Deferring to Foreign Courts
60 Pages Posted: 4 Oct 2021 Last revised: 11 Feb 2022
Date Written: August 1, 2021
Federal judges have too many options for deferring to foreign courts, none of them particularly good. Not only have judges developed at least five different bases for declining to hear transnational cases, but the acceptance and formulation of these bases also varies significantly from circuit to circuit. The courts of appeals have split over recognizing foreign relations abstention or prudential exhaustion, and they have developed different tests for assessing foreign parallel proceedings. Even with forum non conveniens, where the Supreme Court has provided clearer guidance, circuit practice has diverged. Thus in two recent transnational tort cases stemming from the Fukushima nuclear disaster in Japan, a district court in the First Circuit dismissed on a discretionary basis that a district court in the Ninth Circuit had rejected, while the district court in the Ninth Circuit dismissed on a discretionary basis not yet recognized by the First Circuit.
This Article uses the Fukushima cases as an opportunity to step back and assess the full range of federal judge-made doctrines for deferring to foreign courts. Its primary aim is to provide a practical roadmap for judges and litigants, one that surveys inter-circuit variation, identifies best practices, and suggests doctrinal refinements. It proposes an updated and simplified rubric for forum non conveniens, a consolidated approach to foreign parallel proceedings, and a distinct doctrine for deference to foreign bankruptcies. It also argues for rejecting prudential exhaustion and abstention based on foreign relations concerns, and it encourages judges to analyze questions of judgment recognition and extraterritorial application of federal statutes without resorting to loose invocations of “abstention” or “international comity.” Judicial deference to foreign courts is sometimes necessary, but it need not be muddled or haphazard.
Keywords: civil procedure, transnational litigation, forum non conveniens, international comity, abstention, lis alibi pendens, parallel proceedings, Mujica, Fukushima
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