In complex transnational litigation, ensuring the rights of all parties is especially challenging. Consider the following situation: A plaintiff brings a lawsuit against a US multinational in US court, alleging wrongful conduct in some foreign country; the defendant corporation moves to dismiss the case on the ground that the courts of the country where the alleged conduct took place are a more appropriate forum for adjudicating the suit, and the plaintiff should therefore be required to pursue the suit there; but the plaintiff opposes the motion to dismiss on the grounds that the foreign country’s courts are so corrupt that it would be impossible to get a fair trial. What should the US court do when confronted with that sort of situation?
The technical legal term for a motion to dismiss a case because the plaintiff ought to file the suit in a different (and more convenient) judicial forum is the forum non conveniens motion. To successfully win on such a motion in a US federal court, the defendant must convince the court that an alternative forum would provide “basic fairness.” When the alternative forum is the judiciary of a foreign country, plaintiffs sometimes try to oppose these motions by pointing to judicial corruption in the foreign forum. But as one court highlighted, “the argument that the alternative forum is too corrupt to be adequate does not enjoy a particularly good track record.” Indeed, as I noted in my previous post on the Chevron-Ecuador litigation, the district judge in that case rejected the plaintiff’s claim that Ecuadorian judicial corruption made it impossible to get a fair trial in Ecuador, remarking that “the courts of the United States are properly reluctant to assume that the courts of a sister democracy are unable to dispense justice.” Even when confronted with clear and undisputed evidence of corruption in a foreign court, US courts have generally been unwilling to accept this as a sufficient reason to keep the case in US court. (In one case a US court reaffirmed a forum non conveniens decision even after the plaintiff successfully bribed a Mexican judge to have the case sent back to the US court.) Consistent with this deferential approach, there are very few cases where a US court has found a foreign forum inadequate due to credible allegations of widespread judicial corruption. (There are admittedly a handful of such cases, including Bhatnagar v. Surrendra Overseas, Ltd., in which the court found that the extensive delay, unreliability, and general corruption of the Indian judiciary made it an inadequate forum for the plaintiff.)
By contrast, other jurisdictions take allegations of foreign judicial corruption more seriously as a reason not to dismiss a lawsuit and insist that it remain in the forum of the plaintiff’s choice. Notably, although the forum non conveniens analysis is very similar in US and Canadian courts, Canadian courts have been more willing to find foreign forums inadequate because of pervasive corruption. For example, in Norex Petroleum Limited v. Chubb Insurance Company of Canada, a US court dismissed the case on forum non conveniens grounds, while the Canadian court took jurisdiction, denying the defendant’s forum non conveniens motion in light of the Canadian court’s finding that—even though every other factor weighed heavily in favor of Russia as the better forum—extensive judicial corruption in Russia would prevent the plaintiff from accessing a fair and impartial court. It’s certainly not the case that Canadian courts have been consistently receptive to these sorts of arguments—for example, a recent Canadian ruling found Guatemala an appropriate forum despite significant corruption concerns—but the contrast between Canada and the US demonstrates that the US courts’ “see no evil” approach is far from inevitable.
Although it may be helpful for the purposes of international comity for courts to presume that foreign judiciaries are fair, and there are legitimate reasons to dismiss a case in favor a foreign forum (such as easier access to evidence and witnesses), the reluctance of US courts to accept credible allegations of judicial corruption as a reason to deny a forum non conveniens motion likely goes too far. Respect for foreign courts is a good thing in principle, but in practice it can undermine the ability of plaintiffs to get a fair hearing. US courts should hesitate before dismissing cases to foreign forums when there are plausible claims of corruption for two reasons:
- First, when plaintiffs forcefully argue that their claims will not get an adequate hearing due to judicial corruption, we should take those allegations seriously. After all, a court system susceptible to bribery or other improper influence cannot be fair and impartial. If we believe, as the Canadian court in Norex Petroleum did, that “[n]o litigant should have to run the risk that the court hearing the dispute might be corrupt,” the value of plaintiff’s access to justice and a fair trial should be weighed more heavily than concerns about international comity.
- Second, by treating the corruption of a foreign forum with the level of seriousness that the impact of corruption can have on the fairness and integrity of a courtroom, the US judiciary could take a strong stand against judicial corruption, and thereby play a more active, albeit indirect, role in global anticorruption efforts.
That said, even if the standard of review were adjusted, courts would still need to devise a reliable way to assess claims of foreign judicial corruption. Both US and Canadian courts currently rely on a haphazard mix of expert affidavits and foreign office country reports, which most judges are not well-equipped to evaluate, and which tends to produce inconsistent outcomes. Expert affidavits in particular are particularly open to subjective interpretations that produce inconsistent outcomes across court systems (in Norex, the US court based its ruling, in part, on the credibility of the defendant’s expert over that of the plaintiff’s). Instead, rather than depend on plaintiffs and defendants to provide whatever evidence they think would be most persuasive, courts should clarify that they will consider only a narrower and more standardized set of tools for evaluating allegations of foreign judicial corruption. Consistent with the American judiciary’s deference to the executive in international matters, eliminating the role of expert witnesses entirely and relying on US State Department assessments could provide courts with a consistent doctrinal approach (though this might actually make these assessments even more defendant friendly). Alternatively, courts could rely on an international ranking or establish a threshold level that judiciaries need to meet on the World Justice Project’s rule of law score.
American courts pride themselves on their ability to provide adequate protections to litigants while maximizing administrability and consistency. Current forum non conveniens jurisprudence fails to ensure a fair hearing for plaintiffs and is frequently inconsistent and unclear. If judicial corruption is a serious enough concern that the American Bar Association recently launched a judicial integrity initiative, and American courts consider impartiality and reliability to be important systemic values, then courts should standardize they way they assess the adequacy of a foreign forum and weigh corruption allegations more heavily when considering forum non conveniens motions in the context of transnational litigation.