Dangerous Foreign Courts

Image by Ray Shrewsberry • Ray_Shrewsberry from Pixabay

U.S. courts have long recognized that certain civil cases should not be litigated in the United States. Even when a U.S. court has jurisdiction, a case may still be dismissed for forum non conveniens if the court concludes that the case would be more appropriately heard in the courts of another country. This inquiry typically requires a court to consider a range of factors to decide whether the case should be dismissed. In some cases, however, plaintiffs advance a chilling argument as to why the case must remain in the United States. They argue that they will be killed or injured if they are required to bring a lawsuit in a particular foreign country.

This argument puts U.S. courts between a rock and a hard place. If they dismiss the case, the plaintiff may abandon an otherwise meritorious claim to avoid the risk of death or bodily harm. If they conclude that it is too dangerous for the plaintiff to litigate in the alternative forum, that country’s government may take offense.

I recently posted a draft of a new article to SSRN that offers guidance to judges on how best to grapple with this dilemma. The article draws upon an original dataset of sixty-one cases where the courts addressed the issue of dangerousness to offer a quantitative account of which countries are most often alleged to be dangerous and when these allegations are most likely to succeed in persuading U.S. courts to retain jurisdiction. It then draws upon this same dataset to provide a qualitative account of the doctrinal rules that U.S. courts use to assess claims of dangerousness. Among other things, the article shows that U.S. courts are far more willing to credit allegations of danger in human rights cases than in cases where the plaintiff has previously agreed to litigate the case in a foreign court. The article concludes by offering concrete suggestions for how U.S. courts should analyze the issue of dangerousness going forward.

The article may be downloaded here.