Emory Law Journal

Inappropriate Forum or Inappropriate Law? A Choice-of-Law Solution to the Jurisdictional Standoff Between the United States and Latin America
Jena A. Sold Executive Managing Editor, Emory Law Journal; J.D. Candidate, Emory University School of Law (2011); B.S., Cornell University (2006). My sincerest thanks to Professor Thomas Arthur, for his guidance in conceptualizing and developing this Comment, and to Professor Peter Hay, whose feedback, mentorship, and open-door policy have proved invaluable to me. I also thank Ross Andre, Rachel Mondl, Sean Diamond, and Niji Jain, for their patience and editorial expertise. Most of all, I thank my family and friends for their endless love and support.

Abstract

Numerous substantive and procedural advantages make the U.S. court system a uniquely attractive forum to plaintiffs worldwide. As a result, U.S. courts increasingly rely on forum non conveniens (FNC), a common law doctrine permitting a court to dismiss a case to another more convenient forum that is also available for the litigation. When the foreign plaintiffs hail from Latin America, however, their home forums are often unavailable following an FNC dismissal due to the Latin American courts’ interpretation of their own preemptive system of jurisdiction. To make this clear and prevent U.S. courts from dismissing for FNC, numerous Latin American countries recently have enacted “blocking statutes,” explicating that a Latin American court cannot exercise jurisdiction over a case dismissed abroad under the FNC doctrine. Many U.S. courts refuse to accept the outcome this legislation seems to dictate and, through incorrect FNC analysis, continue to dismiss these cases to Latin America, where they will not be heard.

This Comment argues that the refusal of U.S. courts to accept jurisdiction over these cases reflects their discomfort with the reinterpretation of traditional civil law concepts embodied in the Latin American legislation, with outcome-determinative results. Since numerous commentators have failed to recognize this, instead characterizing the blocking statutes as mere reiterations of longstanding civil law principles, no proposed solution has adequately accommodated the courts’ concerns alongside those of the plaintiffs. An ideal strategy will both effectively manage a court’s forum shopping concerns and ensure a plaintiff his day in court. Thus, rather than unreservedly accept jurisdiction over cases better heard elsewhere, or manipulate the FNC doctrine to exclude these cases and deny plaintiffs any relief, the solution should target the source of the problem: advantageous tort law in the United States, which draws plaintiffs to file cases here that are only tangentially related to the forum. For this reason, choice-of-law legislation is the best course of action. Mandatory application of foreign law to these disputes effectively dissuades foreign plaintiffs from forum shopping in the United States without denying them a forum in which to litigate.

Introduction

And so the plaintiffs . . . argue that the United States has a greater interest in the litigation than Argentina because the defendants are American companies, while the defendants argue that Argentina has a greater interest than the United States because the plaintiffs are Argentines. The reality is that neither country appears to have any interest in having the litigation tried in its courts . . . .

—Judge Richard Posner 1Abad v. Bayer Corp., 563 F.3d 663, 668 (7th Cir. 2009). The Argentine plaintiffs in Abad were more than six hundred hemophiliacs infected with the AIDS virus from a clotting factor manufactured by the defendant-corporation in the United States. Id. at 668–69. The court subsequently dismissed the plaintiffs’ claims to Argentina, id. at 672–73, a civil law country that may refuse jurisdiction based on its interpretation of its own law. Id. at 666.

In our global economy, routine business endeavors affect a variety of people and places, as does the fallout when something goes wrong. Inevitably, the question of which court will address the ensuing litigation is increasingly difficult as the numbers of affected persons and forums grow. Each party has an interest in litigating in a particular court; each court has a particular interest in adjudicating—or not adjudicating, as the case may be. Recent international developments in the context of disputes between Latin American plaintiffs and U.S. defendants have further complicated this determination. The following case is illustrative.

In Chandler v. Multidata Systems International Corp., 2163 S.W.3d 537 (Mo. Ct. App. 2005). the Panamanian plaintiffs 3Two plaintiffs were actually U.S. citizens living in Panama, and two were U.S. residents. However, the court did not treat this distinction as relevant. Id. at 541 n.1. included twenty-eight cancer patients overexposed to radiation during therapy at an oncology institute in Panama City, Panama. 4 Id. at 541. On October 17, 2001, they filed suit in St. Louis County, Missouri, 5Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602, 606 (5th Cir. 2008). one corporate-defendant’s domicile. 6 Chandler, 163 S.W.3d at 541. The defendant was a Delaware corporation with its principal place of business in St. Louis County, Missouri. Id. Alleging that the defendants’ computer-operated treatment system erroneously calculated the dosages required for treatment, the injured parties (or representatives of the decedents) sought damages based on wrongful death and negligence. 7 Id. at 541–42.

The defendants immediately moved to dismiss for forum non conveniens (FNC), 8Forum non conveniens, a common law doctrine, permits a court to decline jurisdiction over a case when another forum is substantially more convenient for the proceedings. See infra Part.I.A. arguing that Panama was available as a more convenient forum in which to litigate the dispute. 9 Chandler, 163 S.W.3d at 542. In particular, the defendants argued that the plaintiffs lived and were injured in Panama, and most of the evidence and witnesses were there. Johnston, 523 F.3d at 606. In response, the plaintiffs contested Panama’s availability; since they had properly filed first in the United States, the Panamanian court would not hear a dispute if dismissed for FNC. 10 Chandler, 163 S.W.3d at 544. Thus, FNC dismissal was improper. 11In a majority of courts, an FNC dismissal depends on finding that another forum exists for litigation of the dispute. See infra Part I.B. Each side presented expert testimony in support of its position. 12 See Chandler, 163 S.W.3d at 542–45.

With the above case still pending, one plaintiff filed a petition in the San Miguelito Judicial District Court of Panama against the defendants. 13Josefina Escalante v. Multidata Sys. Int’l, Corp., Court Order No. 1922-03 (Pan. 1st Ct. J. Civ. Cir. Apr. 30, 2003) [hereinafter Josefina Escalante], excerpt available at http://www.iaba.org/LLinks_forum_non_Panama.htm. The court dismissed for lack of jurisdiction:

Since the Panamanian Judicial Code follows the doctrine of “pre-emptive jurisdiction,” once the [plaintiff] chose to file the complaint in the domicile of one of the defendants . . . , this Court of Justice and the Panamanian Court cannot and will never have jurisdiction over the defendants or over the subject matter of this case. 14 Id. The Panamanian appellate court affirmed this decision; the Supreme Court of Panama subsequently denied the defendant’s appeal for annulment. Henry Saint Dahl, Forum Non Conveniens in Panama, Inter-Am. Bar Ass’n, http://www.iaba.org/LLinks_forum_non_Panama.htm (last visited May 30, 2011). Because the U.S. case was ongoing at this time, the Panamanian court may have rested its decision on lites pendencia (lis alibi pendens), a civil law doctrine that precludes a plaintiff from suing a party against whom another suit is pending for the same incident. See Peter Hay, Russell Weintraub & Patrick J. Borchers, Conflict of Laws: Cases and Materials 207 (13th ed. 2009); see also infra note 119. However, the decision’s overly broad language suggests that the court would have reached the same outcome had the U.S. case already been dismissed. See Josefina Escalante, supra note 13.

The plaintiffs presented this language to the Missouri court as further proof that Panama was unavailable for subsequent litigation. 15 Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602, 606 (5th Cir. 2008). Rejecting this argument, 16Presumably, the court instead accepted the defendants’ argument that the plaintiffs intentionally filed the case in the wrong Panamanian venue (i.e., not the venue where the injuries occurred). See id. the court granted the defendants’ FNC motion, but explicitly permitted the plaintiffs to refile in Missouri should Panama refuse jurisdiction. 17 Id. at 606–07 (citing Chandler v. Multidata Sys. Int’l Corp., No. 01CC-3634, slip op. at 2 (Mo. Cir. Ct. Jan. 8, 2004)). In order to refile, the court noted, a Panamanian court of competent jurisdiction and venue must deny jurisdiction, even after learning of the defendants’ willingness to submit. 18 Id. On appeal, the Missouri Court of Appeals affirmed: the trial court did not abuse its discretion in finding Panama available because the plaintiffs failed to demonstrate any sections in Panama’s Judicial or Civil Code prohibiting their refiling in Latin America. 19Chandler v. Multidata Sys. Int’l Corp., 163 S.W.3d 537, 547 (Mo. Ct. App. 2005). In its analysis, the court refused to consider the appellate decision rendered in Panama, see supra note 14, because that decision was not before the lower court. Still, the court construed its applicable parts as dicta based on the Panamanian court’s finding that plaintiffs had filed in the wrong venue. Chandler, 163 S.W.3d at 548. Rather than appeal this dismissal to the Missouri Supreme Court, the plaintiffs immediately filed four new cases before the original U.S. circuit court. They argued that the Panama Court of Appeals’ subsequent affirmation of its lower court’s dismissal, see supra note 14, satisfied the conditions imposed by the Missouri Court of Appeals for refiling. The court rejected this argument, reiterated the requirements outlined by the Missouri Court of Appeals, and dismissed again without prejudice. Johnston, 523 F.3d at 607.

Finally, on May 26, 2006, four of the plaintiffs refiled their claims in the Judicial District Court for Panama City, Panama. 20 Johnston, 523 F.3d at 607 n.1. Prior to this filing, the plaintiffs also filed in federal court in Texas, which ultimately dismissed for lack of personal jurisdiction over the defendant. Id. Relying on Article 238 of the Panamanian Judicial Code, the same plaintiffs then argued that the first court to hear a case “preempts and precludes the jurisdiction of the other courts,” and so the Panamanian court lacked jurisdiction. 21Gilles Cuniberti, Preemptive Jurisdiction Trumps Forum Non Conveniens in Panama, Conflict of Laws .net (Mar. 19, 2009), http://conflictoflaws.net/2009/preemptive-jurisdiction-trumps-forum-non-conveniens-in-panama (internal quotation mark omitted). At this point, the name of the case was Tobal v. Multidata Systems International Corp. Id. The defendants insisted that this doctrine of preemptive jurisdiction applies only to domestic cases; the plaintiffs argued for its international application. 22 Id. The district court agreed with the plaintiffs, holding that “preemptive jurisdiction dissolves Panamanian jurisdiction when the lawsuit is filed first in another country that has jurisdiction according to its own legal system.” 23 Id. In March 2009, the First Superior Court for the First Judicial District of Panama affirmed this ruling. 24 Id.

Most recently, on August 3, 2010, the Panamanian Supreme Court of Justice upheld these lower court decisions. 25Gilles Cuniberti, Panamanian Conflict Rules Trump Forum Non Conveniens, Conflict of Laws .net (Aug. 16, 2010), http://conflictoflaws.net/2010/panamanian-conflict-rules-trump-forum-non-conveniens/ (analyzing and reprinting sections of the August 3rd decision of the Panamanian Supreme Court of Justice). While Article 259 of the Code of Civil Procedure grants Panamanian jurisdiction when the injuries occur in Panama, “the instant case should be viewed under the special rules of Private International Law” due to its numerous puntos de conexión, or international elements. 26 Id. The Court instead turned to Article 1421-J of the Code of Civil Procedure, a “special rule[] for the resolution of international disputes.” 27 Id. Article 1421-J provides in full:

In cases referred to in this chapter, national judges lack jurisdiction if the claim or the action filed in the country has been previously rejected or dismissed by a foreign judge applying forum non conveniens. In these cases, national judges must reject hearing the lawsuit or the action due to reasons of a constitutional or preventive jurisdiction nature. 28 Id. (emphasis omitted).

Accordingly, as held by the Panamanian Supreme Court, the Panamanian courts were barred from hearing the dispute based on the doctrine of preemptive jurisdiction. 29 Id.

Over the course of this litigation, both the United States and Panama have independently assessed the defendants’ fault in other contexts; 30The Panamanian government requested two independent investigations, each concluding that the defendant’s equipment malfunctioned. Based on these findings, numerous practitioners lost their licenses; two were criminally convicted of negligent homicide. Chandler v. Multidata Sys. Int’l Corp., 163 S.W.3d 537, 541–42 (Mo. Ct. App. 2005). In the United States, the FDA enjoined Multidata from manufacturing and distributing medical devices. Press Release, M2 Presswire, FDA Seeks Injunction Against Multidata Systems Intl. (May 8, 2003), available at http://www.highbeam.com/doc/1G1-101438142.html. yet both countries have repeatedly refused to oversee the injured parties’ claims. To this end, the U.S. courts employed forum non conveniens, a common law doctrine permitting a court to decline jurisdiction over a case when another more convenient forum exists. 31 See infra Part I. A historical “gatekeeper” to the significant procedural and substantive advantages offered by the American legal system, 32 See infra Part I.C. As FNC dismissals most commonly occur against foreign plaintiffs bringing tort claims against U.S. defendants for injuries suffered in the plaintiffs’ home country, this scenario is assumed throughout this Comment. this doctrine thus ensures that U.S. courts do not become havens for the “afflicted of the world.” 33Russell J. Weintraub, International Litigation and Forum Non Conveniens, 29 Tex. Int’l L.J. 321, 352 (1994). Courts especially rely on FNC in the international context, to prevent foreign plaintiffs injured abroad from taking advantage of plaintiff-friendly U.S. tort laws, often applied to these disputes. 34 See infra Part I.C.

Yet FNC requires that another forum is available to hear the case; most often, this forum is the plaintiff’s home country, which the U.S. court has concluded will accept jurisdiction following its dismissal. 35 See infra Part I.A–B. However, unlike common law countries, civil law regimes recognize a preemptive system of jurisdiction, according absolute deference to a plaintiff’s choice of forum. 36 See infra Part II. Perceiving FNC dismissals to compromise their jurisdictional system, many Latin American countries have recently held that they cannot accept jurisdiction over cases dismissed abroad for this reason. 37 See infra Part II. Some courts base this determination on their national codes of civil procedure; others rely on more recent legislation, or “blocking statutes,” enacted specifically to ensure this outcome. 38This distinction and its implications are further discussed in Part II below. However, this Comment otherwise treats these distinct modes of reasoning synonymously because they reach the same end. For this reason, when this Comment discusses the effects of blocking statutes, it intends that discussion to refer also to “judicial retaliation,” wherein Latin American courts interpret their national codes of procedure to accomplish the same results as achieved by the blocking statutes. The refusal of either country to accept the other’s approach, as demonstrated above, creates “boomerang litigation” that ultimately leaves the plaintiff without any recourse.

This Comment addresses the conflict presented by FNC dismissals to Latin America, 39It is important to note that U.S. courts do not actually dismiss for FNC to any other country or its courts. See infra Part III.B.1. Rather, the language “FNC dismissal to” is intended as convenient shorthand for an FNC dismissal that a U.S. court expects will result in the plaintiff’s refiling in a certain country (i.e., the country that the court has already identified as “available” for the litigation). Having made this concession, this characterization is fair because a U.S. court must necessarily identify another forum for the litigation in order to grant an FNC dismissal. See infra Part I.B.1. so long as both the doctrine of FNC and blocking statutes persist. Thus, rather than decide the merits of FNC in general, 40This discussion has many contributors representing a range of perspectives. Compare, e.g., Weintraub, supra note 33, at 352 (concluding that the elimination of FNC would make the United States “a magnet forum” and “place our companies at a world-wide competitive disadvantage”), with Winston Anderson, Forum Non Conveniens and the Constitutional Right of Access: A Commonwealth Caribbean Perspective, 2 J. Transnat’l L. & Pol’y 51 (1993) (arguing that the doctrine of FNC raises a serious constitutional issue of access to the courts), and Dow Chem. Co. v. Alfaro, 786 S.W.2d 674, 680 (Tex. 1990) (Doggett, J., concurring) (deeming a specific application of FNC a “connivance to avoid corporate accountability”). One of the most common criticisms of FNC is that it is too intolerable an obstacle to corporate accountability. For various proposals to reformulate FNC, see Dante Figueroa, Are There Ways Out of the Current Forum Non Conveniens Impasse Between the United States and Latin America?, Bus. L. Brief, Spring 2005, at 42, 44 [hereinafter Figueroa, FNC Impasse] (acknowledging that certain modifications to the FNC doctrine are more realistic than “calling for an entire abolition” of the doctrine), and Dante Figueroa, Conflicts of Jurisdiction Between the United States and Latin America in the Context of Forum Non Conveniens Dismissals, 37 U. Miami Inter-Am. L. Rev. 119, 161–66 (2005) [hereinafter Figueroa, Conflicts of Jurisdiction]. this Comment seeks to reconcile the perceived needs of U.S. courts, reflected in their routine reliance on this doctrine, 41 See Walter W. Heiser, Forum Non Conveniens and Retaliatory Legislation: The Impact on the Available Alternative Forum Inquiry and on the Desirability of Forum Non Conveniens as a Defense Tactic, 56 U. Kan. L. Rev. 609, 609 (2008) (“A motion to dismiss on grounds of forum non conveniens has become the primary response of domestic defendants to tort actions brought by foreign plaintiffs in U.S. courts . . . [and is] granted[] in nearly every case.”). with the jurisdictional reality in Latin America. 42While this Comment does not intend to decide the merits of FNC application in general, the doctrine’s ability to adapt to modern jurisdictional dilemmas speaks to its ongoing viability in the future of international civil litigation. Part I presents the “competing” jurisdictional doctrines. This Part first introduces the common law doctrine of FNC, paying particular attention to the policy implications of the modern formulation, before exploring the principles of civil law preemptive jurisdiction, including the recent blocking statutes purporting to codify these principles.

Part II then discusses U.S. courts’ treatment of FNC motions to Latin America in view of these blocking statutes, both in practice and ideally. In particular, Part II argues that these statutes reinterpret traditional civil law concepts, significantly affecting a U.S. court’s ability to dismiss for FNC. Failing to give this proper attention, numerous commentators have inadequately explained the responses of U.S. courts. As a result, no proposed solution has satisfactorily accommodated the courts’ position alongside that of the plaintiffs. Based in part on this analysis, Part III presents two theoretically distinct approaches to this problem, ultimately advocating for choice-of-law legislation in the United States, which most effectively acknowledges the courts’ concerns while ensuring the plaintiffs a forum in which to litigate.

I. “Competing” Jurisdictional Doctrines

The idea that a court may decline to exercise its jurisdiction over a particular case, as embodied in the doctrine of forum non conveniens, is unique to the common law world. In contrast, the civil law system of preemptive jurisdiction accords absolute deference to a plaintiff’s choice of forum. Section A discusses the development and modern application of FNC, with particular attention to the policy objectives FNC is intended to advance. Section B then introduces basic principles of civil law jurisdiction and discusses Latin America’s recent interpretation of these principles, as embodied in various blocking statutes.

A. Forum Non Conveniens

The doctrine of forum non conveniens (translating to “an unsuitable court” 43 Black’s Law Dictionary 726 (9th ed. 2009). ) permits a court to dismiss a case over which it has proper jurisdiction 44The Supreme Court recently held that a court need not first establish jurisdiction over a dispute and its litigants in order to dismiss a case under FNC. Sinochem Int’l Co. v. Malay Int’l Shipping Corp., 549 U.S. 422, 455 (2007). However, FNC dismissals are most common when a court otherwise has jurisdiction. when another adequate forum is substantially more convenient. 45Gulf Oil Corp. v. Gilbert, 330 U.S. 501 passim (1947). With longstanding common law roots, 46The doctrine, first recognized in Scotland in 1866, is widely accepted in the common law world. Hay et al., supra note 14, at 187. FNC plays a prominent role in the context of modern international litigation 47FNC still exists within the United States for dismissals to state court (from both federal and other state courts); however, the enactment of 28 U.S.C. § 1404(a), the federal transfer statute, has largely limited its use domestically. Hay et al., supra note 14, at 208–09. due to an increasingly global economy and the notable appeal of U.S. courts to foreign plaintiffs. 48 See infra Part I.C. This section provides an overview of FNC and its origins in the United States before outlining the doctrine’s modern application. It then suggests an analytical framework for understanding the policy considerations FNC seeks to balance, which should guide our handling of the doctrine’s inadequacies in particular contexts.

1. Origins and Overview of FNC in the United States

The United States Supreme Court first recognized the FNC doctrine as such in Gulf Oil Corp. v. Gilbert, 49 Gilbert, 330 U.S. 501. although acknowledging its previous acceptance of the doctrine’s principles. 50 Id. at 504 (“This Court, in one form of words or another, has repeatedly recognized the existence of the power to decline jurisdiction in exceptional circumstances.”). In Gilbert, the Court appreciated that application of FNC was necessarily discretionary but identified a number of factors to consider in assessing the merits of an FNC dismissal. 51 Id. at 508.Gilbert contemplates two categories of factors—the first concerning the private interest of the litigant, and the second concerning the public interest, i.e., the convenience of the forum. 52 Id. at 508–09. Unless these factors strongly favor the defendant, however, a court should not disturb a plaintiff’s choice of forum. 53 Id. at 508. The Court reiterated this sentiment in Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518 (1947), decided the same day as Gilbert, but narrowed its discussion to the “good reason[s] why [a case] should be tried in the plaintiff’s home forum if that has been his choice.” Id. at 524 (emphasis added). Thus, as early as Gilbert and Koster, the Court seemed to contemplate different treatments for domestic and foreign plaintiffs.

The Court confirmed the enduring relevance of FNC in 1981 with its decision in Piper Aircraft Co. v. Reyno. 54454 U.S. 235 (1981). In Piper, the Court refined the proper application of the doctrine “crystallized” in Gilbert. 55 Id. at 248. Of particular significance, the Court held that “dismissal may not be barred solely because of the possibility of an unfavorable change in law.” 56 Id. at 249. In fact, this possibility should not even be given “substantial weight.” 57 Id. at 247. The Court reiterated the value of the doctrine’s flexibility and noted that such a holding would render the doctrine useless. 58 Id. at 249–50. Further, the Piper Court explicitly qualified the deference accorded a plaintiff’s choice of forum, as explicated in Gilbert: Because FNC’s central inquiry is the convenience of the parties, and because a foreign plaintiff’s choice of U.S. forum is less likely to be inspired by considerations of convenience, that choice is entitled to less weight than that of a citizen plaintiff. 59 Id. at 255–56; see also Empresa Lineas Maritimas Argentinas, S.A. v. Schichau-Unterweser, A.G., 955 F.2d 368, 373 (5th Cir. 1992) (“When a plaintiff chooses a foreign forum for its claims, courts are reluctant to assume that convenience motivated that choice.”); C.A. La Seguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983) (“A plaintiff who chooses a foreign forum substantially undercuts the presumption his choice is reasonable . . . .”). Thus, in combination, Gilbert and Piper provide the basis for modern FNC analysis.

2. Modern Analysis of FNC

Most modern courts treat FNC analysis as a two-step process. 60 But see infra note 199 and accompanying text (discussing the treatment of an adequate alternative forum as one nondispositive factor in FNC analysis). To determine whether dismissal is proper, the court will first ask whether an adequate alternative forum exists. 61Walter W. Heiser, Forum Non Conveniens and Choice of Law: The Impact of Applying Foreign Law in Transnational Tort Actions, 51 Wayne L. Rev. 1161, 1166 (2005). Characterizing FNC as a “doctrine furnish[ing] criteria for choice” between “at least two forums in which the defendant is amenable to process,” the Gilbert Court implicitly recognized the existence of an alternative forum as a prerequisite to FNC dismissal. 62Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506–07 (1947).Piper explicated Gilbert’s supposition in a footnote providing that a court must determine that an alternative forum exists “[a]t the outset of any forum non conveniens inquiry.” 63 Piper, 454 U.S. at 254 n.22; see also Rajeev Muttreja, Note, How to Fix the Inconsistent Application of Forum Non Conveniens to Latin American Jurisdiction—And Why Consistency May Not Be Enough, 83 N.Y.U. L. Rev. 1607, 1611 (2008) (noting the lack of attention accorded this inquiry by the Supreme Court, which assumed its existence in Gilbert and “relegated the issue to a footnote” in Piper). Once a court makes this determination, it proceeds to apply the factors outlined in Gilbert. 64Muttreja, supra note 63, at 1616. Each step of modern FNC analysis is considered in greater depth below.

a. The Threshold Inquiry: Availability of an Adequate Alternative Forum

While “availability” and “adequacy” are often discussed jointly, 65 See, e.g., Piper, 454 U.S. at 254 n.22. they have developed distinct meanings, and courts increasingly treat them as separate inquiries. 66Heiser, supra note 41, at 614. A forum is available when that forum has jurisdiction over all necessary parties and no procedural bar precludes the alternative forum from hearing the case. 67 Id. at 614 & n.34. As a party’s consent is a valid basis for jurisdiction in every forum, a defendant’s submission to the jurisdiction of a foreign court renders that forum available. 68Anne M. Rodgers, Forum Non Conveniens in International Cases, in International Litigation: Defending and Suing Foreign Parties in U.S. Federal Courts 205, 206 (David J. Levy ed., 2003). For this reason, most courts condition FNC dismissal on the defendant’s submission to the alternative forum’s jurisdiction, as well as waiver of any statute of limitations defenses. Id. at 216. But see Leetsch v. Freedman, 260 F.3d 1100, 1104 (9th Cir. 2001) (holding that a district court is not required to impose conditions on an FNC dismissal and “lack of such conditions does not render the . . . forum inadequate”). In contrast, a forum is unavailable where the forum “does not permit litigation of the subject matter of the dispute.” 69 Piper, 454 U.S. at 254 n.22. In short, a court is available unless it cannot or will not hear the case.

Regarding adequacy, as previously discussed, an unfavorable change of law does not render an alternative forum inadequate. 70 See supra notes 56– 57 and accompanying text. Only when “the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all” may the alternative forum itself be inadequate. 71 Piper, 454 U.S. at 254. However, the alternative forum is not necessarily required “to offer a judicial remedy” in order to satisfy this requirement. Lueck v. Sundstrand Corp., 236 F.3d 1137, 1143–45 (9th Cir. 2001) (finding that New Zealand’s administrative remedy for plaintiffs’ product liability claims rendered that forum adequate). For instance, in Parex Bank v. Russian Savings Bank, 72116 F. Supp. 2d 415 (S.D.N.Y. 2000). the court held that Russia was a “clearly unsatisfactory” forum in which to litigate claims based on a series of contracts that were not legally cognizable under Russian law. 73 Id. at 426–27 (quoting Piper, 454 U.S. at 254 n.22).

Further, adequacy is necessarily a subjective inquiry. 74Figueroa, FNC Impasse, supra note 40, at 44 (“A forum is not adequate or inadequate per se. Rather, it depends on the eyes of the beholder.”). Perhaps for this reason, U.S. courts are notably hesitant to determine that another country’s court system is inadequate. 75Heiser, supra note 61, at 1170. First, only systemic prejudices or dishonesty provide appropriate bases for finding that a forum is inadequate. 76This is true at least absent a “documented threat to the plaintiff’s safety or freedom.” Rodgers, supra note 68, at 208. For instance, in Mercier v. Sheraton International, Inc., a U.S. court refused to consider the “personal difficulties” the plaintiff might face if the case were dismissed in favor of Turkey, because the plaintiff was unable to show any “legal or political obstacle to the presentation of [her] testimony in the Turkish courts.” 77981 F.2d 1345, 1350–51 & n.2 (1st Cir. 1992). However, at least one court has considered such “personal difficulties” in weighing the private interest factors of Gilbert. In Guidi v. Inter-Continental Hotels Corp., the Second Circuit held that the district court had abused its discretion in dismissing to Egypt for FNC in part because the district court ignored the “substantial and unusual emotional burden on Plaintiffs,” who were “widows or . . . victim[s] of a murderous act [in Egypt] directed specifically against foreigners,” if they were required to return to litigate their case. 203 F.3d 180, 186 (2d Cir.), amended by 224 F.3d 142 (2d Cir. 2000). It is worth noting that the court’s discussion of the “ample evidence . . . giv[ing] credence to Plaintiffs’ uncertainty as to the safety of American visitors to Egypt” occurs in the context of the parties’ convenience (i.e., the private interest factors) rather than the availability or adequacy of the forum. Id. This reflects, more generally, courts’ cursory treatment of this threshold inquiry and caution in labeling an alternative forum inadequate. In contrast, a Honduran forum was inadequate when the plaintiffs presented evidence that the Honduran criminal process would be used to intimidate the plaintiffs’ officers and witnesses. 78Honduran Aircraft Registry, Ltd. v. Honduras, 883 F. Supp. 685, 690 (S.D. Fla. 1995), aff’d in part and vacated in part, 119 F.3d 1530 (11th Cir.), and amended by 129 F.3d 543 (11th Cir. 1997). For additional examples of systemic corruption rendering a foreign court inadequate, see Rodgers, supra note 68, at 208 n.21. Absent such express corruption or bias, however, procedural deficiencies including chronic delay or backlog, underdeveloped tort law, lack of capacity to handle complex mass tort litigation, and problems with enforcement of judgments are generally insufficient to render another forum inadequate. 79Heiser, supra note 61, at 1169–70 (discussing the litigation in In re Union Carbide Corp. Gas Plant Disaster at Bhopal, 634 F. Supp. 842 (S.D.N.Y. 1986), resulting from a highly toxic gas leak at a Union Carbide chemical plant in Bhopal, India, that killed or injured more than 200,000 individuals). Thus, adequacy provides a fairly low threshold: as long as the plaintiffs are not “deprived of any remedy or treated unfairly” by the alternative forum’s legal system, that forum is adequate. 80Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981).

b. The Public and Private Interest Factors of Gilbert: A Balancing of Conveniences

Having established that an adequate alternative forum is available for resolution of the dispute, the court then considers the Gilbert factors. The purpose of the Gilbert factors is to properly balance conveniences—the court must consider the interest each party has in proceeding in a particular forum alongside the forum’s interest in litigating the dispute. 81Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508–09 (1947).

In evaluating the private interest of each litigant, the court should consider

the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. 82 Id. at 508.

The ability of a foreign plaintiff to enforce a judgment rendered in the forum through his home court is also relevant to this inquiry. 83 Id. Interestingly, the ability of a foreign plaintiff to enforce a judgment rendered in the alternative forum in a U.S. court is not relevant to the inquiry and has, on occasion, become problematic following an FNC dismissal. See Christina Weston, Comment, The Enforcement Loophole: Judgment Recognition Defenses as a Loophole to Corporate Accountability for Conduct Abroad, 25 Emory Int’l L. Rev. 729 (2011). While a foreign plaintiff’s choice of forum is not entitled to the same deference as that of a citizen plaintiff, 84 See supra note 59 and accompanying text. it is still given some weight. 85 See Piper, 454 U.S. 235. A number of courts, however, including the Second Circuit, have held that when a treaty between the United States and a foreign nation affords both countries’ citizens equal access to the other’s court system, FNC analysis must treat foreign and domestic plaintiffs identically. Rodgers, supra note 68, at 209 n.27 (citing Blanco v. Banco Indus. de Venezuela, S.A., 997 F.2d 974, 981 (2d Cir. 1993)). Further, that the defendant may be engaged in reverse forum shopping should not ordinarily affect the trial court’s analysis of the private interests. 86 Piper, 454 U.S. at 252 n.19. This is premised on the idea that one forum is objectively better (i.e., substantially more convenient) than another forum and each party’s motive is not relevant to this determination. But see Iragorri v. United Techs. Corp., 274 F.3d 65, 73 (2d Cir. 2001) (advising courts to look at the plaintiff’s “likely motivations in light of all the relevant indications” when determining how much deference to accord a plaintiff’s decision).

In contrast, the public interest factors take into account the convenience of the forum. At least one court has characterized these factors as a guide for the court in deciding whether to grant an FNC motion “when private equities are in equipoise, even with the extra deference accorded to plaintiffs’ choice of forum.” 87Pain v. United Techs. Corp., 637 F.2d 775, 784 (D.C. Cir. 1980); see also Snaza v. Howard Johnson Franchise Sys., Inc., No. 3-07-CV-0495-O, 2008 WL 5383155, at *3 (N.D. Tex. Dec. 24, 2008) (“Only if a court concludes that dismissal is not appropriate based upon its review of the private interest factors, must it then weigh the public interest factors.”). A court will consider the administrative difficulties it faces due to congestion of its dockets; the burden on its citizens posed by litigation unrelated to the forum; the local interest in having localized controversies decided at home; and the difficulties associated with application of foreign law. 88 Gilbert, 330 U.S. at 508–09. In this way, the doctrine of FNC aims to minimize the need for complicated choice-of-law analysis and, ultimately, application of foreign law. 89 See Heiser, supra note 61, at 1180–82 (interpreting the Court’s formulation of the FNC doctrine to encourage courts to dismiss for FNC in order to avoid a choice-of-law determination and application of foreign law).

The application of Gilbert factors is highly fact specific, and the Court has provided little guidance in terms of proper balancing. 90Muttreja, supra note 63, at 1616–17. Due to the discretionary nature of this analysis, the trial court’s determination is subject to a highly deferential standard of review. 91 Piper, 454 U.S. at 257 (“The forum non conveniens determination . . . may be reversed only when there has been a clear abuse of discretion . . . .”). In effect, then, a higher court will rarely disturb the trial court’s decision to grant or deny an FNC dismissal. 92This outcome is criticized as highly problematic, both in terms of predictability and fairness. For an interesting proposal to heighten the standard of review as to the preliminary question of whether an adequate alternative forum exists, see Alina Alonso & David L. Luck, Toward a More “Convenient” Standard of Review in Cases Involving Forum Non Conveniens Issues, Fla. Bar J., Jan. 2010, at 40. The authors argue that this inquiry involves purely legal issues and questions of foreign law, usually reviewed de novo. Id. at 40–41. The abuse of discretion review prescribed by the Piper Court thus pertained only to the lower court’s balancing of Gilbert factors. Id.

3. Policy Considerations of FNC

As stated by the Gilbert Court, “The principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized . . . .” 93 Gilbert, 330 U.S. at 507. Relying largely on a law review article lamenting the congested dockets of New York courts, 94Paxton Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Colum. L. Rev. 1 (1929). the Gilbert Court designated FNC as a tool to prevent plaintiffs from choosing an inconvenient forum to “vex, harass, or oppress” the defendant. 95 Gilbert, 330 U.S. at 508 (quoting Blair, supra note 94) (internal quotation marks omitted). “[A] plaintiff sometimes is under temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself.” Id. at 507. Yet this narrow concern hardly explains the outcome in numerous cases in which courts grant an FNC dismissal when the chosen forum appears primarily inconvenient for the plaintiffs, not the defendants. For instance, a foreign plaintiff’s decision to sue a defendant-corporation in the state of its headquarters is hardly an “oppressive” one, at least in terms of the defendant’s convenience in litigating.

This outcome is largely explained by U.S. courts’ longstanding concern with forum shopping, “the practice of choosing the most favorable jurisdiction or court in which a claim might be heard.” 96 Black’s Law Dictionary 726 (9th ed. 2009). A particularly useful definition in the international context, forum shopping is understood as a plaintiff’s “passing his natural forum and bringing his action in some alien forum . . . which would give him relief or benefit which would not be available to him in his natural forum.” 97 Michael Karayanni, Forum Non Conveniens in the Modern Age: A Comparative and Methodological Analysis of Anglo-American Law 132 (2004) (alteration in original) (internal quotation mark omitted). The inherent assumption is that the litigant purposely overlooks a more appropriate forum in order to reap the benefits of a less appropriate forum. 98 Id.

Forum shopping is of particular concern in the United States due to the numerous procedural and substantive advantages offered plaintiffs by U.S. courts. Many procedural and systemic advantages are, for the most part, unique to the American legal system. These include extensive pretrial discovery, conspicuously plaintiff-friendly juries, the contingency fee system, large damage awards, and relatively efficient disposition and enforcement of judgments. 99Heiser, supra note 41, at 618–19; Muttreja, supra note 63, at 1618; see also Andrew Bell, Forum Shopping and Venue in Transnational Litigation 29 (2003) (highlighting low filing fees, the possibility of class actions, liberal joinder rules, and relatively loose rules of pleading as further draws of the American system).

However, beyond advantages in procedure, perhaps the most appealing aspect of litigating in the United States is application of substantive U.S. tort law. 100Of course, the underlying assumption is that a U.S. court will apply domestic law to the dispute. Heiser, supra note 61, at 1163. For consideration of the correctness of this assumption, and its consequences, see infra Part IV.B. U.S. tort law is grounded in strict liability rather than negligence, damage awards compensate for both economic and non-economic injuries and, on top of these, punitive damages are also available. 101Heiser, supra note 41, at 619. As the majority of international litigation in the United States involves foreign torts, 102Friedrich K. Juenger, Forum Shopping, Domestic and International, 63 Tul. L. Rev. 553, 560 (1989). these features have the potential to seriously affect the outcome of a case. 103 See generally Henry Saint Dahl, Forum Non Conveniens, Latin America and Blocking Statutes, 35 U. Miami Inter-Am. L. Rev. 21 (2004) (noting that due to numerous procedural deficiencies in Latin America, plaintiffs’ claims are less likely vindicated). The lower costs of litigating coupled with the higher potential for recovery make the United States a “magnet forum” for foreign plaintiffs. 104Russell J. Weintraub, Choice of Law for Products Liability: Demagnetizing the United States Forum, 52 Ark. L. Rev. 157, 162 (1999); Weintraub, supra note 33, at 352. FNC, then, is a judicial response recognizing that, in deciding where to file, a foreign plaintiff’s desire to litigate in the United States may overshadow important considerations of convenience.

In particular, courts attempt to mitigate the consequences of forum shopping through measured application of the Gilbert factors. 105 See supra Part I.B.2. While trying to reconcile multiple, often incompatible interests—those of each litigant and those of the forum 106Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508–09 (1947); see also Muttreja, supra note 63, at 1617–18 (defining the “two distinct policy goals that can be aligned but are often in tension” as the court’s dual interests in “respect[ing] a plaintiff’s choice of forum” and “ensur[ing] that the trial is convenient”). —courts simultaneously value these competing interests by according deference to the plaintiff’s choice of forum only when that choice stems from legitimate considerations. 107Iragorri v. United Techs. Corp., 274 F.3d 65, 73 (2d Cir. 2001). In resolving that choice-of-law and similar concerns are inherently illegitimate, 108Heiser, supra note 61, at 1168 n.33 (“[T]he more it appears that the plaintiff’s choice of a U.S. forum was motivated by forum shopping reasons . . . the less deference the plaintiff’s choice commands.” (second alteration in original) (quoting Iragorri, 274 F.3d at 72)). Whether this is a fair assumption depends in part on one’s reading of Piper. While the Piper Court discusses the need to alleviate the burden on American courts, “already extremely attractive to foreign plaintiffs,” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 251–52 (1981), Piper seems to suggest that forum shopping is not, in itself, improper. In fact, in reasoning that an unfavorable change in law is irrelevant to FNC dismissal, the Piper Court acknowledges without judgment that plaintiffs often “select that forum whose choice-of-law rules are most advantageous.” Id. at 250. This sort of forum shopping is only a problem if it leads the plaintiff to file in a substantially less convenient forum. Thus, the appropriate question is not whether the plaintiff engaged in forum shopping, but whether the selected forum is most appropriate. a court may employ the Gilbert factors to protect against forum shopping and dismiss a case brought by a plaintiff who “unfairly exploits jurisdictional or venue rules to affect the outcome of a lawsuit.” 109Juenger, supra note 102, at 553. The forum shopping concern is thus premised on the idea that “the plaintiff screens the different jurisdictions and then decides to file suit in the forum that will grant the most favorable resolution of the pending dispute.” Karayanni, supra note 97, at 132. The ability to dismiss these cases to a substantially more convenient foreign forum preserves judicial resources and protects the legitimate interests of the defendant. 110 Karayanni, supra note 97, at 135.

If forum shopping were the only relevant policy concern, however, a court’s power to dismiss for FNC would be absolute. Instead, FNC dismissals are limited in a significant way: a court may only dismiss a case when another forum is both available and adequate. 111 See supra Part I.A.1. This doctrinal formulation reveals a competing policy consideration, more valuable than a court’s ability to control its dockets or prevent forum shopping 112If these considerations were equally valuable, deliberation of the Gilbert factors would not depend on finding another forum in which the plaintiffs could litigate. —a plaintiff’s right to have his case heard. As a result, a U.S. court should not dismiss a case over which it has proper jurisdiction—no matter how tangentially related to the forum—unless another court will hear that case.

B. Latin American Preemptive Legislation

Basic principles of civil law jurisdiction are markedly different from their common law counterparts. As FNC dismissals to Latin America become increasingly common, numerous Latin American countries have acted to counter the doctrine’s adverse effects on their legal systems. Through “judicial retaliation” and “blocking statutes,” 113 See supra note 38. these countries attempt to hinder U.S. courts from dismissing for FNC cases brought by Latin American plaintiffs. This section introduces traditional principles of civil law jurisdiction and the blocking statutes supposedly based on these principles.

1. Civil Law Preemptive Jurisdiction

The concept that a court holds the discretionary power to dismiss a case over which it has proper jurisdiction is foreign to civil law regimes, which include most Latin American countries. 114Muttreja, supra note 63, at 1619. Latin American civil procedure developed from various continental European systems and maintains the same basic principles. Ronald A. Brand & Scott R. Jablonski, Forum Non Conveniens: History, Global Practice, and Future Under the Hague Convention on Choice of Court Agreements 128 (2007). In contrast to the common law tradition, the basis and scope of civilian judicial jurisdiction are established exclusively by national codes of civil procedure. 115 Brand & Jablonski, supra note 114, at 121 (“The concept of forum non conveniens is generally inconsistent with civil law systems in which there is a belief in the predictability of comprehensive procedure codes created by the legislature and the absence of all but minimal discretion in the role of the judge.”); see also Alejandro M. Garro, Forum Non Conveniens: “Availability” and “Adequacy” of Latin American Fora from a Comparative Perspective, 35 U. Miami Inter-Am. L. Rev. 65, 70 (2003). These statutes appreciate a plaintiff’s initial choice of forum as absolute, so long as the plaintiff files in a court competent to hear the case according to both the civil law jurisdiction and the legal system in which the case is filed. 116E.E. Daschbach, Where There’s a Will, There’s a Way: The Cause for a Cure and Remedial Prescriptions for Forum Non Conveniens as Applied in Latin American Plaintiffs’ Actions Against U.S. Multinationals, 13 Law & Bus. Rev. Americas 11, 29 (2007). Jurisdiction is generally proper in “the defendant’s domicile, the defendant’s place of business, and the place where the harm occurred.” 117Muttreja, supra note 63, at 1620. If a plaintiff initially files in one of these places, then, under the Latin American rules of civil procedure, the court cannot decline to hear the case. 118 Id. at 1620 & n.75.

Because civil law gives categorical deference to a plaintiff’s choice of forum, a civil law court will decline jurisdiction over a claim initially filed by the plaintiff in another civil law court. 119This concept is similar to, but distinct from, the civil law concept of lis pendens, which requires that one court stay proceedings on an issue being tried in another court. See Hay et al., supra note 14, at 207. A final FNC dismissal to Latin America would raise a lis pendens issue only if the U.S. court retained continuing jurisdiction over the suit. Dahl, supra note 103, at 29. However, as the Second Circuit made clear in In re Union Carbide Corp. Gas Plant Disaster, “Once a U.S. court dismisses . . . proceedings on grounds of forum non conveniens it ceases to have any further jurisdiction over the matter . . . .” 809 F.2d 195, 205 (2d Cir. 1987) (characterizing the defendant’s suggestion otherwise as “not only impractical but evidenc[ing] an abysmal ignorance of basic jurisdictional principles”). Thus, the basic justification for the Latin American blocking statutes must be the doctrine of preemptive jurisdiction rather than lis pendens. In effect, then, the plaintiff’s decision to file in a particular court acts to strip all other civil law courts having concurrent jurisdiction of their right to hear the case. 120Figueroa, FNC Impasse, supra note 40, at 44. While this statement is accurate, the distinction made in the preceding sentence is important. It is not the plaintiff’s actions that strip a second court of jurisdiction; rather, based on the civil law concepts of lis pendens and preemptive jurisdiction, the second court chooses not to accept the case. See infra Part II.B.1. Still, most civil law jurisdictions recognize the plaintiff’s right to redirect the case to another competent court at his discretion. 121Garro, supra note 115, at 70. This choice, so long as made “freely, unequivocally, and voluntarily by the plaintiff,” revives the latter court’s jurisdiction. 122 Id.

2. Latin American Blocking Statutes

Based on this preemptive system, many Latin American countries 123For the purpose of this Comment, Latin America refers to those Latin American countries having enacted some form of blocking statute, including Ecuador, Guatemala, Nicaragua, Panama, and Costa Rica, and others who have interpreted their national codes to the same end. Collective treatment of these countries is appropriate due to the common origins of their statutes or interpretations—that is, Latin America’s civil law rules of preemptive jurisdiction. For independent consideration of each regime, see Dahl, supra note 103, app. at 47–63. Notably, many larger, more developed countries, including Argentina, Brazil, Chile, and Mexico, do not have blocking statutes in place and have not construed their national codes to conflict with the FNC doctrine in the United States. Michael Wallace Gordon, Forum Non Conveniens Misconstrued: A Response to Henry Saint Dahl, 38 U. Miami Inter-Am. L. Rev. 141, 142 (2006). have recently decided that FNC dismissals have intolerable implications for their legal systems. 124 See Dahl, supra note 103, at 21 (noting the “illegal effects” of FNC dismissals for Latin America). While some rely exclusively on their national codes of procedure, many countries have enacted blocking statutes making explicit the perceived consequences of their jurisdictional rules 125For this reason, the term retaliatory legislation, which has emerged to describe these statutes, is a misnomer insofar as it suggests that the concept of preemptive legislation, in its entirety, is a response to FNC in the United States and like doctrines. However, certain Latin American statutes specifically target “product injury cases brought by Latin American plaintiffs against U.S. defendants in U.S. courts, for torts arising out of the defendants’ activities in Latin America.” Figueroa, FNC Impasse, supra note 40, at 45. : Once a claim is validly filed in the defendant’s domiciliary court, the jurisdiction of the plaintiff’s national court is effectively extinguished. 126 See supra Part I.B. Accordingly, once a Latin American plaintiff files a claim against a U.S. defendant in the United States, the plaintiff’s home court can no longer hear the case. 127Figueroa, FNC Impasse, supra note 40, at 44.

Nor does the equation change should the U.S. court dismiss for FNC. In this instance, only the plaintiff’s voluntary refiling would revive national jurisdiction; however, the blocking statutes consider a plaintiff’s decision to refile in Latin America following an FNC dismissal abroad to be inherently involuntary. 128Dahl, supra note 103, at 24. This is also the position of Parlatino’s Model Law, see infra text accompanying notes 130–36, so this stance is also assumed by those countries that follow it. Rather, an FNC dismissal forces a plaintiff to refile and thus cannot revive jurisdiction of the Latin American national court. 129Id. at 24–25 (“FNC forces the plaintiff to re-file the case . . . [such that the] filing is not the product of the plaintiff’s free and spontaneous will. . . . The plaintiff who re-files in Latin America . . . is compelled or coerced by the FNC order.” (footnotes omitted)). Another Latin American response to FNC is the enactment of retaliatory legislation that extends jurisdiction to Latin American countries over cases dismissed abroad under FNC and permits them to import the law of the dismissing country in adjudicating the case. Winston Anderson, Forum Non Conveniens Checkmated? The Emergence of Retaliatory Legislation, 10 J. Transnat’l L. & Pol’y 183, 186 (2001) (noting that the legislatures in the Caribbean Commonwealth, where it was impossible to extinguish the jurisdiction of their national courts, enacted statutes permitting their local courts “to utilize the rules of evidence, liability, and award damages available to foreign courts”). For instance, a Dominican statute “unreservedly accepts jurisdiction in a FNC situation.” Dahl, supra note 97, at 24. Thus, following a dismissal in the United States under FNC, the court might impose strict liability on an American corporate defendant, or subject the defendant to a determination of compensatory damages according to American standards. Daschbach, supra note 116, at 57. These statutes only become relevant once a case is dismissed abroad for FNC; thus, they operate less to “make Latin American courts a more appealing forum for Latin American plaintiffs” than to make Latin American courts a less desirable alternative for U.S. defendants. Id.

For example, Parlamento Latinoamericano (the Latin American Parliament or Parlatino), an influential regional Parliament integrated from the national Parliaments of Latin American and Caribbean nations, 130Muttreja, supra note 63, at 1623 n.87. enacted the Model Law on International Jurisdiction and Applicable Law to Tort Liability on January 27, 1998. 131 Ley Modelo Sobre Competencia Internacional y Derecho Aplicable a la Responsabilidad Extracontractual [Model Law on International Jurisdiction and Applicable Law to Tort Liability] art. 1 (Permanent Forum of Reg’l Parliaments for the Env’t & for a Sustainable Dev., Latin Am. Parliament 1998) [hereinafter Model Law], available in English at http://www.iaba.org/LLinks_forum_non_Parlatino.htm, translated in Henry Saint Dahl, Dahl’s Law Dictionary/Diccionario Juridico Dahl: Spanish-English/English-Spanish: An Annotated Legal Dictionary, Including Authoritative Definitions 242 (4th ed. 2006). Before introducing the text of the Model Law, the statute clarifies certain existing legal principles on which it rests—namely, that “the choice of forum made by the plaintiff must be strengthened” 132 Id. at introductory cmt., translated in Dahl, supra note 103, app. at 47. and, citing to Article 323 of the Bustamante Code, 133The Bustamante Code is an international treaty that attempts to codify conflict of laws. Ratified by fourteen Latin American countries (and Cuba), the United States nonetheless refused to ratify it. Alejandro M. Garro, Unification and Harmonization of Private Law in Latin America, 40 Am. J. Comp. L. 587, 591–92, nn.16 & 17 (1992). that “in personal actions . . . the defendant’s domiciliary court [has] jurisdiction.” 134 Model Law, supra note 131, at introductory cmt., translated in Dahl, supra note 103, app. at 47. So premised, Article 1 of the Model Law states: “The petition that is validly filed, according to both legal systems, in the defendant’s domiciliary court, extinguishes national jurisdiction. The latter is only reborn if the plaintiff desists of his foreign petition and files a new petition in the country, in a completely free and spontaneous way.” 135 Id. As discussed, a plaintiff’s refiling following an FNC dismissal abroad is not considered “free and spontaneous” for this purpose. 136 See supra notes 127–29 and accompanying text. Similarly, a plaintiff who refiles in Venezuela after an FNC dismissal does not “expressly or tacitly” submit to Venezuela’s jurisdiction, as required by Article 40(4) of the Venezuelan International Private Law Statute (VIPLS). Muttreja, supra note 63, at 1626. Thus, Venezuela does not have jurisdiction over the case. Id.

A number of Latin American countries, including Ecuador and Guatemala, have modeled their blocking statutes on this Model Code. 137Ecuador’s statute was declared unconstitutional, as was part of Guatemala’s. Dahl, supra note 103, at 23; see supra text accompanying notes 184–86. Importantly, these statutes all share one thing in common: they explicitly intend to respond to, and to frustrate, FNC dismissals abroad. As noted by the Parlatino statute, it “makes sure that . . . a foreign court with jurisdiction . . . will not be able to close the doors of the courts on [a Latin American plaintiff] as, for instance, has been happening with the theory of forum non conveniens.” 138 Model Law, supra note 131, at introductory cmt., translated in Dahl, supra note 103, app. at 47. Similarly, the Guatemalan statute states that “the ‘Theory of Forum Non Conveniens’ by foreign judges . . . makes it necessary to enact a law that controls the applicability of legal theories unknown in our system . . . .” 139Law for the Defense of Procedural Rights of Nationals and Residents, May 14, 1997 (Guat.), available at http://www.iaba.org/LLinks_forum_non_Guatemala.htm, translated in Dahl, supra note 103, app. at 48. It is in this context that U.S. courts must decide whether to continue dismissing to Latin America for FNC.

II. FNC Motions to Latin American Countries with Blocking Statutes: An Explanation of U.S. Courts’ Analyses

The message of these blocking statutes seems clear: A Latin American court will not hear a case dismissed abroad under FNC. Yet U.S. courts reach inconsistent outcomes in determining whether a Latin American court is “available” for purposes of an FNC dismissal, as section A briefly discusses. 140For more exhaustive analysis of U.S. courts’ inconsistent treatment of FNC motions when faced with Latin American preemptive legislation, see Muttreja, supra note 63. Muttreja argues for an “honest” application of the FNC doctrine, obligating courts to deny dismissals to Latin America. Id. at 1607. While numerous commentators have noted this inconsistency, few have adequately considered why certain courts insist on continuing to dismiss for FNC to Latin America, an outcome that seems obviously improper. Instead, posturing these statutes as mere reiterations of foundational concepts in civil law, 141 See infra note 170 and accompanying text. commentators assume that these decisions simply reflect the courts’ failure to appreciate crucial differences between the systems of jurisdiction, or refusal to accept the same.

Section B argues that the results achieved by these blocking statutes are not inherent in traditional rules of civil law jurisdiction, largely explaining the hesitance of U.S. courts to accept that they can no longer dismiss to Latin America. Instead, these statutes reinterpret civil law principles, ensuring that U.S. courts must deny FNC motions brought against Latin American plaintiffs. So portrayed, the courts’ discomfort with these statutes is easier to understand, and the need for a solution acknowledging the courts’ concerns becomes apparent.

A. Actual and Ideal Treatment by U.S. Courts of FNC Dismissals to Latin America

Whether a court will grant an FNC motion to a Latin American country with a blocking statute is largely unpredictable. These statutes overtly intend to clarify that the Latin American country will not accept jurisdiction over a case once dismissed by a U.S. court for FNC. 142 See supra notes 138–39. As FNC dismissal “presupposes at least two forums” in which a case may be heard, 143Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947). a U.S. court must decide whether these statutes effectively eliminate one forum. Latin American countries clearly intended for their blocking statutes to have this effect, as so concluding prevents a U.S. court from dismissing for FNC. 144 See supra notes 138–39.

And many courts have indeed reached this conclusion, treating the blocking statutes as evidence that no alternative forum exists and refusing dismissal on this basis. For instance, in Canales Martinez v. Dow Chemical Co., 145219 F. Supp. 2d 719 (E.D. La. 2002). the court relied on the Costa Rica Code of Civil Procedure (CCP) to hold that Costa Rica was not an adequate alternative forum. 146 Id. at 728. Article 31 of the CCP states: “If there were two or more courts with jurisdiction for one case, it will be tried by the one who heard it first at the plaintiff’s request.” 147 Id.; see also Brand & Jablonski, supra note 114, at 136. By operation of plaintiffs’ filing in the United States, the court reasoned, CCP Article 31 had divested Costa Rican courts of jurisdiction. 148 Canales Martinez, 219 F. Supp. 2d at 728. Further, Articles 122 and 477 of the CCP only recognize claims as valid if they are filed “freely and voluntarily”; by dismissing for FNC, “the [U.S. court] would be forcing the plaintiffs to try to file the lawsuit in Costa Rica in violation of articles 122 and 477.” 149 Id. Thus, an FNC dismissal was inappropriate.

The plaintiffs in In re Bridgestone/Firestone, Inc., 150190 F. Supp. 2d 1125 (S.D. Ind. 2002). where the court considered a motion to dismiss to Venezuela, succeeded with a similar argument. Here, the plaintiffs asserted that, in combination, several provisions of the Venezuelan International Private Law Statutes (VIPLS) would preclude a Venezuelan court from assuming jurisdiction over their tort claim, once dismissed for FNC. 151 Id. at 1131–32. Relying on the plaintiffs’ expert affidavits, the court rejected the defendants’ argument that defendants’ willingness to consent to jurisdiction in Venezuela was in itself sufficient to confer jurisdiction on its court. 152 Id. In particular, the following statutes were at issue: Article 39, providing the defendant’s domicile as the first forum for bringing suit; Article 40(2), relating specifically to jurisdiction in personal injury cases with nondomiciliary defendants; and Article 40(4), permitting Venezuelan courts jurisdiction over cases against nondomiciliaries if both parties submit to jurisdiction. Id.; see also Carl Schroeter GmbH & KO., KG. v. Crawford & Co., No. 09-946, 2009 WL 1408100, at *7–8 (E.D. Pa. May 19, 2009) (discussing the In re Bridgestone/Firestone decision and concluding, in light of the Venezuelan legislation, that defendant failed to establish Venezuela as an adequate alternative forum). So finding, the court denied their motion for FNC dismissal. 153 In re Bridgestone/Firestone, 190 F. Supp. 2d at 1156.

Yet other courts have granted FNC dismissals on similar facts. 154Many of these courts have conditioned dismissal on the alternative forum’s willingness to hear the case. If the alternative forum refuses jurisdiction, the plaintiff can refile in the United States without prejudice. See, e.g., Abad v. Bayer Corp., 563 F.3d 663, 666 (7th Cir. 2009); Chandler v. Multidata Sys. Int’l Corp., 163 S.W.3d 537, 547 (Mo. Ct. App. 2005). In Rivas ex rel. Estate of Gutierrez v. Ford Motor Co., 155No. 8:02 CV-676-T-17 EAJ, 2004 WL 1247018 (M.D. Fla. Apr. 19, 2004). a wrongful death action against Ford Motor Company resulting from a car accident in Venezuela, the court explicitly found the Bridgestone/Firestone reasoning unpersuasive. Instead, the court accepted defendants’ expert testimony to conclude that Venezuela’s courts were available for subsequent litigation. 156 Id. at *4. The defendants had submitted additional expert affidavits and “learned from [key] mistakes of Bridgestone/Firestone.” Brand & Jablonski, supra note 114, at 138. So too did the court in Morales v. Ford Motor Co., 157313 F. Supp. 2d 672 (S.D. Tex. 2004). another products liability case brought by Venezuelan plaintiffs against the American car manufacturer for an accident occurring in Venezuela. 158 Id. at 677. Despite expert affidavits indicating that plaintiffs’ decision to file first in the United States effectively stripped Venezuela of jurisdiction over the case, the court held defendants’ unilateral submission to the jurisdiction of the Venezuelan courts, alone, was sufficient to confer jurisdiction on Venezuelan courts. 159 Id. at 676.

The Morales court seemed particularly dissatisfied with the necessary implication of the plaintiffs’ argument: “Venezuelan plaintiffs have the option of rendering their home courts unavailable simply by bringing suits such as this one outside of their own country.” 160 Id. For more comprehensive coverage of these Venezuelan decisions, see Muttreja, supra note 63. Other courts have echoed this sentiment, revealing a likely explanation for finding a Latin American forum available despite persuasive evidence to the contrary. To determine that Latin American preemptive legislation precludes FNC dismissal “would place an undue burden on . . . courts forcing them to accept foreign-based actions unrelated to th[e] State merely because a more appropriate forum is unwilling . . . to accept jurisdiction.” 161Islamic Republic of Iran v. Pahlavi, 467 N.E.2d 245, 249 (N.Y. 1984). Unlike the other cases referenced here, this court considered FNC dismissal to Iran. Based in part on the above-quoted reasoning, the court upheld the lower court’s dismissal in spite of Iran’s political situation under the Khomeini regime. Id. at 248, 250. Importantly, however, the Pahlavi court acknowledged the possibility that no other forum existed and chose to dismiss anyway, id. at 250; the other courts, in contrast, did not consider the Latin American forums unavailable. In short, FNC initially developed “to resist . . . imposition upon [a particular] jurisdiction”; 162Seales v. Panamanian Aviation Co., No. CV-07-2901 (CPS) (CLP), 2008 WL 544705, at *2 (E.D.N.Y. Feb. 26, 2008) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947)) (internal quotation marks omitted). blocking statutes appear to be just this imposition.

However defensible this concern, these courts incorrectly apply the FNC doctrine to reach this outcome. In doing so, they deny the plaintiffs a forum in which to litigate, appreciated by the Gilbert and Piper Courts as an absolute right. 163 See supra Part I.B.1. Thus, assessment of availability must proceed based on the foreign forum’s interpretation of its own rules rather than a U.S. court’s interpretation of the same. If the purpose of the availability inquiry is to ensure plaintiffs have another forum in which to litigate, a U.S. court’s determination that such forum should be available is irrelevant if, in fact, that forum won’t be available. 164Muttreja, supra note 63, at 1627–28, 1634–35 (“The American take on Venezuelan jurisdictional rules means nothing in Venezuela . . . .”). Nor is reliance on conditional dismissals in order to avoid properly analyzing the other forum’s availability consistent with the doctrine; 165 Id. at 1634–35 (“U.S. courts . . . . have not always conducted a thorough inquiry into the alternative forum’s rules of jurisdiction, instead using conditional dismissals as a way to assume, rather than analyze, the other forum’s availability while hedging against the possibility of that assumption being wrong.”). a court that refuses to engage in a good-faith attempt of this sort invites unending litigation to the detriment of all involved parties. Based on the current formulation of FNC and Latin America’s own understanding of its jurisdiction, then, a U.S. court should deny an FNC dismissal to Latin America because that forum is no longer available. 166Heiser, supra note 41, at 625–26; Muttreja, supra note 61, at 1634–35.

B. How Blocking Statutes Alter Traditional Civil Law Rules of Preemptive Jurisdiction in Latin America: An Explanation of U.S. Courts’ Behavior

In view of the reasoning above, many commentators suggest that U.S. courts must simply accept these cases; the plaintiffs have nowhere else to go, and proper application of the FNC doctrine thus demands it. To support this position, its advocates often assert that Latin America’s blocking statutes merely reaffirm principles of preemptive jurisdiction, a fundamental concept in civil law procedure. 167 See infra note 170 and accompanying text. By implication, this conflict is unavoidable, and the U.S. court must forfeit certain rights—in particular, its right to decline jurisdiction—in the interest of comity.

This section argues that this common conception of blocking statutes misrepresents their relationships to the original principles from which they derive. Rather than merely reiterate traditional concepts of civil law jurisdiction, these statutes reinterpret these concepts to achieve a desired end. So recognizing reveals legitimate interests that some courts seek to protect through incorrect application of FNC. Any potential solution must consider these interests in order to achieve an outcome that courts perceive as fair and are thus willing to follow.

1. Latin American Blocking Statutes: Civil Law Jurisdiction Reinterpreted

The prevailing view is that Latin American blocking statutes do nothing more than spell out existing law. Parlatino, for instance, asserts that the purpose of its Model Law is “to clarify and to systematize” “two norms [that] are already incorporated in the majority of [Latin American] legal systems, but in a disperse way.” 168 Model Law, supra note 131, at introductory cmt., translated in Dahl, supra note 103, app. at 47. In citing to “classic Roman law” as the origin of these norms, 169 Id. Accordingly, a Latin American plaintiff resisting FNC dismissal will argue both that the relevant blocking statute prohibits his home court from assuming jurisdiction and, regardless, that his country’s codified doctrine of preemptive jurisdiction dictates the same result. See, e.g., Paulownia Plantations de Pan. Corp. v. Rajamannan, No. A07-2199, 2009 WL 3644186, at *5 (Minn. Nov. 5, 2009). Parlatino implies that this legislation merely reflects age-old rules of civil law jurisdiction. Numerous academics concur, portraying Latin American blocking statutes as clarifying preexisting rules of preemptive jurisdiction rather than changing those rules. 170 See, e.g., Dahl, supra note 103, at 42 (“[T]he blocking statutes are not indispensable to dismiss cases filed in pursuance of a FNC order. This is so because the illegalities of FNC . . . are more than sufficient to prevent jurisdiction from accruing, even without a law specifically making such point.”); Garro, supra note 115, at 78 (“This statutory scheme appears not only unnecessary but also counterproductive.”); Muttreja, supra note 63, at 1620 n.74, 1623–24 (“Blocking statutes aim only to make a country’s jurisdictional rules clear; they do not actually change those rules.”). While these statutes are certainly premised on specific longstanding principles of civil law jurisdiction, this characterization at least oversimplifies the nature of these statutes and, in doing so, minimizes their effect on the outcome of cases facing FNC dismissal to Latin America.

More accurately, these blocking statutes reflect certain interpretive choices on the part of Latin American legislatures such that they differ from, or at least expand on, their civil law origins. 171This does not mean to imply that these statutes are the first or only incarnation of this interpretation. As previously discussed, courts have recently relied on their national codes to reach the same outcome as that achieved by the blocking statutes. See supra note 170. Again, the term blocking statutes intends to encompass the discussion of this interpretative trend more generally. As discussed, Latin America’s construct of jurisdiction is founded on two central tenets of civil law jurisdiction: first, that jurisdiction is proper in a defendant’s domicile, and second, that a plaintiff’s filing in a court with proper jurisdiction is final—i.e., not subject to the court’s discretion—and thus another court will not accept the same case. 172 See supra Part I.B.1. Based on these two principles, once a plaintiff files in a Latin American defendant’s domiciliary court, that court does not have discretion to dismiss the case, and all other Latin American courts relinquish their jurisdiction. 173 See supra Part I.B.1. In this way, one court’s loss of jurisdiction is premised on another court’s inability to dismiss a particular case. Thus, it does not necessarily follow that a plaintiff’s filing in a U.S. court having such discretion, according to its own law, permanently extinguishes a Latin American court’s jurisdiction, the outcome achieved by these blocking statutes. Reaching this conclusion requires an additional step—in this case, the active decision of a Latin American legislature to hold that its concept of preemptive jurisdiction applies extraterritorially as well, regardless of the foreign judiciary’s laws and concept of jurisdiction. 174 Brand & Jablonski, supra note 114, at 140 (“The Latin American experience indicates not only denial of any power to decline jurisdiction in national courts but legislative efforts to prevent U.S. courts from exercising such power under the forum non conveniens doctrine.”); see also supra text accompanying notes 22– 23. This is not to say that Latin America’s decision is wrong—the United States continues to follow its tradition of FNC despite the fact that its application is problematic for other countries that do not recognize the doctrine. The point is that portraying Latin America’s rejection of cases dismissed for FNC as an inevitable consequence of civil law jurisdictional principles ignores that Latin America has made certain affirmative decisions that depart from, or at least further develop, these basic principles. In other words, a civil law jurisdiction’s refusal to recognize the FNC doctrine when applied by a common law court is separate from that jurisdiction’s inability to apply the same. 175For instance, a Nicaraguan court held “[its] procedural system does not recognize, and therefore it does not accept nor does it admit, the imposition of the Forum Non Conveniens Theory by foreign courts.” Dahl, supra note 103, at 30 n.44 (quoting the Nicaraguan case of Reynaldo Aguilera Heute v. Shell Oil Co.). This statement rests on unsound logic—namely, the assumption that acceptance of another country’s use of a doctrine depends on recognition of that doctrine within one’s own legal system. The latter is inherent in longstanding principles of civil law; the former is not, and this is what the blocking statutes embody.

Further, the traditional civil law rule that the plaintiff’s filing in one court terminates the jurisdiction of all other courts only applies so long as the plaintiff’s claim is pending before that first court. Civil law jurisdictions—like common law jurisdictions—recognize the plaintiff’s right to change his mind, to dismiss the case in one forum and refile in another. Many blocking statutes acknowledge this, permitting revival of a court’s jurisdiction should parties submit “in a completely free and spontaneous way.” 176 See supra note 135 and accompanying text. In interpreting these statutes, however, Latin American courts construe “free and spontaneous” to exclude any situation in which the plaintiff refiles following an FNC dismissal abroad. 177 See supra note 133 and accompanying text. These courts reason that, in effect, an FNC dismissal coerces the plaintiff’s refiling such that his decision is forced rather than an act of his own free will, as required. 178 See supra notes 131, 133.

Of course, Latin American courts are permitted to so reason. However, this reasoning is not intrinsic to civil law concepts of jurisdiction; rather, it relies on a particular characterization of the FNC dismissal and a specific (and idealistic) understanding of voluntary. Each is a deliberate legislative choice enabling the desired outcome—the inability of Latin American courts to exercise jurisdiction over cases dismissed abroad for FNC.

First, interpreting an FNC dismissal to “order” a plaintiff to refile plainly distorts the dismissal’s actual effect. In reality, its only certain consequence is that a U.S. court will not hear the case. By its terms, then, an FNC dismissal does not coerce or compel a plaintiff to do anything, including to refile in a Latin American court. Holding otherwise requires two additional inferences: (1) that a plaintiff, left with the option to refile or have his claim unheard, will invariably choose to refile and (2) that a court, having left a plaintiff with this option, has compelled such refiling. Certainly these are reasonable inferences, but they are by no means inevitable. In view of the actual operation of an FNC dismissal, a Latin American legislature could just as rightly classify a plaintiff’s refiling as voluntary. Similarly, the idea that “voluntary” inherently implies an action uninfluenced by any external force is both unprecedented and unrealistic. Without this particular understanding of FNC and novel definition of voluntary, a plaintiff submitting to Latin American jurisdiction following an FNC dismissal would revive that court’s jurisdiction. 179This forum is otherwise appropriate for jurisdiction, according to Latin American law, because it is the place where the harm occurred. See supra note 117 and accompanying text.

Two additional realities further compromise the assertion that blocking statutes merely reflect principles otherwise inherent in civil law jurisdictions. First, other civil law countries are willing to accept cases dismissed in the United States for FNC. For instance, based on the civil law tradition that originated in Europe, 180 See John Henry Merryman & Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America 2 (3d ed. 2007) (tracing the origins of the “civil law tradition” to “450 b.c., the supposed date of publication of the Twelve Tables in Rome”). Brussels I prohibits any member of the European Union from dismissing for FNC. 181 See Case C-281/02, Owusu v. Jackson, 2005 E.C.R. I-1383. In Owusu, the European Court of Justice determined that Article 2 of the Brussels Convention precludes England, a common law country, from “declining jurisdiction” pursuant to FNC. Id. at I-1459 to -1460. Article 2’s grant of jurisdiction is “mandatory in nature”; an English court’s discretionary power to dismiss for FNC would undermine “the principle of legal certainty” sought by the Brussels convention. Id. However, this holding does not speak to the ability of a European court to hear a case dismissed by another court for FNC. Yet, U.S. courts routinely dismiss cases to European countries, 182 See, e.g., King v. Cessna Aircraft Co., 562 F.3d 1374 (11th Cir. 2009) (FNC dismissal to Italy); Baumgart v. Fairchild Aircraft Corp., 981 F.2d 824 (5th Cir. 1993) (Germany); In re Air Crash at Madrid, Spain, on August 20, 2008, 2011 WL 1058452 (C.D. Cal. Mar. 22, 2011) (Spain). In none of these cases did the court consider—or the plaintiffs suggest—that the particular European country would not hear the case following an FNC dismissal, or was otherwise unavailable for its subsequent resolution. which do not interpret their jurisdictional systems to demand that they refuse these cases. 183 See E-mail from Peter Hay, Prof., Emory Univ. Sch. of Law, to author (May 29, 2011, 11:24 CET). In other words, these countries interpret their ability to dismiss for FNC (or lack thereof) as distinct from their ability to entertain cases dismissed elsewhere under this doctrine. This, of course, suggests that Latin America’s contrary position is independent from, rather than intrinsic to, traditional civil law concepts.

Further, more than one Latin American country has declared parts of the blocking statutes enacted by its legislatures unconstitutional. 184 In addition to Ecuador, discussed here, the Guatemalan Constitutional Court declared certain bond provisions imposed by its blocking statute unconstitutional. Dahl, supra note 103, at 23 & n.12. For instance, Ecuador enacted its blocking statute—an “Interpretive Law”—in 1998, explaining the purported operation of Articles 27 through 30 of its Code of Civil Procedure:

Without prejudice to their literal meaning, [these] articles shall be interpreted in the sense that in case of concurrent international jurisdiction, the plaintiff may freely choose between bringing suit in Ecuador or in a foreign country . . . . [but i]f a suit were to be filed outside Ecuador, the national competence and jurisdiction of Ecuadorian courts shall be definitely extinguished. 185 Id. at app. at 48.

In April 2002, the Ecuadorian Constitutional Tribunal declared this statute unconstitutional “for reasons of form and substance.” 186 Id. at 23; see also Jaime Arosemena & Hernán Pérez Loose, The Unconstitutionality of Law 55 and the Forum Non Conveniens Doctrine, Int’l L. Office (July 30, 2002), http://www.internationallawoffice.com/newsletters/detail.aspx?g=dcf7e15e-f706-407a-aea0-0b3810468427 (“The rush to enact Law 55 caused both formal and hierarchical violations to the Ecuadorian Constitution.”). It is difficult to imagine a statute that is simultaneously unconstitutional and identical to traditional civil law principles. Instead, the statute’s unconstitutionality must lie in its departure from these principles, further calling into question the position that Latin American blocking statutes merely reiterate foundational principles of the civil law tradition.

2. Implications of the Reinterpretations Embodied in the Blocking Statutes

Latin America’s modern understanding of its own jurisdiction, whether based on its national codes or more recent blocking statutes, reflects at least an evolution from, rather than reincarnation of, basic civil law principles. While this distinction may seem largely immaterial, it helps to explain the resistance of many U.S. courts to the outcome seemingly mandated by this legislation—that is, denial of an FNC dismissal to Latin America. 187 See supra Part II.A. Rather than an inevitable consequence of two fundamentally different conceptions of jurisdiction, this outcome appears a strategic attempt to force jurisdiction onto the United States. 188Again, Latin America is allowed to interpret its own law however it wishes; FNC may equally be viewed as a strategic attempt to force litigation on another country. However, understanding that the outcome dictated by blocking statutes is due the legislatures’ interpretation of civil law principles, rather than those principles themselves, better explains U.S. courts’ behavior and allows for a solution that accommodates their interests. Posited as the former, a court’s decision to grant an FNC dismissal despite a blocking statute appears to be an offensive affront, or an intolerant attempt to force its common law jurisprudence on Latin America; viewed as the latter, however, this decision becomes a primarily defensive maneuver intended to protect the courts’ legitimate interests, embodied by the FNC doctrine.

Further, regardless of whether concepts of preemptive jurisdiction otherwise dictate this result, Latin American legislatures enacted the blocking statutes with the express purpose of frustrating U.S. courts’ attempts to dismiss for FNC. 189 See supra notes 138–39 and accompanying text. At least arguably, this alone justifies the courts’ opposition: the statutes seem to permit foreign plaintiffs, sanctioned by their national governments, to take advantage of the U.S. judicial system without regard to the burden placed on its courts or taxpayers. More problematic, the Latin American plaintiffs unilaterally hold the power to render their national courts unavailable. Filing first in Latin America, they may assuredly litigate there; 190Assuming that the plaintiff’s injury occurred in his home country. See supra note 120 and accompanying text. filing first in the United States, the plaintiffs know that a court cannot dismiss. 191This statement assumes that U.S. courts are staying true to the FNC doctrine, which, as discussed, is not always the case. See supra Part II.A. Should the U.S. court conditionally dismiss anyway, the plaintiffs can file in Latin America and then argue against that court’s jurisdiction, thus guaranteeing that the Latin American court finds the refiling involuntary and denies jurisdiction on that account. 192 See supra text accompanying notes 21– 23. The plaintiffs can subsequently return to the United States, having satisfied the conditions for refiling. 193 Recognizing this, the Florida Court of Appeals requires that a plaintiff make a good-faith effort to carry out the FNC dismissal order in Latin America. See Scotts Co. v. Hacienda Loma Linda, 2 So. 3d 1013, 1015–17 (Fla. Dist. Ct. App. 2008). In Scotts Co., the Florida court conditioned its FNC dismissal on the plaintiff’s ability to refile in Panana. When it refiled, the plaintiff emphasized to the Panamanian court that the United States had previously dismissed the case for FNC, and failed to submit to jurisdiction in Panama or to request that Panama’s blocking statute not apply. On “appeal,” the plaintiff then asked for affirmation of the lower court’s ruling. When the case returned to Florida, the court refused to proceed based on the plaintiff’s attempt to manipulate its jurisdiction. 1 Ved P. Nanda & David K. Pansius, Litigation of International Disputes in U.S. Courts § 6:15 (2d ed. 2010).

In combination, the perceived reasons why Latin American countries enacted these statutes and their implications for U.S. courts have led some U.S. courts to manipulate their FNC analyses to more satisfying (and self-serving) ends. As long as these courts perceive the statutes to encourage abuse of their system, however accurately, they will likely persist in misapplying FNC to achieve an outcome that feels fairer. As a result, U.S. courts will continue to dismiss the claims of Latin American plaintiffs to courts unable or unwilling to entertain them.

III. Potential and Ideal U.S. Responses to Latin American Preemptive Legislation

Recognizing the legitimacy of the U.S. courts’ concerns is important in determining whether, and how, to respond to this situation. Those commentators that suggest courts must simply accept this litigation ensure the plaintiff’s access to a court only by disregarding entirely that court’s interests. Further, they fail to appreciate the improbability of a court’s adherence to a proposal that is so against its self-interest. Instead, some courts will continue to misapply the FNC doctrine, which will neither lessen initial filings in the United States 194This is because, as long as U.S. courts treat FNC motions to Latin America inconsistently, there is sufficient incentive for Latin American plaintiffs to continue filing in the United States for its numerous benefits. See supra Part I.C. nor guarantee plaintiffs a court in which to litigate.

For this reason, the United States should respond in some way. 195More than one commentator has argued that international measures are most appropriate for this conflict. See Daschbach, supra note 116, at 61–65 (discussing the development of a new multilateral treaty, the expansion of an existing treaty, and the establishment of an international tribunal as potentially viable means to address this problem); Figueroa, Conflicts of Jurisdiction, supra note 40, at 124 (concluding that bilateral treaties between the United States and Latin American countries are “the natural way out of the FNC impasse” and would have numerous positive effects); Figueroa, FNC Impasse, supra note 40, at 46 (“The best mechanism for solving the FNC impasse would be an international treaty between the United States and most Latin American countries.”). The United States can assume one of two theoretically distinct approaches, 196Theoretically, a third approach would be for U.S. courts to narrow their concept of personal jurisdiction so as to avoid triggering Latin American blocking statutes in the first place. Because Latin America’s system of preemptive jurisdiction treats a plaintiff’s initial choice of forum as conclusive only if the plaintiff filed in a court competent to hear the case according to both legal systems, see supra note 116, a plaintiff’s initial filing in a U.S. court without proper jurisdiction would not extinguish the jurisdiction of its home court. However, as the majority of these cases involve transnational tort claims against U.S. corporations, typically at least one U.S. court will have proper jurisdiction over the defendant. In order to find lack of personal jurisdiction over the Latin American plaintiff, then, a U.S. court would have to consider the plaintiff’s submission alone to be insufficient for this purpose. So holding would seriously change basic principles upon which the United States’ current conception of jurisdiction rests. Further, this interpretation would likely raise constitutional issues based on the U.S. Constitution’s guarantee to all “persons”—as opposed to “citizens”—equal protection and due process. See U.S. Const. amends. V, XIV. Manipulating jurisdiction in this way would therefore have consequences far greater than the problem it seeks to solve. either (1) further manipulating the FNC doctrine to permit dismissal of cases brought by Latin American plaintiffs despite their nations’ blocking statutes, or (2) targeting the underlying source of the conflict—the allure of U.S. courts to foreign litigants with cases more appropriately heard by the courts of their home countries. 197 See Heiser, supra note 61, at 1163 (“[T]he assumption . . . is that a court in the United States will apply domestic law in a transnational tort case.” (footnote omitted)). The following section explores the practicability of each option, as well as their advantages and disadvantages. Ultimately, this Comment dismisses the first option because it prioritizes the courts’ interests over those of the plaintiffs. This Comment concludes that the second option most effectively reconciles a court’s efficiency and forum-shopping concerns with a plaintiff’s right to litigate his case.

A. Further Manipulation of FNC to Permit Dismissals Despite Latin American Blocking Statutes

As discussed above, a correct interpretation of the current FNC doctrine requires that a U.S. court refuse to dismiss a case under FNC when (1) the case is brought by a Latin American plaintiff, (2) the potential alternative forum is that plaintiff’s home country, and (3) that country has a blocking statute terminating the jurisdiction of its courts over cases dismissed abroad under FNC. While some courts have correctly applied the doctrine and accepted jurisdiction over these cases, a number of courts have instead determined that an alternative forum exists, despite persuasive evidence to the contrary, and dismissed accordingly. The inconsistent outcomes are problematic because they neither lessen initial filings in the United States nor guarantee the plaintiff a forum in which to bring his claim. 198 See supra Part I.B.3 (noting the continued appeal of U.S. courts so long as U.S. law remains an option).

In order to avoid straining the existing doctrine, ensure consistency, and prevent forum shopping, U.S. courts may choose to reconsider the definition of an adequate alternative forum or its role in FNC analysis. For instance, in a different context, more than one court has held that, rather than a “precondition to dismissal,” “the availability of another suitable forum is a most important factor” in granting FNC dismissal. 199Islamic Republic of Iran v. Pahlavi, 467 N.E.2d 245, 248–50 (N.Y. 1984) (tracing the origins of this “perceived requirement” to dicta in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947)); see also Shin-Etsu Chem. Co. v. 3033 ICICI Bank Ltd., 777 N.Y.S.2d 69, 75 (App. Div. 2004) (construing the availability of an alternative forum as “an important consideration” but not a “precondition to dismissal”); Moenzina v. Moenzina, 507 N.Y.S.2d 716, 717 (App. Div. 1986); Broukhim v. Hay, 504 N.Y.S.2d 467, 468 (App. Div. 1986). But see Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981) (characterizing the availability of an alternative forum as an “initial requirement” to FNC dismissal); Paulownia Plantations de Pan. Corp. v. Rajamannan, 757 N.W.2d 903, 907 (Minn. Ct. App. 2008) (“[A] determination of the availability and adequacy of the alternative forum is implicit in the Hague decision.”). While this is “very much a minority approach today,” it stands to become more popular if additional countries enact blocking statutes. Heiser, supra note 41, at 658–59. If an adequate alternative forum were a balancing factor rather than a prerequisite inquiry, its absence would not preclude a court from continuing to the second prong of FNC analysis. 200 See supra Part I.B.1. Instead, such availability—or lack thereof—would be considered in combination with the other public and private factors of Gilbert. 201Muttreja, supra note 63, at 1641.

To the same end, courts could redefine adequate alternative forum to denote a jurisdiction that would have been available had the plaintiffs filed there initially, or one that “could have jurisdiction if its legislators so decided.” 202Gordon, supra note 123, at 155–56. In doing so, FNC dismissal would remain inappropriate when the alternative forum was either inadequate or unavailable from the beginning—for instance, due to rampant corruption in the national courts or nonrecognition of the plaintiff’s cause of action. 203See supra Part I.B.1. However, where a court’s jurisdiction was extinguished solely as a result of the foreign plaintiffs’ strategic choice to file first in the United States, a U.S. court could correctly assert that the foreign court remains an adequate alternative. In effect, both approaches manipulate the FNC doctrine to “block” the blocking statutes.

This approach adequately responds to the courts’ forum shopping concerns, discussed in Parts I.A.3 and II.B, which underlie their inconsistent treatment. In particular, finding a court adequate despite a blocking statute effectively eliminates the potential for foreign plaintiffs to forum shop in the United States and the ability of Latin American legislation to facilitate this forum shopping. If U.S. courts dismissed for FNC without attention to the presence of blocking statutes or their effects, Latin American plaintiffs would have no incentive to file here in the first place. The plaintiffs could file initially in their home courts, which would have proper jurisdiction over their claims.

To the extent our primary concern, then, is U.S. courts’ misapplication of FNC as a response to Latin American preemptive legislation, either approach is a satisfactory response. However, Latin American courts do not care whether U.S. courts have rightly dismissed a case under their own FNC doctrine, nor do they care whether the U.S. court considers its dismissal to meet the standards of that Latin American court. 204 See Muttreja, supra note 63, at 1630 (suggesting that “[a] U.S. court’s independent interpretation of foreign rules . . . is much less appropriate when it runs contrary to foreign authority,” particularly because the purpose of “the FNC availability inquiry is to predict what a foreign court . . . will do”). Thus, correct application of this reworked FNC doctrine precipitates the same problematic outcome as incorrect application of the existing doctrine: a foreign plaintiff, his case dismissed abroad under FNC, has no other forum in which to litigate. A necessary corollary, the tortious conduct of U.S. defendants abroad becomes, in essence, immune from suit.

Perhaps one could argue that insistent denial of Latin American plaintiffs’ access to U.S. courts through FNC, regardless of another forum’s availability, may pressure Latin American countries to abandon these blocking statutes to ensure their citizens some form of justice. However, if these countries truly view this legislation as based on constitutional principles or otherwise inherent in their civil codes, this outcome is highly unlikely. Further, even if FNC dismissals could provoke this sort of change within Latin American countries, this approach treats the first generation of dismissed plaintiffs, whose claims will subsequently go unheard, as necessary casualties to the doctrinal conflict between the United States and Latin America.

Most importantly, an FNC dismissal is not a “judicial right” 205 Id. at 1626. but depends on the availability of another forum. 206 See supra notes 61– 63 and accompanying text. This requirement is not inconsequential; rather, it reflects a policy consideration of foremost importance. 207The importance of this consideration is underscored, rather than tempered, by the fact that the Court took for granted the existence of an alternative forum in the two seminal cases on FNC. To disregard this analysis, in either application 208That is, by interpreting availability as a nondispositive factor for FNC dismissal. See supra text accompanying notes 199– 201. or effect, 209That is, by construing as available a forum that, according to its own law, will not hear the case. is to seriously deviate from the doctrine imagined in Gilbert and Piper. Requiring a U.S. court to unreservedly accept this litigation overlooks the interests of that court in favor of the plaintiff’s right to a forum; however, permitting a court to dismiss this litigation without finding that another court exists improperly sacrifices the plaintiff’s interest to appease the court’s concerns. An ideal solution, then, will consider each participant’s interest and seek to accommodate both.

B. Choice-of-Law Legislation to Target the Source of the Problem

Choice-of-law legislation is this solution. As discussed in Part I.C above, foreign litigants are attracted to U.S. courts for a number of procedural, systemic, and substantive reasons. The foremost enticement is the potential for a U.S. court to apply domestic law to the dispute. 210 See Heiser, supra note 61, at 1163. As most of these cases involve transnational tort claims, the outcome of the case, both in terms of liability and damages, depends largely on what law is applied. Thus, even though application of U.S. law is not assured, its possibility creates sufficient incentive for foreign plaintiffs to forgo the convenience of litigating at home. 211 See id.

The expectations of these plaintiffs are often met. According to one study, the “modern conflicts systems tend to favor the application of forum law.” 212 Id. at 1163 n.9 (citing Patrick J. Borchers, The Choice-of-Law Revolution: An Empirical Study, 49 Wash. & Lee L. Rev. 357, 377–78 (1992)). Modern choice-of-law rules are reflected in the Restatement (Second) of Conflict of Laws (1971). Thus, most courts in the United States that adhere to modern choice-of-law principles will apply their own substantive law, regardless of the plaintiffs’ nationality or the place of injury. 213 See Heiser, supra note 61, at 1163–64. Other courts following the traditional choice-of-law approach will likely apply foreign law to the same dispute. 214 See infra notes 217–18 and accompanying text. Inconsistent application of substantive law to these transnational tort claims fuels their continued filing in the United States. Further, internal judicial resolution is unlikely because choice of law is fact specific and its application is thus discretionary.

Against this backdrop, legislation mandating application of foreign law most effectively reconciles the interests of the courts and plaintiffs by ensuring the plaintiffs a U.S. forum in which to litigate but lessening their incentive to do so. This Comment first establishes the suitability of such choice-of-law legislation in view of both constitutional imperatives and courts’ doctrinal preferences. Next, this Comment explores how this course of action better balances the competing concerns that other potential solutions fail to reconcile—namely, the legitimate resistance of courts to forum shopping and the rights of plaintiffs to a forum.

1. Appropriateness of Application of Foreign Law

The Supreme Court explicated the constitutional standard for choice-of-law determinations in Allstate Insurance Co. v. Hague: “[A] choice-of-law decision would violate the Due Process Clause if it were totally arbitrary or if it were fundamentally unfair to either litigant.” 215449 U.S. 302, 326 (1981). The Court went on to recognize that application of the law of any state having “significant contact or significant aggregation of contacts, creating state interests” likely meets this low threshold. 216 See id. at 313. Because FNC dismissals similarly require a finding of significant contacts with the foreign forum—in fact, contacts more significant than those with the United States—mandatory application of foreign law to the narrow class of cases discussed above necessarily comports with the Court’s articulation of due process.

In fact, traditional choice-of-law doctrine would likely advocate for application of foreign law. For tort cases, courts still following this approach, embodied by the Restatement (First) of Conflict of Laws, will usually apply “[t]he law of the place of wrong,” or the place “where the last event necessary to make an actor liable for an alleged tort takes place.” 217 Restatement (First) of Conflict of Laws §§ 377–78 (1934). In most situations, this is the place of the plaintiff’s injury. 218The common conception is that there is no tort absent an injury to someone or something. Latin American law would thus apply to any claim brought by a Latin American plaintiff against a U.S. defendant for an injury sustained in the plaintiff’s home country. The plaintiff’s selection of forum thus becomes irrelevant for choice-of-law purposes. Theoretically, then, a Latin American plaintiff has significantly less incentive to file in a U.S. court following the traditional approach to choice of law. 219See supra notes 100, 197.

On the other hand, modern choice-of-law doctrine often favors application of forum law. 220See Joseph William Singer, A Pragmatic Guide to Conflicts, 70 B.U. L. Rev. 731, 743 (1990) (“Judges do have a strong tendency to apply forum law when they can.”). However, it also recognizes that statutory directives, whether expressly or indirectly legislated, will trump traditional choice-of-law principles. 221 Restatement (Second) of Conflict of Laws § 6(1) (1971) (“A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.”); id. § 6 cmt. b ( “[T]he court [should] apply a local statute in the manner intended by the legislature even when the local law of another state would be applicable under usual choice-of-law principles.”). This widely accepted concept recognizes that a legislature may view choice-of-law legislation as a means by which to achieve specific policy objectives, and this legislative decision deserves deference. Thus, even were application of domestic law preferable according to modern choice-of-law rules, a legislature could still require application of foreign law for any number of policy reasons.

Further, application of foreign law to those cases eligible for FNC dismissal is not inconsistent with modern choice-of-law doctrine. The Restatement (Second) of Conflict of Laws advocates only for a more case-specific approach to choice-of-law determinations. Accordingly, section 6 points to a list of factors relevant to any choice-of-law decision, 222Section 6 is the “cornerstone” of the Restatement, outlining the policies and values that should underlie every choice-of-law decision. Peter Hay, Patrick J. Borchers & Symeon C. Symeonides, Conflict of Laws 63 (5th ed. 2010). including “the relevant policies of the forum” 223 Restatement (Second) of Conflict of Laws § 6(2)(b) (1971). and “the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue.” 224 Id. § 6(2)(c). Another relevant factor is “ease in the determination and application of the law to be applied,” which clearly favors application of domestic law. Id. § 6(2)(g). See infra text accompanying note 236. Arguably, a Latin American forum has some interest in the regulation of a foreign corporation within its borders, deterrence of the corporation’s tortious conduct, and compensation of its injured citizens. 225 See Restatement (Second) of Conflict of Laws § 145 cmt. b (1971) (suggesting that the relative interests of each forum are even more important to choice-of-law determinations in tort cases due to the relative insignificance of other factors listed in section 6). This is not to say that the United States has no interest in similarly regulating the international conduct of its corporations. Of equal import, a U.S. court has a strong interest in preventing foreign plaintiffs from exploiting the U.S. legal system for its numerous advantages. To the extent that application of foreign law would lessen this exploitation in situations where FNC could not, policy reasons actually favor such application.

For tort claims in particular, section 145 of the Restatement (Second) identifies the applicable law as that of the state having “the most significant relationship to the occurrence and the parties under the principles stated in § 6.” 226 Id. § 145(1). Relevant considerations include “(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.” 227 Id. § 145(2). However, “[i]t is not sufficient merely to tally the § 145 contacts and choose the state with the greatest number. The resolution of choice of law questions turns on the qualitative nature of those contacts as affected by the policy factors enumerated in § 6.” Herrera v. Michelin N. Am., Inc., No. B-07-114, 2009 WL 700645, at *7 (S.D. Tex. Mar. 16, 2009) (citations omitted). Where a plaintiff sustains an injury in his state of citizenship or residency due to the defendant’s conduct within that state, 228The same argument may be made even where defendant’s conduct may be characterized as having occurred outside the state of injury. as in most tort cases brought by Latin American plaintiffs in the United States, there is a strong argument that this state’s relationship to the occurrence and the parties is most significant. 229 Restatement (Second) of Conflict of Laws § 145 (1971); see, e.g., Tazoe v. Aereas, No. 07-21941-CIV, 2009 WL 3232908 (S.D. Fla. Aug. 24, 2009). In this situation, application of foreign law is justified, if not proper.

However proper, U.S. courts will not consistently and uniformly apply foreign law to these disputes absent legislation mandating the same. Various courts employ diverse approaches to choice of law, resulting in notoriously unpredictable and inconsistent outcomes. 230Symeon C. Symeonides, Oregon’s New Choice-of-Law Codification for Tort Conflicts: An Exegesis, 88 Or. L. Rev. 963, 969 (2009). (“The excessive fluidity of the various judicial choice-of-law approaches often makes it very difficult, if not impossible, to predict the outcome of a choice-of-law decision.”). In addition, they are particularly “unlikely to both apply foreign law and deny a forum non conveniens motion,” 231See Heiser, supra note 61, at 1165. reinforcing the need for a statutory directive to ensure that—when faced with a case that would be dismissed to Latin America but for a blocking statute—U.S. courts apply foreign law.

2. Desirability of Application of Foreign Law

Application of forum law to transnational tort disputes may be appropriate when courts can use FNC to dismiss those cases with unacceptably tenuous relationships to the forum; absent this ability, however, its application merely invites litigation that courts are then powerless to dismiss. Further, courts grant FNC motions only when the alternative forum, at least according to the dismissing court, has the most significant relationship to the plaintiff’s claim. Thus, in the limited instances where Latin American preemptive legislation undermines a court’s ability to dismiss for FNC, application of foreign law—the law of the forum having the most significant relationship to the claim, and the law that would have been applied had the plaintiff refiled in his home country following an FNC dismissal—is a reasonable, strategic choice.

Foremost, application of foreign law is an ideal strategy because it simultaneously values the interest of the court and the interest of the plaintiff, thus avoiding the major pitfalls presented by the other potential courses of action. While this legislation will discourage foreign plaintiffs from filing in the United States, 232In contrast to forcing courts to unconditionally accept these cases. See supra note 194. it will not deny them this right. 233In contrast to manipulating the FNC doctrine to permit dismissals regardless of an alternative forum. See supra Part III.A. Further, as this legislation mandates consistency, foreign plaintiffs have a well-defined choice that should yield a predictable outcome: file first in Latin America and enjoy the convenience of litigating at home, or file first in the United States with the guaranteed application of Latin American tort law, including its damage calculations. In many situations, the inconvenience of participating in ongoing litigation abroad will outweigh the benefits of litigation in the United States once the enticement of U.S. law is removed. 234Still, there are numerous procedural and systemic reasons why foreign plaintiffs may still choose to file in the United States. See Heiser, supra note 61, at 1182 (suggesting that foreign plaintiffs would still desire to litigate in the United States if courts applied foreign law to their disputes); supra Part I.C. Intuitively, if these plaintiffs are filing for a reason other than U.S. law—e.g., serious procedural deficiencies in their home courts that make vindication unlikely—U.S. courts arguably should be less hesitant to accept these cases. However, this position is seriously weakened by the courts’ evaluation of “adequacy,” which largely disregards considerations such as chronic delay and backlog, or problems with enforcement. See supra Part I.B.

Equally important, the ability of this approach to preserve a forum for the plaintiffs but to make this forum less desirable acts to limit the impact of blocking statutes in a nonconfrontational manner. Currently the courts that view these statutes as willful attempts by Latin American legislatures to force jurisdiction on the United States manipulate FNC to dismiss regardless. Whether this perception is correct, these decisions appear to disrespect the plaintiffs’ home countries and their preemptive systems of jurisdiction. Choice-of-law legislation thus prevents, to the extent possible, the actions of U.S. courts from having undesirable effects in Latin America, which spurred the blocking statutes initially, 235 See supra notes 138–39 and accompanying text. while still allowing these courts to protect their own interests.

Admittedly, mandatory application of foreign law denies U.S. courts the usual discretion afforded in choice-of-law decisions. 236 See supra note 224. Further, although courts will avoid complicated choice-of-law analysis, this legislation forces courts to apply perhaps unfamiliar law, which they are notably hesitant to do. 237 See supra text accompanying notes 220, 231. However, the legislation’s narrow scope and concurrent benefits make its application worthwhile despite these downsides.

Conclusion

Many courts have accepted jurisdiction over cases appropriate for forum non conveniens dismissal due to Latin American blocking statutes that render the alternative forums unavailable. This result is doctrinally correct, but incentivizes foreign plaintiffs to continue filing these claims in the United States and empowers them to unilaterally strip their home courts of jurisdiction, further obliging U.S. courts to entertain these disputes. Meanwhile, persistent dismissals by other U.S. courts reflect incorrect availability analyses, likely prompted by forum shopping concerns and exacerbated by the perception of blocking statutes as strategic attempts to sterilize the FNC doctrine. These concerns are valid, but this outcome improperly assigns them greater weight than the foreign plaintiffs’ right to a forum. Consequently, the plaintiffs’ legitimate harms go without redress.

While correct application of FNC is important, any doctrinal manipulation aiming solely to reconcile the doctrine with its application by U.S. courts is unfaithful to the spirit of FNC unless it also ensures the plaintiffs a forum in which to litigate. Yet some courts will likely misapply any construct of FNC so long as they perceive its application to yield an unfair result. An ideal solution will ignore neither the court’s nor the plaintiff’s concerns, instead targeting the underlying source of the problem by removing the foremost incentive for plaintiffs to file in the United States. Choice-of-law legislation best reconciles a court’s legitimate concerns with a plaintiff’s interests in having a court in which to present his case. By proceeding in this manner, U.S. courts can diplomatically protect their own interests, neither denying foreign plaintiffs a forum nor dismissing for FNC to Latin American countries that perceive the consequences of such dismissals to violate their civil law principles of jurisdiction.

Footnotes

1Abad v. Bayer Corp., 563 F.3d 663, 668 (7th Cir. 2009). The Argentine plaintiffs in Abad were more than six hundred hemophiliacs infected with the AIDS virus from a clotting factor manufactured by the defendant-corporation in the United States. Id. at 668–69. The court subsequently dismissed the plaintiffs’ claims to Argentina, id. at 672–73, a civil law country that may refuse jurisdiction based on its interpretation of its own law. Id. at 666.

2163 S.W.3d 537 (Mo. Ct. App. 2005).

3Two plaintiffs were actually U.S. citizens living in Panama, and two were U.S. residents. However, the court did not treat this distinction as relevant. Id. at 541 n.1.

4 Id. at 541.

5Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602, 606 (5th Cir. 2008).

6 Chandler, 163 S.W.3d at 541. The defendant was a Delaware corporation with its principal place of business in St. Louis County, Missouri. Id.

7 Id. at 541–42.

8Forum non conveniens, a common law doctrine, permits a court to decline jurisdiction over a case when another forum is substantially more convenient for the proceedings. See infra Part.I.A.

9 Chandler, 163 S.W.3d at 542. In particular, the defendants argued that the plaintiffs lived and were injured in Panama, and most of the evidence and witnesses were there. Johnston, 523 F.3d at 606.

10 Chandler, 163 S.W.3d at 544.

11In a majority of courts, an FNC dismissal depends on finding that another forum exists for litigation of the dispute. See infra Part I.B.

12 See Chandler, 163 S.W.3d at 542–45.

13Josefina Escalante v. Multidata Sys. Int’l, Corp., Court Order No. 1922-03 (Pan. 1st Ct. J. Civ. Cir. Apr. 30, 2003) [hereinafter Josefina Escalante], excerpt available at http://www.iaba.org/LLinks_forum_non_Panama.htm.

14 Id. The Panamanian appellate court affirmed this decision; the Supreme Court of Panama subsequently denied the defendant’s appeal for annulment. Henry Saint Dahl, Forum Non Conveniens in Panama, Inter-Am. Bar Ass’n, http://www.iaba.org/LLinks_forum_non_Panama.htm (last visited May 30, 2011). Because the U.S. case was ongoing at this time, the Panamanian court may have rested its decision on lites pendencia (lis alibi pendens), a civil law doctrine that precludes a plaintiff from suing a party against whom another suit is pending for the same incident. See Peter Hay, Russell Weintraub & Patrick J. Borchers, Conflict of Laws: Cases and Materials 207 (13th ed. 2009); see also infra note 119. However, the decision’s overly broad language suggests that the court would have reached the same outcome had the U.S. case already been dismissed. See Josefina Escalante, supra note 13.

15 Johnston v. Multidata Sys. Int’l Corp., 523 F.3d 602, 606 (5th Cir. 2008).

16Presumably, the court instead accepted the defendants’ argument that the plaintiffs intentionally filed the case in the wrong Panamanian venue (i.e., not the venue where the injuries occurred). See id.

17 Id. at 606–07 (citing Chandler v. Multidata Sys. Int’l Corp., No. 01CC-3634, slip op. at 2 (Mo. Cir. Ct. Jan. 8, 2004)).

18 Id.

19Chandler v. Multidata Sys. Int’l Corp., 163 S.W.3d 537, 547 (Mo. Ct. App. 2005). In its analysis, the court refused to consider the appellate decision rendered in Panama, see supra note 14, because that decision was not before the lower court. Still, the court construed its applicable parts as dicta based on the Panamanian court’s finding that plaintiffs had filed in the wrong venue. Chandler, 163 S.W.3d at 548. Rather than appeal this dismissal to the Missouri Supreme Court, the plaintiffs immediately filed four new cases before the original U.S. circuit court. They argued that the Panama Court of Appeals’ subsequent affirmation of its lower court’s dismissal, see supra note 14, satisfied the conditions imposed by the Missouri Court of Appeals for refiling. The court rejected this argument, reiterated the requirements outlined by the Missouri Court of Appeals, and dismissed again without prejudice. Johnston, 523 F.3d at 607.

20 Johnston, 523 F.3d at 607 n.1. Prior to this filing, the plaintiffs also filed in federal court in Texas, which ultimately dismissed for lack of personal jurisdiction over the defendant. Id.

21Gilles Cuniberti, Preemptive Jurisdiction Trumps Forum Non Conveniens in Panama, Conflict of Laws .net (Mar. 19, 2009), http://conflictoflaws.net/2009/preemptive-jurisdiction-trumps-forum-non-conveniens-in-panama (internal quotation mark omitted). At this point, the name of the case was Tobal v. Multidata Systems International Corp. Id.

22 Id.

23 Id.

24 Id.

25Gilles Cuniberti, Panamanian Conflict Rules Trump Forum Non Conveniens, Conflict of Laws .net (Aug. 16, 2010), http://conflictoflaws.net/2010/panamanian-conflict-rules-trump-forum-non-conveniens/ (analyzing and reprinting sections of the August 3rd decision of the Panamanian Supreme Court of Justice).

26 Id.

27 Id.

28 Id. (emphasis omitted).

29 Id.

30The Panamanian government requested two independent investigations, each concluding that the defendant’s equipment malfunctioned. Based on these findings, numerous practitioners lost their licenses; two were criminally convicted of negligent homicide. Chandler v. Multidata Sys. Int’l Corp., 163 S.W.3d 537, 541–42 (Mo. Ct. App. 2005). In the United States, the FDA enjoined Multidata from manufacturing and distributing medical devices. Press Release, M2 Presswire, FDA Seeks Injunction Against Multidata Systems Intl. (May 8, 2003), available at http://www.highbeam.com/doc/1G1-101438142.html.

31 See infra Part I.

32 See infra Part I.C. As FNC dismissals most commonly occur against foreign plaintiffs bringing tort claims against U.S. defendants for injuries suffered in the plaintiffs’ home country, this scenario is assumed throughout this Comment.

33Russell J. Weintraub, International Litigation and Forum Non Conveniens, 29 Tex. Int’l L.J. 321, 352 (1994).

34 See infra Part I.C.

35 See infra Part I.A–B.

36 See infra Part II.

37 See infra Part II.

38This distinction and its implications are further discussed in Part II below. However, this Comment otherwise treats these distinct modes of reasoning synonymously because they reach the same end. For this reason, when this Comment discusses the effects of blocking statutes, it intends that discussion to refer also to “judicial retaliation,” wherein Latin American courts interpret their national codes of procedure to accomplish the same results as achieved by the blocking statutes.

39It is important to note that U.S. courts do not actually dismiss for FNC to any other country or its courts. See infra Part III.B.1. Rather, the language “FNC dismissal to” is intended as convenient shorthand for an FNC dismissal that a U.S. court expects will result in the plaintiff’s refiling in a certain country (i.e., the country that the court has already identified as “available” for the litigation). Having made this concession, this characterization is fair because a U.S. court must necessarily identify another forum for the litigation in order to grant an FNC dismissal. See infra Part I.B.1.

40This discussion has many contributors representing a range of perspectives. Compare, e.g., Weintraub, supra note 33, at 352 (concluding that the elimination of FNC would make the United States “a magnet forum” and “place our companies at a world-wide competitive disadvantage”), with Winston Anderson, Forum Non Conveniens and the Constitutional Right of Access: A Commonwealth Caribbean Perspective, 2 J. Transnat’l L. & Pol’y 51 (1993) (arguing that the doctrine of FNC raises a serious constitutional issue of access to the courts), and Dow Chem. Co. v. Alfaro, 786 S.W.2d 674, 680 (Tex. 1990) (Doggett, J., concurring) (deeming a specific application of FNC a “connivance to avoid corporate accountability”). One of the most common criticisms of FNC is that it is too intolerable an obstacle to corporate accountability. For various proposals to reformulate FNC, see Dante Figueroa, Are There Ways Out of the Current Forum Non Conveniens Impasse Between the United States and Latin America?, Bus. L. Brief, Spring 2005, at 42, 44 [hereinafter Figueroa, FNC Impasse] (acknowledging that certain modifications to the FNC doctrine are more realistic than “calling for an entire abolition” of the doctrine), and Dante Figueroa, Conflicts of Jurisdiction Between the United States and Latin America in the Context of Forum Non Conveniens Dismissals, 37 U. Miami Inter-Am. L. Rev. 119, 161–66 (2005) [hereinafter Figueroa, Conflicts of Jurisdiction].

41 See Walter W. Heiser, Forum Non Conveniens and Retaliatory Legislation: The Impact on the Available Alternative Forum Inquiry and on the Desirability of Forum Non Conveniens as a Defense Tactic, 56 U. Kan. L. Rev. 609, 609 (2008) (“A motion to dismiss on grounds of forum non conveniens has become the primary response of domestic defendants to tort actions brought by foreign plaintiffs in U.S. courts . . . [and is] granted[] in nearly every case.”).

42While this Comment does not intend to decide the merits of FNC application in general, the doctrine’s ability to adapt to modern jurisdictional dilemmas speaks to its ongoing viability in the future of international civil litigation.

43 Black’s Law Dictionary 726 (9th ed. 2009).

44The Supreme Court recently held that a court need not first establish jurisdiction over a dispute and its litigants in order to dismiss a case under FNC. Sinochem Int’l Co. v. Malay Int’l Shipping Corp., 549 U.S. 422, 455 (2007). However, FNC dismissals are most common when a court otherwise has jurisdiction.

45Gulf Oil Corp. v. Gilbert, 330 U.S. 501 passim (1947).

46The doctrine, first recognized in Scotland in 1866, is widely accepted in the common law world. Hay et al., supra note 14, at 187.

47FNC still exists within the United States for dismissals to state court (from both federal and other state courts); however, the enactment of 28 U.S.C. § 1404(a), the federal transfer statute, has largely limited its use domestically. Hay et al., supra note 14, at 208–09.

48 See infra Part I.C.

49 Gilbert, 330 U.S. 501.

50 Id. at 504 (“This Court, in one form of words or another, has repeatedly recognized the existence of the power to decline jurisdiction in exceptional circumstances.”).

51 Id. at 508.

52 Id. at 508–09.

53 Id. at 508. The Court reiterated this sentiment in Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518 (1947), decided the same day as Gilbert, but narrowed its discussion to the “good reason[s] why [a case] should be tried in the plaintiff’s home forum if that has been his choice.” Id. at 524 (emphasis added). Thus, as early as Gilbert and Koster, the Court seemed to contemplate different treatments for domestic and foreign plaintiffs.

54454 U.S. 235 (1981).

55 Id. at 248.

56 Id. at 249.

57 Id. at 247.

58 Id. at 249–50.

59 Id. at 255–56; see also Empresa Lineas Maritimas Argentinas, S.A. v. Schichau-Unterweser, A.G., 955 F.2d 368, 373 (5th Cir. 1992) (“When a plaintiff chooses a foreign forum for its claims, courts are reluctant to assume that convenience motivated that choice.”); C.A. La Seguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983) (“A plaintiff who chooses a foreign forum substantially undercuts the presumption his choice is reasonable . . . .”).

60 But see infra note 199 and accompanying text (discussing the treatment of an adequate alternative forum as one nondispositive factor in FNC analysis).

61Walter W. Heiser, Forum Non Conveniens and Choice of Law: The Impact of Applying Foreign Law in Transnational Tort Actions, 51 Wayne L. Rev. 1161, 1166 (2005).

62Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506–07 (1947).

63 Piper, 454 U.S. at 254 n.22; see also Rajeev Muttreja, Note, How to Fix the Inconsistent Application of Forum Non Conveniens to Latin American Jurisdiction—And Why Consistency May Not Be Enough, 83 N.Y.U. L. Rev. 1607, 1611 (2008) (noting the lack of attention accorded this inquiry by the Supreme Court, which assumed its existence in Gilbert and “relegated the issue to a footnote” in Piper).

64Muttreja, supra note 63, at 1616.

65 See, e.g., Piper, 454 U.S. at 254 n.22.

66Heiser, supra note 41, at 614.

67 Id. at 614 & n.34.

68Anne M. Rodgers, Forum Non Conveniens in International Cases, in International Litigation: Defending and Suing Foreign Parties in U.S. Federal Courts 205, 206 (David J. Levy ed., 2003). For this reason, most courts condition FNC dismissal on the defendant’s submission to the alternative forum’s jurisdiction, as well as waiver of any statute of limitations defenses. Id. at 216. But see Leetsch v. Freedman, 260 F.3d 1100, 1104 (9th Cir. 2001) (holding that a district court is not required to impose conditions on an FNC dismissal and “lack of such conditions does not render the . . . forum inadequate”).

69 Piper, 454 U.S. at 254 n.22.

70 See supra notes 56– 57 and accompanying text.

71 Piper, 454 U.S. at 254. However, the alternative forum is not necessarily required “to offer a judicial remedy” in order to satisfy this requirement. Lueck v. Sundstrand Corp., 236 F.3d 1137, 1143–45 (9th Cir. 2001) (finding that New Zealand’s administrative remedy for plaintiffs’ product liability claims rendered that forum adequate).

72116 F. Supp. 2d 415 (S.D.N.Y. 2000).

73 Id. at 426–27 (quoting Piper, 454 U.S. at 254 n.22).

74Figueroa, FNC Impasse, supra note 40, at 44 (“A forum is not adequate or inadequate per se. Rather, it depends on the eyes of the beholder.”).

75Heiser, supra note 61, at 1170.

76This is true at least absent a “documented threat to the plaintiff’s safety or freedom.” Rodgers, supra note 68, at 208.

77981 F.2d 1345, 1350–51 & n.2 (1st Cir. 1992). However, at least one court has considered such “personal difficulties” in weighing the private interest factors of Gilbert. In Guidi v. Inter-Continental Hotels Corp., the Second Circuit held that the district court had abused its discretion in dismissing to Egypt for FNC in part because the district court ignored the “substantial and unusual emotional burden on Plaintiffs,” who were “widows or . . . victim[s] of a murderous act [in Egypt] directed specifically against foreigners,” if they were required to return to litigate their case. 203 F.3d 180, 186 (2d Cir.), amended by 224 F.3d 142 (2d Cir. 2000). It is worth noting that the court’s discussion of the “ample evidence . . . giv[ing] credence to Plaintiffs’ uncertainty as to the safety of American visitors to Egypt” occurs in the context of the parties’ convenience (i.e., the private interest factors) rather than the availability or adequacy of the forum. Id. This reflects, more generally, courts’ cursory treatment of this threshold inquiry and caution in labeling an alternative forum inadequate.

78Honduran Aircraft Registry, Ltd. v. Honduras, 883 F. Supp. 685, 690 (S.D. Fla. 1995), aff’d in part and vacated in part, 119 F.3d 1530 (11th Cir.), and amended by 129 F.3d 543 (11th Cir. 1997). For additional examples of systemic corruption rendering a foreign court inadequate, see Rodgers, supra note 68, at 208 n.21.

79Heiser, supra note 61, at 1169–70 (discussing the litigation in In re Union Carbide Corp. Gas Plant Disaster at Bhopal, 634 F. Supp. 842 (S.D.N.Y. 1986), resulting from a highly toxic gas leak at a Union Carbide chemical plant in Bhopal, India, that killed or injured more than 200,000 individuals).

80Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981).

81Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508–09 (1947).

82 Id. at 508.

83 Id. Interestingly, the ability of a foreign plaintiff to enforce a judgment rendered in the alternative forum in a U.S. court is not relevant to the inquiry and has, on occasion, become problematic following an FNC dismissal. See Christina Weston, Comment, The Enforcement Loophole: Judgment Recognition Defenses as a Loophole to Corporate Accountability for Conduct Abroad, 25 Emory Int’l L. Rev. 729 (2011).

84 See supra note 59 and accompanying text.

85 See Piper, 454 U.S. 235. A number of courts, however, including the Second Circuit, have held that when a treaty between the United States and a foreign nation affords both countries’ citizens equal access to the other’s court system, FNC analysis must treat foreign and domestic plaintiffs identically. Rodgers, supra note 68, at 209 n.27 (citing Blanco v. Banco Indus. de Venezuela, S.A., 997 F.2d 974, 981 (2d Cir. 1993)).

86 Piper, 454 U.S. at 252 n.19. This is premised on the idea that one forum is objectively better (i.e., substantially more convenient) than another forum and each party’s motive is not relevant to this determination. But see Iragorri v. United Techs. Corp., 274 F.3d 65, 73 (2d Cir. 2001) (advising courts to look at the plaintiff’s “likely motivations in light of all the relevant indications” when determining how much deference to accord a plaintiff’s decision).

87Pain v. United Techs. Corp., 637 F.2d 775, 784 (D.C. Cir. 1980); see also Snaza v. Howard Johnson Franchise Sys., Inc., No. 3-07-CV-0495-O, 2008 WL 5383155, at *3 (N.D. Tex. Dec. 24, 2008) (“Only if a court concludes that dismissal is not appropriate based upon its review of the private interest factors, must it then weigh the public interest factors.”).

88 Gilbert, 330 U.S. at 508–09.

89 See Heiser, supra note 61, at 1180–82 (interpreting the Court’s formulation of the FNC doctrine to encourage courts to dismiss for FNC in order to avoid a choice-of-law determination and application of foreign law).

90Muttreja, supra note 63, at 1616–17.

91 Piper, 454 U.S. at 257 (“The forum non conveniens determination . . . may be reversed only when there has been a clear abuse of discretion . . . .”).

92This outcome is criticized as highly problematic, both in terms of predictability and fairness. For an interesting proposal to heighten the standard of review as to the preliminary question of whether an adequate alternative forum exists, see Alina Alonso & David L. Luck, Toward a More “Convenient” Standard of Review in Cases Involving Forum Non Conveniens Issues, Fla. Bar J., Jan. 2010, at 40. The authors argue that this inquiry involves purely legal issues and questions of foreign law, usually reviewed de novo. Id. at 40–41. The abuse of discretion review prescribed by the Piper Court thus pertained only to the lower court’s balancing of Gilbert factors. Id.

93 Gilbert, 330 U.S. at 507.

94Paxton Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Colum. L. Rev. 1 (1929).

95 Gilbert, 330 U.S. at 508 (quoting Blair, supra note 94) (internal quotation marks omitted). “[A] plaintiff sometimes is under temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself.” Id. at 507.

96 Black’s Law Dictionary 726 (9th ed. 2009).

97 Michael Karayanni, Forum Non Conveniens in the Modern Age: A Comparative and Methodological Analysis of Anglo-American Law 132 (2004) (alteration in original) (internal quotation mark omitted).

98 Id.

99Heiser, supra note 41, at 618–19; Muttreja, supra note 63, at 1618; see also Andrew Bell, Forum Shopping and Venue in Transnational Litigation 29 (2003) (highlighting low filing fees, the possibility of class actions, liberal joinder rules, and relatively loose rules of pleading as further draws of the American system).

100Of course, the underlying assumption is that a U.S. court will apply domestic law to the dispute. Heiser, supra note 61, at 1163. For consideration of the correctness of this assumption, and its consequences, see infra Part IV.B.

101Heiser, supra note 41, at 619.

102Friedrich K. Juenger, Forum Shopping, Domestic and International, 63 Tul. L. Rev. 553, 560 (1989).

103 See generally Henry Saint Dahl, Forum Non Conveniens, Latin America and Blocking Statutes, 35 U. Miami Inter-Am. L. Rev. 21 (2004) (noting that due to numerous procedural deficiencies in Latin America, plaintiffs’ claims are less likely vindicated).

104Russell J. Weintraub, Choice of Law for Products Liability: Demagnetizing the United States Forum, 52 Ark. L. Rev. 157, 162 (1999); Weintraub, supra note 33, at 352.

105 See supra Part I.B.2.

106Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508–09 (1947); see also Muttreja, supra note 63, at 1617–18 (defining the “two distinct policy goals that can be aligned but are often in tension” as the court’s dual interests in “respect[ing] a plaintiff’s choice of forum” and “ensur[ing] that the trial is convenient”).

107Iragorri v. United Techs. Corp., 274 F.3d 65, 73 (2d Cir. 2001).

108Heiser, supra note 61, at 1168 n.33 (“[T]he more it appears that the plaintiff’s choice of a U.S. forum was motivated by forum shopping reasons . . . the less deference the plaintiff’s choice commands.” (second alteration in original) (quoting Iragorri, 274 F.3d at 72)). Whether this is a fair assumption depends in part on one’s reading of Piper. While the Piper Court discusses the need to alleviate the burden on American courts, “already extremely attractive to foreign plaintiffs,” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 251–52 (1981), Piper seems to suggest that forum shopping is not, in itself, improper. In fact, in reasoning that an unfavorable change in law is irrelevant to FNC dismissal, the Piper Court acknowledges without judgment that plaintiffs often “select that forum whose choice-of-law rules are most advantageous.” Id. at 250. This sort of forum shopping is only a problem if it leads the plaintiff to file in a substantially less convenient forum. Thus, the appropriate question is not whether the plaintiff engaged in forum shopping, but whether the selected forum is most appropriate.

109Juenger, supra note 102, at 553. The forum shopping concern is thus premised on the idea that “the plaintiff screens the different jurisdictions and then decides to file suit in the forum that will grant the most favorable resolution of the pending dispute.” Karayanni, supra note 97, at 132.

110 Karayanni, supra note 97, at 135.

111 See supra Part I.A.1.

112If these considerations were equally valuable, deliberation of the Gilbert factors would not depend on finding another forum in which the plaintiffs could litigate.

113 See supra note 38.

114Muttreja, supra note 63, at 1619. Latin American civil procedure developed from various continental European systems and maintains the same basic principles. Ronald A. Brand & Scott R. Jablonski, Forum Non Conveniens: History, Global Practice, and Future Under the Hague Convention on Choice of Court Agreements 128 (2007).

115 Brand & Jablonski, supra note 114, at 121 (“The concept of forum non conveniens is generally inconsistent with civil law systems in which there is a belief in the predictability of comprehensive procedure codes created by the legislature and the absence of all but minimal discretion in the role of the judge.”); see also Alejandro M. Garro, Forum Non Conveniens: “Availability” and “Adequacy” of Latin American Fora from a Comparative Perspective, 35 U. Miami Inter-Am. L. Rev. 65, 70 (2003).

116E.E. Daschbach, Where There’s a Will, There’s a Way: The Cause for a Cure and Remedial Prescriptions for Forum Non Conveniens as Applied in Latin American Plaintiffs’ Actions Against U.S. Multinationals, 13 Law & Bus. Rev. Americas 11, 29 (2007).

117Muttreja, supra note 63, at 1620.

118 Id. at 1620 & n.75.

119This concept is similar to, but distinct from, the civil law concept of lis pendens, which requires that one court stay proceedings on an issue being tried in another court. See Hay et al., supra note 14, at 207. A final FNC dismissal to Latin America would raise a lis pendens issue only if the U.S. court retained continuing jurisdiction over the suit. Dahl, supra note 103, at 29. However, as the Second Circuit made clear in In re Union Carbide Corp. Gas Plant Disaster, “Once a U.S. court dismisses . . . proceedings on grounds of forum non conveniens it ceases to have any further jurisdiction over the matter . . . .” 809 F.2d 195, 205 (2d Cir. 1987) (characterizing the defendant’s suggestion otherwise as “not only impractical but evidenc[ing] an abysmal ignorance of basic jurisdictional principles”). Thus, the basic justification for the Latin American blocking statutes must be the doctrine of preemptive jurisdiction rather than lis pendens.

120Figueroa, FNC Impasse, supra note 40, at 44. While this statement is accurate, the distinction made in the preceding sentence is important. It is not the plaintiff’s actions that strip a second court of jurisdiction; rather, based on the civil law concepts of lis pendens and preemptive jurisdiction, the second court chooses not to accept the case. See infra Part II.B.1.

121Garro, supra note 115, at 70.

122 Id.

123For the purpose of this Comment, Latin America refers to those Latin American countries having enacted some form of blocking statute, including Ecuador, Guatemala, Nicaragua, Panama, and Costa Rica, and others who have interpreted their national codes to the same end. Collective treatment of these countries is appropriate due to the common origins of their statutes or interpretations—that is, Latin America’s civil law rules of preemptive jurisdiction. For independent consideration of each regime, see Dahl, supra note 103, app. at 47–63. Notably, many larger, more developed countries, including Argentina, Brazil, Chile, and Mexico, do not have blocking statutes in place and have not construed their national codes to conflict with the FNC doctrine in the United States. Michael Wallace Gordon, Forum Non Conveniens Misconstrued: A Response to Henry Saint Dahl, 38 U. Miami Inter-Am. L. Rev. 141, 142 (2006).

124 See Dahl, supra note 103, at 21 (noting the “illegal effects” of FNC dismissals for Latin America).

125For this reason, the term retaliatory legislation, which has emerged to describe these statutes, is a misnomer insofar as it suggests that the concept of preemptive legislation, in its entirety, is a response to FNC in the United States and like doctrines. However, certain Latin American statutes specifically target “product injury cases brought by Latin American plaintiffs against U.S. defendants in U.S. courts, for torts arising out of the defendants’ activities in Latin America.” Figueroa, FNC Impasse, supra note 40, at 45.

126 See supra Part I.B.

127Figueroa, FNC Impasse, supra note 40, at 44.

128Dahl, supra note 103, at 24. This is also the position of Parlatino’s Model Law, see infra text accompanying notes 130–36, so this stance is also assumed by those countries that follow it.

129Id. at 24–25 (“FNC forces the plaintiff to re-file the case . . . [such that the] filing is not the product of the plaintiff’s free and spontaneous will. . . . The plaintiff who re-files in Latin America . . . is compelled or coerced by the FNC order.” (footnotes omitted)). Another Latin American response to FNC is the enactment of retaliatory legislation that extends jurisdiction to Latin American countries over cases dismissed abroad under FNC and permits them to import the law of the dismissing country in adjudicating the case. Winston Anderson, Forum Non Conveniens Checkmated? The Emergence of Retaliatory Legislation, 10 J. Transnat’l L. & Pol’y 183, 186 (2001) (noting that the legislatures in the Caribbean Commonwealth, where it was impossible to extinguish the jurisdiction of their national courts, enacted statutes permitting their local courts “to utilize the rules of evidence, liability, and award damages available to foreign courts”). For instance, a Dominican statute “unreservedly accepts jurisdiction in a FNC situation.” Dahl, supra note 97, at 24. Thus, following a dismissal in the United States under FNC, the court might impose strict liability on an American corporate defendant, or subject the defendant to a determination of compensatory damages according to American standards. Daschbach, supra note 116, at 57. These statutes only become relevant once a case is dismissed abroad for FNC; thus, they operate less to “make Latin American courts a more appealing forum for Latin American plaintiffs” than to make Latin American courts a less desirable alternative for U.S. defendants. Id.

130Muttreja, supra note 63, at 1623 n.87.

131 Ley Modelo Sobre Competencia Internacional y Derecho Aplicable a la Responsabilidad Extracontractual [Model Law on International Jurisdiction and Applicable Law to Tort Liability] art. 1 (Permanent Forum of Reg’l Parliaments for the Env’t & for a Sustainable Dev., Latin Am. Parliament 1998) [hereinafter Model Law], available in English at http://www.iaba.org/LLinks_forum_non_Parlatino.htm, translated in Henry Saint Dahl, Dahl’s Law Dictionary/Diccionario Juridico Dahl: Spanish-English/English-Spanish: An Annotated Legal Dictionary, Including Authoritative Definitions 242 (4th ed. 2006).

132 Id. at introductory cmt., translated in Dahl, supra note 103, app. at 47.

133The Bustamante Code is an international treaty that attempts to codify conflict of laws. Ratified by fourteen Latin American countries (and Cuba), the United States nonetheless refused to ratify it. Alejandro M. Garro, Unification and Harmonization of Private Law in Latin America, 40 Am. J. Comp. L. 587, 591–92, nn.16 & 17 (1992).

134 Model Law, supra note 131, at introductory cmt., translated in Dahl, supra note 103, app. at 47.

135 Id.

136 See supra notes 127–29 and accompanying text. Similarly, a plaintiff who refiles in Venezuela after an FNC dismissal does not “expressly or tacitly” submit to Venezuela’s jurisdiction, as required by Article 40(4) of the Venezuelan International Private Law Statute (VIPLS). Muttreja, supra note 63, at 1626. Thus, Venezuela does not have jurisdiction over the case. Id.

137Ecuador’s statute was declared unconstitutional, as was part of Guatemala’s. Dahl, supra note 103, at 23; see supra text accompanying notes 184–86.

138 Model Law, supra note 131, at introductory cmt., translated in Dahl, supra note 103, app. at 47.

139Law for the Defense of Procedural Rights of Nationals and Residents, May 14, 1997 (Guat.), available at http://www.iaba.org/LLinks_forum_non_Guatemala.htm, translated in Dahl, supra note 103, app. at 48.

140For more exhaustive analysis of U.S. courts’ inconsistent treatment of FNC motions when faced with Latin American preemptive legislation, see Muttreja, supra note 63. Muttreja argues for an “honest” application of the FNC doctrine, obligating courts to deny dismissals to Latin America. Id. at 1607.

141 See infra note 170 and accompanying text.

142 See supra notes 138–39.

143Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947).

144 See supra notes 138–39.

145219 F. Supp. 2d 719 (E.D. La. 2002).

146 Id. at 728.

147 Id.; see also Brand & Jablonski, supra note 114, at 136.

148 Canales Martinez, 219 F. Supp. 2d at 728.

149 Id.

150190 F. Supp. 2d 1125 (S.D. Ind. 2002).

151 Id. at 1131–32.

152 Id. In particular, the following statutes were at issue: Article 39, providing the defendant’s domicile as the first forum for bringing suit; Article 40(2), relating specifically to jurisdiction in personal injury cases with nondomiciliary defendants; and Article 40(4), permitting Venezuelan courts jurisdiction over cases against nondomiciliaries if both parties submit to jurisdiction. Id.; see also Carl Schroeter GmbH & KO., KG. v. Crawford & Co., No. 09-946, 2009 WL 1408100, at *7–8 (E.D. Pa. May 19, 2009) (discussing the In re Bridgestone/Firestone decision and concluding, in light of the Venezuelan legislation, that defendant failed to establish Venezuela as an adequate alternative forum).

153 In re Bridgestone/Firestone, 190 F. Supp. 2d at 1156.

154Many of these courts have conditioned dismissal on the alternative forum’s willingness to hear the case. If the alternative forum refuses jurisdiction, the plaintiff can refile in the United States without prejudice. See, e.g., Abad v. Bayer Corp., 563 F.3d 663, 666 (7th Cir. 2009); Chandler v. Multidata Sys. Int’l Corp., 163 S.W.3d 537, 547 (Mo. Ct. App. 2005).

155No. 8:02 CV-676-T-17 EAJ, 2004 WL 1247018 (M.D. Fla. Apr. 19, 2004).

156 Id. at *4. The defendants had submitted additional expert affidavits and “learned from [key] mistakes of Bridgestone/Firestone.” Brand & Jablonski, supra note 114, at 138.

157313 F. Supp. 2d 672 (S.D. Tex. 2004).

158 Id. at 677.

159 Id. at 676.

160 Id. For more comprehensive coverage of these Venezuelan decisions, see Muttreja, supra note 63.

161Islamic Republic of Iran v. Pahlavi, 467 N.E.2d 245, 249 (N.Y. 1984). Unlike the other cases referenced here, this court considered FNC dismissal to Iran. Based in part on the above-quoted reasoning, the court upheld the lower court’s dismissal in spite of Iran’s political situation under the Khomeini regime. Id. at 248, 250. Importantly, however, the Pahlavi court acknowledged the possibility that no other forum existed and chose to dismiss anyway, id. at 250; the other courts, in contrast, did not consider the Latin American forums unavailable.

162Seales v. Panamanian Aviation Co., No. CV-07-2901 (CPS) (CLP), 2008 WL 544705, at *2 (E.D.N.Y. Feb. 26, 2008) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947)) (internal quotation marks omitted).

163 See supra Part I.B.1.

164Muttreja, supra note 63, at 1627–28, 1634–35 (“The American take on Venezuelan jurisdictional rules means nothing in Venezuela . . . .”).

165 Id. at 1634–35 (“U.S. courts . . . . have not always conducted a thorough inquiry into the alternative forum’s rules of jurisdiction, instead using conditional dismissals as a way to assume, rather than analyze, the other forum’s availability while hedging against the possibility of that assumption being wrong.”).

166Heiser, supra note 41, at 625–26; Muttreja, supra note 61, at 1634–35.

167 See infra note 170 and accompanying text.

168 Model Law, supra note 131, at introductory cmt., translated in Dahl, supra note 103, app. at 47.

169 Id. Accordingly, a Latin American plaintiff resisting FNC dismissal will argue both that the relevant blocking statute prohibits his home court from assuming jurisdiction and, regardless, that his country’s codified doctrine of preemptive jurisdiction dictates the same result. See, e.g., Paulownia Plantations de Pan. Corp. v. Rajamannan, No. A07-2199, 2009 WL 3644186, at *5 (Minn. Nov. 5, 2009).

170 See, e.g., Dahl, supra note 103, at 42 (“[T]he blocking statutes are not indispensable to dismiss cases filed in pursuance of a FNC order. This is so because the illegalities of FNC . . . are more than sufficient to prevent jurisdiction from accruing, even without a law specifically making such point.”); Garro, supra note 115, at 78 (“This statutory scheme appears not only unnecessary but also counterproductive.”); Muttreja, supra note 63, at 1620 n.74, 1623–24 (“Blocking statutes aim only to make a country’s jurisdictional rules clear; they do not actually change those rules.”).

171This does not mean to imply that these statutes are the first or only incarnation of this interpretation. As previously discussed, courts have recently relied on their national codes to reach the same outcome as that achieved by the blocking statutes. See supra note 170. Again, the term blocking statutes intends to encompass the discussion of this interpretative trend more generally.

172 See supra Part I.B.1.

173 See supra Part I.B.1.

174 Brand & Jablonski, supra note 114, at 140 (“The Latin American experience indicates not only denial of any power to decline jurisdiction in national courts but legislative efforts to prevent U.S. courts from exercising such power under the forum non conveniens doctrine.”); see also supra text accompanying notes 22– 23. This is not to say that Latin America’s decision is wrong—the United States continues to follow its tradition of FNC despite the fact that its application is problematic for other countries that do not recognize the doctrine. The point is that portraying Latin America’s rejection of cases dismissed for FNC as an inevitable consequence of civil law jurisdictional principles ignores that Latin America has made certain affirmative decisions that depart from, or at least further develop, these basic principles.

175For instance, a Nicaraguan court held “[its] procedural system does not recognize, and therefore it does not accept nor does it admit, the imposition of the Forum Non Conveniens Theory by foreign courts.” Dahl, supra note 103, at 30 n.44 (quoting the Nicaraguan case of Reynaldo Aguilera Heute v. Shell Oil Co.). This statement rests on unsound logic—namely, the assumption that acceptance of another country’s use of a doctrine depends on recognition of that doctrine within one’s own legal system.

176 See supra note 135 and accompanying text.

177 See supra note 133 and accompanying text.

178 See supra notes 131, 133.

179This forum is otherwise appropriate for jurisdiction, according to Latin American law, because it is the place where the harm occurred. See supra note 117 and accompanying text.

180 See John Henry Merryman & Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America 2 (3d ed. 2007) (tracing the origins of the “civil law tradition” to “450 b.c., the supposed date of publication of the Twelve Tables in Rome”).

181 See Case C-281/02, Owusu v. Jackson, 2005 E.C.R. I-1383. In Owusu, the European Court of Justice determined that Article 2 of the Brussels Convention precludes England, a common law country, from “declining jurisdiction” pursuant to FNC. Id. at I-1459 to -1460. Article 2’s grant of jurisdiction is “mandatory in nature”; an English court’s discretionary power to dismiss for FNC would undermine “the principle of legal certainty” sought by the Brussels convention. Id. However, this holding does not speak to the ability of a European court to hear a case dismissed by another court for FNC.

182 See, e.g., King v. Cessna Aircraft Co., 562 F.3d 1374 (11th Cir. 2009) (FNC dismissal to Italy); Baumgart v. Fairchild Aircraft Corp., 981 F.2d 824 (5th Cir. 1993) (Germany); In re Air Crash at Madrid, Spain, on August 20, 2008, 2011 WL 1058452 (C.D. Cal. Mar. 22, 2011) (Spain). In none of these cases did the court consider—or the plaintiffs suggest—that the particular European country would not hear the case following an FNC dismissal, or was otherwise unavailable for its subsequent resolution.

183 See E-mail from Peter Hay, Prof., Emory Univ. Sch. of Law, to author (May 29, 2011, 11:24 CET).

184 In addition to Ecuador, discussed here, the Guatemalan Constitutional Court declared certain bond provisions imposed by its blocking statute unconstitutional. Dahl, supra note 103, at 23 & n.12.

185 Id. at app. at 48.

186 Id. at 23; see also Jaime Arosemena & Hernán Pérez Loose, The Unconstitutionality of Law 55 and the Forum Non Conveniens Doctrine, Int’l L. Office (July 30, 2002), http://www.internationallawoffice.com/newsletters/detail.aspx?g=dcf7e15e-f706-407a-aea0-0b3810468427 (“The rush to enact Law 55 caused both formal and hierarchical violations to the Ecuadorian Constitution.”).

187 See supra Part II.A.

188Again, Latin America is allowed to interpret its own law however it wishes; FNC may equally be viewed as a strategic attempt to force litigation on another country. However, understanding that the outcome dictated by blocking statutes is due the legislatures’ interpretation of civil law principles, rather than those principles themselves, better explains U.S. courts’ behavior and allows for a solution that accommodates their interests.

189 See supra notes 138–39 and accompanying text.

190Assuming that the plaintiff’s injury occurred in his home country. See supra note 120 and accompanying text.

191This statement assumes that U.S. courts are staying true to the FNC doctrine, which, as discussed, is not always the case. See supra Part II.A.

192 See supra text accompanying notes 21– 23.

193 Recognizing this, the Florida Court of Appeals requires that a plaintiff make a good-faith effort to carry out the FNC dismissal order in Latin America. See Scotts Co. v. Hacienda Loma Linda, 2 So. 3d 1013, 1015–17 (Fla. Dist. Ct. App. 2008). In Scotts Co., the Florida court conditioned its FNC dismissal on the plaintiff’s ability to refile in Panana. When it refiled, the plaintiff emphasized to the Panamanian court that the United States had previously dismissed the case for FNC, and failed to submit to jurisdiction in Panama or to request that Panama’s blocking statute not apply. On “appeal,” the plaintiff then asked for affirmation of the lower court’s ruling. When the case returned to Florida, the court refused to proceed based on the plaintiff’s attempt to manipulate its jurisdiction. 1 Ved P. Nanda & David K. Pansius, Litigation of International Disputes in U.S. Courts § 6:15 (2d ed. 2010).

194This is because, as long as U.S. courts treat FNC motions to Latin America inconsistently, there is sufficient incentive for Latin American plaintiffs to continue filing in the United States for its numerous benefits. See supra Part I.C.

195More than one commentator has argued that international measures are most appropriate for this conflict. See Daschbach, supra note 116, at 61–65 (discussing the development of a new multilateral treaty, the expansion of an existing treaty, and the establishment of an international tribunal as potentially viable means to address this problem); Figueroa, Conflicts of Jurisdiction, supra note 40, at 124 (concluding that bilateral treaties between the United States and Latin American countries are “the natural way out of the FNC impasse” and would have numerous positive effects); Figueroa, FNC Impasse, supra note 40, at 46 (“The best mechanism for solving the FNC impasse would be an international treaty between the United States and most Latin American countries.”).

196Theoretically, a third approach would be for U.S. courts to narrow their concept of personal jurisdiction so as to avoid triggering Latin American blocking statutes in the first place. Because Latin America’s system of preemptive jurisdiction treats a plaintiff’s initial choice of forum as conclusive only if the plaintiff filed in a court competent to hear the case according to both legal systems, see supra note 116, a plaintiff’s initial filing in a U.S. court without proper jurisdiction would not extinguish the jurisdiction of its home court. However, as the majority of these cases involve transnational tort claims against U.S. corporations, typically at least one U.S. court will have proper jurisdiction over the defendant. In order to find lack of personal jurisdiction over the Latin American plaintiff, then, a U.S. court would have to consider the plaintiff’s submission alone to be insufficient for this purpose. So holding would seriously change basic principles upon which the United States’ current conception of jurisdiction rests. Further, this interpretation would likely raise constitutional issues based on the U.S. Constitution’s guarantee to all “persons”—as opposed to “citizens”—equal protection and due process. See U.S. Const. amends. V, XIV. Manipulating jurisdiction in this way would therefore have consequences far greater than the problem it seeks to solve.

197 See Heiser, supra note 61, at 1163 (“[T]he assumption . . . is that a court in the United States will apply domestic law in a transnational tort case.” (footnote omitted)).

198 See supra Part I.B.3 (noting the continued appeal of U.S. courts so long as U.S. law remains an option).

199Islamic Republic of Iran v. Pahlavi, 467 N.E.2d 245, 248–50 (N.Y. 1984) (tracing the origins of this “perceived requirement” to dicta in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947)); see also Shin-Etsu Chem. Co. v. 3033 ICICI Bank Ltd., 777 N.Y.S.2d 69, 75 (App. Div. 2004) (construing the availability of an alternative forum as “an important consideration” but not a “precondition to dismissal”); Moenzina v. Moenzina, 507 N.Y.S.2d 716, 717 (App. Div. 1986); Broukhim v. Hay, 504 N.Y.S.2d 467, 468 (App. Div. 1986). But see Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981) (characterizing the availability of an alternative forum as an “initial requirement” to FNC dismissal); Paulownia Plantations de Pan. Corp. v. Rajamannan, 757 N.W.2d 903, 907 (Minn. Ct. App. 2008) (“[A] determination of the availability and adequacy of the alternative forum is implicit in the Hague decision.”). While this is “very much a minority approach today,” it stands to become more popular if additional countries enact blocking statutes. Heiser, supra note 41, at 658–59.

200 See supra Part I.B.1.

201Muttreja, supra note 63, at 1641.

202Gordon, supra note 123, at 155–56.

203See supra Part I.B.1.

204 See Muttreja, supra note 63, at 1630 (suggesting that “[a] U.S. court’s independent interpretation of foreign rules . . . is much less appropriate when it runs contrary to foreign authority,” particularly because the purpose of “the FNC availability inquiry is to predict what a foreign court . . . will do”).

205 Id. at 1626.

206 See supra notes 61– 63 and accompanying text.

207The importance of this consideration is underscored, rather than tempered, by the fact that the Court took for granted the existence of an alternative forum in the two seminal cases on FNC.

208That is, by interpreting availability as a nondispositive factor for FNC dismissal. See supra text accompanying notes 199– 201.

209That is, by construing as available a forum that, according to its own law, will not hear the case.

210 See Heiser, supra note 61, at 1163.

211 See id.

212 Id. at 1163 n.9 (citing Patrick J. Borchers, The Choice-of-Law Revolution: An Empirical Study, 49 Wash. & Lee L. Rev. 357, 377–78 (1992)). Modern choice-of-law rules are reflected in the Restatement (Second) of Conflict of Laws (1971).

213 See Heiser, supra note 61, at 1163–64.

214 See infra notes 217–18 and accompanying text.

215449 U.S. 302, 326 (1981).

216 See id. at 313.

217 Restatement (First) of Conflict of Laws §§ 377–78 (1934).

218The common conception is that there is no tort absent an injury to someone or something.

219See supra notes 100, 197.

220See Joseph William Singer, A Pragmatic Guide to Conflicts, 70 B.U. L. Rev. 731, 743 (1990) (“Judges do have a strong tendency to apply forum law when they can.”).

221 Restatement (Second) of Conflict of Laws § 6(1) (1971) (“A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.”); id. § 6 cmt. b ( “[T]he court [should] apply a local statute in the manner intended by the legislature even when the local law of another state would be applicable under usual choice-of-law principles.”).

222Section 6 is the “cornerstone” of the Restatement, outlining the policies and values that should underlie every choice-of-law decision. Peter Hay, Patrick J. Borchers & Symeon C. Symeonides, Conflict of Laws 63 (5th ed. 2010).

223 Restatement (Second) of Conflict of Laws § 6(2)(b) (1971).

224 Id. § 6(2)(c). Another relevant factor is “ease in the determination and application of the law to be applied,” which clearly favors application of domestic law. Id. § 6(2)(g). See infra text accompanying note 236.

225 See Restatement (Second) of Conflict of Laws § 145 cmt. b (1971) (suggesting that the relative interests of each forum are even more important to choice-of-law determinations in tort cases due to the relative insignificance of other factors listed in section 6). This is not to say that the United States has no interest in similarly regulating the international conduct of its corporations.

226 Id. § 145(1).

227 Id. § 145(2). However, “[i]t is not sufficient merely to tally the § 145 contacts and choose the state with the greatest number. The resolution of choice of law questions turns on the qualitative nature of those contacts as affected by the policy factors enumerated in § 6.” Herrera v. Michelin N. Am., Inc., No. B-07-114, 2009 WL 700645, at *7 (S.D. Tex. Mar. 16, 2009) (citations omitted).

228The same argument may be made even where defendant’s conduct may be characterized as having occurred outside the state of injury.

229 Restatement (Second) of Conflict of Laws § 145 (1971); see, e.g., Tazoe v. Aereas, No. 07-21941-CIV, 2009 WL 3232908 (S.D. Fla. Aug. 24, 2009).

230Symeon C. Symeonides, Oregon’s New Choice-of-Law Codification for Tort Conflicts: An Exegesis, 88 Or. L. Rev. 963, 969 (2009). (“The excessive fluidity of the various judicial choice-of-law approaches often makes it very difficult, if not impossible, to predict the outcome of a choice-of-law decision.”).

231See Heiser, supra note 61, at 1165.

232In contrast to forcing courts to unconditionally accept these cases. See supra note 194.

233In contrast to manipulating the FNC doctrine to permit dismissals regardless of an alternative forum. See supra Part III.A.

234Still, there are numerous procedural and systemic reasons why foreign plaintiffs may still choose to file in the United States. See Heiser, supra note 61, at 1182 (suggesting that foreign plaintiffs would still desire to litigate in the United States if courts applied foreign law to their disputes); supra Part I.C. Intuitively, if these plaintiffs are filing for a reason other than U.S. law—e.g., serious procedural deficiencies in their home courts that make vindication unlikely—U.S. courts arguably should be less hesitant to accept these cases. However, this position is seriously weakened by the courts’ evaluation of “adequacy,” which largely disregards considerations such as chronic delay and backlog, or problems with enforcement. See supra Part I.B.

235 See supra notes 138–39 and accompanying text.

236 See supra note 224.

237 See supra text accompanying notes 220, 231.

Executive Managing Editor, Emory Law Journal; J.D. Candidate, Emory University School of Law (2011); B.S., Cornell University (2006). My sincerest thanks to Professor Thomas Arthur, for his guidance in conceptualizing and developing this Comment, and to Professor Peter Hay, whose feedback, mentorship, and open-door policy have proved invaluable to me. I also thank Ross Andre, Rachel Mondl, Sean Diamond, and Niji Jain, for their patience and editorial expertise. Most of all, I thank my family and friends for their endless love and support.