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Effect of foreign statute limiting standing—deference to foreign legal system and government—act of state—termination of U.S. litigation for Bhopal gas disaster

Published online by Cambridge University Press:  27 February 2017

Andrew N. Vollmer
Affiliation:
Wilmer, Cutler & Pickering

Abstract

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Type
International Decisions
Copyright
Copyright © American Society of International Law 1994

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References

1 In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in December, 1984, 634 F.Supp. 842 (S.D.N.Y. 1986).

2 809 F.2d 195 (2d Cir.), cert, denied, 484 U.S. 871 (1987), summarized in 81 AJIL 415 (1987).

3 984 F.2d 582, 585 (quoted by court).

4 Id. at 586.

5 Id. at 584.

6 Id. at 585.

7 Id. at 583.

8 Brief of Defendant-Appellee at 10, Bi (Nos. 92-7325, 92-7327) (copy on file with the author).

9 In re Union Carbide Corp. Gas Plant Disaster, 1992 U.S. Dist. LEXIS 1909 (S.D.N.Y. Feb. 18, 1992).

10 984 F.2d at 585.

11 Id. at 585–86.

12 Id. at 586.

13 Id.

14 See id. (citing Restatement (Third) of the Foreign Relations Law of the United States §443 (1987) [hereinafter Restatement (Third)]).

15 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964).

16 984 F.2d at 586–87.

17 Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2136 (1992); Warth v. Seldin, 422 U.S. 490 (1975).

18 By now, India should feel thoroughly scrutinized by U.S. courts. In its forum non conveniens decision of 1986, 634 F.Supp. 842, the Southern District of New York extensively explored the fairness and adequacy of the Indian legal system.

19 984 F.2d at 585.

20 See, e.g., The Antelope, 23 U.S. (10 Wheat.) 66, 122 (1825) (“No principle of general law is more universally acknowledged, than the perfect equality of nations. … It results from this equality, that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone.”); Restatement (Third), supra note 14, §206; Ian Brownlie, Principles of Public International Law 287 (4th ed. 1990) (“The sovereignty and equality of states represent the basic constitutional doctrine of the law of nations …”); Anne-Marie Burley, Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine, 92 Colum. L. Rev. 1907, 1923–26 (1992) (summarizing authorities on sovereign equality).

21 See, e.g., Société Nationale Industrielle Aérospatiale v. United States District Court, 482 U.S. 522, 552 (1987) (Blackmun, J., concurring) (Executive normally decides when to risk affronting a foreign nation); Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221, 230 (1986) (Executive and Congress should resolve foreign relations questions that revolve around policy choices and value determinations); Regan v. Wald, 468 U.S. 222, 242 (1984) (referring to the judiciary’s “classical deference to the political branches in matters of foreign policy”); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936) (referring to “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations”); Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918) (the “conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative—’the political’—Departments of the Government”); F. & H.R. Farman-Farmaian Consulting Eng’rs Firm v. Harza Eng’g Co., 882 F.2d 281, 286–87 (7th Cir. 1989); Jonathan I. Charney, Judicial Deference in Foreign Relations, 83 AJIL 805 (1989).

22 For a different view that tends to support the Second Circuit’s approach, see Burley, supra note 20.

23 493 U.S. 400 (1990).

24 984 F.2d at 583.

25 Id. at 585.

26 See Gary Born & David Westin, International Civil Litigation in United States Courts 740 (2d ed. 1992).

27 See Restatement (Third), supra note 14, §481.

28 See Tex. Civ. Prac. & Rem. Code Ann. §§36.001–.0044 (Vern. 1986 & Supp. 1993); In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in December, 1984, 809 F.2d at 204 (citing 7B N.Y. Civ. Prac. L. & R. §§5301–5309 (McKinney 1978)).

29 Tex. Civ. Prac. & Rem. Code Ann., supra note 28, §36.005(b)(7).

30 In its 1987 decision, the Second Circuit said many of the discretionary grounds for refusing recognition in New York would not apply. 809 F.2d at 204. Judge Keenan’s 1986 opinion reviewed evidence that India recognizes U.S. judgments in some circumstances. 634 F.Supp. at 852.

31 See Hartford Fire Ins. Co. v. California, 113 S.Ct. 2891 (1993), summarized supra p. 109 (refusing to apply a rule of international comity as a restraint on the application of U.S. antitrust law to parties and conduct abroad); Joel R. Paul, Comity in International Law, 32 Harv. Int’l L.J. 1, 3–4 (1991) (“Comity has been defined variously as the basis of international law, a rule of international law, a synonym for private international law, a rule of choice of law, courtesy, politeness,” etc.) (footnotes omitted). Also, compare the discussions of, and authorities for, the use of comity by Justices Stevens and Blackmun in Société Nationale Industrielle Aérospatiale v. United States District Court, 482 U.S. 522, 543–44 n.27, 554–56 (1987).

32 Joseph Story, Commentaries on the Conflict of Laws 44 (5th rev. ed. 1857) (“There is, then, not only no impropriety in the use of the phrase, ‘comity of nations,’ but it is the most appropriate phrase to express the true foundation and extent of the obligation of the laws of one nation within the territories of another.”).

33 See Hilton v. Guyot, 159 U.S. 113, 163 (1895) (“No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived.”); Restatement (Third), supra note 14, §206 comment b (sovereignty “implies a state’s lawful control over its territory generally to the exclusion of other states, authority to govern in that territory, and authority to apply law there”); Story, supra note 32, at 11, 26, 28 (“This is the natural principle flowing from the equality and independence of nations. For it is an essential attribute of every sovereignty, that it has no admitted superior, and that it gives the supreme law within its own dominions on all subjects appertaining to its sovereignty.” Also, “every nation possesses an exclusive sovereignty and jurisdiction within its own territory.” And “no State or nation can, by its laws, directly affect, or bind property out of its own territory, or bind persons not resident therein”); D. J. Llewelyn Davies, The Influence of Huber’s De Conflictu Legum on English Private International Law, 18 Brit. Y.B. Int’l L. 49, 56 (1937) (the first of Huber’s three maxims was that the “laws of every sovereign authority have force within the boundaries of its state, and bind all subject to it, but not beyond”).

34 Story, supra note 32, at 8. See also Davies, supra note 33, at 59, quoting Huber as follows:

Although the laws of one country can have no direct force in another country, yet nothing could be more inconvenient to the commerce and general intercourse of nations than that transactions valid by the law of one place should be rendered of no effect elsewhere owing to a difference in the law.

35 Hilton v. Guyot, 159 U.S. 113, 163 (1895).

36 Story, supra note 32, at 45.

37 See, e.g., Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. 1971), cert, denied, 405 U.S. 1017 (1972) (enforcement of foreign judgment case). The court of appeals stated:

Comity is a recognition which one nation extends within its own territory to the legislative, executive, or judicial acts of another. It is not a rule of law, but one of practice, convenience, and expediency. Although more than mere courtesy and accommodation, comity does not achieve the force of an imperative or obligation. Rather, it is a nation’s expression of understanding which demonstrates due regard both to international duty and convenience and to the rights of persons protected by its own laws.

See also Hilton v. Guyot, 159 U.S. 113, 163–64 (1895) (enforcement of foreign judgment case); Filartiga v. Pena-Irala, 630 F.2d 876, 885 (2d Cir. 1980) (Alien Tort Statute case; when a tort claim arises outside the territory of the forum state, “it is an expression of comity to give effect to the laws of the state where the wrong occurred”).

38 493 U.S. at 406 (emphasis in original).

39 Id. at 408–09.

40 See generally Restatement (Third), supra note 14, §443.

41 Id. §443 comment i (“The act of state doctrine applies to acts such as constitutional amendments, statutes, decrees and proclamations …”).

42 634 F.Supp. at 866.

43 See generally Born & Westin, supra note 26.

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