London – 26 January 2006London – 26 January 2006

WHICH FORUM?WHICH FORUM?

Marco BonaMarco Bona Studio legale Ambrosio & Studio legale Ambrosio &

Commodo Commodo Turin - ItalyTurin - Italy

Università Bocconi – MilanUniversità Bocconi – MilanGeneral Editor of The PEOPIL General Editor of The PEOPIL

Research Group Research Group

Traditionally, the Traditionally, the defendant’s defendant’s domicile domicile is the basis for the is the basis for the

general rule of jurisdiction at general rule of jurisdiction at least in the vast majority of the least in the vast majority of the

countries belonging to the countries belonging to the Western legal traditionWestern legal tradition

Article 2 (Article 2 (general rulegeneral rule): ): persons domiciled in a persons domiciled in a contracting state shall, contracting state shall,

whatever their nationality, be whatever their nationality, be sued in the courts of that sued in the courts of that

state (state (defendant’s defendant’s domicile ruledomicile rule))

Article 5(1) and (3) provides that a Article 5(1) and (3) provides that a defendant may be sued in another defendant may be sued in another Contracting State, in matters relating Contracting State, in matters relating to a contract, in the courts for the to a contract, in the courts for the place of performance of the obligation place of performance of the obligation in question, and, in matters relating to in question, and, in matters relating to tort, delict or quasi-delict, in the courts tort, delict or quasi-delict, in the courts for the place where the harmful event for the place where the harmful event occurred (occurred (jurisdictions alternative to jurisdictions alternative to the one indicated by the general rule the one indicated by the general rule and based on the plaintiff’s choiceand based on the plaintiff’s choice))

Also in the USA, jurisdiction is based on Also in the USA, jurisdiction is based on the the residence of a defendantresidence of a defendant within within

a state. Foreign plaintiff's can gain a state. Foreign plaintiff's can gain access into US courts through several access into US courts through several

statutesstatutes

FORUM NON CONVENIENS V. LEGAL FORUM NON CONVENIENS V. LEGAL CERTAINTYCERTAINTY AND PREDICTABILITY AND PREDICTABILITY: : differently from the traditional rule, differently from the traditional rule, under under forum non conveniens forum non conveniens a a considerable amount of discretionconsiderable amount of discretion is left with judges and, as a result, the is left with judges and, as a result, the doctrine of doctrine of forum non conveniensforum non conveniens lends itself to case by case decisions; lends itself to case by case decisions; forum non conveniensforum non conveniens can actually can actually lead to lead to arbitrary decisionsarbitrary decisions

FORUM NON CONVENIENS V. FORUM NON CONVENIENS V. ACCESS TO JUSTICEACCESS TO JUSTICE: as also noted : as also noted by Amnesty International “by Amnesty International “the doctrine the doctrine of forum non conveniens has been of forum non conveniens has been applied to restrict the access to courts applied to restrict the access to courts by victims seeking reparations for by victims seeking reparations for violations of human rights, violations of human rights, international criminal law or international criminal law or international humanitarian lawinternational humanitarian law””

in the European context “in the European context “the the mechanism associated with the forum mechanism associated with the forum non conveniens doctrine could be non conveniens doctrine could be regarded as incompatible with the regarded as incompatible with the requirements of Article 6 of the requirements of Article 6 of the European Convention on the European Convention on the protection of human rights and protection of human rights and fundamental freedomsfundamental freedoms” (Opinion of ” (Opinion of Advocate General LÉGER, delivered on Advocate General LÉGER, delivered on 14 December 2004 in the case 14 December 2004 in the case Andrew Andrew Owusu v. Jackson and othersOwusu v. Jackson and others))

FORUM NON CONVENIENS V. FORUM NON CONVENIENS V. CLAIMANTSCLAIMANTS: : forum non conveniens forum non conveniens has been routinely used by US has been routinely used by US corporations over the last two decades corporations over the last two decades to block cases involving personal to block cases involving personal injury and/or environmental damage injury and/or environmental damage suffered overseas;  UK companies suffered overseas;  UK companies have used the doctrine in a similar have used the doctrine in a similar wayway

FORUM NON CONVENIENS V. FORUM NON CONVENIENS V. INTERNATIONAL MASS TORT INTERNATIONAL MASS TORT LITIGATION IN USALITIGATION IN USA: : the recent trend the recent trend in the US is strongly against foreign in the US is strongly against foreign plaintiffs suing there;plaintiffs suing there; as Professor as Professor Joseph pointed out, Joseph pointed out, forum non forum non conveniensconveniens remains a “ remains a “daunting daunting impediment to transnational human impediment to transnational human rights litigation in the USrights litigation in the US””

In the In the Piper AircraftPiper Aircraft case, the case, the US Supreme Court endorsed US Supreme Court endorsed formal discrimination against formal discrimination against

foreign claimants, stating foreign claimants, stating that a foreign plaintiff’s that a foreign plaintiff’s

choice of the US for legal choice of the US for legal action “action “deserves less deserves less

deferencedeference” ”

FORUM NON CONVENIENSFORUM NON CONVENIENS V. US V. US CORPORATIONS’ GLOBAL CORPORATIONS’ GLOBAL RESPONSIBILITY/LIABILITYRESPONSIBILITY/LIABILITY:: who who benefits from the benefits from the forum non forum non conveniensconveniens doctrine? Clearly, doctrine? Clearly, defendants are the beneficiaries of defendants are the beneficiaries of FNC. FNC.

FORUM NON CONVENIENSFORUM NON CONVENIENS: AFRICA, : AFRICA, LATIN AMERICA, E.U. & EUROPEAN LATIN AMERICA, E.U. & EUROPEAN COURT OF JUSTICE V. FNC COURT OF JUSTICE V. FNC DOCTRINEDOCTRINE

That there is a relevant “bad side” of FNC That there is a relevant “bad side” of FNC doctrine is fully demonstrated not only doctrine is fully demonstrated not only by US case-law itself and some English by US case-law itself and some English precedents, but also by the strong precedents, but also by the strong opposition by the legislatures in Africa opposition by the legislatures in Africa and Latin America (the so called “and Latin America (the so called “anti-anti-forum non conveniens forum non conveniens legislationlegislation”), ”), by European legislature (see Council by European legislature (see Council Regulation No. 44/2001) and, finally, by Regulation No. 44/2001) and, finally, by the the European Court of JusticeEuropean Court of Justice in the in the case case Andrew Owusu v. Jackson and Andrew Owusu v. Jackson and othersothers 1 March 2005, concerning the 1 March 2005, concerning the compatibility of the compatibility of the forum non forum non conveniensconveniens doctrine with the Brussels doctrine with the Brussels ConventionConvention

The The “court congestion” argument“court congestion” argument and the and the “jury” argument“jury” argument are are definitively inconsistent. Firstly, there is definitively inconsistent. Firstly, there is a a clear denial of accessclear denial of access to American to American justice by foreign victims: these justice by foreign victims: these arguments unreasonably discriminate arguments unreasonably discriminate between American claimants and between American claimants and foreign victims. Secondly, the “jury” foreign victims. Secondly, the “jury” argument is in contrast with the right of argument is in contrast with the right of trial by jury provided by Amendment VII trial by jury provided by Amendment VII of American Constitutionof American Constitution

The The denial of a local interestdenial of a local interest in having in having American defendants judged by an American defendants judged by an American judge is inconsistent too: the American judge is inconsistent too: the nexus between United States and the nexus between United States and the tortious conduct of the defendants is tortious conduct of the defendants is self-evident. More in general the link self-evident. More in general the link between defendants and American between defendants and American jurisdiction is clear: defendants are jurisdiction is clear: defendants are American companies; their American companies; their contaminating products were designed contaminating products were designed and manufactured in United States; all and manufactured in United States; all relevant conducts and strategic relevant conducts and strategic decisions took place in America; the decisions took place in America; the good name of American industry is good name of American industry is under disputeunder dispute

the particular application of the the particular application of the forum forum non conveniensnon conveniens doctrine doctrine in in Gullone v. Gullone v. Bayer Corp.Bayer Corp. is likely to produce a is likely to produce a result which is clearly result which is clearly uneffectiveuneffective: : such an approach, by aiming at such an approach, by aiming at fragmenting the American action and fragmenting the American action and the claimants’ unity represented by the claimants’ unity represented by their common nexus (the defendants their common nexus (the defendants and their illegal conduct) and their and their illegal conduct) and their American lawyers, bears the risk of American lawyers, bears the risk of leading to leading to atomization of the atomization of the litigationlitigation, splitting the action into , splitting the action into hundreds (or even more) of courts hundreds (or even more) of courts across the foreign countries originally across the foreign countries originally involved in the proceedings before US involved in the proceedings before US courtscourts

Gullone case demonstrates that the FNC Gullone case demonstrates that the FNC doctrine imposes on plaintiffs (the doctrine imposes on plaintiffs (the weaker party) a jurisdiction that did weaker party) a jurisdiction that did not choose, while defendants are fully not choose, while defendants are fully free to decide whether to accept or not free to decide whether to accept or not US jurisdiction (their home forum!): on US jurisdiction (their home forum!): on one side the choice made by the one side the choice made by the plaintiffs is not taken into account, plaintiffs is not taken into account, while defendants’ choice receives full while defendants’ choice receives full considerationconsideration

►causationcausation: under Italian law the : under Italian law the burden of proof of causation is on burden of proof of causation is on plaintiffs; plaintiffs; Article 4Article 4 of the directive of the directive 1985 ... there is not a reversal of the 1985 ... there is not a reversal of the burden of proof: “burden of proof: “The injured person The injured person shall be required to prove the damage, shall be required to prove the damage, the defect and the causal relationship the defect and the causal relationship between defect and damagebetween defect and damage”; under ”; under Italian law and case-law there is not any Italian law and case-law there is not any rule comparable to the market share or rule comparable to the market share or alternative liability theories recognized alternative liability theories recognized in American jurisdictions or comparable in American jurisdictions or comparable to the English precedent to the English precedent Fairchild v. Fairchild v. Glenhaven Funeral Services Ltd. Glenhaven Funeral Services Ltd. [2002][2002]

attorney’s feesattorney’s fees: Italian law do not : Italian law do not allow contingency fees agreements allow contingency fees agreements (USA model) nor conditional fees (USA model) nor conditional fees agreements (UK model) agreements (UK model)

evidenceevidence: the circumstance that much of the : the circumstance that much of the discovery pertaining to the liability issues has discovery pertaining to the liability issues has already been done in the two generations of already been done in the two generations of American litigation is not relevant under Italian American litigation is not relevant under Italian law since: law since: 1)1) under Italian law the work done by under Italian law the work done by other courts does not count: all circumstances other courts does not count: all circumstances emerged outside the court seised must be emerged outside the court seised must be proved in the course of the proceedings, which proved in the course of the proceedings, which means that all depositions should be at least means that all depositions should be at least confirmed by witnesses to be heard by the confirmed by witnesses to be heard by the Italian judge Italian judge 2)2) all documents written in English all documents written in English shall be translated into Italian and costs of shall be translated into Italian and costs of translation, that are very high (about 20-30 translation, that are very high (about 20-30 euros each page), must be sustained in euros each page), must be sustained in advance by the claimantsadvance by the claimants

length of proceedingslength of proceedings: undoubtedly, : undoubtedly, as also widely recognized by the as also widely recognized by the European Court for Human Rights European Court for Human Rights (Strasbourg Court) in a vast number of (Strasbourg Court) in a vast number of decisions and by the Italian legislator decisions and by the Italian legislator itself (itself (legge 24 March 2001 no.89legge 24 March 2001 no.89), the ), the length of Italian proceedings is a length of Italian proceedings is a relevant obstacle; the Italian victims, relevant obstacle; the Italian victims, by suing in Italy, are likely to face, if by suing in Italy, are likely to face, if everything goes right, a period of everything goes right, a period of approximately approximately 8-10 years8-10 years before before obtaining a final judgmentobtaining a final judgment

under Italian law there are relevant issues under Italian law there are relevant issues concerning limitation: concerning limitation: Article 11Article 11 of the Council of the Council Directive 85/374/EEC of 25 July 1985Directive 85/374/EEC of 25 July 1985, , implemented by implemented by Article 14Article 14 of of Decreto Decreto Presidente della RepubblicaPresidente della Repubblica, 24 April 1988, no. , 24 April 1988, no. 224, provides that224, provides that “ “Member States shall Member States shall provide in their legislation that provide in their legislation that the rights the rights conferred upon the injured person conferred upon the injured person pursuant to this Directive shall be pursuant to this Directive shall be extinguished upon the expiry of a period extinguished upon the expiry of a period of 10 years from the date on which the of 10 years from the date on which the producer put into circulation the actual producer put into circulation the actual product which caused the damageproduct which caused the damage, unless , unless the injured person has in the meantime the injured person has in the meantime instituted proceedings against the producerinstituted proceedings against the producer””

Which Forum? …. United Which Forum? …. United StatesStates

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