Once and Future U.S. Litigation

Abstract

Why do defendants routinely seek to dismiss transnational tort cases brought in a U.S. court on grounds that permit or even encourage plaintiffs to sue elsewhere? One answer: They are assuming the cases will then go away. As shown most dramatically by two high-profile cases, the Chevron/Ecuador and the Nicaragua DBCP litigations, this assumption is false. Foreign fora are increasingly hospitable to high-stakes litigation and plaintiffs are increasingly choosing them. The resulting foreign judgments, in turn, can be readily enforced in the United States, which has one of the most lenient foreign-money-judgment-enforcement regimes in the world.

To help understand this behavior, this essay offers a framework for understanding “transnational litigation avoidance doctrines” as a group and discusses some of the consequences of their expansion in light of defendants’ mistaken assumptions about transnational litigation in the United States and abroad. Although there are certain systemic benefits to foreign jurisdictions hosting more transnational litigation, it is unclear whether plaintiffs or defendants will fare better in foreign courts, and certain benefits of U.S. adjudication of disputes will be lost.

Keywords: foreign money judgment enforcement, transnational litigation, forum shopping, transnational litigation avoidance, forum non conveniens, extraterritoriality

JEL Classification: K10, K33, K41