper, 454 U.S. at 254 & n.22.
61. Davies, supra note 21, at 322.
62. Compare Bhatnagar v. Surrendra Overseas Ltd., 52 F.3d 1220, 1228 (3d Cir. 1995) (finding potential twenty-five year delay created inadequacy),
63. with Eastman Kodak Co. v. Kavlin, 978 F. Supp. 1078, 1085 n.6 (S.D. Fla. 1997) (finding potential five-year delay did not create inadequacy).
64. See Polanco v. H.B. Fuller Co., 941 F. Supp. 1512, 1527 (D. Minn. 1996) (noting that "there is no evidence that [defendants] would use their considerable resources in an attempt to 'buy' the Guatemalan courts" and finding Guatemalan forum adequate despite "a litany of undesirable features of the Guatemalan legal system").
65. 927 F.2d 60, 66 (2d Cir. 1991) (quoting Jhirad v. Ferrandina, 536 F.2d 478, 484-85 (2d Cir. 1976)).
66. Gilbert and Koster dealt exclusively with domestic parties-in each case, an American defendant argued that another federal district court was more convenient for the case. Within the U.S. system, availability and adequacy are not major issues. A case like Gilbert would never be heard today, though; one year after Gilbert was decided, Congress enabled defendants in federal court to petition for a change of venue. Act of June 25, 1948, Pub. L. No. 80-773, 62 Stat. 869, 937 (codified as amended at 28 U.S.C. § 1404(a) (2000)). As a result, FNC has continued vitality in federal courts only in cases in which the alternative forum is abroad. Am. Dredging Co. v. Miller, 510 U.S. 443, 449 n.2 (1994). Piper directly dealt with such a scenario, but the alternative forum in question was Scotland, and neither its availability nor its adequacy seems to have been challenged.
67. See Russell J. Weintraub, Methods for Resolving Conflict-of-Laws Problems in Mass Tort Litigation, 1989 U. III. L. REV. 129, 153 (approving of FNC dismissals where "[t]he court will be relieved of the burden of determining and applying law with which it is not familiar").
68. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981) ("[D]ismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute.").
69. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947).
70. Id. at 508-09.
71. Id. at 508 (internal quotation marks omitted).
72. Piper, 454 U.S. at 257.
73. Davies, supra note 21, at 352-53. There are some exceptions: The Fifth Circuit ignores the public interest factors if the private interest factors favor dismissal, and the Eleventh and D.C Circuits consider the public interest factors only if the private interest factors are in near or complete equipoise.
74. Id. at 352 & nn.201-03.
75. Piper, 454 U.S. at 249-50.
76. Id. at 255-56.
77. See, e.g., Jacqueline Duval-Major, Note, One-Way Ticket Home: The Federal Doctrine of Forum Non Conveniens and the International Plaintiff, 11 CORNELL L. REV. 650, 681 (1992) (arguing that policy is "unfair" and "has no apparent rationale").
78. Piper, 454 U.S. at 255-56;
79. accord Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 127 S. Ct. 1184, 1191 (2007)
80. (citing Piper, 454 U.S. at 255-56).
81. According to several courts, foreign plaintiffs are entitled to the same deference as American plaintiffs when both the United States and the foreign country are parties to a treaty guaranteeing their citizens mutual access to their respective court systems. Victor Manual Diaz, Jr., Litigation in U.S. Courts of Product Liability Cases Arising in Latin America, Presentation at the Miami Conference on Product Liability, Nat'l Law Ctr. for Inter-Am. Free Trade (Sept. 20-21, 2001), in Miami Conference Summary of Presentations, 20 ARIZ. J. INT'L & COMP. L. 47, 92 (2003). Many Latin American countries are parties to these treaties.
82. Id. However, this potential increase in deference is by no means dispositive in an FNC inquiry, as the Gilbert factors can still always favor dismissal. Indeed, applying the same degree of deference to domestic and foreign plaintiffs does not change the fact that only the domestic plaintiffs are potentially litigating in their home forums.
83. See Piper, 454 U.S. at 255 ("[T]here is ordinarily a strong presumption in favor of the plaintiff's choice of forum . . . .").
84. Id. at 256 ("[T]he central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient. . . .").
85. See supra notes 1-3 and accompanying text (discussing why United States attracts plaintiffs).
86. Piper, 454 U.S. at 255 n.23 ("[I]f the balance of conveniences suggests that trial in the chosen forum would be unnecessarily burdensome for the defendant or the court, dismissal is proper.").
87. See supra Part I.B.
88. See Lonny Sheinkopf Hoffman & Keith A. Rowley, Forum Non Conveniens in Federal Statutory Cases, 49 EMORY L.J. 1137, 1141 (2000) (noting that balancing of Gilbert factors serves "convenience and the ends of justice").
89. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947).
90. Id. (internal quotation marks omitted).
91. See id. ("It is often said that the plaintiff may not, by choice of an inconvenient forum, 'vex,' 'harass,' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed." (footnote omitted)).
92. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 n.23 (1981) ("[I]f the balance of conveniences suggests that trial in the chosen forum would be unnecessarily burdensome for the defendant or the court, dismissal is proper."). If such burdens are lacking, dismissal is improper.
93. This Note uses "Latin America" to refer to the countries of South America and Central America generally. Though there are certainly many differences between the legal systems of these countries, the fundamental structures of Latin American legal systems are fairly similar. See generally M.C. MIROW, LATIN AMERICAN LAW: A HISTORY OF PRIVATE LAW AND INSTITUTIONS IN SPANISH AMERICA 172-83 (2004) (discussing twentiethcentury development of Latin American court systems);
94. ÁNGEL R. OQUENDO, LATIN AMERICAN LAW, at v-viii (2006) ("Latin American legal systems converge not only on what they share with each other, but also on what distinguishes them from their U.S. counterpart."). In analyzing Latin American jurisdictional rules collectively, this Note follows the practice of other writers in the field.
95. E.g., Alejandro M. Garro, Forum Non Conveniens: "Availability" and "Adequacy" of Latin American Fora from a Comparative Perspective, 35 U. MIAMI INTER-AM. L. REV. 65 (2003);
96. Dante Figueroa, Are There Ways out of the Current Forum Non Conveniens Impasse Between the United States and Latin America?, BUS. L. BRIEF, Spring 2005, at 42, 42.
97. Dante Figueroa, Conflicts of Jurisdiction Between the United States and Latin America in the Context of Forum Non Conveniens Dismissals, 37 U. MIAMI INTER-AM. L. REV. 119, 151 (2005).
98. Id.;
99. Garro, supra note 71, at 68-69.
100. RONALD A. BRAND & SCOTT R. JABLONSKI, FORUM NON CONVENIENS: HISTORY, GLOBAL PRACTICE, AND FUTURE UNDER THE HAGUE CONVENTION ON CHOICE OF COURT AGREEMENTS 128 (2007)
101. (citing Figueroa, supra note 71, at 44-45);
102. Henry Saint Dahl, Forum Non Conveniens, Latin America and Blocking Statutes, 35 U. MIAMI INTERAM. L. REV. 21, 28-29 (2003) [hereinafter Dahl, Blocking Statutes]. This concept is not always explicit in a country's jurisdictional rules.
103. See, e.g., Draft Law for the Defense of Procedural Rights of Nationals and Residents in Nicaragua (May 12, 1997), in HENRY SAINT DAHL, DAHL'S LAW DICTIONARY 242, 242 (4th ed. 2006) ("[N]orms [of preemptive jurisdiction] are already incorporated in our legal system, but in a disperse way and not so expressly stated."). However, some Latin American officials have publicly clarified how their jurisdictional systems work. For example, in Guatemala,
104. [plaintiffs] have the protected right to bring suit in the domicile of the defendants. Once this right is exercised it is invested with the quality of an acquired right and seeking to subvert it would be illegal. The jurisdictional standards in [Guatemala's] system are mandatory and do not lend themselves to being manipulated by any tribunal whether domestic or foreign. Once the plaintiffs have exercised the right to bring suit in the domicile of the defendants, whether in this country or abroad, it is illegal for a Guatemalan judge to disturb this choice of tribunal.
105. Official Opinion of the Attorney General's Office (May 3, 1995) (Guat.), as reprinted in DAHL'S LAW DICTIONARY, supra, at 229, 230;
106. see also Official Opinion of the Attorney General's Office (June 2, 1995) (Hond.),
107. as reprinted in DAHL'S LAW DICTIONARY, supra, at 232, 232 (explaining that Honduran jurisdictional rules focus on "the election of the plaintiff and cannot be "modified], overrule[d] or ignorefd] .... even in the event of a foreign decision");
108. Official Opinion of the Attorney General's Office (May 24, 1995) (Nicar.), as reprinted in DAHL'S LAW DICTIONARY
109. supra, at 238, 238 ("The Nicaraguan judge is forced to respect the jurisdictional rules established in our Code of Civil Procedure, including the one that guarantees, in personal actions, the choice of the defendant's court, duly exercised by plaintiff.");
110. Public Declaration of the President of the International Affairs Commission of the Honorable National Congress of Ecuador (Jan. 25, 1995), as reprinted in DAHL'S LAW DICTIONARY
111. supra, at 227, 228 ("[I]f the foreign court imposes on the national plaintiff the obligation to return to his country and to refile the petition here, it is also imposing upon our Judiciary Power to adjudicate the case and to completely disregard [Ecuador's] legal principle that accords the plaintiff the choice of forum.").
112. See Garro, supra note 71, at 69 ("In a situation in which more than one court claims the power to adjudicate concurrently, the plaintiffs choice, once exercised, cannot be disturbed or twisted by a court of law.").
113. Id. at 70.
114. See id. ("Thus, after filing suit before a court in the United States, a U.S. court cannot force the plaintiffs to refile the same action in their own courts located in a Latin American jurisdiction.");
115. see also infra note 81 and accompanying text.
116. Figueroa, supra note 72, at 152;
117. see also supra note 74.
118. Expediente No. 1011-95, 15:05, 5 Sept. 1995, Juzgado Cuarto Civil de San José [Fourth Civil Court of San José] (Costa Rica), as translated in Figueroa, supra note 72, at 154-56.
119. Delgado v. Shell Oil Co., 890 F. Supp. 1324, 1373 (S.D. Tex. 1995).
120. Abarca, Expediente No. 1011-95
121. as translated in Figueroa, supra note 72, at 155-56. The Costa Rican Supreme Court affirmed the decision.
122. Figueroa, supra note 72, at 155 & n.181.
123. See Garro, supra note 71, at 74-78 (discussing Abarca along with cases in Ecuador, Guatemala, and Panama).
124. David W. Robertson, Forum Non Conveniens in America and England: "A Rather Fantastic Fiction," 103 LAW Q. REV. 398, 420 (1987) (internal quotation marks omitted). Robertson mailed questionnaires to the plaintiffs' lawyers from 180 FNC-dismissed transnational cases, intending to cover all reported federal FNC dismissals between Gilbert (decided in 1947) and 1984, in order to determine the cases' ultimate fate.
125. Id. at 418-19. Eighty-five questionnaires were returned; of those plaintiffs, eighteen had abandoned their claims, thirty-six settled their claims (many for much less than the initial claim), sixteen had subsequent lawsuits in foreign or state courts, and fifteen were undecided or unknown.
126. Id. at 419. Robertson concluded, among other things, that cases dismissed under FNC rarely make it to trial in their new forums, which he found unsurprising.
127. Id. at 418-19. For Robertson, it was "intuitively obvious" that a plaintiff who may have spent some time in U.S. courts before having his case dismissed would "simply surrender" and avoid "embarking on an arduous journey," or would "run out of money, lawyers, stamina, courage, or life-span" during the journey.
128. Id. at 418.
129. Many commentators have relied solely on Robertson's study, supra note 83, for empirical support when discussing the negative impact of FNC on plaintiffs' cases.
130. See, e.g., Carney, supra note 13, at 132 n.67, 133 n.74;
131. Kevin M. Clermont & Theodore Eisenberg, Exorcising the Evil of Forum-Shopping, 80 CORNELL L. REV. 1507, 1514 n.18 (1995);
132. Davies, supra note 21, at 319 & n.35;
133. Jurianto, supra note 27, at 388-89;
134. Alexander Reus, Judicial Discretion: A Comparative View of the Doctrine of Forum Non Conveniens in the United States, the United Kingdom, and Germany, 16 LOY. L.A. INT'L & COMP. L.J. 455, 474 & nn.117-19 (1994);
135. Duval-Major, supra note 58, at 672 & n.171;
136. Hilmy Ismail, Note, Forum Non Conveniens, United States Multinational Corporations, and Personal Injuries in the Third World: Your Place or Mine?, 11 B.C. THIRD WORLD L.J. 249, 250 n.7 (1991).
137. See, e.g., Trivelloni-Lorenzi v. Pan Am. World Airways, Inc. (In re Air Crash Disaster near New Orleans), 821 F.2d 1147, 1156 (5th Cir. 1987) ("[O]nly an outright dismissal with prejudice could be more 'outcome determinative' than a conditional dismissal to a distant forum in a foreign land.");
138. Dow Chem. Co. v. Castro Alfaro, 786 S.W.2d 674, 682-83 (Tex. 1990) (Doggett, J., concurring) ("[A] forum non conveniens dismissal is often outcome-determinative . . . [and] often, in reality, a complete victory for the defendant.");
139. Megan Waples, Note, The Adequate Alternative Forum Analysis in Forum Non Conveniens: A Case for Reform, 36 CONN. L. REV. 1475, 1476 & n.5 (2004) ("There has been little empirical documentation on this issue, although the point is often conceded even by proponents of the doctrine."). Though it is difficult to know precisely why a given case does not get refiled, one commentator has offered some suggestions:
140. Plaintiffs may lose their United States attorney, either because of the alternative forum's specific professional requirements or because the attorney cannot afford the time and expense of travelling to a foreign country for trial. Even if plaintiffs can find an attorney to represent them in the alternative forum, many countries do not allow fees payable on a contingency basis. In addition, many plaintiffs cannot afford attorneys on retainer, especially since some countries cap tort awards, which further limits plaintiffs' recovery.... [Also,] [political pressures may affect the plaintiffs and the court system, especially if the defendant [is a multinational corporation that] exerts great economic power in the country. Finally, plaintiffs simply may not want to endure the costs and inconvenience of starting a new trial.
141. Duval-Major, supra note 58, at 671-72 (footnotes omitted). One might argue that many cases are not refiled because they are frivolous, and not because of the above considerations. However, even with contingency fees and liberal damages rules, someone still needs to pay for the U.S. litigation. A case may not make economic sense elsewhere, but being worthwhile in only some jurisdictions does not equal frivolity. Cf. FED. R. CIV. P. 11(c) (permitting sanctions for frivolous litigation). Additionally, defendants should be able to get frivolous litigation dismissed on that basis alone, without resorting to FNC.
142. See supra note 74.
143. Parlatino is a "regional, permanent, and unicameral organization" founded in 1964 and charged with "promoting, harmonizing and canalizing the movement towards [Latin American] integration." Parlamento Latinoamericano, What is Parlatino?, http://www.parlatino.org/ archivo/conteudo.php?id=21&lg=en (last visited Aug. 29, 2007).
144. The model law states that a "petition that is validly filed, according to both legal systems, in the defendant's domiciliary court, extinguishes national jurisdiction. The latter is only reborn if the plaintiff nonsuits of his foreign petition and files a new petition in the country, in a completely free and spontaneous way." Parlatino Model Law on International Jurisdiction and Applicable Law to Tort Liability art. 1, in DAHL'S LAW DICTIONARY, supra note 74, at 244, 244-45. The model law illustrates the preemptive rules' operation. If a plaintiff files "in the defendant's domiciliary court," the plaintiff's "national jurisdiction" can no longer hear the case. At the same time, these rules permit the plaintiff to refile at home if (1) the foreign case is no longer pending and (2) the home filing is "completely free and spontaneous" (i.e., not compelled by FNC).
145. Id.
146. Interpretative Law of Articles 27, 28, 29, and 30 of the Code of Civil Procedure for Cases of International Concurrent Jurisdiction (Ecuador), available at http://www.iaba.org/LLinks-forum-non-Ecuador.htm;
147. Law for the Defense of Procedural Rights of Nationals and Residents (Guat.), available at http://www.iaba.org/LLinks-forum-non-Guatemala. htm. Because the Ecuadorian law left local plaintiffs without options in the event of a foreign judge dismissing a case on FNC grounds "with basis or not," it was ruled unconstitutional in 2002.
148. Dahl, Blocking Statutes, supra note 74, at 23 & nn.10-11.
149. See Dahl, Blocking Statutes, supra note 74, at 42 ("From a Latin American point of view, the blocking statutes are not indispensable to dismiss cases filed in pursuance of a FNC order.").
150. Parlatino Model Law on International Jurisdiction and Applicable Law to Tort Liability, supra note 88, at 244.
151. Indeed, the Ecuadorian statute was couched as an interpretation of Ecuador's Code of Civil Procedure. See Interpretative Law of Articles 27, 28, 29, and 30 of the Code of Civil Procedure for Cases of International Concurrent Jurisdiction (Ecuador), supra note 89 ("Without prejudice to their literal meaning, articles 27, 28, 29 and 30 of the Code of Civil Procedure shall be interpreted .... [so that] [i]f a suit were to be filed outside Ecuador, the national competence and jurisdiction of Ecuadorian courts shall be definitely extinguished.").
152. See Org. of Am. States, Inter-Am. Juridical Comm., Annual Report of the Inter-American Juridical Committee to the General Assembly, at 71, OAS Doc. OEA/Ser.Q/VI.31, CJI/doc.45/00 (Aug. 25, 2000), available at http://www.oas.org/cji/eng/INFOANUAL.CJI.2000.ING.pdf (discussing Florida state court's response to Ecuador's blocking statute).
153. Compare Morales v. Ford Motor Co., 313 F. Supp. 2d 672, 676, 689 (S.D. Tex. 2004) (finding Venezuelan forum to be available and granting FNC motion)
154. and Rivas ex rel. Estate of Gutierrez v. Ford Motor Co., No. 8:02-CV-00676, 2004 WL 1247018, at *5-6 (M.D. FIa. Apr. 19, 2004) (same)
155. with In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 190 F. Supp. 2d 1125, 1132 (S.D. Ind. 2002) (finding Venezuelan forum to be unavailable and denying FNC motion).
156. E.g., Canales Martinez v. Dow Chem. Co., 219 F. Supp. 2d 719, 728 (E.D. La. 2002);
157. Bridgestone, 190 F. Supp. 2d at 1132.
158. E.g., Morales, 313 F. Supp. 2d at 689;
159. Rivas, 2004 WL 1247018, at *5.
160. Commentators discussing this inconsistency have not attempted a doctrinal diagnosis but instead have explained the differences as judge-specific variations. See, e.g., BRAND & JABLONSKI, supra note 74, at 139 (concluding that resolution of these cases depends on plaintiffs' home forums' rules as well as on "the individual opinions of the judges before whom they argue their cases").
161. See supra Part I.B.
162. See M. Ryan Casey & Barrett Ristroph, Boomerang Litigation: How Convenient Is Forum Non Conveniens in Transnational Litigation?, 4 BYU INT'L L. & MGMT. REV. 21, 31 (2007) (stating that this issue "will need to be resolved by the Supreme Court");
163. see also supra note 97.
164. 313 F. Supp. 2d 672 (S.D. Tex. 2004).
165. 190 F. Supp. 2d 1125 (S.D. Ind. 2002). Bridgestone was a pretrial multidistrict litigation (MDL) proceeding consolidating 116 Venezuelan product liability cases.
166. Id. at 1128, 1155.
167. Morales, 313 F. Supp. 2d at 689.
168. Bridgestone, 190 F. Supp. 2d at 1132.
169. See id. at 1129 (quoting plaintiffs' expert's claim that under VIPLS Article 39, "the first forum for bringing suit against a non-domiciliary defendant is the country where the defendant is domiciled"). An English translation of VIPLS is available at International Private Law Statute, http://www.law.kuleuven.ac.be/ipr/documents/ Venezuelaanse%20codex%20IPR%20engels.pdf (last visited Sept. 24, 2008).
170. Article 40(4) is an exception to Article 39. See Bridgestone, 190 F. Supp. 2d at 1130. It allows jurisdiction '"when the parties should expressly or tacitly submit to [Venezuelan] jurisdiction.'"
171. Morales, 313 F. Supp. 2d at 675 (quoting translation of VIPLS art. 40(4) (Venez.)).
172. Bridgestone, 190 F. Supp. 2d at 1131.
173. Id. at 1132.
174. Id. at 1131.
175. Morales, 313 F. Supp. 2d at 675 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981)).
176. Id. at 676.
177. See id. ("The forum non conveniens doctrine exists to provide federal courts an opportunity to reconsider a foreign Plaintiff's choice of forum in light of convenience.").
178. See Louise Ellen Teitz, From the Courthouse in Tobago to the Internet: The Increasing Need To Prove Foreign Law in US Courts, 34 J. MAR. L. & COM. 97, 111 (2003) (raising concerns about objectivity of experts determining foreign law but finding comfort in experts' "professional codes of conduct," "ethical obligations," and need for "unblemished reputations and credibility").
179. See id. at 107 (noting that expert witnesses are "the most common" and "most preferred" sources of proof of foreign law).
180. The Morales decision was the Southern District of Texas's principal authority in dismissing the case in Lizardo v. Ford Motor Co. on FNC grounds. No. 1:04-cv-00187, 2005 WL 1164200, at *1 (S.D. Tex. May 10, 2005). Facing almost identical issues and arguments, the court held that Venezuela was an available forum, despite the plaintiffs' contrary arguments, because of the defendant's amenability to Venezuelan jurisdiction.
181. Id.
182. Cf. Vincent R. Johnson, Americans Abroad: International Educational Programs and Tort Liability, 32 J.C. & U.L. 309, 325 (2006) ("The skills of American judges educated in the common-law tradition may be insufficient for accurately interpreting and applying the German Civil Code.").
183. No. 8:02-CV-00676, 2004 WL 1247018, at *5 (M.D. Fla. Apr. 19, 2004) ("Nevertheless, since [Bridgestone] turned on expert interpretation of Venezuelan law, we will explore [plaintiff's expert's] position on this issue as well.").
184. Id. at *5.
185. 219 F. Supp. 2d 719, 726 (E.D. La. 2002).
186. This fact gave the Morales court room to distinguish its case from the earlier decision in Canales Martinez. See Morales v. Ford Motor Co., 313 F. Supp. 2d 672, 676 n.3 (S.D. Tex. 2004).
187. Canales Martinez, 219 F. Supp. 2d at 727.
188. Article 31 of the Costa Rican Code of Civil Procedure (CCP) explicitly states that "'[i]f there were two or more courts with jurisdiction for one case, it will be tried by the one who heard it first at plaintiff's request.'" Id. at 728 (quoting Código Procesal Civil [Code of Civil Procedure (CCP)] art. 31 (Costa Rica)). Additionally, CCP Article 477 states that "[n]obody can be forced to try to file a lawsuit," and CCP Article 122 embodies a similar principle.
189. Id.
190. See id. ("All of plaintiffs' pleadings, and indeed, the very posture of the instant case, reflect the fact that plaintiffs do not want to proceed in court in Costa Rica.").
191. Id.
192. Using different foreign provisions and similar logic, the court also found Honduras, id. at 735-37,
193. and the Philippines, id. at 738-41, to be unavailable.
194. Id. at 728.
195. Id. at 731.
196. See supra notes 109-11 and accompanying text.
197. See Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 112-13 (1987) (explaining that U.S. Constitution's Due Process Clause allows assertion of personal jurisdiction over defendants with "minimum contacts" with forum but only if doing so comports with "traditional notions of fair play and substantial justice" (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945))).
198. Canales Martinez, 219 F. Supp. 2d at 731.
199. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981).
200. Id. at 251.
201. See id. ("If the possibility of a change in law were given substantial weight, deciding motions to dismiss on the ground of forum non conveniens would become quite difficult.").
202. See id. at 254 ("We do not hold that the possibility of an unfavorable change in law should never be a relevant consideration in a forum non conveniens inquiry.").
203. See id. at 251, 252 n.19 (discussing Gilbert factors but not availability or adequacy).
204. Jurianto, supra note 27, at 399.
205. John Bies, Comment, Conditioning Forum Non Conveniens, 67 U. CHI. L. REV. 489, 501-02 (2000).
206. See, e.g., Borja v. Dole Food Co., No. 397CV308L, 2002 WL 31757780, at *7 & n.5 (N.D. Tex. Nov. 29, 2002) (conditioning dismissal on defendant's consent to reinstatement if "the highest court of Costa Rica declines to exercise jurisdiction despite Plaintiff's good faith efforts to initiate the action in Costa Rica"),
207. vacated on other grounds, No. 397CV308L, 2003 WL 21529297 (N.D. Tex. June 30, 2003).
208. See Jurianto, supra note 27, at 369-70 ("Probably because of genuine concern over the fate of foreign plaintiffs whose cases are dismissed from the United States, many dismissals have been conditioned upon certain factors that supposedly ensure fairness to the plaintiffs.").
209. See id. at 400 ("[T]he existence of the alternative forum to the parties is artificially created by the same dismissing United States court through a condition . . . .").
210. Davies, supra note 21, at 318.
211. Of course, this decision may never happen, as FNC-dismissed cases often are not refiled in the new jurisdiction. See supra notes 83-85 and accompanying text. Even if the new forum were always to hear the case, though, this approach can be used improperly for the reasons discussed in this Section.
212. See supra note 34 and accompanying text.
213. See supra note 34 and accompanying text.
214. See Davies, supra note 21, at 318-19 ("If there is any doubt about the willingness of the foreign forum to accept the case . . . [and if] the burden of persuasion is to be taken seriously, the defendant should be required to take the court through a detailed inquiry into the jurisdictional rules of the foreign forum, however inconvenient that may be.").
215. 441 F. Supp. 2d 1233 (S.D. Fla. 2006).
216. Id. at 1236-37.
217. Id. at 1241. The court noted that it did not expect the case to return "in light of the fact that Plaintiff ha[d] filed dozens of [similar] lawsuits in Guatemala."
218. Id. The key issue, of course, would be whether the similar lawsuits had initially been filed elsewhere; if not, the preemptive rules would not have extinguished Guatemala's jurisdiction.
219. See supra note 74 (explaining Guatemala's jurisdictional rules).
220. 319 F.3d 1302 (11th Cir. 2003);
221. Gutierrez Mayorga, 441 F. Supp. 2d at 1237, 1239.
222. See Ford, 319 F.3d at 1311 ("There would be little point in approving of [conditional dismissals] while simultaneously requiring proof that the foreign jurisdiction will reach the merits of the case.").
223. 441 F. Supp. 2d at 1237.
224. See Ford, 319 F.3d at 1310-11.
225. Id.
226. See id. at 1236-37 ("Plaintiff submits affidavits claiming that mere submission to a Guatemalan court does not automatically confer competence to the Guatemalan court to entertain the case.").
227. No. 397CV308L, 2002 WL 31757780 (N.D. Tex. Nov. 29, 2002).
228. Id. at *3.
229. See supra text accompanying notes 79-82 for a discussion of Abarca.
230. Borja, 2002 WL 31757780, at *3.
231. See supra Part III.A.
232. See supra Part III.B.
233. See supra note 34 and accompanying text.
234. No. G-06-CV-590, 2007 WL 528193 (S.D. Tex. Feb. 14, 2007).
235. Id. at *2.
236. See id. ("Such choice [of a U.S. court], legally exercised by plaintiffs, preempts Mexican jurisdiction.").
237. Id.
238. Id.
239. Id. at *3.
240. See Michael Asimow, Popular Culture and the Adversary System, 40 LOY. L.A. L. REV. 653, 665 (2007) (noting experience of "[m]ost trial judges" in "appraising witness credibility").
241. See, e.g., In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 190 F. Supp. 2d 1125, 1132 (S.D. Ind. 2002) (finding defendants' "conclusory opinions of discredited experts" to be insufficient to overcome plaintiffs' arguments that Venezuelan courts were unavailable).
242. See Natalie L. Bridgeman, Human Rights Litigation Under the ATCA as a Proxy for Environmental Claims, 6 YALE HUM. RTS. & DEV. L.J. 1, 34 (2003) ("'When necessary, a court can interpret and apply foreign laws to a controversy' . . . ."
243. (quoting McDonald's Corp. v. Bukele, 960 F. Supp. 1311, 1320 (N.D. Ill. 1997))).
244. See supra Part III.A.
245. 163 S.W.3d 537 (Mo. Ct. App. 2005). Though Chandler is a state case, Missouri state FNC doctrine includes "the availability to the plaintiff of another court with jurisdiction over the cause of action" as a factor in determining whether dismissal is warranted.
246. Id. at 545. Though availability is not given the same status as an explicit prerequisite to FNC dismissal in Missouri law as in federal law, courts must still analyze the issue.
247. Id. at 545-46.
248. See id. at 542-44 (summarizing arguments for Panama's availability made by two Panamanian judges, one of whom was involved in drafting Panama's code of civil procedure).
249. See id. at 544-45 (summarizing argument against Panama's availability made by Panamanian law professor on basis of preemptive rules of jurisdiction).
250. Id. at 545. In affirming the case, the appellate court affirmed the trial court's decision on the availability issue.
251. Id. at 546-47.
252. Id. at 544-45.
253. See id. at 543 ("[A]t certain points during Dr. Faberga's deposition he stated that Panama was not an available forum because Plaintiffs already chose to sue in the United States . . . .").
254. Id. at 544.
255. See id. at 548 ("[A]ssuming that Panama does refuse to proceed, this action can be re-filed in Missouri as a dismissal for forum non conveniens is necessarily a dismissal without prejudice."). When the Chandler plaintiffs ultimately filed in Panama, their case was dismissed there.
256. Johnston v. Multidata Sys. Int'l Corp., No. G-06-CV-313, 2007 WL 1296204, at *3 (S.D. Tex. Apr. 30, 2007). However, the Missouri state court dismissed the case when it was refiled, stating that the plaintiffs had "not proven this cause cannot be litigated in Panama."
257. Id. (quoting Navarro v. Multidata Sys. Int'l Corp., No. 05CC-003136 (Mo. Cir. Ct. Mar. 16, 2006)). The plaintiffs then took their case to federal court, where the defendants again moved to dismiss on FNC
258. Id. The federal court denied the motion because it found Panama to be unavailable as an alternative forum-not because of the preemptive rules raised in state court, but because Panama had passed a blocking statute after the state case had been dismissed.
259. Id. at *27.
260. For another case refraining from using a return jurisdiction clause to impact the defendant's burden of persuasion, see Sacks v. Four Seasons Hotel Ltd., No. 5:04CV73, 2006 WL 783441, at *8 (E.D. Tex. Mar. 24, 2006).
261. Cf. id. at *7 (wondering, in light of expert testimony, "whether a Mexican court would even accept jurisdiction over this action" due to Mexico's preemptive rules of jurisdiction).
262. See supra notes 86-93 and accompanying text.
263. See supra Part I.C.
264. Piper, 454 U.S. at 256 n.23.
265. 313 F. Supp. 2d 672, 675-76 (S.D. Tex. 2004).
266. See supra notes 100-15 and accompanying text.
267. Morales, 313 F. Supp. 2d at 676.
268. Id. at 677.
269. See id. at 689 (noting that Gilbert private interest factors "uniformly favor dismissal of this case").
270. One might challenge the need to stay true to the doctrine. Arguably, doctrinal dishonesty is a good thing because it can spur developments in the law. The doctrinal missteps discussed in this Note may be defensible on this basis, especially since they are recent and on a limited scale. However, even limited dishonesty is problematic to the extent that it introduces doctrinal inconsistency among courts and/or becomes chronic. Still, these may be costs worth enduring if the law changes as a result, as this Part contemplates.
271. See supra notes 14-15 and accompanying text (discussing framework laid out by Supreme Court in 1947).
272. Davies, supra note 21, at 312;
273. see also supra notes 51-52 and accompanying text.
274. See Davies, supra note 21, at 324-46 (detailing how "[g]aining access to foreign evidence has become much easier since 1947").
275. One commentator argues that these administrative concerns are less significant today than they were when Gilbert was decided, in part because it has become easier to prove foreign law in federal court. See id. at 351-64 (discussing changed significance of administrative concerns).
276. See supra note 55.
277. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) (internal quotation marks omitted).
278. U.S. law certainly offers plaintiffs advantages. See supra notes 1-3 and accompanying text. However, it is not clear what is so inconvenient or unfair about a U.S. defendant being sued at home in a court that validly asserts jurisdiction over it and the case.
279. See Silberman, supra note 1, at 525 (noting irony of U.S. defendants' typical argument that foreign forum would be more convenient).
280. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 252 (1981).
281. Silberman, supra note 1, at 517-18
282. (citing Piper, 454 U.S. at 252 n.18).
283. If U.S. courts keep dismissing under FNC despite the preemptive rules, those rules may change. And even if the preemptive rules do not change, consistent U.S. FNC dismissals may nonetheless make plaintiffs more accepting of the risks of FNC dismissals. Continued inconsistency seems unlikely to achieve either result.
284. See supra notes 87-93 and accompanying text (discussing passage of blocking statutes in some countries).
285. See, e.g., Dahl, Blocking Statutes, supra note 74, at 25-37 (discussing "[i]llegal [e]ffects of FNC").