DEFERRING TO FOREIGN COURTS.

• Author: Gardner, Maggie

INTRODUCTION 2292 I. A TALE OF TWO DISMISSALS 2300 A. The Forum Non Conveniens Dismissal 2302 1. The Evolution of Forum Non Conveniens 2302 2. Application in Imamura v. General Electric Co 2304 B. The "International Comity Abstention" Dismissal 2310 1. The Many Doctrines of "International Comity 2310 Abstention" 2. Application in Cooper v. TEPCO 2314 II. A ROADMAP TO TRANSNATIONAL ABSTENTION 2317 A. Forum Non Conveniens 2318 1. Simplifying the Threshold Inquiries 2319 2. Updating the Private Interest Factors 2321 3. Clarifying the Public Interest Factors 2325 B. Foreign Parallel Proceedings 2330 1. Current Approaches 2331 2. A Consolidated Approach 2333 C. Cross-Border Bankruptcies 2340 D. Inappropriate Bases for Transnational Abstention 2342 1. Rejecting Prudential Exhaustion 2342 2. Rejecting Foreign Relations Abstention 2343 3. Distinguishing Preclusion and Statutory Interpretation 2345 CONCLUSION 2349 INTRODUCTION

In the spring of 2020, both the First Circuit and the Ninth Circuit affirmed dismissals of tort cases arising out of the 2011 Fukushima Daiichi Nuclear Power Plant disaster in Japan. Though the outcome was the same, the courts got there by invoking different, highly discretionary doctrines. In the First Circuit case, Imamura v. General Electric Co., Japanese plaintiffs who lived near the Fukushima power plant sued General Electric, which had designed, constructed, and helped maintain the plant's boiling water reactors, in General Electrics home state of Massachusetts. (1) That case was dismissed for forum non conveniens, a doctrine focused on "considerations of [party] convenience and judicial efficiency." (2) In the Ninth Circuit case, Cooper v. Tokyo Electric Power Co. Holdings, U.S. servicemembers who were serving in a humanitarian mission at the time of the meltdown sued Tokyo Electric Power Company (TEPCO), the operator of the plant. (3) That case, brought in California where many of the plaintiffs were stationed, was dismissed for "[i]nternational comity... abstention," a new Ninth Circuit doctrine that permits abstention "where the issues to be resolved are 'entangled in international relations.'" (4)

But these dismissals were not really about defendant inconvenience or international relations: General Electric was sued in its home forum in Imamura, (5) while Cooper was dismissed despite the Executive Branch's preference for retaining jurisdiction. (6) Rather, what appeared to motivate the judges in both cases was Japan's decision to channel all liability to a single defendant (TEPCO), which it had made strictly liable for the disaster and for which it was largely footing the bill. (7) In other words, Japan had particularly strong interests in adjudicating these cases: not only was the disaster a matter of major national importance, implicating government decisionmakers and primarily impacting Japanese citizens, and not only would Japanese law apply even if the cases were heard in California or Massachusetts, (8) but Japan was also bankrolling an effort to resolve millions of claims as part of a trade-off it had made decades earlier to further a particular governmental policy (that of promoting nuclear power). (9) The framing of both forum non conveniens and international comity abstention forced the U.S. judges to address these valid adjudicatory interests indirectly, channeled through factors that shifted emphasis to convenience or politics and required some creative justifications.

This Article uses the Fukushima cases as an opportunity to step back and take stock of the grounds on which federal courts may decline their jurisdiction in transnational cases. (10) For simplicity, I refer to these doctrines of negative adjudicative comity as forms of transnational abstention given that they are all "judicially created doctrines under which federal courts may choose to decline to exercise their jurisdiction over cases otherwise appropriately before them." (11) This category includes the doctrine of forum non conveniens, the various tests employed by the federal circuits to defer to foreign parallel proceedings, (12) deference to foreign bankruptcy proceedings, prudential exhaustion requirements, and foreign relations abstention. The use of these abstention doctrines varies significantly across the federal circuits, which have developed different tests for forum non conveniens and foreign parallel proceedings, as well as different understandings of what exactly "international comity abstention" means. (13) The version of international comity abstention applied in Cooper, for example, has only been recognized by the Ninth and Eleventh Circuits, while the Third Circuit has rejected it; (14) the Supreme Court seemed poised to resolve that circuit split last Term, but then managed to avoid the question (again). (15)

In short, federal doctrines of transnational abstention remain uncertain and undertheorized twenty years after Professor Stephen Burbank published the article on which this festschrift contribution builds. In Jurisdictional Equilibration, the Proposed Hague Convention and Progress in International Law, Professor Burbank used the ill-fated negotiations over a judgments-and-jurisdiction treaty to propose domestic reforms for forum non conveniens, lis alibi pendens, and antisuit injunctions. (16) Particularly given the context of treaty negotiations, his focus was on legislative reform. But Congress continues to show little interest in legislating transnational procedure, perhaps dissuaded by cries of state prerogatives or distracted by the more exciting business of unilaterally undermining sovereign immunity for a select set of transnational cases. (17) And while a judgments convention has now been achieved, paving the way for renewed negotiations regarding a jurisdictional addendum, (18) it is hard to imagine Congress turning to such relatively low-profile issues in the near term. For now, any salvation (to borrow Professor Kevin Clermont's contemporaneous turn of phrase) will have to come from the courts themselves, working through the fragmented, gradual and imperfect process of common law decisionmaking. (19) In updating Professor Burbank's prescriptions for doctrines of jurisdictional equilibration, then, this Article focuses on what the lower federal courts can and are doing on their own. It treats the federal circuits as true laboratories of innovation, with some experiments that have failed, but also some that have worked. Its practical goal is to help identify the successful experiments and to defend the wider adoption of those experiments in lieu of more problematic ones.

In building that roadmap, I start from the understanding that abstention is generally disfavored because it impinges on Congress's authority to define the jurisdiction of the federal courts. (20) That initial presumption is critical because the judicial power to decline jurisdiction, if widely invoked or loosely applied, can impede Congress's efforts to provide forums for certain litigants or to provide relief for particular wrongs. In an era of judge-led procedural retrenchment, (21) federal judges should be wary of further restricting Congress's powers via discretionary judge-made doctrines. Yet instead of narrowing those safety valves, the lower federal courts have been creating new bases for abstention in transnational cases. From the perspective of Congress and state legislators, this expanding discretion in the lower courts further displaces their ability to decide what rights can be vindicated and by whom. (22)

To the extent that forum non conveniens reflects abstention from personal jurisdiction rather than (or in addition to) subject matter jurisdiction, (23) the need for such equilibration has decreased significantly since Gulf Oil Co. v. Gilbert. (24) Since it first recognized the doctrine of forum non conveniens in Gulf Oil, the Supreme Court has curtailed the use of attachment jurisdiction (25) and "doing business" jurisdiction. (26) It has also added reasonableness factors to the personal jurisdiction analysis (27) and signaled in recent years an interest in cabining specific jurisdiction. (28) As the Court narrows the constitutionally permissible scope of personal jurisdiction (for better or for worse), there should be less need for jurisdictional safety valves like forum non conveniens that enable case-by-case correction for exorbitant jurisdictional claims. (29)

In gathering best practices and potential reforms, I also favor simpler tests for two reasons. First, in practical terms, unnecessarily complex tests can make the work of judging harder as judges strain to interpret and apply unhelpful or repetitive factors. Second, that practical difficulty in applying needlessly complex or outdated tests can encourage heuristics to accumulate within a doctrine, leading to distortions in the doctrine and thus in case outcomes over time. (30) Favoring simpler tests means excising redundant factors, updating anachronistic factors, specifying vague factors, and clarifying (or dropping) ill-fitting factors.

Tests are also easier to apply when they address directly the questions that judges are struggling to answer. The Fukushima cases illustrate that current doctrines of transnational abstention inadequately address the problem of competing adjudicatory interests. (31) I purposefully use the term "adjudicatory interests" in contrast to the more familiar term of "regulatory interests." Regulatory (or prescriptive) interests relate to a sovereign's interest in having its law applied to the parties' conduct. Regulatory interests are already addressed through choice of law and various related doctrines (including the presumption against extraterritoriality, (32) the admittedly vague concept of "unreasonable interference," (33) and the now-outdated Section 403 factors, (34) which were based on the Timberlane factors (35)). But just because a sovereign has a greater interest in regulating...