Latin American and Forum non Conveniens Dismissals - Part 1 Chapter 25 - The Practice of International Litigation - 2nd Edition
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
Recent litigation in the Southern District of New York against Texaco Inc. raises intriguing and important issues concerning the role of forum non conveniens doctrine in U.S. litigation involving Central and South America. Along with other such cases, the Texaco litigation seems to reflect fundamental changes in Central and South American law and policy with respect to the desirability of litigating claims in the United States. Consequently, it is also forcing United States courts to evaluate their proper role in the adjudication of controversies arising out of transactions in Central and South America.
United States courts have long relied on the doctrine of forum non conveniens to dismiss cases that, though jurisdictionally properly before them, are found to be better suited to being adjudicated in another court. U.S. courts have dismissed cases on grounds of forum non conveniens when factors were present such as that the cause of action arose in another country or documents or witnesses were out of the jurisdiction or available only in a foreign language.
Critical to all of these determinations awas the initial finding that an adequate alternative forum was available and that the moving defendant would be willing to be sued there. Recently, some Latin American nations have enacted new legislation and advanced new policies that have the apparent goal of influencing U.S. foreign non conveniens decisions in order better to serve persons from their countries with claims against U.S. companies. This legislation is designed to cause the United States to find that the courts of the countries enacting the legislation are not viable alternate fora. Although United States courts have not yet taken the new foreign laws into consideration [?], these laws are likely to have an effect on future transnational litigation involving the countries in question.