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Bhopal, Bougainville and OK Tedi: Why Australia's forum non conveniens approach is better

Published online by Cambridge University Press:  17 January 2008

Peter Prince
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Extract

Despite its Latin tag, forum non conveniens is far from a dry, legalistic issue. Indeed, it is fair to say that a highly emotional debate has raged on this topic in recent years, with accusations of “parochialism”, “naked and open chauvinism” and even outright racism on one side, and “chaotic transnational jurisprudence” and lack of clear guidance on the other.

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Article
Information
International & Comparative Law Quarterly , Volume 47 , Issue 3 , July 1998 , pp. 573 - 598
Copyright
Copyright © British Institute of International and Comparative Law 1998

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References

1. Pryles, , “The Struggle for Internationalism in Transnational Litigation” (1987) 61 A.L J. 434, 435.Google Scholar

2. Briggs, , “Wider Still and Wider: The Bounds of Australian Exorbitant Jurisdiction” (1989) 2 Lloyd's Maritime and Commercial LQ. 216, 222.Google Scholar

3. Lord Reid in The Atlantic Star [1974] A.C 436, 453 referred to proponents of the traditional, narrow, forum non conveniens approach as recalling “the good old days… when inhabitants of this island felt an innate superiority over those unfortunate enough to belong to other races”.Google Scholar

4. Robertson, , “Forum non conveniens in America and England: A Rather Fantastic Fiction” (1987) 103 L.Q.R. 398, 402.Google Scholar

5. Brennan, J in Oceanic Sun Line v. Fay (1988) 79 A.L.R. 9Google Scholar, quoted in Cook, “Internationalism in Transnational Litigation Defeated” (1988) Australian Current Law 36085, 36086.Google Scholar

6. See Robertson, , op. cit. supra n.4, at p.405.Google Scholar

7. Idem, p.399.

8. See per Sir Leslie Scon LJ in St Pierre v. South American Stores [1936] 1 K.B. 383, 398.Google Scholar

9. Pryles, , op. cit. supra n. 1, at p.434.Google Scholar

10. Robertson, , op. cit. supra n.4, at p.405.Google Scholar

11. Piper Aircraft Co. v. Reyno 454 U.S. 235 (1981).Google Scholar

12. Robertson, , op. cit. supra n.4, at p.405.Google Scholar

13. Idem, p.411.

14. [1978] A.C. 795.Google Scholar

15. Robertson, , op. cit. supra n.4, at p.412.Google Scholar

16. Spiliada Maritime Corp. v. Cansulex Ltd [1987] A.C. 460.Google Scholar

17. Slater, , “Forum Non Conveniens: A View From the Shop Floor” (1988) 104 L.Q.R. 554, 560.Google Scholar

18. Pryles, , op. cit. supra n.1, at p.434Google Scholar; citing Ranger Uranium Mines v. BTR Trading (1985) 34 N.T.R. 1Google Scholar; and Garseabo Nominees Pty Ltd v. Taub [1979] 1 N.S.W.LR. 663Google Scholar. See also Muller v. Fencott (1981) 37 A.LR. 310.Google Scholar

19. Pryles, idem, p.435.

20. (1988) 165 C.L.R. 197.Google Scholar

21. (1990) 171 C.L.R. 538.Google Scholar

22. Pryles, , “Judicial Darkness on the Oceanic Sun” (1988) 62 A.L.J. 774, 776.Google Scholar

23. Briggs, loc. cit. supra n.2.

24. Collins, (1989) 105 L.Q.R. 364.Google Scholar

25. Slater, , op. cit. supra n.17, at p.562.Google Scholar

26. Fawcett, , “Trial in England or Abroad: The Underlying Policy Considerations” (1989) 9 Oxford J. Legal Studies 205, 210.Google Scholar

27. [1984] A.C. 398, 411.Google Scholar

28. In re Union Carbide Corp. Gas Plant Disaster at Bhopal India in December, 1984, 634 F.Supp. 842 (1986), 865–867.Google Scholar

29. Robertson, , “The Federal Doctrine of Forum Non Conveniens” (1994) 29 Texas I.L.J. 353, 372–373.Google Scholar

30. Idem, p.373.

31. Ibid.

32. Upendra, Baxi and Amit, Dhanda, Valiant Victims and Lethal Litigation: The Bhopal Case (1990), pp.xxiii–xxiv, cited in Robertson, idem, p.374.Google Scholar

33. Pryles, , op. cit. supra n.22, at pp.784–786.Google Scholar

34. Idem, p.777.

35. Paul, Joel R., “Comity in International Law” (1991) 32 Harv.I.L.J. 1, 14–17.Google Scholar

36. Ernest, Lorenzen, “Huber's De Conflictu Legum” (1919) 13 III. L.Rev. 375, cited in Paul, idem, p.16.Google Scholar

37. 159 U.S 113 (1895).Google Scholar

38. Paul, , op. cit. supra n.35, at p.9.Google Scholar

39. Idem, p.25.

40. At p.403; see Paul, idem, p.45.Google Scholar

41. Paul, idem, pp.27, 28.

42. Idem, p.44.

43. Robertson, , op. cit. supra n.4 at p.426.Google Scholar

44. (1988) 165 C.L.R. 197, 253, 254.Google Scholar

45. (1981) 454 U.S. 235, 256, n.23.Google Scholar

46. Idem, p.262, cited by Deane J in Oceanic (1988) 165 C.L.R. 197, 254.Google Scholar

47. Paul, . op. cit. supra n.35, at p.55.Google Scholar

48. Idem, p.71.

49. Fawcett, , op. cit. supra n.27, at p.208.Google Scholar

50. Robertson, , op. cit. supra n.29, at p.373.Google Scholar

51. Miller, , “Forum Non Conveniens and State Control of Foreign Plaintiff Access to U.S. Courts in International Tort Actions” (1991) 58 U.Chi.L.Rev. 1369, 1386, cited in Robertson, idem, p.357, n.21.Google Scholar

52. [1974] A.C. 436.Google Scholar

53. Robertson, , op. cit. supra n.4, at p.454.Google Scholar

54. Robertson, , op. cit supra n.29, at pp.356, 361.Google Scholar

55. Cummings, “International Mass Tort Litigation: Forum Non Conveniens and the Adequate Alternative Forum in Light of the Bhopal Disaster” (1986) 16 Georgia J.Int and Comp.L. 109, 116.Google Scholar

56. Bhopal, supra n.28, at p.844.Google Scholar

57. Pryles, , op. cit. supra n.22, at pp.784–786.Google Scholar

58. Idem, p.777.

59. Juenger, , “Fonnn Shopping, Domestic and International” (1989) 63 Tulane LRev. 553. 564Google Scholar, cited in Robertson, , op. cit. supra n.29, at p.356.Google Scholar

60. [1974] A.C. 436, 471.Google Scholar

61. Slater, , op. cit. supra n.17, at p.561.Google Scholar

62. Robertson, , op. cit. supra n.29, at p.360, n.58.Google Scholar

63. Idem, p.356.

64. (1988) 165 C.L.R. 197, 254.Google Scholar

65. Reynolds, , “Forum Non Conveniens in Australia” (1989) 105 L.Q.R. 41, 42.Google Scholar

66. (1988) 165 C.L.R. 197, 248.Google Scholar

67. (1990) 171 C.L.R. 538Google Scholar, cited in Pryles, , Waincymer, and Davies, , International Trade Law (1996), p.573.Google Scholar

68. Robertson, , op.cit. supra n.4 at p.407.Google Scholar

69. MacShannon v. Rockware Glass [1918] A.C. 795; see Robertson, idem, p.411, n.101.Google Scholar

70. Robertson, , op. cit. supra n.29, at pp.407–408.Google Scholar

71. Miller, , op. cit. supra n.51, at p. 1380.Google Scholar

72. Robertson, , op. cit. supra n.4 at p.408.Google Scholar

73. Bhopal, supra n.28, at p.861.Google Scholar

74. Slater, , op. cit. supra n.17 at p.562Google Scholar, citing Fawcett, (1984) 35 N.I.L.Q. 141, 145.Google Scholar

75. Ibid.

76. Robertson, , op. cit. supra n.4, at p.417.Google Scholar

77. (1988) 165 C.L.R. 197, 253.Google Scholar

78. Robertson, , op. cit. supra n.4, at p.405.Google Scholar

79. Idem, p.412.

80. Cummings, . op. cit. supra n.55, at p.122.Google Scholar

81. Idem, pp.110–115, nn.2, 8, 29.

82. Bhopal, supra n.28, at p.867.Google Scholar

83. Idem, p.866.

84. See Pryles, , Waincymer, and Davies, , op. cit. supra n.67, at p.564.Google Scholar

85. Johnson, , Scott, and Kerwin, , “Defending Forum Shopping by Foreign Plaintiffs” (1994) Product Liability International 136.Google Scholar

86. Oliver Wendell, Holmes, “The Path of Law” (1897) 10 Harv.L.Rev. 457, 469.Google Scholar

87. Idem, p.468.

88. Robertson, , op. cit. supra n.4, at p.428, points out that the situation in England is not so clear cut as in the US. He notes that in the decade after the 1978 House of Lords decision in MacShannon, only 8 out of 36 reported cases resulted in the declining of jurisdiction on discretionary grounds.Google Scholar

89. For factors that have been included to date in these categories, see Sticlcley, “Conflict of Laws: A Comparative Analysis of the Forum Non Conveniens Doctrines in the USA, the UK and Australia” (1994) 15 Queensland Lawyer 19, 22.Google Scholar

90. 454 U.S. 235, cited in Pryles, , Waincymer, and Davies, , op. cit. supra n.67, at p.561.Google Scholar

91. [1987] A.C. 460Google Scholar, cited in Robertson, , op. cit. supra n.4, at p.412.Google Scholar

92. Slater, , op. cit. supra n.17, at p.569.Google Scholar

93. Stickley, , op. cit. supra n.89, at p.26.Google Scholar

94. Robertson, , op. cit. supra n.4, at p.425.Google Scholar

95. (1988) 165 C.L.R. 197, 254.Google Scholar

96. Idem, p.238. As Reynolds, , op. cit. supra n.65, at p.41, says, “It may perhaps be noted that such an argument, with its emphasis on not depriving the litigant of his rights… is stronger in the case of defendants regularly served within the jurisdiction than in that of service outside the jurisdiction under a ‘long arm’ provision.” This is certainly true. However, the majority in Oceanic was dearly concerned to avoid the situation under the “most suitable forum” test where, especially in the US, foreign plaintiffs have the odds stacked against them when attempting to sue local defendants. The practical legal question is, what is the greater injustice? Is it where foreign plaintiffs are effectively barred from obtaining proper recovery from local defendants under the “most suitable forum” approach? Or where foreign defendants have little chance of returning cases to their own country under the “clearly inappropriate forum” or more traditional “abuse of process” tests? In the latter situation, presumably the case is still heard—and in the same forum as the forwn non conveniens hearing (saving time and money for the litigants) even if not in the defendant's preferred forum; whereas in the former situation, the matter has to be re-litigated in another country, and as Robertson's work shows (see below), in most cases, the plaintiffs simply give up because of the cost in time and money of bringing a different suit in another country.Google Scholar

97. Robertson, , op. cit. supra n.4, at pp.418–420. Robertson notes that there were only three cases actually decided in a foreign forum out of the 180 surveyed, all of which the plaintiff lost.Google Scholar

98. Idem, p.428.

99. Bhopal, supra n.28, at p.845.Google Scholar

100. Robertson, , op. cit. supra n.29, at pp.370–371.Google Scholar

101. Rankin, , “US Laws in the Rainforest: Can a US Court Find Liability for Extraterritorial Pollution Caused by a US Corporation? An Analysis of Aguinda v. Texaco, Inc” (1995) XVIII Boston College Int. & Comp.L. Rev. 221, 222.Google Scholar

102. Robertson, , op. cit. supra n.29, at p.375Google Scholar. When the Bhopal matter, returned io the Indian legal system, Union Carbide agreed to pay $US470 million in settlement. Robertson notes that on top of the number of dead (at least 2,660) there were around 40,000 serious injuries. Dividing the $470 million settlement figure among these victims on an equal basil would give them around $11,000 each “with nothing left over for less serious injury victims and those who may develop illness in the future”. If less serious injury victims are included, the total number of victims rises to around 205,000. If this number of victims shared the settlement fund equally, they would receive less than $2.300 each, again with nothing left over for those who become ill in the future, not to mention future generations. There were of course those who argued that the Bhopal victims' allocation of between $12,000 and $10,000 each was perfectly adequate. One of these was Cummings, op. cit. supra n.55, at p.140, n.157, who suggested that “The purpose of the Bhopal litigation should not be to make ‘millionaires out of people who live in huts and tents’.”Google Scholar

103. (1988) 165 C.L.R. 197, 248.Google Scholar

104. Idem, p.252.

105. (1989) 90 A.L.R. 500.Google Scholar

106. McLachlan, , “Conflict of Laws—Forum non Conveniens and Stays of Proceedings” (1990) 64 A.L.J. 219, 220.Google Scholar

107. Ibid.

108. After the Oceanic decision, Australian courts adopted Deane J's “clearly inappropriate forum” test, but there was disagreement on how to apply the test, due to confusion hi Oceanic over the onus of proof in “service ex juris” versus regular service cases (see Harris, “Life after Voth. The Application of Forum Non Conveniens by Australian Courts in Transnational Proceedings” (1992) Queensland Law Society J. 21)Google Scholar. In fact, it was this issue that seemed to cause much of the criticism of the Oceanic decision, rather than outright opposition to the “dearly inappropriate forum” test itself. After the High Court in Voth had sorted out the onus of proof question—and had affirmed the “clearly inappropriate forum” approach—criticism of the Australian forum non conveniens doctrine seemed largely to disappear. Except on the part of Pryles, who maintained “there is no good reason for [the High Court in Voth] continuing to acknowledge the relevance of the old formulation in St Pierre”, stating rather forlornly that “We may as well admit that it has been replaced by the formulation of the clearly inappropriate forum test” (see Pryles, “Forum Non Conveniens—the Next Chapter” (1991) 65 A.L.J. 442, 451). This seems to miss the point that Deane J tied the “clearly inappropriate forum” test to the old “oppressive or vexatious/abuse of process” test (i.e. continuation of proceedings would be “oppressive or vexatious” if the forum was “clearly inappropriate”) to ensure the Australian approach did not move too far in the direction of the “most suitable” forum approach, the problems of which Deane J was specifically concerned to avoid.Google Scholar

109. Supreme Court of Victoria, 22 Sept. 1995, unrep.

110. The Australian, 25 Mar. 1997.

111. Gordon, , “Ok Tedi: The Law Sickens from a Poisoned Environment”, Law Society Journal, 10 1995, p.60Google Scholar, quoted in Spry, , Ok Tedi—The Legal Issues, Parliamentary Research Service, 11. 1995, p.2.Google Scholar

112. The Australian, 25 Mar. 1997.

113. Controversy over the hiring by the PNG government of foreign mercenaries to resolve the Bougainville conflict and reopen the Panguna mine led to a revolt by the armed forces, which was defused only by Prime Minister Julius Chan stepping aside.

114. Warnings that the development of the Panguana mine could lead to rebellion on Bougainville were ignored by the Australian government when it approved the project in Apr. 1967 because it was “anxious to smooth the way for Papua New Guinea's independence from Australia by accelerating economic development”. The mine was forced to close in 1989, with the Bougainville conflict becoming “one of Australia's biggest diplomatic head-aches” (The Australian. 1 Jan. 1998).

115. The Australian, 25 Mar. 1997.

116. See e.g. Cummings's reasons for supporting a forum non conveniens dismissal in the Bhopal case, op. cit. supra n.55, at p.165.Google Scholar

117. See Rankin, , op. cit. supra n.101, at pp.221, 222.Google Scholar

118. Moshinsky, , “The Ok Tedi Mine Dispute”. Law Institute Journal, 11. 1995, 1114, 1117Google Scholar. In the Ok Tedi case BHP sought, unsuccessfully, to escape the action in Australia by asserting that the Victorian Supreme Court did not have jurisdiction to hear the PNG plaintiff's claims—on the basis, however, of the “Mozambique principle”, i.e. “inasmuch as property of the kind is to be held according to the laws of the country where it is situated, and as the right of granting it is vested in the ruler of the country, controversies relating to such property can only be decided in the state in which it depends”, per Lord Halsbury in British South Africa Co. v. Companhia de Mozambique [1893] A.C. 602, 631; see Spry, loc. cit. supra n.111.Google Scholar

119. See Rankin, , op. cit. supra n.101, at pp.221, 222.Google Scholar

120. The settlement included $A400 million for construction of a tailings containment system and up to $A150 million compensation for environmental damage: The Australian,25 Mar. 1997.Google Scholar

121. Moreover, under the Australian test, it is possible that the US courts may not have decided that a case by the Indian victims against the US-based parent company even had the strongest connection with India, since the place “where the parties respectively reside or carry on business” is an important factor in deciding this. See Spiliada v. Consulex [1987] A.C. 460, 478Google Scholar, part of Lord Goff of Chievely's judgment approved by the High Court in Voth as providing “valuable assistance” on the relevant connecting factors (see Prytes, Waincymer and Davies, op. cit. supra n.67, at p.576).Google Scholar

122. Cummings, , op. cit supra n.55, at p.111.Google Scholar

123. See supra n.102.

124. Cummings, , op. cit. supra n.55, at p.135, n.132.Google Scholar

125. In this context, there is an interesting contrast with US-led calls at the time of the first World Trade Organization ministerial meeting in Singapore in Dec. 1996 for the WTO to adopt “internationally recognized core labour standards”. The aim of the US was to prohibit child labour and other labour practices in developing countries which are not legal or acceptable in first world nations. The meeting rejected this move, with strong doubts among developing nations about the sincerity of US objectives. (As the Ministerial Declaration stated, “We reject the use of labour standards for protectionist purposes, and agree that the comparative advantage of countries, particularly low-wage developing countries, must in no way be put into question.” See WTO Singapore Ministerial Declaration, 13 Dec. 1996.) At the Singapore meeting there were, naturally enough, no references to the US forum non conveniens doctrine. But WTO members might well have noted the inconsistency between the international trade policy of the US and the US forum non conveniens approach, which does little to promote the accountability of American companies for overseas industrial practices not acceptable in the US itself.

126. The Australian government has passed legislation to control some specific overseas activities by its citizens, for example the Crimes (Child Sex Tourism) Act, under which a prominent Australian diplomat has recently been charged. As Spry, op. cit. supra n.111, at p.4, points out, however, it is unlikely that the Commonwealth would legislate to regulate the overseas activities of Australian companies. From a national policy point of view, this increases the importance of an effective legal doctrine which performs this function.Google Scholar