60-471: Filártiga v. Peña-Irala , 630 F.2d 876 ( 2d Cir. 1980), was a landmark case in United States and international law . It set the precedent for United States federal courts to punish non- American citizens for tortious acts committed outside the United States that were in violation of public international law (the law of nations) or any treaties to which the United States is a party. It thus extends
120-603: A Contracting State shall, whatever their nationality, be sued in the courts of that State. Persons who are not nationals of the State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that State. But this is subject to the substantial exceptions contained in Articles 3–6, the limitations on insurance actions in Articles 7–12, and consumer contracts in Articles 13–15. Article 16 also grants exclusive jurisdiction to specified jurisdictions as
180-512: A case in the United States may be initiated under U.S. state law when Admiralty law (which is a Federal jurisdiction) would be the more appropriate forum. If this occurs, the case may be removed to the Federal Courts or to the courts of another state on FNC grounds. For example, suppose that a container ship comes into port in Miami, Florida , United States. The ship, which is Liberian-registered,
240-400: A court acknowledges that another forum or court where the case might have been brought is a more appropriate venue for a legal case, and dismisses the case. Forum non conveniens may be used to dismiss a case, for example, to encourage parties to file a case in another jurisdiction within which an accident or incident underlying the litigation occurred and where all the witnesses reside. As
300-507: A court of a non-Contracting State would be a more appropriate forum for the trial of the action even if the jurisdiction of no other Contracting State is in issue or the proceedings have no connecting factors to any other Contracting State. However, some UK commentators argue that the FNC rules may still apply to cases where the other proceedings are not in a Member state but this remains uncertain. A Scottish Court may sist its proceedings in favour of
360-721: A dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide. The practical effects are identical to any other jurisdiction but the wording used by the code is different. For decisions applying art. 3135 c.c.q., see H.L. Boulton & Co. S.C.C.A. v. Banque Royale du Canada (1995) R.J.Q. 213 (Quebec. Supr. Ct.); Lamborghini (Canada) Inc. v. Automobili Lamborghini S.P.A. (1997) R.J.Q. 58 (Quebec. C.A.); Spar Aerospace v. American Mobile Satellite (2002) 4 S.C.R. 205, and Grecon Dimter Inc. v. J.R. Normand Inc. (2004) R.J.Q. 88 (Quebec. C.A.) The defendant may move to dismiss an action on
420-399: A doctrine of the conflict of laws , forum non conveniens applies between courts in different countries and between courts in different jurisdictions in the same country. Forum non conveniens is not applicable between counties or federal districts within a state. A concern often raised in applications of the doctrine is forum shopping , or picking a court merely to gain an advantage in
480-543: A harmonised set of rules for the determination of all questions of jurisdiction throughout the EU and EFTA (but not Liechtenstein) excluding FNC. The issue of FNC arises in shipping cases since different parties may be involved as charterers or consignees and because of the international nature of the law of the sea and maritime trade. Despite several different conventions dealing with aspects of international trade, jurisdictional disputes are common. Moreover, in some instances,
540-567: A predictable system throughout the EU. If states were able to derogate from the Convention using their domestic rules of civil procedure, this would deny a uniform result to proceedings based on forum selection. Hence, at 46. the ECJ held: the Brussels Convention precludes a court of a Contracting State from declining the jurisdiction conferred on it by Article 2 of that convention on the ground that
600-608: A state action. The Court of Appeals found that federal courts have subject matter jurisdiction under ATS even where defendants were not acting under "color of state law", when the allegations touched upon genocide , summary executions , torture and war crimes. Following the Karadžić judgment, it was ruled in Sosa v. Alvarez-Machain 542 U.S. 692 (2004) that Congress intended with the Alien Tort Statute that extraterritorial jurisdiction
660-412: A transfer would simply shift the inconvenience from one party to the other, the plaintiff's choice of forum should not be disturbed. Generally, a corporation sued in the jurisdiction of its headquarters is not entitled to seek an FNC dismissal. Thus if an American corporation is sued in an area where it only transacts business but not where it has its headquarters, and the court dismisses based upon FNC,
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#1733085188023720-435: Is filled by the judge highest in seniority among the group of qualified judges, with seniority determined first by commission date, then by age. The chief judge serves for a term of seven years, or until age 70, whichever occurs first. If no judge qualifies to be chief, the youngest judge over the age of 65 who has served on the court for at least one year shall act as chief until another judge qualifies. If no judge has served on
780-457: Is not exclusive to common law nations: the maritime courts of the Republic of Panama , although not a common law jurisdiction, also have such power under more restrained conditions. A country, state, or other jurisdiction enacts laws which are interpreted and applied through a system of courts. The laws applied by a particular system of courts or legal system are termed the lex fori , or law of
840-453: Is subsequent litigation in another state will depend on the tactics of the creditors. Without a lien over the ship or the ability to obtain some form of control over the assets of the debtor, making a claim for money owing may not be cost-effective. But if there have already been proceedings on the issue of liability before a court of competent jurisdiction in another state so that the action in Miami
900-493: Is the relative means of the parties”. In 2006, the 2nd Circuit Federal Court in New York issued a decision in the famous Coca-Cola case. Coca-Cola took over assets of Jews expelled from Egypt in the 1950s and was sued in New York. Bigio v. Coca-Cola Company, 448 F.3d 176 (2d Cir. 2006), certiorari to Sup. Ct. denied. In that case, the plaintiffs were Canadians and non‐residents of New York. The court denied Coca-Cola's FNC motion and
960-554: Is wanted as security for various debts incurred by its Master while in Denmark . Made aware of the ship's presence, a local lawyer moves to impose a lien which involves a form of arrest by means of de novo proceedings in rem . The local Federal district sitting in Admiralty determines that the ship's Master had ostensible authority as an agent to pledge the credit of the ship's owners (who are English ). It also determines that neither
1020-413: The lex loci solutionis (applying actor sequitur forum rei ). This reflects an expectation that a defendant should be sued at his "own" courts, modified to reflect different priorities in certain types of case. As an example of this expectation, Article 2 Brussels I Regulation (as well as the corresponding Lugano conventions) provides: Subject to the provisions of this Convention, persons domiciled in
1080-529: The Bosnian War commenced proceedings against Serbia for war crimes in an American domestic court, with Radovan Karadžić being in the U.S. at the time. The United States Court of Appeals for the Second Circuit then considered issues as to the scope of ATS claims, specifically concerning non-state actors as defendants and the related question of whether genocide, war crimes and crimes against humanity require
1140-629: The Civil Jurisdiction and Judgments Act 1991 states: Nothing in this Act shall prevent any court in the UK from staying, sisting [staying or stopping a process, or summoning a party ], striking out or dismissing any proceedings before it on the ground of forum non conveniens or otherwise, where to do so is not inconsistent with the 1968 [Brussels] Convention or, as the case may be, the Lugano Convention. The case of Owusu v Jackson and Others before
1200-675: The European Court of Justice , was concerned with the relationship between Article 2 of the Brussels Convention and the scope of FNC within the European Community . In Owusu , the English Court of Appeal asked the ECJ whether it could stay a matter brought to it under Article 2 Brussels Convention pursuant to the English FNC rules. The Court held that the Brussels Convention was a mandatory set of rules designed to harmonise and so produce
1260-606: The High Court affirmed the "clearly inappropriate forum" test as Australian law, while stating that even where the law of a foreign country had to be applied to decide a case, Australia would not be a "clearly inappropriate" forum for hearing the matter. In Henry v Henry (1996) 185 CLR 571, the High Court found that it would be prima facie vexatious and oppressive to commence proceedings in Australia after proceedings for substantially
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#17330851880231320-581: The Palestine Liberation Organization (see Mohamad v. Palestinian Authority ). Because individuals often don't have the means to pay large damage awards in these kinds of cases, the Seventh Circuit in Boim v. Quranic Literacy Institute gave voice to the idea that allowing claims to proceed against organizations and states that finance FTOs would "imperil the flow of money and discourage
1380-450: The Real and Substantial connection" test used in challenges to jurisdiction. The most important difference is that applying FNC is a discretionary choice between two forums, each of which could legally hear the issue. The law of the province of Quebec, Canada is slightly different. The Quebec Civil Code 1994, at art. 3135 c.c.q., provides: Even though a Quebec authority has jurisdiction to hear
1440-575: The Thurgood Marshall United States Courthouse at 40 Foley Square in Lower Manhattan . Because the Second Circuit includes New York City , it has long been one of the largest and most influential American federal appellate courts, especially in matters of contract law , securities law , and antitrust law . In the 20th century, it came to be considered one of the two most prestigious federal appellate courts, along with
1500-753: The U.S. Court of Appeals for the District of Columbia Circuit . Several notable judges have served on the Second Circuit, including three later named Associate Justices of the United States Supreme Court : John Marshall Harlan II , Thurgood Marshall , and Sonia Sotomayor . Judge Learned Hand served on the court from 1924 to 1961, as did his cousin, Augustus Noble Hand , from 1927 until 1953. Judge Henry Friendly served from 1959 to 1986. As of July 13, 2024 : Chief judges have administrative responsibilities with respect to their circuits, and preside over any panel on which they serve, unless
1560-607: The jurisdiction of United States courts to tortious acts committed around the world. The case was decided by a panel of judges from the United States Court of Appeals for the Second Circuit consisting of judges Wilfred Feinberg , Irving Kaufman , and Amalya Lyle Kearse . The Filártiga family contended that on March 29, 1976, their seventeen-year-old son Joelito Filártiga was kidnapped and tortured to death by Américo Norberto Peña-Irala. All parties were living in Paraguay at
1620-404: The lex situs of immovable property and a res , and for the status of companies, the validity of public registers with particular reference to the registration and validity of patents, and the enforcement of judgments. Subsequent articles allow forum selection clauses and other forms of agreement between the parties to confer jurisdiction on a given forum. The Brussels Regime therefore represents
1680-654: The 1793 case Robertson v Kerr , a Massachusetts court refused to apply jurisdiction in a case involving a foreign transaction between non-residents. According to the "parental function" of Soviet law , the 1964 R.S.F.S.R. code of civil procedure recognised the doctrine of forum non conveniens for civil procedures. As a member of the European Union , the United Kingdom signed the Brussels Convention . The Civil Jurisdiction and Judgments Act 1982 as amended by
1740-455: The Courts of England or Northern Ireland on the ground of FNC, since this is settling intra-UK jurisdiction. In the jurisdictions where the FNC rule survives, a court will usually dismiss a case when the judge determines that the dispute would be better adjudicated in a different forum. After a period of split approach to forum non conveniens , the High Court adopted a consolidated application of
1800-506: The Second Circuit The United States Court of Appeals for the Second Circuit (in case citations , 2d Cir. ) is one of the thirteen United States Courts of Appeals . Its territory covers the states of Connecticut , New York , and Vermont , and it has appellate jurisdiction over the U.S. district courts in the following federal judicial districts : The Second Circuit has its clerk's office and courtrooms at
1860-428: The U.S. Supreme Court denied certiorari . The 2nd Circuit stated that the fact that the New York court would need to apply “modest application” of Egyptian law was not a problem because “courts of this Circuit are regularly called upon to interpret foreign law without thereby offending the principles of international comity”. Also, the fact that there were witnesses abroad was not a problem either. They could be flown into
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1920-516: The U.S. or Letters Rogatory could be issued to the Egyptian courts to collect their testimony. Further, it was held that in an FNC scenario, a court applies the balance of conveniences, but preference (and weight) must be given to the fact that plaintiffs chose this particular forum for “legitimate reasons”. The fact that plaintiffs could sue in Canada was not relevant because Coca-Cola was a U.S. company and it
1980-626: The United States and reported it to the Immigration and Naturalization Service , who arrested and deported Peña for staying well past the expiration of his visa. When Peña was taken to the Brooklyn Navy Yard pending deportation, Filártiga lodged a civil complaint in U.S. courts, brought forth by the Center for Constitutional Rights , for Joelito's wrongful death by torture, asking for damages in
2040-399: The amount of $ 10 million. After an initial district court dismissal citing precedents that limited the function of international law to relations between states, on appeal, the circuit ruled that freedom from torture was guaranteed under customary international law. "The torturer has become – like the pirate and slave trader before him – hostis humani generis , an enemy of all mankind", wrote
2100-608: The choice of forum. The burden of proof is on the defendant: Strategic Value Master Fund, Ltd. v. Cargill Fin. Serv. Corp., 421 F.2d 741, 754 (S.D.N.Y. 2006). The court must also consider the defendant's vast resources compared with the plaintiff's limited resources as an aggrieved individual: See Wiwa at 107: “defendants have not demonstrated that these costs [of shipping documents and witnesses] are excessively burdensome, especially in view of defendant’s vast resources”. Also, Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F.Supp.2d 289 (S.D.N.Y. 2003) at 341: “A countervailing factor
2160-527: The circuit justice (the Supreme Court justice responsible for the circuit) is also on the panel. Unlike the Supreme Court, where one justice is specifically nominated to be chief, the office of chief judge rotates among the circuit judges. To be chief, a judge must have been in active service on the court for at least one year, be under the age of 65, and have not previously served as chief judge. A vacancy
2220-561: The claim was lodged when both parties were inside the United States. Additionally, Peña had sought to dismiss the case based on forum non conveniens , arguing that Paraguay was a more convenient location for the trial, but he did not succeed. Following the judgment in Filártiga , there was a concern that the U.S. would evolve into a haven for international tort claims. In Kadic v Karadžić (1995), victims of atrocities committed in Bosnia during
2280-464: The concept was developed in the 18th century and was later incorporated into English common law . It was first adopted in Scotland in 1610, the case being Vernor v Elvies [1610] Mor 4788, as an extension of forum non competens ; two English residents were tried in Scotland argued a Scottish trial would be inconvenient, the court ruling "The Lords will not find themselves Judges betwixt two Englishmen". It
2340-637: The court for more than a year, the most senior judge shall act as chief. Judges can forfeit or resign their chief judgeship or acting chief judgeship while retaining their active status as a circuit judge. When the office was created in 1948, the chief judge was the longest-serving judge who had not elected to retire, on what has since 1958 been known as senior status , or declined to serve as chief judge. After August 6, 1959, judges could not become or remain chief after turning 70 years old. The current rules have been in operation since October 1, 1982. The court has thirteen seats for active judges, numbered in
2400-737: The court. The appellants argued that Peña's actions had violated wrongful death statutes, the United Nations Charter , the Universal Declaration of Human Rights , the American Declaration of the Rights and Duties of Man , and other customary international law. They also claimed the U.S. courts had jurisdiction to hear the case under the Alien Tort Statute , which grants district courts original jurisdiction to hear tort claims brought by an alien that have been "committed in violation of
2460-551: The defendant, to such an extent that it would amount to a serious injustice. The court found that their approach retained the rationale of the traditional doctrine, while sparing them unduly time consuming considerations associated with the complex questions arising under the traditional test. Notable subsequent developments of the test include the Zhang and the Henry cases. In Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491,
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2520-574: The domestic forum will always win out. Convenience is weighed, using a multi-factored test that includes elements such as: the connection between the plaintiff's claim and the forum, the connection between the defendant and the forum, unfairness to the defendant by choosing the forum, unfairness to the plaintiff in not choosing the forum, involvement of other parties to the suit (i.e. location of witnesses), and issues of comity such as reciprocity and standard of adjudication. The Supreme Court has underlined that FNC inquiries are similar to but distinct from
2580-598: The financing of terrorist acts" by making it unprofitable. Other Congressional statutes enacted post-Filartiga have created other avenues to pursue claims against foreign governments like the Anti-Terrorism Act and amendments to the Foreign Sovereign Immunities Act that have broadened the scope of the types of property against which execution can be sought to satisfy judgments under FSIA's terrorism exception). United States Court of Appeals for
2640-485: The forum. As a matter of civil procedure , courts must decide whether and in what circumstances they will accept jurisdiction over parties and subject matter when a lawsuit begins. This decision will be routine, or not raised at all, if the relevant elements of the case are within the territorial jurisdiction of the court. If one or more of the parties resides outside the territorial jurisdiction or there are other factors which might make another forum more appropriate,
2700-437: The ground of FNC. Invoking this doctrine usually means that the plaintiff properly invoked the jurisdiction of the court, but it is inconvenient for the court and the defendant to have a trial in the original jurisdiction. The court must balance convenience against the plaintiff's choice of forum. In other words, if the plaintiff's choice of forum was reasonable, the defendant must show a compelling reason to change jurisdiction. If
2760-452: The law of nations or a treaty of the United States". This case interpreted that statute to grant jurisdiction over claims for torts committed both within the United States and abroad. U.S. courts eventually ruled in favor of the Filártigas, awarding them roughly $ 10.4 million. Torture was clearly a violation of the law of nations, and the United States did have jurisdiction over the case since
2820-437: The order in which they were initially filled. Judges who assume senior status enter a kind of retirement in which they remain on the bench but vacate their seats, thus allowing the U.S. President to appoint new judges to fill their seats. Forum non conveniens Forum non conveniens ( Latin for "an inconvenient forum" ) ( FNC ) is a mostly common law legal doctrine through which
2880-414: The plaintiff may refile the action in the jurisdiction of the corporation's headquarters. In deciding whether to grant the motion, the court considers: Additional factors include: The determination of the court may not be arbitrary or abusive as this is a drastic remedy to be applied with caution and restraint. As for the transfer of a trial to a jurisdiction outside of the U.S., courts will only grant
2940-500: The police in Paraguay, but the case went nowhere. Subsequently, the Filártigas' attorney was arrested, imprisoned, and threatened with death. He was later allegedly disbarred without just cause. In 1978, Dolly Filártiga and (separately) Américo Peña-Irala came to the United States. Dolly applied for political asylum, while Peña had stayed living and working illegally after entering under a visitor's visa. Dolly learned of Peña's presence in
3000-408: The proceeding. This concern is balanced against the public policy of deferring to a plaintiff's choice of venue in claims where there may be more than one appropriate jurisdiction. The underlying principles, such as basing respect given to foreign courts on reciprocal respect or comity , also apply in civil law systems in the form of the legal doctrine of lis alibi pendens . Forum non conveniens
3060-484: The question of jurisdiction must be settled. Scholars and jurists agree that the concept is of a Scottish origin. Many early Scottish cases invoking FNC were under admiralty law . FNC thus may ultimately have a civil law origin, as has been asserted by several writers, since admiralty law is based in civil law concepts. However, there is no equivalent in the French Civil Code or Roman law . In Scotland ,
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#17330851880233120-673: The rule in Voth v Manildra Flourd Mills (1990) 171 CLR 538. This decision affirmed the judgement of Justice Deane in Oceanic Sun Line Special Shipping Co v Fay (1988) 165 CLR 197, whereby his Honour departed from the traditional test and articulated the "clearly inappropriate forum" test. In Voth , the High Court of Australia refused to adopt the "more appropriate forum" approach and instead affirmed Justice Deane's test. This approach requires that continuation of proceedings in Australia would cause vexation or oppression on
3180-477: The same subject matter were initiated in another jurisdiction. The doctrine of FNC in Canada was considered in Amchem Products Inc. v. British Columbia Worker's Compensation Board , [1993] 1 S.C.R. 897. The Court held that the test for striking out a claim for FNC is where "there is another forum that is clearly more appropriate than the domestic forum." If the forums are both found to be equally convenient,
3240-459: The ship nor its owners have violated American law in any way, and the local court is not in a good position to hear witnesses who are all resident in other states. Further, major liability in demurrage to the innocent charterers, forwarders, etc. will be incurred if the ship is detained without just cause, so it would not be unreasonable for the Federal Court to decline jurisdiction. Whether there
3300-527: The time, and Peña was the Inspector General of Police in Asunción , the capital of Paraguay. Later that same day, police brought Dolly Filártiga (Joelito's sister) to see the body, which evidenced marks of severe torture. The Filártigas claimed that Joelito was tortured in retaliation for the political activities and beliefs of his father Joel Filártiga . Filártiga brought murder charges against Peña and
3360-599: The transfer if a foreign court is “more appropriate”, and there may be a real opportunity to obtain justice there. In New York, for example, there is a strong presumption in favor of the plaintiff's choice of forum. See Gulf Oil v. Gilbert, 330 U.S. 501, 508 (1947); R. Maganlal & Co., 942 F.2d 164, 167 (2nd Cir. 1991); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 101 (2d Cir. 2000); and Maran Coal Corp. V. Societe Generale de Surveillance S.A., No. 92 CIV 8728, 1993 US.Dist. LEXIS 12160 at *6 (S.D.N.Y. September 2, 1993). A defendant must show compelling evidence in order to disturb
3420-493: Was allowed for only the most egregious international crimes. This was further limited in Kiobel v. Royal Dutch Petroleum Co. , where it was affirmed that there was a presumption against extraterritoriality and that "mere corporate presence" in the United States was not enough to overcome that presumption in cases where all the alleged wrongful acts were committed outside the United States by a foreign corporate defendant. The scope of ATS
3480-468: Was expanded and applied in the 1860s (in Clements v Macauley [1866] 4 S 224 and Longworth v Hope [1865] 3 S 1049), which led to its incorporation into English law. The pleading was used in situations where the competence of the court was unchallenged (unlike forum non competens ) but the court was asked to invoke its discretion. The doctrine had been applied in several jurisdictions under varying names; in
3540-693: Was more strictly limited to preclude foreign corporate defendants as parties in Jesner v. Arab Bank, PLC . ATS claims have been limited to foreign national plaintiffs and did not provide jurisdiction for lawsuits against foreign governments. Eleven years after Filartiga , Congress enacted the Torture Victims Protection Act , creating a cause of action which, until then, had existed in the common law , however this too has been restricted in scope to individuals who torture or commit extrajudicial killings, and not to corporations or political associations like
3600-444: Was “perfectly reasonable to sue in the US”. The doctrine of FNC gained little footing in the civil law world, which prefers the approach of lis alibi pendens (see Articles 21-23 Brussels Convention). The civil law jurisdictions generally base jurisdiction on the residence of the defendant and on choice of law rules favouring the habitual residence of the parties, the lex situs , and
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