No CrossRef data available.
Article contents
Designing Transnational Litigation: The Case Against Forum Non Conveniens
Published online by Cambridge University Press: 28 March 2018
Extract
The papers presented on this panel so far explore how countries and courts have worked around jurisdictional lacunae in international law. This last paper considers the question of jurisdiction from the other side: How should judges handle jurisdictional excess? While jurisdictional gaps can create governance problems, exorbitant claims of jurisdiction can make the cooperation and reciprocity needed to solve those governance problems harder to achieve. And if finding the right balance between ensuring adequate jurisdiction and avoiding exorbitant jurisdiction were not hard enough, much of that balancing is left up to individual judges deciding individual cases in domestic courts. Private international law is, in this sense, a decentralized system that depends on ad hoc calibration by dispersed judges.
- Type
- New Voices: Jurisdictional Issues in International Law
- Information
- Copyright
- Copyright © by The American Society of International Law 2018
References
1 On the problem of exorbitant jurisdiction generally, see Clermont, Kevin M. & Palmer, John R.B., Exorbitant Jurisdiction, 58 Me. L. Rev. 474 (2006)Google Scholar.
2 See Gardner, Maggie, Parochial Procedure, 69 Stan. L. Rev. 941, 954–58 (2017)Google Scholar (collecting literature).
3 Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 425 (2007). While some U.S. states have adopted statutes codifying forum non conveniens, the doctrine was originally devised by judges and remains uncodified at the federal level, which is the focus of these remarks.
4 Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508–09 (1947)).
5 See Piper, 454 U.S. at 257.
6 564 U.S. 915 (2011).
7 134 S.Ct. 746 (2014).
8 The Court recently reaffirmed the narrowness of this holding in BNSF Railway Co. v. Tyrrell, 137 S.Ct. 1549 (2017). It may be poised to narrow the scope of personal jurisdiction as well, at least when it comes to aggregate litigation. See Bristol-Myers Squibb Co. v. Superior Court of Calif., 137 S.Ct. 1773 (2017).
9 See Gardner, Maggie, RJR Nabisco and the Runaway Canon, 102 Va. L. Rev. Online 134 (2016)Google Scholar (critiquing continuing expansion of the presumption against extraterritoriality).
10 This sea change began with the Supreme Court's decision in The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972), and culminated with Atlantic Marine Construction Co. v. U.S. District Court, 134 S.Ct. 568 (2013).
11 For further development of this analysis, as well as the behavioral psychology research on which it relies, see Gardner, supra note 2, at 958–67.
12 See Gardner, supra note 2, at 985–94 (describing district court practice in applying forum non conveniens).
13 See Heiner, Ronald A., The Origin of Predictable Behavior, 73 Am. Econ. Rev. 560 (1983)Google Scholar.
14 On the history of forum non conveniens, and the anachronism of its pragmatic rationale, see Gardner, supra note *, at 400–16.