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Report No. 188

Anomalies in US & UK decisions where aliens are plaintiffs and where aliens are defendants:

Indeed, there are serious anomalies in the approach of US and UK Courts on the application of the principle of 'forum non-conveniens'. A particular contrast in the approach of the foreign courts towards Indian plaintiffs as distinguished from foreign plaintiffs, needs to be referred to.

Mostly, if the defendants are aliens, then these foreign Courts take up the cases immediately on the ground of delay of Courts in the country of the alien. If the alien is the plaintiff, the same Courts relegate the plaintiff to the Courts in the country of the alien. These contrasts in the judgments of American and UK Courts have, in fact, been analysed and criticised by several jurists. (See in this context (A) 'Forum Non Conveniens' in America and England: "A Rather Fantastic Fiction' by Dasvid W.

Robertson, Professor of Law, Texas University: (1987) Vol 103 Law Quarterly Review p 398; (B) Bhopal, Bouganville and O.K. Tedi: Why Australia's Non Conveniens approach is Better' by Peter Prince Vol 47, International and Comparative Quarterly, 1998, page 573); and (C) 'Trial in England and Abroad:

The Underlying Policy Considerations, Vol. 9, Oxford Journal of Legal Affairs, p 205). Robertson has, in fact, pointed out that where aliens come to US and file cases against residents of USA or where aliens sue aliens in USA, the US Courts tend to relegate the plaintiffs to their home country by specially glorifying the Court systems of the aliens' home countries; but where US residents or foreigners sue aliens in US, the Courts apply the doctrine of 'forum non conveniens' and hold that the courts of the aliens' country are not appropriate courts as they are dogged by enormous delays or that judges abroad do not have the same expertise as those in US. (p. 405). We shall refer to the typical cases which vividly expose this kind of an attitude.

(A) The Bhopal case is an example in point. Thousands of deaths occurred in India at Bhopal due to gas pollution by the US multinational Union Carbide's plant at Bhopal. When claims were filed in US Courts by or on behalf of Indian victims against Union Carbide in US, Judge Keenan of the US District Court, South District of New York, while dismissing the claims and relegating the victims to Indian Courts paid rich tributes to the Indian judicial system. (See In re Union Carbide Corpn Gas Plant Disaster at Bhopal)(1986) 634, F. Suppl 842 (S.D.N.Y). Judge Keenan observed:

"In the Court's view, to retain the litigation in this forum, as plaintiff's request, would be yet another example of imperialising another situation in which an established sovereign inflicted its rules, its standards and values on a developing nation. This Court declines to play such a role. The Union of India is a world power in 1986 and its courts have the proven capacity to mete out fair and equal justice. To deprive the Indian judiciary of this opportunity to stand tall before the world and to pass judgment on behalf of its own people, would be to revive a history of subservience and subjugation from which India has emerged. India and its people can and must vindicate their claims before the independent and legitimate judiciary created there since the Independence of 1947".

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