Resolving Conflicts of Jurisdiction: Forum Non Conveniens

Note: Mark W. Janis, "The Doctrine of Forum Non Conveniens and the Bhopal Case"
(1987) 34 Netherlands International Law Review 192

Summary:
○ Facts: Bad industrial accident in India, involving chemical gases that
killed 2,000 ppl and injured 100x more. Indian govt decided to sue on behalf of
the Indian victims in U.S. courts. Indian govt argued that its own courts were
less preferable than those of a foreign state for the resolution of disputes
touching on both legal systems.
o (Issue) Dfs raised forum non conveniens, but Pls argued that that
Indian courts were actually inadequate for handling this case
○ Rule: In reviewing the forum non conveniens motion, court first looks to
see if there is another adequate forum available. If not, then no forum non
conveniens. If yes, then court goes further to weigh the public & private
interests of both for a.
○ In reviewing the competence of the foreign forum (Indian court) the
district court looked at:
o Testimony of an American law professor, an expert on Indian law
(opposing adequacy of Indian law)
o Testimony of 2 senior Indian advocates (in favor of the Indian
system)
o Courts thought the American law prof's conclusions less persuasive,
so they held that Indian courts were adequate forum
□ The procedural system was adequate, and this case would be
expedited
□ Tort law derived from British common law found to be suitable
o So, Indian court is an acceptable alternative.
○ Now court has to weigh public & private interests when looking at forum
non conveniens.
o Private - All private interests point to India
□ Plant constructed and managed by Indians in India; No Americans
employed there at the time of the accident
□ Most witnesses and evidence in India, so more accessible to
Indian courts than U.S.
□ Language for almost everything in Hindu (docs, witnesses) -
would have to be translated in U.S. courts
□ Low transportation costs - very few potential witnesses from
U.S. (subsidiary is a U.S. company)
□ Indian court could view the plant to help determine liability
issues
o Public - also public interest factors heavily supported India
□ Accident and relevant events occurred in India
□ Victims are Indian citizens. India has a greater interest in
adjudicating their citizen's claims
□ India also has a strong interest claims in its own courts in
accordance to its own standards
® Ex: India has regulated and supervised the construction
and operations of the plant

· Facts: Explosion, lots of local ppl died in India. They want to bring claim for
damages in American court.
· Indian govt says American courts preferable to Indian courts (ironic
· Why does US have jurisdiction? Subsidiary company involved in accident is an
American company
· *Pg 830 note 5
○ Would it be better for countries around the world sign a treaty to
reconcile conflicts of jurisdiction instead of ad hoc national resolutions?
o What would be included in the treaty?
o Something to think about