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Right to Remedies and the Inconvenience of Forum Non Conveniens: Opening U.S. Courts to Victims of Corporate Human Rights Abuses
Abstract
As globalization has increased over the past several decades, so have alle-gations of human rights abuses by transnational corporations. Victims of such abuses have few opportunities to seek redress, and while U.S. courts are one potential avenue to justice, their doors are often closed by the like-lihood of forum non conveniens dismissals. Without access to remedies, victims are unable to hold corporations accountable for their actions, and violations continue. This Note proposes a series of changes to the common law forum non conveniens doctrine in order to improve access to courts for victims of international human rights violations at the hands of U.S. cor-porations. Despite the effects of globalization, the growing international human rights movement, and massive changes in technology, the doctrine has changed very little in the sixty years since it was established. United States courts can and should adapt their application of this doctrine to in-crease the accountability of U.S. corporations for human rights violations committed abroad.
Supreme Court. In the last fifteen years, the US has been a preferred place for civil liability claims, brought by foreign plaintiffs for human rights violations committed in developing countries hosting subsidiaries of American companies -or foreign companies doing business in the US. The attraction of the U.S. forum of the victims of abuse is due to some procedural and substantive peculiarities of the American system. One of them is the Alien Tort Statute, a provision which confers universal jurisdiction in civil liability suits for violation of certain rules of customary international law. However, litigation against companies under the ATS has never been easy; the future of the ATS is at risk, particularly because of the academic doubts about its scope, as well as divide within the courts and circuit split. The outcome is an acute and costly legal uncertainty (for victims, potential defendants, for the very cause of defending human rights), which calls for a prompt intervention of the Congress, or at least, of the Supreme Court.
I address two parallel and paradoxical trends involving U.S. litigation and international law. I describe how U.S. courts have sought to widen their influence over the provision of succor to foreign victims of cruelty and injustice. I argue that a desire to increase the capacity of U.S. judges to instruct the world explains, at least in part, these developments. I then review how international arbitral bodies have had new opportunities to scrutinize the fairness and efficacy of civil litigation in the United States, and have tended to find our civil process wanting. These cases also implicate two other issues. Many have questioned the wisdom of international commitments that submit U.S. civil practice to the scrutiny of independent arbiters. Doubts also exist about the willingness of U.S. courts to enforce arbitration awards that compensate for perceived failures in U.S. litigation. How one addresses these issues turns largely on how one regards the tension between the ambition of U.S. courts and the critique embedded in the arbitration proceedings. I proceed from these descriptive tasks to the development of alternative idealizations of judicial function. I offer two stylized accounts of what a civil litigation process might set out to do. What I will call the expressive function involves a deliberative process that engages more than the parties to the suit. What I will call the distributive function involves a contest among the parties before the court over the assignment of discrete interests, duties, powers, immunities and rights. I then explore the different implications of these functions for the judiciary's posture toward the Executive and Congress. I argue that the expressive function does not require a distinction between the judiciary and other branches of government, as the engagement in deliberative discourse has only an accidental connection to the medium of the lawsuit. The distributive function, by contrast, suggests a distinct role for the judiciary and thus invites consideration of how the operation of the political branches might restrict the scope of judicial activity.
The increase in transnational litigation before Australian courts has also seen a rise in the number of cases involving foreign states. While a number of doctrines currently exist in Australian law that protect the interests of foreign states from adjudication, their combined effect has been to frustrate the vindication of private rights. Principles of personal jurisdiction and appropriate forum, where private and public interests may be weighed against each other in the decision to adjudicate, offer a more balanced and equitable solution.
Home states that are actively engaged in global mining have considered and rejected calls to regulate the conduct of transnational mining corporations so as to prevent and remedy human rights and environmental harms. This reluctance to regulate is often expressed as a concern that extraterritorial regulation will conflict with the sovereignty of foreign states. This paper argues that the public international law of jurisdiction is permissive of home state regulation that can be justified under the nationality or territoriality principles, provided that there is no true conflict with an exercise of host state jurisdiction. In the human rights and environment contexts, it is more likely that home state regulation would result in concurrent but not conflicting jurisdiction, particularly where the regulation is designed to further shared international norms. Beyond permissibility, this paper argues that international sustainable mineral development law imposes an emerging obligation on all states, including home states, to ensure that the three pillars of public participation rights are respected. These rights are access to information, public participation in decision-making, and access to justice in environmental matters, and they are formulated in the global mining context as a right of indigenous and local communities to free, prior and informed consent. Support for the existence of such a home state obligation may be found in the recommendations of international human rights treaty bodies, and in the work of the International Law Commission on both state responsibility, and the prevention and allocation of loss for transboundary harm.
supra note 62, at 526-28 (describing availability of punitive damages under ATCA and TVPA); supra note 64 (noting punitive damages awarded in Filartiga)
- E G See
- Stephens
- Al
See, e.g., STEPHENS ET AL., supra note 62, at 526-28 (describing availability of
punitive damages under ATCA and TVPA); supra note 64 (noting punitive damages
awarded in Filartiga).
The Life and Death of the Corporate Alien Tort
- Michael Goldhaber
Michael Goldhaber, The Life and Death of the Corporate Alien Tort, LAW.COM
(Oct.
12,
2010),
http://www.law.com/ jsp/law/international/ LawArticleIntl.jsp? id=
Kiobel's First Victim: Flomo v. Firestone, EARTHRIGHTS INT'L
- Marco Simons
Marco Simons, Kiobel's First Victim: Flomo v. Firestone, EARTHRIGHTS
INT'L (Oct. 5, 2010), http://www.earthrights.org/ blog/kiobels-first-victim-flomo-v-firestone.
Court Finds Corporations Immune from Liability for Human Rights Abuses
- Marco Simons
Marco Simons, U.S. Court Finds Corporations Immune from Liability for Human
Rights Abuses, EARTHRIGHTS INT'L (Sept. 17, 2010), http://www.earthrights.org/ blog/uscourt-finds-corporations-immune-liability-human-rights-abuses.
In addition to emphasizing relevant U.S. policy interests in human rights cases, id
- Id
Id. at 101. In addition to emphasizing relevant U.S. policy interests in human
rights cases, id. at 105, the court also weighed the relevant burdens that dismissal would
impose on the plaintiffs as compared with the defendants. Id. at 107.
at B1; Press Release, Center for Constitutional Rights, Settlement Reached in Human Rights Cases Against Royal Dutch/Shell
- Jad Mouawad
Jad Mouawad, Shell Agrees to Settle Abuse Case for Millions, N.Y. TIMES, June 9,
2009, at B1; Press Release, Center for Constitutional Rights, Settlement Reached in
Human Rights Cases Against Royal Dutch/Shell (June 8, 2009), available at
http://ccr justice.org/newsroom/press-releases/settlement-reached-human-rights-casesagainst-royal-dutch/ shell.
127. 786 S.W.2d 674 (Tex. 1990), superseded by statute, TEX. CIV. PRAC. & REM. CODE
ANN. § 71.051 (West 2009).
at 48 (reporting that suit resulted in settlement of $20 million
- Costa Rica
Costa Rica: The Price of Bananas, ECONOMIST, Mar. 12, 1994, at 48 (reporting
that suit resulted in settlement of $20 million, with distributions to 800 workers involved
of between $1,500 and $15,000 each).
226 F.3d at 105 (internal quotation marks omitted)
- Wiwa
Wiwa, 226 F.3d at 105 (internal quotation marks omitted).
On the other hand, the "court of public opinion" is certainly not an adequate substitute for courts in terms of finding facts or assessing fault, and there is a danger that plaintiffs or attorneys may use the media to pressure defendants unfairly. See generally JONATHAN DRIMMER
- Joseph E See
- Making Stiglitz
- Globalization
See JOSEPH E. STIGLITZ, MAKING GLOBALIZATION WORK 198 (2006) (citing Nike
and Shell as examples of companies bowing to public pressure regarding human rights
abuses). On the other hand, the "court of public opinion" is certainly not an adequate
substitute for courts in terms of finding facts or assessing fault, and there is a danger that
plaintiffs or attorneys may use the media to pressure defendants unfairly. See generally
JONATHAN DRIMMER, U.S. CHAMBER INST. FOR LEGAL REFORM, THINK GLOBALLY SUE
LOCALLY: OUT-OF-COURT TACTICS EMPLOYED BY PLAINTIFFS, THEIR LAWYERS, AND THEIR
ADVOCATES IN TRANSNATIONAL TORT CASES (2010), available at http://www.institute for legalreform.com/ images/ stories/ documents/ pdf/ international/ thinkgloballysuelocally.pdf
(raising and discussing ethical concerns with plaintiffs' use of media and other out-of-court
tactics in transnational cases). For a response to Drimmer's report, see EARTHRIGHTS
INT'L, MISSING THE POINT: A RESPONSE TO THE U.S. CHAMBER OF COMMERCE REPORT
"THINK GLOBALLY, SUE LOCALLY" (2010), available at http://www.earth rights.org/sites/
default/files/documents/Missing-the-point.pdf.
Companies should have to make public information about overseas activities that would be prohibited or subject to disclosure laws at home
See, e.g., Editorial, An International Right to Know, N.Y. TIMES, Jan. 25, 2003, at
A18 ("Companies should have to make public information about overseas activities that
would be prohibited or subject to disclosure laws at home.").
See also supra note 137 and accompanying text (noting that courts sometimes dismiss cases for the wrong reasons). 206. Id. 207. For a description of the corporate impunity problem, see supra Part
- Paul Santoyo
Paul Santoyo, Comment, Bananas of Wrath: How Nicaragua May Have Dealt
Forum Non Conveniens a Fatal Blow Removing the Doctrine as an Obstacle to Achieving
Corporate Accountability, 27 HOUS. J. INT'L L. 703, 718 (2005). See also supra note 137
and accompanying text (noting that courts sometimes dismiss cases for the wrong reasons).
206. Id.
207. For a description of the corporate impunity problem, see supra Part III.A.
208. See Ruggie Report 2008, supra note 3, ¶ 18 (defining state duty to protect).
- Margot E See
- Global Salomon
- Responsibility
- Human Rights
See MARGOT E. SALOMON, GLOBAL RESPONSIBILITY FOR HUMAN RIGHTS: WORLD
POVERTY AND THE DEVELOPMENT OF INTERNATIONAL LAW 185-86 (2007).
Inter-Am. Ct. H.R. (ser. C) No. 4 (ordering government of Honduras to compensate family members of victims of disappearance under theory of due diligence)
- E G See
- Velásquez Rodríguez
See, e.g., Velásquez Rodríguez, Inter-Am. Ct. H.R. (ser. C) No. 4 (ordering government of Honduras to compensate family members of victims of disappearance under
theory of due diligence).
at 416. 213. Convention on the Prevention and Punishment of the Crime of Genocide
- Ayoub
Ayoub, supra note 17, at 416.
213. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9,
1948, 78 U.N.T.S. 277;
describing circumstances under which states may exercise jurisdiction over their own companies operating abroad
- Ayoub
Ayoub, supra note 17, at 411-13 (describing circumstances under which states may
exercise jurisdiction over their own companies operating abroad).
See also ILC Report, supra note 226, at 375. For a discussion of how current U.S. forum non conveniens doctrine is discriminatory against foreigners, see supra notes 172-173 and accompanying text
- Seck
Seck, supra note 219, at 203. See also ILC Report, supra note 226, at 375. For a
discussion of how current U.S. forum non conveniens doctrine is discriminatory against
foreigners, see supra notes 172-173 and accompanying text.
arguing that weakening forum non conveniens would
See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 252 (1981) (arguing that weakening
forum non conveniens would "further congest already crowded courts");
The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 COLUM
- Paxton Blair
Paxton Blair, The
Doctrine of Forum Non Conveniens in Anglo-American Law, 29 COLUM. L. REV. 1, 1 (1929)
(arguing forum non conveniens is useful tool to combat "the flood of litigation by which our
courts are being overwhelmed").
at 283 (internal quotation marks omitted)
- Id
Id. at 283 (internal quotation marks omitted).
- Richard Garnett
Richard Garnett, Foreign States in Australian Courts, 29 MELB. U. L. REV. 704,
706 (2005).