A Call for Stricter Appellate Review of Decisions on Forum Non Conveniens
11 Washington University Global Studies Law Review, Vol. 11, 2012
37 Pages Posted: 18 Oct 2012 Last revised: 21 Nov 2012
Date Written: October 17, 2012
Forum non conveniens has been criticized as anachronistic and unfair. Critics say that it amounts to little more than economic protectionism, serving as a pretext for the dismissal of suits brought against domestic corporate defendants. Even if one does not view the doctrine as inherently flawed, it is undeniable that its application has been extremely uneven owing to the broad discretion exercised by district courts’ ruling on the issue. Troubling in any circumstances, the misapplication of forum non conveniens is all the more so because of the high stakes at issue in such matters. When a case is dismissed for forum non conveniens, it usually goes away for good.
Against this background, I argue that the appellate courts should adopt a stricter standard of review for decisions on forum non conveniens. The basic rubric (abuse of discretion) should remain, but appellate courts should apply this standard with heightened scrutiny in light of the serious consequences of the underlying decision. The courts have done so in the analogous context of rulings on class certification. Doing so in the context of forum non conveniens would significantly curb abuse, while demonstrating to litigants and the broader community that the judiciary understands the importance of these decisions in today’s world.
Keywords: forum non conveniens, forum selection, empirical analysis, emprical study, foreign plaintiffs, international litigation, abuse of discretion, appellate review
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