The two doctrines interact when (1) a defendant in a US action successfully obtains a forum non conveniens dismissal; (2) the action is then tried in the foreign forum; (3) the plaintiff prevails; and (4) the plaintiff seeks recognition and enforcement of the judgment in the United States. In these circumstances, does the fact that it was the defendant who sought a trial in the foreign forum foreclose some attacks on the foreign judgment that would otherwise be available to the defendant? For example, can a defendant assert fraud in the foreign proceedings or a lack of impartial tribunals in the foreign state, both of which are potential defenses under state law to recognition and enforcement of a foreign judgment? The issue is sharpened if, as is likely, the defendant, in order to encourage the US court to dismiss the case, has sung the praises of the foreign forum, or if the defendant made a stipulation to honor the foreign judgment as a condition of obtaining the dismissal.
In very broad terms, it seems to me there are basically two reasonable intuitions about the right outcome. The first intuition is that the US courts should never facilitate a fraud or a denial of due process, and no one agrees to be defrauded. So the fact that the defendant preferred the foreign forum and caused the case to be heard there cannot require the recognition and enforcement of a fundamentally flawed foreign judgment. The second intuition is that a defendant that causes a case to be heard abroad rather than in the US takes the risk that things won’t go its way, and that it is unfair to the plaintiff to deny the plaintiff a US forum and then complain about the fairness of the foreign proceedings that the defendant itself procured. Of course, these two intuitions are much too coarse to provide real answers: we need to consider the content of the representations and stipulations the defendant made in order to obtain the dismissal, what was known at relevant times about the foreign judiciary, whether the foreign judiciary changed over a relevant time period (and if so, whether that matters), whether claims that the judgment was obtained by fraud, for instance, should be treated differently from other potential defenses, such as claims that the foreign country does not provide impartial tribunals, and similar issues. We also need to consider the role the United States plays and should play in the international legal order. In short, this is a tangle of doctrinal and equitable considerations that the participants in today’s symposium should help us to understand.
We have a terrific group of scholars and lawyers participating today:
- Christopher A. Whytock (University of California, Irvine)
- Ronald A. Brand (University of Pittsburgh)
- Cassandra Burke Robertson (Case Western Reserve University)
- Douglass Cassel (Notre Dame)
- Aaron Marr Page (Forum Nobis PLLC)
Each of them has spent some time with this issue recently. Professors Whytock and Robertson are the authors of Forum Non Conveniens and the Enforcement of Foreign Judgments, 111 Colum. L. Rev. 1444 (2011). Professor Brand responded to their article in Access To Justice On A Due Process Platform, 112 Colum. L. Rev. Sidebar 76 (2012). Professor Cassel, who in addition to his scholarly duties is an advocate for Chevron in the proceedings in the Inter-American Commission on Human Rights that I have written about in prior posts, has addressed the issues in comments on Opino Juris and here at Letters Blogatory. Mr. Page, an advisor to the Lago Agrio plaintiffs, has participated in the dialogue at Opinio Juris. I recommend these papers and comments as good background reading.
You may also be interested in my comments on the issue, which have been more tentative and which have, I see now as I look back at them, evolved somewhat over time. I commented briefly on the Whytock and Robertson paper back in August 2011. Later that month, I commented on a student note by Christina Weston, The Enforcement Loophole: Judgment-Recognition Defenses as a Loophole to Corporate Accountability for Conduct Abroad, 25 Emory Int’l L. Rev. 731 (2011). And I discussed the issue at some length in April 2012—Doug Cassel and I had an exchange in the comments to the post as well.
Last, you may want to consider the Second Circuit’s decision in Republic of Ecuador v. Chevron Corp. 638 F.3d 384 (2d Cir. 2011), which I noted back in March 2011, though without much comment on the issue. In its decision, the Second Circuit rejected the Lago Agrio plaintiffs’ argument that a species of estoppel barred Chevron’s challenges to what was then the brand new judgment of the Ecuadoran court against Chevron. The fact that this symposium is taking place is some indication, I think, that the Second Circuit, for various reasons, has not had the last word on the issue.
Here is how the symposium is going to work. At intervals, I will be publishing each participant’s main post during the day today. Readers, I hope you will feel free to join the discussion and chime in in the comments. Tomorrow, each participant will have the opportunity to post responses to anything the others have written. I look forward to learning from all of them, and I thank them for making the first Letters Blogatory mini-symposium a success!
Photo credit: Marie-Lan Nguyen