Bridging the Gap
Citation: 106 Geo L.J. (2017)
In U.S. law, the doctrines of forum non conveniens and judgment recognition and enforcement serve important roles in the transnational litigation context. Forum non conveniens is a judge-made doctrine concerned with the efficient allocation of judicial resources when a case is susceptible to adjudication in multiple jurisdictions. Courts deciding whether to dismiss a case for forum non conveniens consider the interests of the parties and forum states in the litigation, as well as the relative procedural and substantive adequacy of the forums with jurisdiction over the matter. The determination of whether to recognize and enforce a judgment rendered by a foreign court, by contrast, concerns whether a particular, completed foreign proceeding was conducted in a way that accords with U.S. public policy and that treats all parties fairly. Both doctrines appear grounded in concerns of procedural efficiency, fairness to the parties, and international comity. However, the disparities between the standards U.S. courts apply at these two stages can lead to results that appear to serve none of these goals. Cases are dragged out for many years, courts appear to favor the interests of American defendants over those of foreign plaintiffs, and this actual or perceived favoritism engenders resentment and even retaliation from foreign governments. The saga of the transnational Dibromochloropropane (DBCP) litigation, particularly its Nicaraguan component, illustrates the potentially deleterious consequences of this gap in standards.