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3 - The Problem of the Missing Forum

Published online by Cambridge University Press:  07 November 2018

Maya Steinitz
Affiliation:
University of Iowa School of Law
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Summary

Chapter 3 explores the question of why victims of mass torts cannot find courts that can or will grant enforceable judgments. The courts of corporations’ home states often refuse to hear cases based on activities in developing countries, while the courts of the host state where the injuries happened are often ill-equipped to handle complex litigation and may be perceived by the parties as corrupt. Even in the rare cases that such courts issue judgments, courts in the home jurisdictions of the defendant corporations tend not to enforce them. U.S. and European courts decline to hear cross-border cases on the basis of doctrines such as forum non conveniens, which allows judges the discretion to reject cases that would more easily and naturally be tried elsewhere. But if not U.S. or European courts, perhaps some other existing mechanism would work? I explain why arbitration is inappropriate for mass tort cases. And I similarly explore other alternative solutions such as single-issue courts, Corporate Social Responsibility and self-regulation initiatives—and explain why an ICCJ represents a superior solution to the normative and practical problems of adjudicating cross-border mass torts.
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Publisher: Cambridge University Press
Print publication year: 2018

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