Limitations of Access at the National Level: Forum Non Conveniens

Abstract

National courts provide a possible venue to assess transnational corporate ('TNC') liability for personal injuries and death to consumers, employees, and community members. The absence of diplomatic protection as a pre-requisite for forum accessibility allows standing to individuals and companies as parties to legal actions. Therefore, individuals serve as complainants, and defendant corporations may be held directly accountable for injuries caused by defective products ('product liability' and from the use of negative managerial policies, plant equipment, and technology ('process liability').

Limitations of access to the plaintiff may arise if the domestic forums of the plaintiff and the corporate defendant differ. This situation ensues where the plaintiff seeks to assert that a parent company is responsible for the injurious acts of a subsidiary corporation in a Host State. Framing TNC accountability entails the satisfaction of two criteria. First, the victim must establish that the subsidiary corporation is acting on behalf of the parent company and thus is not an independent entity in practice. This enables the complainant to pursue proceedings in the local courts with jurisdiction over the parent company. At this level, the court is required to assert jurisdiction under procedural rules of 'court-access,' e.g. personal, legislative, and/or subject matter jurisdiction]. Second, the plaintiff must refute a possible application of forum non conveniens by the defendant. Forum non conveniens is a discretionary doctrine common law courts apply when declining to exercise jurisdiction and dismissing judicial proceedings in favor of an alternative forum.

The development of forum non conveniens has not been uniform in all common law jurisdictions. Yet, the underlying aim of each approach has been to avoid 'forum shopping,' the undue disadvantage placed on a defendant when a plaintiff 'bypasses' his natural forum and brings an action in a foreign court to obtain further relief or benefits.

Therefore, it is necessary to consider the development of forum non conveniens from these perspectives to assess the doctrine's applicability to TNC liability for human injury and death.

Keywords: forum non conveniens, transnational corporations, MNCs, forum shopping, Piper Aircraft Co. v. Reyno