Professor Brand notes that in evaluating the transnational litigation doctrines, “one must ask if these doctrines are the real problem.” He suggests that “in the Lago Agrio case, the real problem is something much different, and perhaps more fundamental, than an imbalance in rules of private international law.”
It’s certainly true that there are deeper issues than litigation practice underlying the Amazonian litigation, and Professor Judith Kimerling has chronicled many of them. But the questions of litigation procedure are also troublesome in and of themselves. The time and resources spent on the procedural questions raised by the doctrine is tremendous. Although Professor Brand notes that the doctrines are not about efficiency, the time spent on litigating these questions goes beyond mere inefficiency and enters into obstructionism; the doctrines actively prevent resolution of cases on their merits.
In a recent article, I discuss how the concept of “procedural uncoupling” relates to the forum non conveniens doctrine. First, the procedures employed by district court judges to resolve forum-choice disputes have become uncoupled from appellate court supervision. Because appellate courts can review only forum non conveniens dismissals (and not decisions to retain jurisdiction), they are only addressing half of the forum non conveniens equation—and therefore cannot fully address the parameters of the district court’s discretion. Second, litigation procedure in this area has become uncoupled from the merits of the case; transnational cases have typically been won or lost at the forum-choice stage, as a dismissal for forum non conveniens has historically been a “win” for the defendant. The Lago Agrio case makes it clear that a forum non conveniens dismissal is no longer necessarily a victory for the defendants, but applying the traditional judgment enforcement doctrine after a dismissal for forum non conveniens further delays finality. If the judgment is not enforced and trial must begin again, the defendant may be able to win a war of attrition.
In the short run, aligning the doctrines of forum non conveniens and judgment enforcement can alleviate some of the procedural uncoupling by steering the cases toward a location where they can be tried on the merits. In the long run, the United States Congress should adopt a comprehensive forum non conveniens statute that weighs the competing policy goals such as comparative sovereign interests, foreign relations, and economic realities, and creates a court-access procedure that accounts for these interests.