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

110. The Australian, 25 Mar. 1997.

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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

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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