LGST 219 - Class 18 Notes

LGST 219 - Class 18 Notes - CLASS 18 (Nov. 14): Forum...

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CLASS 18 (Nov. 14): Forum non-Conveniens 1] We have 90% of courts unstaffed at the moment. Because we have federalized so many crimes, the courts are now stuck with a docket they can’t handle. Civil cases are now much lower in priority. 2] Much of our litigation was handled under state law. But increasingly congress has decided to federalize crimes and this makes them go to federal court. The federal courts now have an excessive amount of these criminal cases. More and more civil cases are now being pushed to the back of the line. a. This also leads to many forum non-conveniens dismissals. b. We can solve this by raising taxes but the U.S. public is fierce against tax raises. c. More and more cases are now being settled out of court. They are giving up because they don’t want to wait so long to settle their civil case. 3] This explains part of the trend to dismiss the Bhopal case to foreign forums. Courts can’t even deal with cases brought by Americans. Why would they allow cases where governmental interests are greater for the other country? a. There is a crisis in U.S. federal courts and unless we expand the judiciary, this will get worse. 4] Bhopal Case continued (forum non conveniens dismissal/ chemical disaster/ India 1984/ ATCA v. Tort/ Policy issues: TNC high v. low standards in Global South) a. The court used forum-non conveniens to dismiss the case on a few conditions: (a.i) Condition 1: Union Carbide has to submit to Indian jurisdiction. This is because Indian law could not have the power to reach to the Union Carbide parent, which held most of the assets. (a.ii) Condition 2: Union Carbide will pay award consistent with minimal due process (procedural fairness) Improper because court should use international rules for foreign court enforcement (a.iii) Condition 3: Union Carbide will submit to U.S.-style discovery. Inappropriate because this is unilateral. Discovery should always be bilateral. Both the plaintiff and the defendant should be subject to it. b. On appeal the court said: (b.i) Condition 1 is ok. It makes sense to have Union Carbide submit to Indian jurisdiction before we dismiss the case.
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(b.ii) However, condition 2 and 3 were seen as improper. c. If you are a TNC and you engage in ultra-hazardous activity, the parent of the corporation is the one that should be held liable, not the subsidiary. (c.i) We should look at TNCs as monoliths. We don’t want to distinguish between legally separated components of the TNC because we want the parent to have the incentive to control all its subsidiaries in such a way that they operate in a responsible way. This makes sense in terms of public interest. (c.ii) Many people think that for purposes of company liability when we have a separately incorporated subsidiary that is incorporated separately, we should be able to hold the parent company liable. d. The court in India was indeed awful like the plaintiffs were saying.
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LGST 219 - Class 18 Notes - CLASS 18 (Nov. 14): Forum...

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