Academic journal article Texas International Law Journal

Towards Transnational Corporate Accountability in the Global Economy: Challenging the Doctrine of Forum Non Conveniens in in Re: Union Carbide, Alfaro, Sequihua, and Aguinda

Academic journal article Texas International Law Journal

Towards Transnational Corporate Accountability in the Global Economy: Challenging the Doctrine of Forum Non Conveniens in in Re: Union Carbide, Alfaro, Sequihua, and Aguinda

Article excerpt

I. INTRODUCTION

Is it possible for the citizens of developing countries to bring a class action suit in American courts for the negligent actions of a U.S.-based transnational corporation? The experiences of plaintiffs from developing countries show that it is extremely difficult. Almost invariably, in mass transnational tort actions, transnational corporations (TNCs) invoke the common law doctrine of the inconvenient forum-forum non conveniens-as a first line of defense. The doctrine has proven time and again to be a significant obstacle for plaintiffs in developing countries who are seeking to sue a U.S.-based transnational corporation in the United States. However, in recent years there have been some guarded successes for such plaintiffs, and it is apparent that cracks may be beginning to form in the defense of the conveniently inconvenient forum. In this paper I discuss a series of landmark tort cases in which plaintiffs from some of the poorest countries of the world have attempted to bring class actions in the United States against some of the largest and wealthiest transnational corporate enterprises. The cases demonstrate clearly that many U.S. courts and legislatures are loathe to open the floodgates by allowing foreign nationals to sue U.S.based transnational corporations in U.S. courtrooms. Taken as part of an emerging judicial and legislative dialogue, these cases raise serious questions about the ethics of a legal system which permits TNCs to establish operations in developing countries, but at the same time restricts the victims of industrial and environmental hazards from seeking a remedy in the home country of the offending corporation. This paper also provides a glimpse of an emerging and lively debate over the doctrinal, ethical, and economic issues facing the courts in transnational torts in the new global economy.

I shall focus on cases involving plaintiffs from India, Central America, and Ecuador. The first of these is the widely-known lawsuit against the Union Carbide Corporation launched in the wake of the tragedy in Bhopal, India in 1984. Thousands were killed and hundreds of thousands seriously injured when a chemical storage facility owned by the Union Carbide Corporation, and the Union Carbide of India Ltd,1 leaked deadly methyl isocyanate gas over a Bhopal suburb. Years later, the state district court of New York dismissed a massive consolidated action that had been brought against the Union Carbide Corporation in the United States on the grounds that the U.S. courts were an inconvenient forum. In Central America, thousands of banana workers became sterile during the 1970s and early 1980s because of exposure to the pesticide containing 1,2 dibromochloropropane (DBCP). DBCP was manufactured in the United States by the Shell Oil and Dow Chemical corporations. U.S.-based transnational enterprises operating in developing countries used DBCP in banana plantations for more than a decade after the chemical was banned in the United States. The chemical was also exported for use by local banana companies. In Dow Chemical Co. v. Alfaro,3 banana workers from Costa Rica met with some limited success in a class action against the Shell Oil and Dow Chemical corporations in Texas courts. The case brought widespread media attention to the plight of Central American banana workers; however, the final settlement was paltry and the legal results were disappointing. In Sequihua,4 the Ecuadorian plaintiffs alleged that widespread contamination of the environment and injury to human health were caused by the use of substandard technology in the disposal of toxic oil wastes. That case was quickly dismissed. Soon afterwards, a new case was launched to address the same issues: Aguinda v. Texaco, Inc.5 Aguinda has yet to be disposed. The plaintiffs allege that the decisions to use the substandard technology were made by U.S. nationals at the corporate headquarters in White Plains, New York. In this highly complex case, the wrangling is over forum non conveniens. …

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