Towards transnational corporate accountability in the global economy: Challenging the doctrine of Forum Non Conveniens in In Re: Union Carbide, Alfaro, Sequihua, and Aguinda

I. INTRODUCTION

Is it possible for the citizens of developing countries to bring a class action suit in American courts for the negligent actions of a U.S.-based transnational corporation? The experiences of plaintiffs from developing countries show that it is extremely difficult. Almost invariably, in mass transnational tort actions, transnational corporations (TNCs) invoke the common law doctrine of the inconvenient forum-forum non conveniens-as a first line of defense. The doctrine has proven time and again to be a significant obstacle for plaintiffs in developing countries who are seeking to sue a U.S.-based transnational corporation in the United States. However, in recent years there have been some guarded successes for such plaintiffs, and it is apparent that cracks may be beginning to form in the defense of the conveniently inconvenient forum. In this paper I discuss a series of landmark tort cases in which plaintiffs from some of the poorest countries of the world have attempted to bring class actions in the United States against some of the largest and wealthiest transnational corporate enterprises. The cases demonstrate clearly that many U.S. courts and legislatures are loathe to open the floodgates by allowing foreign nationals to sue U.S.based transnational corporations in U.S. courtrooms. Taken as part of an emerging judicial and legislative dialogue, these cases raise serious questions about the ethics of a legal system which permits TNCs to establish operations in developing countries, but at the same time restricts the victims of industrial and environmental hazards from seeking a remedy in the home country of the offending corporation. This paper also provides a glimpse of an emerging and lively debate over the doctrinal, ethical, and economic issues facing the courts in transnational torts in the new global economy.