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Forum Non Conveniens: the Caribbean and its Response to Xenophobia in American Courts

Published online by Cambridge University Press:  17 January 2008

Zanifa McDowell
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Extract

Social jargon of the day embraces the philosophy that the world is now a global village. The use of this expression surprises no one, as in almost every aspect of our lives, we are somehow connected to someone or something which transcends territorial borders. It is in fact the order of the day and the proliferation of transnational issues coming before the courts bears testimony to this. The way in which business is conducted links the local tradesman, company or conglomerate to elements not within his or its jurisdictional purview; the way in which we live our private lives through employment, travel, marriage, or place of birth of our children may make for us connections with a host of other countries not previously contemplated. It is therefore no wonder that at times, serious issues affecting a person's personal rights may fall to be determined by one or another of several courts of law of one or another of several countries which may or may not be the ideal adjudicator of justice. The question obviously raised for determination is what is ideal? Throughout the passage of time, English law, which the Commonwealth Caribbean mainly inherited, has adopted a number of tests through which this ideal adjudicator may be identified. In recent times however, there has been a tendency to reject the established approach and to strike out independently in protest of the constraints imposed by judicial precedent. In Dominica, in relation to transnational causes of action, this was recently done in the form of statutory enactment entitled the Transnational Causes of Action (Product Liability) Act. It is the aim of this paper to examine whether, and if so, to what extent the Act has abolished the doctrine of forum non conveniens as a resource in private international law through which an ideal adjudicator may be located for the determination of transnational disputes, as well as to assess the effectiveness of the Act in dealing with these types of matters.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 49 , Issue 1 , January 2000 , pp. 108 - 130
Copyright
Copyright © British Institute of International and Comparative Law 2000

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References

1. See Carnegie, , “The Law in the English Speaking Caribbean”, Caribbean Background, 17/23 09 1972, pp.46–47Google Scholar (copy lodged at Faculty of Law Library, Cave Hill Campus, U.W.I.)

2. See for instance Halsbury's Laws of England, 4th ed., Vol.8, paras.787–793Google Scholar. Relevant tests identified therein have been built upon by subsequent cases. See n.8, infra.

3. Act No.16 of 1997. The long title describes it as “An Act to make provision for the expeditious and just trial in the Commonwealth of Dominica of Transnational Product Liability Actions where any such action was dismissed in a foreign forum on the basis of forum non conveniens, comity or on a similar basis.”

4. Schuz, , “Controlling Forum-Shopping: The Impact of MacShannon v. Rockware Class Ltd”, 35 I.C.L.Q. 374 (04 1986).CrossRefGoogle Scholar

5. Per Lord Pearson in Boys v. Chaplin [1971] A.C 356, 401.

6. See Morris, , The Conflict of Laws (4th ed., 1993) Chap.8, p.93.Google Scholar

7. See for instance. Gulf Oil Corporation v. Gilbert 330 U.S. 501 (1947).

8. See for example, the Abidin Daver [1984] A.C 398; Spiliada Maritime Corp. v. Cansulex Ltd [1986] 3 W.L.R. 972. England was slow to embrace the doctrine and before the 1980s the doctrine in English law used to be known as forum conveniens, which was distinguished from the doctrine of forum non conveniens applied in the US and Scotland. According to Verheul in “The Forum (Non) Conveniens in English and Dutch Law and under Some International Conventions”, 35 I.C.L.Q. 413 (Apr. 1986), the difference between the two is this—“Forum non conveniens is a defence against a forum which is automatically available but which, in the specific circumstances of the case, is not an appropriate court. Forum conveniens is used for forums which are not available automatically, but only when the specific circumstances of the case indicate that the court is an appropriate court…. The two approaches start from opposite points, but they naturally tend to yield similar results.”

9. See for instance Barclays Bank PLC v. Kenton Capital Limited, et al. (1994–1995) Cayman Islands Law Reports 489, discussed post.

10. For more details on some of the injustices which may be caused to a defendant, tee Robertson “Forum Non Conveniens in America and England: ‘A Rather Fantastic Fiction’” 103 L.Q.R. 398 (1987).

11. 1995 S.L.T. 807.

12. [1994–1995] Cayman Islands Law Reports 489.

13. Ibid, quoting from the head-note, p.490.

14. Barbados High Court decision, No.61 of 1998, decided 26–03–98.

15. US District Court, Southern District of New York.

16. Anderson, “Forum Non Conveniens strikes Again: American Court doses its Door to Eastern Caribbean Litigants” (1998) 23 Journal of Eastern Caribbean Studies (only manuscript copy presently available).

17. Heard in the US District Court for the Southern District of Texas—Houston Division, 11 Jul. 1995, discussed at length by Anderson, op. cit. The author greatly acknowledges the work of Dr Anderson in bringing the facts of this case to light in the Caribbean, and has constructed her notes based on the facts as presented by Dr Anderson in his recent article, since personal attempts to locate the decision proved futile.

18. According to Anderson, op. cit., ranging in the number of about 26,000, from developing countries including St Lucia, Dominica, St Vincent and the Grenadines.

19. Op. cit. n.16.

20. See for instance study conducted by Clermont & Eisenberg in “Xenophilia in American Courts”, 109 Harvard Law Review 1120, Table 1 (p.1126), 1135 (1996).

21. Op. cit. n.16.

22. “Exorcising the Evil of Forum-Shopping”, 80 Cornell Law Review 1507.

23. Ibid, p.1508.

24. Ibid, pp.1514–1515.

25. Act No.16 of 1997, gazetted 22 Jan. 1998.

26. Phrase used in long title, and in s.3 of the Act.

27. This is not an unusual course since other countries have also attempted to limit the scope of the doctrine by statutory enactment, such as the UK Civil Jurisdiction and Judgments Act 1982 (in force on 1 Jan. 1987) which implemented the EEC Convention on Civil Jurisdictions and Judgments, under which contracting states are obliged to exercise jurisdiction and cannot apply forum non conveniens to decline jurisdiction unless it is not inconsistent with the Convention. See too the Hague Convention on Products Liability (2 Oct. 1973), with contracting parties including France, the Netherlands, Luxembourg, Spain and Norway.

28. Some have argued that the application of forum non conveniens to decline jurisdiction is in breach of the constitutional right of access provided for by the various Commonwealth Caribbean constitutions. The Dominican provision abolishing forum non conveniens is therefore consistent with the constitutional right of access to the court This right is guaranteed by s.8(8) of the Constitution of Dominica (laws of the Commonwealth of Dominica, Vol.1, Chap.I) where it is provided that “Any court or other authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such court or other authority, the case shall be given a fair hearing within a reasonable time.” For more on this, see Anderson, “Forum Non Conveniens and the Constitutional Right of Access: A Commonwealth Caribbean Perspective”, Vol.2:51 Journal of Transnational Law & Policy, 51. It is submitted however, that if the ancient draftsmen of our constitutions had had any inkling as to the complexities of modern existence in today's social and commercial reality, perhaps they themselves would have expressly provided for forum non conveniens.

29. For another approach in relation to choice of law in tort and delict, see the recommendations of the UK Law Commission in their Report on Private International Law: Choice of Law in Tort and Delict, Law Com. 193, Scot Law Com. 129 (1990). See too Stone, The Conflict of Laws for a discussion of some of the relevant provisions.

30. See Morris, op. cit. pp.279–280.

31. [1994] 3 All E.R. 749.

32. In contrast, see the provisions of the Hague Convention on Products Liability, Arts.4–7, which makes a determination of choice of law specific rather than general, thereby ensuring a greater degree of predictability and certainty in relation to transnational issues.

33. Statutory imposition of strict liability for damage resulting from the use of goods and products is not unknown, and has in fact been accepted in the US for some time now. In both the United Kingdom and Europe several recommendations for the imposition of strict liability in this context had been made through the Law Commission Report No.82, The Pearson Commission (Cmnd. 70054, 1978 C.22), The European Convention on Products Liability (The Strasbourg Convention) and also through the EEC Directive (85/374). In the United Kingdom strict liability was finally imposed under the Consumer Protection Act 1987. For further reading, see Kidner, , Case book on Torts, 4th ed. (1996) pp.305et seq.Google Scholar

34. See s.2 of the Act.

35. [1932] A.C 562.

36. This is subject to any statutory exceptions, and to the rule in Rylands v. Fletcher (1868) L.R. 3 H.L. 330,37 L.J. Ex. 161; 19 L.T. 22.

37. These defences include contributory negligence, consent, exclusion clauses and notices, and participating in an unlawful act.

38. Failure to issue a warning, according to s.11(2)(b) is a factor influencing an award of exemplary or punitive damages under the Act.

39. Since this provision appears to be penal, one might reasonably ask whether there would be any objection to a foreign court enforcing a judgment obtained in Dominica which contains an award of punitive damages. It appears that there ought to be no objection on this basis—see Cablevision System Development Co. et al v. Shoupe et al. (1986) 39 W.I.R. 1—as in strict terms, and for purposes of private international law, a penal law is one which imposes punishment for some breach of duty to the state as opposed to a remedial law directed at securing compensation for a private individual who has suffered damage as a result of a breach of duty owed to that individual. See Halsbury's Laws of England, 4th ed., Vol.8, para.419.Google Scholar

40. See Rookes v. Barnard (1964) A.C 1129; Broome v. Cosset & Co. (1972) A.C. 1027; Law Com. 247 (16 Dec. 1997), Aggravated, Exemplary and Restitutionary Damages.

41. “Forum Non Conveniens Strikes Again: American Court Closes its Door to Eastern Caribbean Litigants” op. cit.

42. 634 F.Supp. 842 (1986).

43. “Xenophilia in American Courts”, 109 Harvard Law Review 1120 at 1122–1123 (1996).

44. Ibid, p. 1143.

45. J. Heller, novel of same name (1961).