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Article Excerpt
I. INTRODUCTION: CONCERNING BANANA WORKERS
II. FORUM NON CONVENIENS: HISTORY AND ANALYSIS A. The Alternative Forum B. Private and Public Interest Factors III. FORUM NON CONVENIENS: INADEQUACIES AND THE BARRIER IT HAS BECOME FOR THE FOREIGN PLAINTIFF A. The Disappearing Unavailable Inadequate Forum 1. The Created Illusion of Availability 2. Declaring a Forum Inadequate and the "Fear" of Patronizing Foreign Forums B. Times Change: The Private and Public Interest Factors Are No Longer Appropriate C. Despite Changes In How the World Interacts, the Doctrine Stubbornly Resists IV. THE LATIN AMERICAN REJECTION OF DELGADO V. NICARAGUAN JUDGMENT: NICARAGUA LEADS THE ATTACK ON THE FORUM NON CONVENIENS DOCTRINE VI. CONCLUSION: THE BARRIER WILL CRUMBLE
I. INTRODUCTION: CONCERNING BANANA WORKERS
In December of 2002, a court in Managua, Nicaragua, ordered Shell Oil Company, Dole Food Company, and Dow Chemical to pay $489 million to over 400 banana workers for dibromochloropropane (DBCP), including sterility, cancer, and birth defects in children. (1) The emphasis of this Comment is the circumstances leading up to this judgment and the potential implications this decision may have in the application of the forum non conveniens analysis to foreign plaintiffs. The enforceability of this judgment in the United States, however, is outside the scope of this Comment. Irrespective of its enforceability, the position of this Comment is that this recent Nicaraguan judgment in favor of the foreign plaintiffs, and against the corporate defendants, effectively undermines the multinational corporations' evasive strategy behind seeking a dismissal on the grounds of forum non conveniens in U.S. courts. Further, this judgment will result in the removal of forum non conveniens as the procedural obstacle that has, in effect, shielded U.S.-based multinational corporations, like Shell Oil Company, Dole Food Company, and Dow Chemical from liability against foreign plaintiffs. (2)
Several cases a year involving U.S.-based multinational corporations and foreign plaintiffs, particularly Third World plaintiffs, are dismissed on forum non conveniens grounds despite inadequacies in laws, procedures, and remedies in the alternative foreign forum. (3) Due to these inadequacies and other practical problems, a dismissal granted on forum non conveniens grounds often effectively ends the case for the foreign plaintiff. (4) With the possibility of a forum non conveniens dismissal here in U.S. courts, coupled with inadequacies of substantive and procedural laws in foreign courts, multinational U.S.-based corporations are offered a great incentive to operate in foreign countries where they will be protected from any costly liability. (5) With forum non conveniens in their arsenal, U.S.-based corporations with products distributed overseas, or some facet of their operations in foreign lands, are able to "reverse forum shop" (6) out of U.S. courts and into foreign jurisdictions. These jurisdictions are specifically selected because of lower wages, lower standards of care, and potential plaintiffs' limited access to courts, the political process, and little hope of any realistic and meaningful relief. (7)
By arguing inconvenience and seeking a dismissal on forum non conveniens grounds, a multinational corporation is able to "reap [the] financial benefits" (8) by "insulat[ing] itself" (9) from all liability to foreign plaintiffs for wrongs committed by that corporation. (10) Trying to avoid a "form of cultural imperialism," (11) proponents of the doctrine have argued that the "solution to defects in foreign law is to change that law" (12) to better protect their citizens rather than applying American standards of justice in an American forum to foreign plaintiffs. (13)
Numerous scholars, commentators, and foreign countries, through retaliatory legislation and declarations, have called for extensive change to the forum non conveniens doctrine. (14) This change, they argue, should better recognize and adapt to the development of the global market, which calls for the need of greater liability and accountability by multinational corporations for the injury and harm they cause foreign plaintiffs. (15) Although no formal change to the doctrine has occurred, this Comment argues that the recent hard line judgment in Nicaragua against corporate defendants could signal the end of the use of the procedural weapon of forum non conveniens by U.S.-based corporations with operations abroad, thereby giving victimized foreign plaintiffs access to the same courts that have previously denied them justice. (16)
In turn, with the fear of hostile judgments in foreign forums, this Comment suggests that defendant corporations will be unwilling to submit to the jurisdiction of those foreign countries, opting instead to have their cases settled out of court or adjudicated domestically. After this Nicaraguan judgment, corporations will not find the alternative foreign forum as adequate or convenient as they had previously. With Nicaragua leading the charge and the possibility of other foreign countries following suit, the procedural shield of forum non conveniens will finally be pierced, effectively ending its tactically obstructionist use by multinational corporations. The result from such fallout will be the very result called upon by several articles and numerous foreign countries: accountability for the harmful actions of U.S.-based corporations to foreign victims outside the borders of the United States. (17)
This Comment will begin with a brief history of the common law doctrine of forum non conveniens, moving then to the criticisms of its analysis, and noting its increased use and effects in the face of an emergence of the multinational corporation. It will then shift to the Fifth Circuit case, Delgado v. Shell Oil, (18) which is representative of the many cases brought by hundreds of banana workers from several Latin American countries that are similarly dismissed under the forum non conveniens doctrine. This Comment will then spotlight the foreign reaction, specifically the rejection by Latin American countries to this dismissal, leading up to the recent Nicaraguan judgment. Lastly, this Comment will discuss the consequences of the recent Nicaraguan judgment as it relates to the forum non conveniens doctrine, its application, and how this decision may finally achieve corporate accountability for the injuries committed overseas by multinational corporations.
II. FORUM NON CONVENIENS: HISTORY AND ANALYSIS
Forum non conveniens allows a trial judge, in his discretion, to grant defendant's motion to dismiss a case to another forum even though jurisdictional and venue requirements have been satisfied. (19) By filing a motion to dismiss based on forum non conveniens, a defendant argues that the plaintiffs chosen forum is inconvenient and that an alternative forum is more convenient and just. (20) Accordingly, the central purpose of the doctrine is to avoid great inconveniences to one party or one jurisdiction when another forum is more appropriate. (21) Therefore, when deciding on a forum non conveniens motion, the courts must compare the conveniences of the respective forums. (22)
In 1947, in Gulf Oil Corp. v. Gilbert, (23) the U.S. Supreme Court first adopted the doctrine of forum non conveniens. (24) The Court developed a balancing test of both private and public interest factors to be considered when deciding whether or not to dismiss on forum non conveniens grounds. (25) Private interest factors included concerns over accessibility of evidence, ability to compel witnesses, view of evidence on site, and enforceability of judgment, as well as other costs. (26) Public interest factors consisted of congestion of the judicial docket, the burden on the jury of dealing in unfamiliar law, the interest locally in resolving the matter, and complex conflicts of law issues. (27)
As articulated in Gilbert, the forum non conveniens doctrine was applied to disputes over domestic forums, (28) as both the plaintiff and the defendant were domestic parties. (29) Over thirty years later, in Piper Aircraft Co. v. Reyno, (30) the Supreme Court expanded the application of the forum non conveniens doctrine. In contrast with Gilbert, Piper involved domestic defendants, but the plaintiffs and the alternative forum were both foreign. (31)
Prior to Piper, a strong presumption existed that the plaintiffs choice of forum was convenient, especially when the chosen forum was the defendant's home forum. (32) Under the test established in Gilbert, "the plaintiff's choice of forum should rarely be disturbed." (33) The courts were instructed only to disturb this choice when the private and public interest factors clearly pointed toward conducting the trial in the alternative forum. (34) However, in Piper, the Court concluded that when the plaintiff is foreign to the chosen forum, the presumption that the forum is convenient is much less reasonable. (35)
Because the presumption of convenience was less reasonable to a foreign plaintiff when the alternative forum was also foreign, the Court refined and altered the Gilbert factors, making them far less deferential to the foreign plaintiffs' choice of forum. (36) Under the forum non conveniens analysis as refined in Piper, a court first begins by determining whether an alternative forum exists. (37) If an alternative forum is available, a deciding court must then balance the private and public interest factors. (38) If the balance of these factors favors dismissal, the defendant will prevail on its motion to dismiss the case. (39)
Although the foreign plaintiffs choice of forum is considered less reasonable, the court still compares the conveniences of the respective forums. (40) Under the guidelines set forth in Piper, a court is instructed to determine if the action would be better suited in another forum or its own court. (41) The analysis begins with the determination of whether an available alternative forum exists.
A. The Alternative Forum
In deciding a motion to dismiss based on forum non conveniens, the first inquiry is whether an available alternative forum exists. (42) Courts find that this requirement is satisfied when the defendant is subject to the jurisdiction of the alternative forum, (43) or when the defendant is "amenable to process" (44) in the foreign jurisdiction. Under the first step, a court must not only determine if another forum is available to the parties, but also whether the forum provides an adequate remedy to the prevailing party. (45)
In Piper, the Court concluded that the possibility of a less favorable change in substantive law for the plaintiff should not be given substantial weight. (46) However, the Court also noted that if the remedy in the "alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all," (47) the "court may conclude that dismissal would not be in the interests of justice," (48) and thus no dismissal would be granted.
B. Private and Public Interest Factors
Once there is a determination that an alternative forum exists, a court is instructed by the Piper guidelines to balance private and public interest factors to decide whether the motion for forum non conveniens should be granted. (49) The purpose of balancing these factors, consistent with the doctrine itself, is to ensure that the forum chosen is a convenient one. (50) When the public and private interest factors strongly favor an alternative forum, a forum non conveniens dismissal may be granted. (51)
The private interest factors focus on fairness and the convenience of the parties as they relate to litigation. (52) Such factors include the ease of access to proof, witnesses, and evidence. (53) Courts also consider the inability of a defendant to...
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