Forum non conveniens checkmated?: The Emergence of Retaliatory Legislation

• Author: Winston Anderson
• Position: Ph.D (Cantab); Attorney and Barrister-at-Law; Senior Lecturer and Acting Executive Director, Caribbean Law Institute Centre (CLIC), Faculty of Law, University of the West Indies
• Pages: 39-68

FORUM

NON CONVENIENS

CHECKMATED?:

The

Emergence of

Retaliatory

Legislation*

WINSTON

ANDERSON**

I.

Introduction

Eight

years ago, in the pages of another

Journal,

I argued that the doctrine of

forum

non conveniens raised a serious constitutional issue of access to the

court.

That suggestion led to my involvement in a long running transnational

litigation,

the high watermark of which was probably the decision by Justice

Lake

in Delgado v. Shell

Oil.2

In this case, some 26,000 plaintiffs from

developing

countries, including hundreds from the Caribbean, sought com-

pensation

in the courts

of Texas

for injuries

allegedly

caused them by exposure

to

a fumigant, dibromocloropropane ('DBCP'). The primary defendants were

Shell

and Dow, two large American multinational corporations, who manu-

*This article was first published in the Journal of

Transnational

Law

&Policy

and is

republished here with the kind consent of the

Editor-in-Chief.

**Ph.D (Cantab); Attorney and Barrister-at-Law; Senior Lecturer and Acting Executive

Director, Caribbean Law Institute Centre (CLIC), Faculty of

Law,

University of the West

Indies. Declaration of interest: Dr. Anderson provided consultancy services to the Texas

Law Firm, Fred Misko Jnr., which represented the plaintiffs in the

Delgado

case. In the

course of the consultancy, he prepared the original draft of the

Transnational Causes

of

Action

(Products Liability)

Act 1997,

(Act

No. 16 of

1997)

which was enacted into law in The

Commonwealth of Dominica on

15th

January, 1998.

1 Winston Anderson, "Forum non

conveniens

and the Constitutional Right of

Access:

A

Commonwealth Caribbean Perspective" (1993) Vol. 2 Journal of

Transnational

Law *

Policy

51

-102.

2 A decision of the United States District Court For the Southern District of Texas:

Houston Division (dated July 11 1995) (Civil Action No.H-94-1337 (formerly

G-94-0193) (Consolidated).

factured DBCP in the United States. Judge Lake acceded to the defendants'

request and declined to exercise jurisdiction because, in his view, alternative

forums existed in the plaintiffs' home countries and trial there would best serve

the private interests of the parties, the public interest of the states concerned,

and the ends of justice. The dismissal of the American action led to atomization of the litigation as thousands of suits were filed in hundreds of courts

across the 23 different foreign countries affected. Not unexpectedly, the

actions became mired in wrangling over procedural and evidential matters.

Eventually, in 1998, a settlement

was

agreed but under it the plaintiffs received

only a fraction of what they could reasonably have anticipated had the trial

taken place in the United States.

While

Delgado

undoubtedly represents another victory for the beneficiaries

of forum non conveniens,4 the case may very well turn out to be the high

water mark of the influence and effectiveness of the doctrine. States whose

citizens have been affected by what one Texas Supreme Court Justice in an

early DBCP case referred to as connivance to avoid corporate

accountability',5

have been stung into taking retaliatory legislative action. The fons et

origo

was

the Bhopal Gas Leak Disaster

(Processing

of

Claims)

Act, 1985 which entered

into force upon assent by the President of India on March

29,1985.7

The Act

responded to the December 3,1984 industrial accident in which some 40 tons

of the highly toxic methyl isocyanate gas from the Union Carbide India Plant

were released and spread over the city of Bhopal, India. Over 2000 persons

died and approximately 200,000 suffered injuries. Union Carbide was a

subsidiary of Union Carbide Corporation, U.S.A., and the most serious

allegations of negligence related to the weaker safety and environmental

standards in place in the Indian plant as compared with plants in the United

States. The Indian Government and individual plaintiffs filed more than 145

lawsuits in the United States but the Federal Court for the Southern District

3 Anecdotal evidence suggests that on average each of the Caribben claimants recovered less

than US$2,000. By contrast, the average award made to American victims of DBCP was

in the vicinity of US$500,000, and awards of over US$1 million were not unknown.

4 See Winston Anderson, "Forum

non conveniens

Strikes Again: American Court Closes Its

Door to Eastern Caribbean Litigants" (1998) Vol. 23 No.

3

Journal of

Eastern Caribbean

Studies 77-87.

5

Castro

Alfaro v. Dow

Chemical

Co.

786

S.W.2d

674 (Tex. 1990), at p. 680 per Doggett, J.

6 Ordinance No. 1 (India 1985). Reprinted in the

Gazette

of India March 29, 1985.

7 Upon entry into force the Act repealed the Bhopal

Gas

Leak

Disaster (Processing

of Claims)

Ordinance 1985, (Ordinance No.l of 1985; text in Vol.17

California Western

law Journal

201,

(1987)). However, section 12(2) of the Act deems anything done or any action taken

under the Ordinance to have been done or taken under the corresponding provisions of

this Act.'