CHAPTER 3 TORT LITIGATION IN HOME COUNTRY COURTS BASED ON OPERATIONS IN DEVELOPING COUNTRIES

• Jurisdiction: Derecho Internacional

Mining And Oil & Gas Development In Latin America
(2001)
CHAPTER 3
TORT LITIGATION IN HOME COUNTRY COURTS BASED ON OPERATIONS IN DEVELOPING COUNTRIES
Pierre D. Chenard
Alcan Inc.
Montreal, Quebec Canada

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Disclaimers

[ ] Case study with some reference to case law

[ ] No claim to thoroughness in research

[ ] Author is neither an academic nor a litigator

[ ] In-house corporate counsel, company "X" perspective

Questions Presented

[ ] Parent company X, headquartered in country A, conducts business (usually through a subsidiary, "Y") in country B

[ ] X and/or Y commit allegedly tortious/delictual conduct which is alleged to have affected persons in country B

[ ] Plaintiffs bring action in country A against X

[ ] X would prefer to see the matter litigated in country B, against Y only

Key Issues Raised

[ ] Forum selection and selection contestation issues

[ ] Corporate veil issues

[ ] Focus here is on forum selection and contestation

[ ] Corporate veil issues tend to come up (later), regardless of forum

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Why Do Plaintiffs Choose to Sue Abroad

[ ] Juridical advantage

[ ] Substantive (e.g. strict liability)

[ ] Procedural

[ ] Availability of class action proceedings

[ ] Larger awards

[ ] No confidence in home country courts (lack of resources, etc.)

[ ] Higher visibility in country A

Why Does Defendant Resist Plaintiff's Choice of Forum

[ ] Plaintiff has generally selected to its advantage; defendant has opposing interests

[ ] Juridical advantage

[ ] Lower awards

[ ] Lower visibility

Defendant's Options

[ ] Accept forum selected by plaintiff

[ ] Bring motion to dismiss (or stay) proceedings in country A based on forum non conveniens

[ ] Bring anti-suit injunction proceedings in country B to prevent plaintiffs from suing in country A

[ ] Other approaches

[ ] Focus here is on forum non conveniens

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A Word on Anti-Suit Injunctions

[] AGGRESSIVE!

[] Raises serious comity of nations issues

[] Can lead to issuance of anti-anti-suit injunctions by the courts of country A

[] See Amchem Products case [1993] 1 S.C.R. 897 (Supreme Court of Canada) for a discussion on anti-suit injunctions

Forum Non Conveniens History and Geographic Scope

[] Scottish origins

[] Concept exists in most of the relevant jurisdictions

[] USA

[] Canada

[] (including Quebec, a civil law jurisdiction)

[] UK

[] Australia

[] Analysis appears similar from one country to the other

[] Analysis is largely fact-driven

[] judicial assessment of facts is critical

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