Some Thoughts on the Lack of Consistency and Predictability in Federal Forum Non Conveniens Dismissals
August 20, 2011
The doctrine of forum non conveniens is applied with great inconsistency by federal district courts. The forum non conveniens analysis is, to quote Justice Scalia, “multifarious,” but what weight should be given to those factors is left to the trial court to decide, with a de novo standard of review sometimes leading to vastly divergent outcomes in practice. Despite Justice Ginsberg’s famous dictum that the Sinochem case was a “textbook,” example he Supreme Court’s Sinochem decision has been little help in providing a standard of what a forum non conveniens dismissal should look like. There are many questions left unanswered about the proper application of the doctrine. What does an “adequate alternative forum” look like, anyway?
The Supreme Court, in setting guidelines for granting a motion for forum non conveniens, has required the existence of an alternate adequate forum. However, beyond the condition that an adequate alternate forum is one where the defendant is “amenable to process,” the Supreme Court has not provided much further guidance. Various factors have been examined to determine whether there is any empirical evidence of what may constitute an adequate alternate forum. For example, there is evidence that district courts in the Third and Fourth Circuits are less likely to find a foreign forum to be adequate. District courts are more likely to consider cases based on diversity jurisdiction to be adequate to resolve in a foreign forum than cases based on federal question jurisdiction. Defense litigants themselves indicate a preference of litigating in the United States versus litigating in countries that lack civil liberties, lack political rights, are politically unstable, have ineffective governments, disregard the rule of law, cannot control corruption, and are not as economically developed. In addition, district courts have been less likely to find an adequate forum in countries with these conditions. Ultimately, there is not evidence that would suggest the legal system in another country, the foreign language spoken, or the amount in controversy have an effect in influencing a district court’s view on the adequacy of the foreign forum.
Although Sinochem reaffirmed the lowered presumption in favor of a foreign plaintiff, there is still little guidance otherwise as to how the factors of a forum non conveniens analysis should be weighed against one another. As is illustrated by the contrast among the cases discussed earlier, the high degree of judicial discretion renders it almost impossible to define precisely the “multifarious factors” that go into the forum non conveniens analysis. There is no meaningful yardstick against which to compare a “textbook” case for an immediate forum non conveniens dismissal. But why should this be a concern? Some might argue that it would serve the interest of justice to grant the district court judge a wide berth for discretion.
As it stands, the doctrine of forum non conveniens presents an unnecessary obstacle to both parties in cases where it is an issue, and the absence of stricter appellate oversight directly facilitates this inefficiency. In Sinochem, the Supreme Court has given the lower courts a tightened up version of the forum non conveniens analysis, but left them without the equipment necessary to properly oversee its inevitably inconsistent application. In the wake of Sinochem, which reaffirmed the lowered presumption in favor of a foreign plaintiff in forum non conveniens analyses, the need for further clarification of the doctrine has already arisen. This is already reflected by the competing interpretations of the “textbook” language, and more such ambiguities are likely to be found in the broad language of the Sinochem opinion.
Though there may be something to be said about the ease with which the current standard accommodates diplomatic concerns, it is hardly clear that this would satisfy the multifarious analysis as intended by the Sinochem court. It has been observed that “if inconsistency is the rule – would it not be just as well for the parties to select some other method (perhaps flipping a coin?) to decide the outcome?” Currently the doctrine of forum non conveniens stands as an impediment to the important goals of predictability and consistency, and thereby affects the very foundation of fairness and efficiency on which the judicial process is based. Furthermore, since there is no evidence that the competing goal of conservation of judicial resources (by means of docket clearing) is being advanced, it can hardly be said to justify of the problems of the doctrine in its present incarnation.
 Michael T. Lii, An Empirical Examination of the Adequate Alternative Forum in the Doctrine of Forum Non Conveniens. 8 Rich. J. Global L. & Bus. 513 at 551 (2009).
 Robert J. Thornton and Perry A. Zirkel, The Consistency and Predictability of Grievance Arbitration Awards, 43 Industrial & Labor Relations Review 294.
In the United States, a respect for the norms of international law has been part and parcel to domestic law since the framing of the Constitution; “[i]n fact, the Framers held the Constitutional Convention in large part due to the perceived inability of the Confederation to uphold American obligations under international law.” This was confirmed by the U.S. Supreme Court in the famous 1796 case of Ware v. Hylton. Significant in the case is a dictum by Justice Samuel Chase:
If Virginia as a sovereign state, violated the ancient or modern law of nations in making the law of 29 October 1777, she was answerable in her political capacity to the British nation, whose subjects have been injured in consequence of that law.”
Here, Chase acknowledges the role played by the shifting norms of international law in the domestic law of the United States. Both the “ancient” and “modern” norms are binding. As the norms of international law change and expand with the times, so to does the law of the United States change with them. And, as we can see by the offhandedness of the dictum, in 1796 this was not a controversial stance. But the shifting nature of international law is a double-edged sword. These norms can expand to encompass a broader respect for human rights (and we have seen almost uninterrupted progress in this regard for generations), but likewise there is a danger that the norms of international law can shrink, or regress as nations shirk their international obligations.
Indeed, jus cogens norms can decline as the standards of the international community decline. But, likewise, these norms of the international community can become stronger and more vigorous, and on the whole the trend has been towards an increasing respect for human rights. Indeed, this is why it is all the more important to protect the ground that has been gained. If crimes against jus cogens norms are not vigorously prosecuted, we run the risk that the progress made in the cause of human will simply slip away.
In the United States, there had been early attention to a significant number of international crimes that can be committed by private perpetrators and provide universal jurisdiction for criminal or civil sanctions, including piracy; war crimes; breaches of neutrality, territorial infractions, “aggression,” and other crimes against peace; unlawful capture of vessels; the slave trade; violence against foreign ministers and other officials; poisoners, assassins, and incendiaries[sic]; counterfeiters of foreign currency; banditti and brigands; terroristic publications; violation of passports; violation of safe-conducts; and more generally “all . . . trespasses committed against the general law of nations” and the treaties of the United States.
Today, the number of specific international crimes that can be committed by private individuals has increased from earlier categories to include, among others, the following: genocide; other crimes against humanity; apartheid; race discrimination; hostage-taking; torture; forced disappearance of persons; terrorism; terrorist bombings; financing of terrorism; aircraft hijacking; aircraft sabotage and certain other acts against civil aviation; certain acts against the safety of maritime navigation, including boatjacking; murder, kidnapping, or other attacks on the person or liberty of internationally protected persons; trafficking in certain drugs; slavery; and mercenarism.
That the poisoners, assassins and arsonists of Vattel’s day might be tried in any court in any country was unlikely; in practice universal jurisdiction was most frequently applied to pirates, and later, slave-traders.
. Today, these considerations are no longer academic, but practical. The gains have been tremendous since the post-World War II era; horrendous practices such as apartheid, once carrying the full force of law in many places, is now considered a crime against the human race, punishable anywhere by means of universal jurisdiction. Such offenders, who could previously be protected by sovereign immunity, now truly know no safe harbor. In theory, at least.
 Ryan Goodman & Derek P. Jinks, Filartiga’s Firm Footing: Federal Common Law and International Human Rights, 66 FORDHAM L. REV. 463 (1997) [citation omitted].
 According to the Court in Filártiga v. Peña–Irala, 630 F.2d 876 (2d Cir. 1980): “Thus it is clear that courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today.” See Ware v. Hylton, 3 U.S. (3 Dall.) 198, 1 L.Ed. 568 (1796) (distinguishing between “ancient” and “modern” law of nations.)” 630 F. 2d at 881.
 Ware v. Hylton, 3 U.S. (3 Dall. )199 at 223-4
 Jordan J. Paust, The Reality of Private Rights, Duties & Participation, 25 MICH. J. INT’L L. 1229 At 1237-40 [citations omitted].