What to Do About Foreign Discriminatory Forum Non Conveniens Legislation


U.S. courts face a difficult challenge when considering whether to hear a case brought by foreign plaintiffs for alleged tort injuries that have occurred abroad. In opposing motions to dismiss based on forum non conveniens, foreign  plaintiffs have argued that a dismissal would effectively leave them without a remedy. They reason that the courts of countries where the tort occurred are so grossly and explicitly biased against the defendants, typically U.S.  corporations, that a foreign judgment would be unenforceable in the U.S. courts. This is potentially the case with Law 364 in Nicaragua, which establishes enormous advantages for local plaintiffs—such as establishing an irrefutable presumption of causation based on minimal standards of proof—as well as disadvantages for the foreign defendants—such as requiring them to deposit large bonds with the court just to gain access to the proceedings.

Foreign plaintiffs in the United States hope to either force U.S.-based corporate defendants to litigate cases in the U.S. or bootstrap these bad foreign laws into judgments that are enforceable in U.S. courts. Indeed, it is no surprise that foreign plaintiffs, with the support of their U.S. lawyers, appear to be behind the efforts to enact some of these laws. The strategy is clear and cunning—foreign laws that discriminate against U.S. defendants (hereinafter “discriminatory foreign laws” or “DFLs”) can be the predicate for U.S. jurisdiction for foreign plaintiffs.

A variation on this theme is DFLs that render local courts unavailable to plaintiffs once a case has been merely filed in the United States. Here, the message to the U.S. court is that dismissal of the case will mean plaintiff has no forum at home. In the case of Nicaragua, the foreign plaintiffs often do not even have to make these arguments. They can rely on the defendants not asking for a dismissal for fear that such dismissal—based on forum non conveniens—will lead to an unfair foreign judgment that might later be enforced in the United States. It is too risky to take that chance.

This paper argues that U.S. courts should dismiss cases premised on DFLs under forum non conveniens, while continuing to refuse to enforce any judgments obtained under such laws. The long-standing position of U.S. law has been that the parameters of dispute resolution—level of damages, choice of law, types of proceedings—should take place in the jurisdiction where the dispute arose. This paper further suggests that a federal statute is necessary to achieve this result.

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