Commentary, Forum Shopping and Court Records
Forum shopping? That’s not buying food in old Rome. It is, rather, the practice of lawyers choosing the court to hear a case, based on the attorney’s belief that a particular court is likely to provide a favorable judgment for the client. Often the “shopping” is within the country, but at other times it involves looking at courts in two or even more nations. For example, the United Kingdom is known to have libel laws that favor the plaintiff, which is why the famous case by Holocaust denier David Irving against U.S. academic Deborah Lipstadt (now the subject of the film “Denial”) was brought in the U.K.
Bringing a case in another country does not always mean that the judgment will be enforced at home. In 1995 victims of human rights abuses under the Ferdinand Marcos regime sued Marcos in the District Court in Hawaii, where Marcos was living after he fled Manila in 1986. The court found in favor of the roughly 10,000 plaintiffs and awarded nearly $2 billion in damages. (The Marcos family is alleged to have stolen up to $10 billion from the nation during the 21-year rule.) After the Hawaii judgment, five of the victims filed a case in the Philippines, seeking their share of the money. Two decades later, the Philippines Court of Appeals on July 7 said the Hawaii District Court was “without jurisdiction” over the claim and the judgment “did not meet the Philippines’ criteria of a valid judgment,” CNN reported. The court was particularly concerned that the complaint in Hawaii was, first, “erroneously filed as a class suit and second, therein claimants remained unidentified.” The court could have obtained the list of complainants in the Hawaii case from the district court records in the U.S. or, logically, from the attorneys that filed the original case, but clearly it chose not to do so. http://cnnphilippines.com/news/2017/07/18/ca-junks-2-billion-dollar-reparation-for-martial-law-victims.html
A complex set of cases are those brought against international corporations, often by human rights groups on behalf of victims of environmental and physical damage. Here the lawyers for the plaintiffs can choose to bring the suit where the damage occurred or in the country where the corporation has its offices.
*January’s issue of HRWG News reported on a lawsuit that began in 1993 when a group of residents of the Ecuadorian rainforest sued Texaco, alleging that the company left behind an environmental and public health disaster from its oil venture in the Amazon between 1972 and 1990. The first suits were filed in the U.S., but were dismissed, so the plaintiffs refiled in Ecuador, where the Ecuadorians won a large financial judgment. Texaco had left Ecuador in 1992, and Texaco became a subsidiary of Chevron in 2001, so the plaintiffs turned to a court in the U.S. where Chevron is headquartered to enforce the payment. The U.S. court refused to force Chevron to pay. The Ecuadorians next turned to a Canadian court which ruled in January 2017 that Chevron Canada is a separate entity from the parent corporation and its Canadian assets cannot be used to pay the judgment against it.
*Also in January, a court in the United Kingdom ruled in a suit against Royal Dutch Shell for its alleged environmental destruction in the Niger Delta. The court held that “Royal Dutch Shell cannot be held responsible for the actions of its Nigeria subsidiary.”
*Last month’s issue of HRWG News had an item about the lawsuit in Canada “brought by several Guatemalan men for injuries they suffered during the violent suppression of a peaceful protest” at Tahoe Resources Inc.’s mine in Guatemala. Tahoe is a Canadian company. Canada’s Supreme Court allowed the case to go forward, despite Tahoe’s argument that the case should be tried in Guatemala.
Tahoe’s argument is often made by international corporations: that the case against them in one country should be heard in another country (a forum non conveniens argument, meaning, roughly, to send the case to another jurisdiction that has a stronger link “more convenient” to the case). A judgement for the corporation can mean that the case has to be tried in a less robust legal system or even in one where bribes are routine. And this often results in cases bouncing back and forth with no resolution but draining the money of the plaintiffs. For a particularly egregious example of the use of forum non conveniens arguments, see the saga of the lawsuits brought by workers on Dole and Chiquita banana plantations in Central America for health problems linked to the use of the pesticide DBCP manufactured by chemical companies Dow and Shell, as told in the book Toxic Injustice: A Transnational History of Exposure and Struggle by Susanna Rankin Bohme.
What does this mean for the archives of courts? Because archivists usually do not describe court records at the case level, relying instead on court-generated indexing that is accessioned with the court records, there is no regular means to link the case in one country to the related case in another. However, the International Standard for Archival Description (General) has free text fields that allow the person doing the description to note that a particular case or group of cases will have related records in another country’s archives. These mass cases for human right violations are so important that it is incumbent on archivists to make a special effort to point to them in the body of court case files in archival custody. As we know from cases arising immediately after World War II that have been revived in the last two decades, it is always possible that all the court files everywhere on a violation will ultimately be used to bring justice for victims.