Banna Boat Law

Forum non conveniens ("FNC").  That doctrine, is fast becomming the darling of multinational corporations which want to be free from liability for torts (crimes?) that they commit in foreign countries.

It was convenient for Chucky Taylor to be brought to the US for crimes he committed in Liberia, which had no connection to the United States, solely because he was an American citizen (and by the way, that was the right result).  But not for Dow, Occidental, Dole, Shell, and many other large corporations.

Those companies have a tool that Chucky did not have - FNC.

To prevail on a motion to dismiss based upon FNC, a defendant must establish a few things:

"that “(1) an adequate alternative forum is available, (2) the public and private factors weigh in favor of dismissal, and (3) the plaintiff can reinstate his suit in the alternative forum without undue inconvenience or prejudice"

Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1330 (11th Cir. 2011).

If they prevail, the plaintiff is out of court in the US and must pursue the claim in an alternative forum.  The benefits to the corporate defendants are obvious, not the least of which is the ability to force plaintiffs who often have little resources into jursidictions that have a great deal of "respect" for corporate defnedants.

Shell took advantage of the doctrine several years ago in seeking to send some peasent farmers back to the Nicaraguan courts after those individuals sued in the United States.  Shell won in the Fifth Circuit.  Delgado v. Shell Oil Co., 890 F.Supp. 1324 (S.D.Tex. 1995).

In Delgado, Shell convinced the Court that Nicaragua was a fine place to litigate a case.

Apparently Nicaragua is only okay for Shell if they are going to win. 

In another case just decided by the Eleventh Circuit, the Nicaraguan courts hit Shell with a 97+ million dollar judgment on similar claims to Delgado.  Shell fought the judgment in the United States, this time arguing that the jurisdiction it requested in the Delgado case really wasn't that adequate.

Needless to say, Shell won - a district judge found that the Nicaraguan courts (1) lacked subject matter and/or personal jurisdiction over Shell, (2) did not comport with standards of due process, and (3) the Nicaraguan judgment was repugnant to Florida public policy.

Of course, the Eleventh affirmed, but did not want to create precedent that would cause the immediate denial of future FNC motions when the other forum is Nicaragua, so it made sure to state that "we do not address the broader issue of whether Nicaragua as a whole “does not provide impartial tribunals” and decline to adopt
the district court’s holding on that question."

So now it seems that if you are a Nicaraguan who wants to sue a big company for something it did to you in Nicaragua (but planned in the United States), you better be prepared to (1) get kicked out of the US courts and (2) have your judgment rendered unenforceable if you do happen to win in Nicaragua by the US courts.

Seems fair to me.