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International Tribunals and Forum Non Conveniens Analysis |
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Ryan T. Bergsieker [View as PDF]
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114 Yale L.J. 443 (2004)
Many international civil disputes are resolved via state-driven litigation before multinational tribunals. Indeed, under traditional principles of international law, individuals may not appear before such tribunals at all. Instead, states must advance claims on behalf of their nationals, a procedure known as diplomatic espousal.
As the D.C. Circuit's decision in Nemariam v. Federal Democratic Republic of Ethiopia demonstrates, U.S. courts rarely consider such international tribunals adequate to vindicate individual claimants' interests,
because the tribunals' procedures are often in tension with American notions of due process. Accordingly, many courts find that international
tribunals are inadequate alternative forums under forum non conveniens analysis. In so holding, courts are allowing forum non conveniens, a doctrine developed to balance proceedings between courts, to undermine
the authority of international tribunals--a very different type of adjudicative body.
This Comment argues that, in evaluating whether an international tribunal is an adequate alternative forum under forum non conveniens
analysis, U.S. courts should focus less on formalistic factors like the
identities of the parties who espouse claims before the tribunal and more on
the ability of those parties to represent the interests of the individuals whose
claims they advance. Emphasizing interest representation, rather than party
structure, would help U.S. courts avoid undercutting established
international institutions; lessen the perception of U.S. courts as
disconnected players in a multilateral world; and allow war-torn states to
devote their resources to broad-based compensation and redevelopment,
rather than to the litigation of private claims in multiple forums.
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