Forum Non Conveniens and Corruption: A Lofty Hurdle or a Solid Barrier to Justice?
Countries Shaded By Corruption Perception
By: Joseph N. Sotile; Staff Editor
Plaintiffs typically do not have success claiming that their case should be heard in U.S. courts because the alternative forum is too corrupt. When courts have addressed corruption in the forum non conveniens analysis, it is very rare for a court to determine a forum is so corrupt as to be inadequate. This is due to the high bar in finding the entire alternative country’s judicial system is corrupt, as well as the challenge of providing evidence that the case’s particular plaintiff will face disparate treatment. These hurdles hamper the plaintiff's access to justice. U.S. courts should lower the standard for plaintiffs to prove corruption in another forum.
In 1995, a Texas court dismissed a class action lawsuit including hundreds of Nicaraguan farmers against several American corporations, including Chiquita, Dole, and Dow Chemical. The U.S. federal court dismissed the charges not because it lacked jurisdiction nor because the claims were unfounded, but because of forum non conveniens. This is a discretionary doctrine that allows a competent court to “divest itself of jurisdiction if, for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum in which the action might also have been properly brought in the first place.”
Although the Nicaraguan farmers argued that the country’s judicial system was “not functioning” because the Nicaraguan courts were tied up in political reshuffling, the U.S. court nonetheless determined that “an adequate alternative forum exist[ed]” in Nicaragua. The suit was subsequently heard in Nicaragua, resulting in a verdict for the farmers. However, despite this victory, the plaintiffs were unable to enforce the judgment in the United States because a different U.S. federal court found that “the judgment was rendered under a system in which political strongmen exert their control over a weak and corrupt judiciary, such that Nicaragua does not posses [sic] a ‘system of jurisprudence likely to secure an impartial administration of justice.’”
The disparity in how two U.S. federal courts weighed the issue of corruption at different moments in the case—Motion to Dismiss versus judgment enforcement—highlights the need for courts to adopt greater clarity in what counts as corruption in the forum non analysis. Currently, the bar of finding corruption is too high to have any meaningful effect on plaintiffs who face genuine hardship in trying their case in another country. The current analysis hampers a plaintiff’s access to justice. With clear jurisdiction and venue requirements in the United States, and with the modern reality of electronic filing and discovery processes, forum non conveniens is less necessary on a technical level than it once was. Additionally, while courts used to avoid judging judicial systems with respect for international comity, courts can rely on U.S. State Department reports and other indicia of U.S. foreign policy so that they are not speaking for the United States. Courts must lower the threshold used for determining if another forum is too corrupt so that plaintiffs can more easily bring cases in the United States and have a fair chance at justice.
Building a High Bar: What Makes a Forum Corrupt?
Assessing a court’s corruption is challenging, but in Piper Aircraft Co. v. Reyno, the U.S. Supreme Court laid out the principles used in determining whether a forum is corrupt. The three points for courts to consider when exercising their discretion are:
The existence of an alternative forum
A “strong presumption in favor of the plaintiff's choice of forum”
“[P]rivate and public interest factors”
For a case to be dismissed under forum non conveniens, the “alternative forum” must be deemed “adequate.” A forum is deemed insufficient and corrupt when it “is characterized by a complete absence of due process or an inability of the forum to provide substantial justice to the parties.” When measuring corruption, courts have turned away evidence in the form of “conclusory submissions” or “sweeping generalizations,” and some have held that “[o]nly evidence of actual corruption in a particular case will warrant a finding that an alternate forum is inadequate.” This high bar of specific corruption led one court to remark that “[t]he ‘alternative forum is too corrupt to be adequate’ argument does not enjoy a particularly impressive track record.”
How High Can You Jump?: Assessing Corrupt Forums
There are few examples where a court denied forum non conveniens based on corruption allegations. Eastman Kodak Co. v. Kavlin presented one of the most famous instances. In deeming the other forum corrupt, the court referred to two buckets of evidence. The first established general systemic corruption, using evidence such as U.S. State Department reports. The second established corruption abuses the specific plaintiffs have faced and could face in litigation.
The court noted that “absent protracted hearings,” it “cannot draw a conclusive judgment as to which side (if either) is telling the true story.” The court introduced a three-step analysis to make up for this:
the defendant has the initial burden of providing an alternative forum,
the plaintiff must demonstrate that the alternative forum is clearly unable to offer an adequate remedy, and then
the burden of persuasion shifts to the defendant to rebut the plaintiff’s evidence that the alternative forum is unsatisfactory.
To this court, the defendant failed in step three. And given the required deference to the plaintiff’s choice of forum, the court denied the forum non conveniens motion to dismiss.
But focusing on both general and specific corruption is not a panacea. While Eastman Kodak set the blueprint for whether an allegedly corrupt forum is adequate, it remains one of the only successful instances in which a plaintiff warded off a forum non conveniens claim based on a corruption counterargument.
In the recent case of Acuña-Atalaya v. Newmont Mining Corp., the plaintiffs alleged that they would not get a fair trial in the alternative forum as the Peruvian courts were corrupt. Acuña-Atalaya had evidence of generalized corruption, including reports of generalized corruption and well-documented pressure from the defendant to senior Peruvian political officials to ensure that Peru’s Supreme Court ruled in his favor in prior cases. There was also evidence of specific corruption against these plaintiffs, including past inequalities in government prosecutors rejecting the plaintiff’s claims, procedural “irregularities” that disenfranchised the plaintiffs, and alleged bribing of prosecutors in their case.
The court denied these credible allegations of corruption because the court could point to successes the plaintiffs had in Peru (such as the plaintiff’s movement’s advocacy victories, some success in Peruvian appellate courts, and the international attention their struggle and individual criminalization have received). This court held that these plaintiffs failed at the second stage of the test, meaning that they did not demonstrate that the forum was corrupt despite a plethora of evidence to the contrary. This case demonstrated the perverse incentive such a high bar dictates: Any success that plaintiffs have in calling attention to their struggle or lobbying the government for change will be used to cut against a finding that the forum is “so unsatisfactory” as to be inadequate.
Justice Shouldn’t Be a Tall Order
It is vital to find ways to ensure that plaintiffs have access to fair and just forums to pursue their claims. The forum non analysis should be shifted to lower the threshold needed on the second step of the analysis. Courts should actually prioritize the plaintiff’s choice of forum and give deference to the plaintiff's claims that a forum is corrupt. As Eastman Kodak claimed, absent a hearing on the validity of each party's claims, it is incumbent on the defendant to rebut the evidence that the plaintiff puts forth. Fairness is not achieved in raising the bar to step two as in Acuña-Atalaya; instead, it is achieved in each party carrying out their responsibility. By doing so, courts can ensure that the forum non conveniens doctrine is not used as a shield to protect wrongdoers, but rather as a tool to promote fairness.
Joseph Sotile is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He graduated from Tulane University with a B.A. in 2020. Before law school, Joseph worked as an analyst at Emergent Method and volunteered with Berkeley Law School’s Center on Equality & Anti-Discrimination Law.