¹ Section 71.031 of the Texas Civil Practice and Remedies Code provides in pertinent part as follows:

(a) An action for damages for the death or personal injury of a citizen of this state, of the United States, or of a foreign country may be enforced in the courts of this state, although the wrongful act, neglect, or default causing the death or injury takes place in a foreign state or country, if:

(1) a law of the foreign state or country or of this state gives a right to maintain an action for damages for the death or injury;

(2) the action is begun in this state within the time provided by the laws of this state for beginning the action; and

(3) in the case of a citizen of a foreign country, the country has equal treaty rights with the United States on behalf of its citizens.

(b) All matters pertaining to procedure in the prosecution or maintenance of the action in the courts of this state are governed by the law of this state.

(c) The court shall apply the rules of substantive law that are appropriate under the facts of the case.

Tex. Civ. Prac. & Rem. Code Ann. §71.031 (Vernon 1986) [hereinafter section 71.031]. The Texas Supreme Court found that the third prong of subsection (a) of this provision is satisfied by the Treaty of Friendship, Commerce, and Navigation, July 10, 1851, United States-Costa Rica, Art. VII, para. 2, 10 Stat. 916, 920, TS. No. 62, providing for reciprocal protection and national treatment of citizens and “free and open access to the courts of justice in the said countries.” In arguing that interpreting this provision to foreclose forum non conveniens would not result in the flood of litigation predicted by defendants, plaintiffs’ counsel stated that most countries, including India (the home of the Bhopal plaintiffs), do not provide such “equal treaty rights.” Supplemental Brief of Respondents in Response to New Amici Curiaes’ and other Post-Argument Briefs at 7. Counsel for Dow pointed out, however, that at least one plaintiff’s lawyer involved in the Bhopal suit had argued that the third prong is satisfied so long as there is no express treaty limitation on access to courts by nationals of the foreign country. Petitioner’s Supplemental Brief at 8–9.

² Other lawsuits have been brought in other jurisdictions, on the same grounds, by these or other plaintiffs, against these defendants or against Standard Fruit. In Sibaja v. Dow Chem. Co., 757 F.2d 1215 (11th Cir.), cert. denied, 474 U.S. 948 (1985), the court upheld the dismissal on the grounds of federal forum non conveniens, against a challenge by plaintiffs on the basis that the trial court should have applied state (Florida) forum non conveniens. Federal forum non conveniens was established in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), and later refined in Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). In 1948, federal forum non conveniens—for transfer among federal courts, rather than to a state court or a foreign court—was codified at 28 U.S.C. § 1404(a). Aguilar v. Dow Chem. Co., No. 86–4753 JGD (CD. Cal. 1986), was also removed from state court to federal court and subsequently dismissed on the basis of forum non conveniens. In Cabalceta v. Standard Fruit Co., 883 F.2d 1553 (11th Cir. 1989), the court, dismissing on the basis of forum non conveniens, noted that plaintiffs had struggled for several years to have their claims litigated in a state court in the United States.

³ The Environmental Protection Agency had ordered general suspension of registrations for use of DBCP on November 3, 1977. 42 Fed. Reg. 57,543 (1977). According to Justice Doggett’s concurring opinion, plaintiffs claimed that both before and after the EPA’s suspension of these registrations, Shell and Dow shipped several hundred gallons of pesticide containing DBCP to Costa Rica for use by Standard Fruit. Dow and Shell claimed that they made their last delivery of DBCP to Standard Fruit in Costa Rica in 1978 and 1970, respectively. Alfaro v. Dow Chem., 751 S.W.2d 208 (Tex. App.—Houston [1st Dist.] 1988) (writ granted).

⁴ Alfaro v. Dow Chem., 751 S.W.2d 208 (Tex. App.—Houston [1st Dist.] 1988) (writ granted). See Note, A Foreign Plaintiff Has an Absolute Right to Maintain a Personal Injury Cause of Action in Texas Without Being Subject to Forum Non Conveniens Dismissal, 20 Tex. Tech. L. Rev. 995 (1989).

⁵ The majority opinion did not address the argument made by Dow and Shell, and endorsed by Justice Hecht’s dissent, that the use of the phrase “may be enforced” instead of more mandatory language such as “shall be enforced” in section 71.031 indicated an intent to preserve the discretion of the courts to decline to hear a case on grounds such as forum non conveniens. However, plaintiffs’ brief had argued that mandatory language would be inconsistent with the expression of a right, as opposed to a duty, to sue in Texas. Brief of Respondents on Application for Writ of Error at 6.

⁶ 786 S.W.2d 674, 691 (Gonzalez, J., dissenting).

⁷ 47 S.W.2d 426 (Tex. Civ. App.—El Paso 1932) (writ ref’d).

⁸ Id. at 427. A “transitory action” is a lawsuit that may be brought in more than one place.

⁹ Allen v. Bass states that “the principal, if not the only, question presented here for review, is as to the right of appellant, having had personal service in this state on each defendant, to have his cause of action tried in the courts of this state.” Id. at 426. Comity is generally applied to determine which sovereign’s law applies, rather than whether a cause of action is appropriately decided by a particular court. Comity deals with deference to another sovereign, while forum non conveniens deals with convenience, from both a public and a private standpoint. For a comparison of the doctrines, see Stewart, Forum Non Conveniens: A Doctrine in Search of a Role, 74 Calif. L. Rev. 1259 (1986).

¹⁰ 359 S.W.2d 872 (Tex. 1962).

¹¹ 786 S.W.2d at 693 (Gonzalez, J., dissenting).

¹² In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in December, 1984, 634 F.Supp. 842 (S.D.N.Y. 1986), aff’d and modified, 809 F.2d 195 (2d Cir. 1987), summarized in 81 AJIL 415 (1987). This well-known case, dismissed on the ground of forum non conveniens, has attracted a good deal of comment. See, e.g., Note, An Economic Approach to Forum Non Conveniens Dismissals Requested by U.S. Multinational Corporations—The Bhopal Case, 22 Geo. Wash. J. Int’l L. & Econ. 215 (1988); Jesperson, The Bhopal Decision: A Forum Non Conveniens Perspective, 18 Lincoln L. Rev. 73(1988); Nanda, For Whom the Bell Tolls in the Aftermath of the Bhopal Tragedy: Some Reflections on Forum Non Conveniens and Alternative Methods of Resolving the Bhopal Dispute, 15 Den. J. Int’l L. & Pol’y 235 (1987); Note, The Bhopal Incident: How the Courts Have Faced Complex International Litigation, 5 B.U. Int’l L.J. 445 (1987); Note, jurisdiction: Foreign Plaintiffs, Forum Non Conveniens, and Litigation Against Multinational Corporations, 28 Harv. Int’l L.J. 202 (1987); Note, International Mass Tort Litigation: Forum Non Conveniens and the Adequate Alternative Forum in Light of the Bhopal Disaster, 16 Ga. J. Int’l & Comp. L. 109 (1986); and Note, The Razor’s Edge: The Doctrine of Forum non Conveniens and the Union Carbide Methyl Isocyanate Gas Disaster at Bhopal, India, 10 N.C. J. Int’l L. & Com. Reg. 743 (1985).

¹³ 786 S.W.2d at 680–81 (Doggett, J., concurring).

¹⁴ Id. at 7 (citing Note, Foreign Plaintiffs and Forum Non Conveniens: Going Beyond Reyno, 64 Tex. L. Rev. 193, 215 nn.144–46 (1985)).

¹⁵ 330 U.S. at 508–09.

¹⁶ 786 S.W.2d at 686 (Doggett, J., concurring).

¹⁷ 786 S.W.2d at 690 (Gonzalez, J., dissenting).