New York University Journal of International Law and Politics
I argue in this article that no reasonable basis exists to justify federal courts refusing to consider forum non conveniens arguments in cases brought under the Alient Tort Statute; in fact, good reasons exist to retain the doctrine in its undiluted form. The purpose and design of forum non conveniens make it sufficiently flexible to be invoked in even the most compelling human rights cases brought in the United States. If applied properly, the doctrine will identify ATS cases that cannot and should not be dismissed to foreign fora; however, if forum non conveniens operates as it should, it also will determine when alleged violations of the law of nations would be addressed more appropriately by the courts of other countries. By identifying such exceptional cases meriting dismissal, the doctrine will help advance a global development of customary international law norms in the area of human rights and will help ensure that U.S. courts do not antagonize international relations unnecessarily.
Part II of this article reviews the purpose, history, and development of the ATS and the doctrine of forum non conveniens. Part III analyzes and evaluates the primary arguments raised by those seeking abolition or significant curtailment of the doctrine in ATS cases: (1) the statute's express language and legislative intent make forum non conveniens inapplicable; (2) weighing forum non conveniens considerations would nullify the ATS; and (3) U.S. interests support elimination of forum non conveniens in human rights suits. Because the arguments for abolition do not withstand critical analysis and because the doctrine plays an important and needed role in all disputes-including human rights cases-! ultimately conclude that forum non conveniens should be retained in ATS lawsuits. Part IV proposes a slight modification to the forum non conveniens analysis in human rights lawsuits to account for the frequent existence of significant sovereign interests in those cases. It then analyzes forum non conveniens arguments in a recent suit brought under the ATS by Holocaust survivors and the heirs of Holocaust victims against three Swiss banks to highlight the continued importance of the doctrine and the critical role that sovereign interests play in such an analysis.
New York University School of Law
Aric K. Short,
Is the Alien Tort Statute Sacrosanct--Retaining Forum Non Conveniens in Human Rights Litigation,
N.Y.U. J. Int'l L. & Pol.
Available at: https://scholarship.law.tamu.edu/facscholar/193