Can Jus Cogens Regress?

July 26, 2011

“States that respect human rights and operate on democratic principles tend to be the world’s most peaceful and stable.  On the other hand, the worst violators of human rights tend to be the world’s aggressors and proliferators.  These states export threats to global security, whether in the shape of terrorism, massive refugee flows, or environmental pollution.  Denying human rights not only lays waste to human lives; it creates instability that travels across borders.”[1]

The peremptory norms recognized by the international community as jus cogens, the law from which no sovereign derogation is permitted, appears to be an ever-expanding body of law.  There is little agreement among scholars as to precisely how jus cogens norms acquire their status, but when a norm has risen to such a level–  to appropriate a phrase from Justice Stewart– one knows it when one sees it.  There is little doubt, even among those critical of the expansion of jus cogens as a threat to traditional Westphalian notions of sovereignty, there is broad agreement that there indeed has been an expansion.[2]

But what makes a jus cogens norm, international consensus, can also break a jus cogens norm.  As the failure of important players in the international community to live up to basic standards of human rights becomes all too frequent, the risk becomes greater that these expanded body of jus cogens norms might erode away.

Thus, in Henkin’s words, “almost all nations observe almost all principles of international law… almost all of the time.”‘  When a nation deviates from that pattern of presumptive compliance, frictions are created? To avoid such frictions in a nation’s continuing interactions, national leaders may shift over time from a policy of violation to one of compliance. It is through this transnational legal process, this repeated cycle of interaction, interpretation, and internalization, that international law acquires its “stickiness,” that nation-states acquire their identity, and that nations come to “obey” international law out of perceived self-interest. In tracing the move from the external to the internal, from one-time grudging compliance with an external norm to habitual internalized obedience, the key factor is repeated participation in the transnational legal-process. That participation helps to reconstitute national interests, to establish the identity of actors as ones who obey the law, and to develop the norms that become part of the fabric of emerging international society.[3]

Such a regression, disastrous to the cause of human rights, is a function of the nature of jus cogens itself.  The doctrine, though rooted in Enlightenment-era concepts of natural rights, has long been understood to be the product of the positive consent of nations.  It represents a voluntary concession of sovereignty for the sake of a global conscience.  The crimes against jus cogens are those so repugnant to the community of nations as the warrant universal condemnation.  The jus cogens perpetrator is a hostis humani generis, an enemy of all humanity.

But when the behavior at issue is commonplace, the danger of erosion of jus cogens becomes very real. When the global community does not take action to punish a behavior, or punishes inconsistently, the argument can be made that the norms are being abandoned by the global community.  That they are, in effect, no longer crimes jus cogens at all.


[1] Warren Christopher, In Our Own Best Interests:  How Defending Human Rights Benefits Us All (2002). At p. xix.

[2] See, e.g.: Jason Ralph, Defending the Society of States: Why America Opposes the International Criminal Court and its Vision of World Society.  “In international law such rules are considered jus cogens, that is ‘a peremptory rule of law which may only be superseded by another peremptory rule’.”

[3] Koh, Harold Hongju, “Why Do Nations Obey International Law?” (1997).Faculty Scholarship Series. Paper 2101. http://digitalcommons.law.yale.edu/fss_papers/2101 at 2641 [citation omitted].

The modern doctrine of forum non conveniens

Forum non conveniens, literally “the forum not coming together,” is a common law doctrine by which a suit must be dismissed if the choice of forum, because of its geographical location, presents an undue burden on one or more of the parties.  In its most recent ruling on the subject, Sincohem Int’l v. Malayasia Int’l Shipping,[1] the Supreme Court offered a new synthesis of the federal doctrine of forum non conveniens.  In addition to resolving the central legal issue of case,[2] the unanimous opinion of the Court offered a compelling dicta: that the Sinochem case presented a textbook example of a forum non conveniens dismissal.

Since 2007 when Sinochem was decided, much has been made of the “textbook” language, as it seemed to go a long way toward clarification of the murky circumstances that warrant a forum non conveniens dismissal.   Indeed, the most pernicious problem surrounding the doctrine is the utter lack of consistency and predictability endemic to forum non conveniens litigation.  However, as we can plainly see from a new crop of forum non coveniens wildly divergent litigation, this problem has not be solved.

Two recent federal trial court cases make this point salient.  The wrongful death case arising from the Air France 447 crash was recently dismissed:

The U.S. District Court for the Northern District of California dismissed the plaintiffs’ first suit in October 2010, accepting the airline’s forum non conveniens argument that France was the natural jurisdiction for cases arising from the crash of Flight 447, given that most of the defendants were French.

[...]

The plaintiffs tried to get around this argument by dropping all French defendants from the suit, naming as defendants only the U.S. companies that manufactured various components to the crashed Airbus 330. As such, the plaintiffs argued that France was no longer an available venue for their complaint.

The San Francisco-based court rejected this ploy saying that plaintiffs “cannot purposefully defeat the availability of a foreign forum and then assert unavailability to defeat forum non conveniens dismissal.”[3]

Contrast that case with the highly politicized New York case Keren Elmaliach v. Bank of China Ltd.:

In Keren Elmaliach v. Bank of China Ltd., 102026/09, New York Supreme Court Justice Barbara R. Kapnick ruled that while banks generally have no duty to protect non-customers from intentional wrongs committed by its customers, the plaintiffs had alleged facts suggesting that the state-owned Chinese bank was specifically told that it was funding terrorism and took no action. Kapnick also refused to dismiss the case on forum non conveniens grounds.[4]

The differences of outcome in these two cases is striking.  For the point of view of a  forum non conveniens analysis, there is little difference if evidence is to be had in France or China.  Indeed, China is about as far away from New York as France is from California.  The same difficulties are present in either case, so why did opposite results occur?  If there is truly a “textbook” example of a forum non conveniens dimissal, then surely it ought to serve as a useful yardstick for measuring the likelihood of such a dismissal.  Yet, there is no consistency nor predictability to be had, and as will be shown in the course of this paper, this is a direct result of the failure of the forum non conveniens doctrine to keep up with changing technology, and a failure of adequate appellate oversight of a doctrine that permits too wide a berth for the discretion of the trial court.

Prerequisites for a forum non conveniens dismissal

The doctrine of forum non conveniens allows a case to be dismissed before a hearing on the merits, even when the court might otherwise have valid jurisdiction.[5]   In order to dismiss a case on the basis of forum non conveniens the trial court must determine that there are practical considerations which render the location of the court “excessively burdensome.”[6]   The trial judge is permitted wide latitude in making the determination whether or not to dismiss on grounds of forum non conveniens, with little room for appellate supervision.  With surprisingly little guidance or oversight coming from the courts above, there is a great deal of disparity and unpredictability in the application of this doctrine. However, some of the major Supreme Court cases have attempted to clarify these muddied waters.

To determine if a case ought to be dismissed under the doctrine, the trial court judge must first ascertain whether or not an alternative forum exists in which the plaintiff’s case can be heard; if not, a forum non conveniens motion cannot go forward.  If there is determined to be an adequate alternative forum, the judge then must apply a balancing test to decide if dismissal is appropriate because of the practical considerations resulting from the location of the litigation.  In this analysis there are a number of factors relating to both the “public and private interest” which the judge must take into consideration before deciding if the practicalities of the forum warrant the dismissal of the case.[7]   These factors can include the location of evidence, the hardship which litigating in the forum would present to the defendant, and the “relative means of the parties.”[8]   A court must weigh “multifarious”[9] factors to make its determination, in a process that can become clouded by the competing interests of the plaintiff and the defendant, as well as overarching concerns of international diplomacy and judicial economy.

The origins of forum non conveniens           

In 1947 the Supreme Court decided Gulf Oil Corp. v. Gilbert,[10] which still stands as one of the seminal cases in the development of modern forum non conveniens doctrine.  In this case, an action brought in New York by a resident against a corporation based in Pennsylvania was dismissed on the basis on forum non conveniens.   It is here that we find the Court’s first analysis of the factors which make up the forum non conveniens balancing test, and this has served as the foundation for the development of forum non conveniens doctrine in later cases.  The Gilbert court observed that “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”[11]

In order to procure a forum non conveniens dismissal, the burden of proof rests upon the defendant to demonstrate compelling evidence that the forum is too burdensome.[12]  In practice, however, it seldom works out this way.  Indeed, Gilbert marks not only the first time the Supreme Court laid down this proscriptive principle of deference towards to the plaintiff’s choice of forum, it was simultaneously the first exception to this principle.  Although plaintiff’s choice of forum is purported to be given much weight, the analysis of the Gilbert court nevertheless concluded that the trial court’s decision to dismiss on forum non conveniens was not an abuse of discretion.[13]

In the case of Piper Aircraft v. Reyno, a wrongful death action was brought in United States federal courts on behalf of the Scottish victims of an air crash against the American manufacturer in United States federal court.[14]   In the Piper decision, the Court seems to have attempted to moderate its approach to forum non conveniens with an acknowledgement that there is nothing in the ruling which compels courts to ignore the possibility of an unfavorable change in law.    In upholding the dismissal by the district court, Justice Marshall noted that a viable forum awaited the defendants, namely the courts of the United Kingdom, where “there is no danger that [the plaintiffs] will be deprived of any remedy or treated unfairly.”[15]

There is a substantial degree of continuity between Gilbert and Piper, insofar as the former served as the theoretical foundation for the latter, and the latter was thoroughly rooted in the former.  The reasoning in the Gilbert case appears to have been refracted in the lens of the Piper ruling, and as a result this has led to a trend in later decisions which runs counter to the original doctrine as espoused in Gilbert, and even Piper itself, both of which cautioned that the test must weigh greatly in favor of the defendant in order to tip the scales against the plaintiff.  Yet the distinction here is often too subtle to meet the threshold required for an abuse of discretion on the part of the trial judge.  Thus there is not much that can be done on the part of the appellate courts to curb this distortion of the doctrine by the trial courts.

Standard of review

The decision whether or not to dismiss on grounds of forum non conveniens “is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion[.]”[16]  This is a very important feature of the doctrine, as it serves to shield the decision of the trial court from appellate oversight, so long as the trial court’s reasoning is not so egregiously incorrect as to constitute an “abuse of discretion.”  The Supreme Court has held fast to this standard.  For instance in the Koster case the Court maintained that, with respect to the forum non conveniens balancing test, “far from laying down a rigid rule to govern discretion we said, ‘each case turns on its facts.’”[17]  It is because of this loose standard of review that forum non conveniens analyses of different courts under similar circumstances can often lead to wildly unpredictable and contradictory results.

The lack of consistency and predictability in forum non conveniens litigation

The court in Piper seemed to fear that if the choice of law became a conclusive or even substantial consideration, the courts would “have to compare the rights, remedies, and procedures available.”[18]  The fear being that these concerns would take undue primacy in the already clouded calculus that is the forum non conveniens balancing test.  The unfortunate result, however, is that “forum non conveniens cannot really be relied upon in making decisions about secondary conduct — in deciding, for example, where to sue or where one is subject to being sued. The discretionary nature of the doctrine, combined with the multifariousness of the factors relevant to its application, make uniformity and predictability of outcome almost impossible.”[19]  The lower courts do indeed take “rights, remedies, and procedures” into consideration, albeit with inconsistent results.

The telecommunication advances which have advanced globalization in recent decades have on the one hand increased the amount of complex transnational litigation and on the other have significantly eased the burden that this type of litigation once posed.  As the information age marches on, some of the decades-old concerns voiced by the courts which gave rise to the present incarnation of the doctrine seem out of date and anachronistic by modern standards.[20]  Appellate oversight of forum non conveniens doctrine has simply not kept pace with changes in technology.  The physical location of evidence or witnesses is the determinative factor it was in the days of Piper or Gilbert.  As Judge Newman wisely observed, “it will often be quicker and less expensive to transfer a witness or a document than to transfer a lawsuit.”[21]

Changing the standard of review

One possible solution to the broken forum non conveniens doctrine is to alter the standard of appellate review for forum non conveniens dismissals, viz. changing it from the current abuse of discretion standard to a standard of de novo review, allowing for heightened appellate oversight.  At present the doctrine attempts to accomplish two conflicting goals, and in the process becomes susceptible to a vast disparity in interpretation.  And indeed, this schizophrenic nature of forum non conveniens was acknowledged in the Sinochem decision, where the Supreme Court felt it necessary to provide the lower courts something of a roadmap to this confused doctrine.

The Sinochem test streamlines the forum non conveniens analysis into three prongs, yet makes no provisions for its consistent application, and so the result is really no different that before, the application of the test still remains in the hands of the trial court alone, which, as we have seen, leads to unpredictable, and often contradictory, results.  As one commentator observed, the forum non conveniens balancing test “must weigh heavily in favor of the defendant before a court may dismiss, and the appropriate inquiry is not whether the trial court has reasonably balanced the factors, but whether the trial court’s balancing was correct.”[22]

Changing the standard of review would not limit the district court judge’s authority to dismiss based on forum non conveniens should the case so warrant.  A de novo standard would ensure that the analysis underlying the dismissal has been applied properly and in accordance with the standard as set out in Sinochem.  Thus, changing to a de novo standard of review ought to eliminate many of the difficulties posed by the doctrine in its present form. Otherwise, under the current regime of abuse of discretion review, the Sinochem ruling becomes yet another note in the multifarious chorus of forum non conveniens factors.  Short of implementing this new standard of appellate review there are no measures in place to assure that the correct weight is given to each factor of the balancing test and it is difficult to see how the Sinochem ruling will be enforced at all.

 

Conclusion

In a global community the number of international lawsuits brought in United States courts have inevitably increased, and in these sorts of cases the doctrine of forum non conveniens often occupies a place of central importance.  A forum non conveniens dismissal carries with it the potential that the case might never be heard at all.  Likewise, the rejection of a legitimate forum non conveniens motion can bring about a great deal of unnecessary litigation. Clearly this sort of inconsistency in application can be very unfair to plaintiffs and defendants alike, and is not what we want in our judicial system.

This presents a pressing public policy concern, and although the Sinochem decision did much to clear up procedural issues, the forum non conveniens analysis itself remains subject to only the loosest of oversight.  Although the rule of law set forth in Sinochem does help to put a finer point on the issue, it does not seem likely to change the current state of affairs unless further measures are taken. A change in the standard of review from abuse of discretion to de novo seems to be the most effective solution to the problem.  This would be the most effective way to correct the disparity and ensure that the proper balancing of factors is being made in the trial court’s forum non conveniens analysis.  It is imperative that this problem be addressed in order to properly oversee which cases truly warrant a forum non conveniens dismissal and which do not.


[1] Sinochem International Co., Ltd. v. Malaysia International Shipping Corporation, 549 U.S. 422 (2007)

[2] A district court has discretion to respond at once to a defendant’s forum non conveniens plea, and need not take up first any other threshold objection. In particular, a court need not resolve whether it has authority to adjudicate the cause (subject-matter jurisdiction) or personal jurisdiction over the defendant if it determines that, in any event, a foreign tribunal is the more suitable arbiter of the merits of the case. Id. at Pp. 5–12.

[3] Travis Sanford, Court Again Bars Case Over Air France Crash, June 21, 2011 http://www.courthousenews.com/2011/06/21/37561.htm

[4] Brendan Pierson, Judge Allows Exploration of Bank’s Role in Terrorism, July 18, 2011, http://www.law.com/jsp/article.jsp?id=1202501543028&Judge_Allows_Exploration_of_Banks_Role_in_Terrorism

[5] Sinochem, 127 S. Ct. at 1190-1191.

[6] Wiwa v. Royal Dutch Petroleum Co., et. al., 226 F.3d 88 (2d Cir. 2000).

[7] Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981).

[8] Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 341 (S. D. N. Y. 2003).

[9] American Dredging Co. v. Miller, 510 U.S. 443 (1994), 455.

[10] Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).

[11] Id. at 502 – 509.

[12] Strategic Value Master Fund, Ltd. v. Cargill Fin. Serv. Corp., 421 F.2d 741, 754 (S. D. N. Y. 2006).

[13] Gilbert, 330 U.S. at 509-512.

[14] Piper, 454 U.S. at 254.

[15] Id. at 255.

[16] Id. at 257.

[17] Koster v. (American) Lumbermens Mut. Casualty Co., 330 U.S. 518, 528 [citation omitted].

[18] Piper, 454 U.S. at 251.

[19] American Dredging, 510 U. S. at 443.

[20] David W. Robertson, The Federal Doctrine of Forum Non Conveniens: “An Object Lesson in Uncontrolled Discretion, 29 Tex. Int’l L.J. 353, at 367. Illustrative of the problems that the doctrine of forum non conveniens represents as something of a judicial relic is Professor Roberston’s observation: “In 1947 the Gulf Oil Corporation 112 Court was persuaded that serious inconvenience would result from bringing a defendant to trial in New York on a case that belonged in Virginia. Consider what would have been involved in handling a Virginia matter in New York in that era. We had no commercial jet travel, no personal or office computers, no photocopy technology, no fax machines. Clerks and secretaries did not have electric typewriters, or even ‘white-out’ substances — we used manual typewriters and erasers.”  It is not simply that the old decisions are “out of touch” with the fast pace of the modern era, rather that the emphasis placed on these on these concerns is weighted too heavily in the forum non conveniens analysis.

[21] Calavo Growers of California v. Belgium, 632 F.2d 963, 969 (2d Cir. 1980)  (Newman, J., concurring), cert. denied.  Judge Newman goes on to opine that “[j]et travel and satellite communications have significantly altered the meaning of “non conveniens.”

[22] Jacqueline Duval-Major, One-Way Ticket Home: the Federal Doctrine of Forum Non Conveniens and the International Plaintiff, 77 Cornell L. Rev. 650, 684 (1992).

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