International tribunals and forum non conveniens analysis.

• Author: Bergsieker, Ryan T.

Nemariam v. Federal Democratic Republic of Ethiopia, 315 F.3d 390 (D.C. Cir.), cert. denied, 124 S. Ct. 278 (2003).

Many international civil disputes are resolved via state-driven litigation before multinational tribunals. Indeed, under traditional principles of international law, individuals may not appear before such tribunals at all. Instead, states must advance claims on behalf of their nationals, a procedure known as diplomatic espousal. (1)

As the D.C. Circuit's decision in Nemariam v. Federal Democratic Republic of Ethiopia (2) demonstrates, U.S. courts rarely consider such international tribunals adequate to vindicate individual claimants' interests, because the tribunals' procedures are often in tension with American notions of due process. Accordingly, many courts find that international tribunals are inadequate alternative forums under forum non conveniens analysis. (3) In so holding, courts are allowing forum non conveniens, a doctrine developed to balance proceedings between courts, to undermine the authority of international tribunals--a very different type of adjudicative body.

This Comment argues that, in evaluating whether an international tribunal is an adequate alternative forum under forum non conveniens analysis, U.S. courts should focus less on formalistic factors like the identities of the parties who espouse claims before the tribunal and more on the ability of those parties to represent the interests of the individuals whose claims they advance. (4) Emphasizing interest representation, rather than party structure, would help U.S. courts avoid undercutting established international institutions; lessen the perception of U.S. courts as disconnected players in a multilateral world; and allow war-torn states to devote their resources to broad-based compensation and redevelopment, rather than to the litigation of private claims in multiple forums.

Part I of this Comment details the background of the Nemariam dispute and describes the D.C. Circuit's holding. Part II explains why the D.C. Circuit's decision is so troubling and argues that the decision's focus on party structure is inappropriate when considering the adequacy of an international tribunal as an alternative forum. Part III lays out alternative bases for the court's holding that would be more consistent with settled international law and would pose less of a threat to the continued effectiveness of international dispute resolution bodies. Part IV concludes.

I

In May 1998, a simmering border dispute between Ethiopia and Eritrea erupted into war. By October 1999, the government of Ethiopia had expelled 30,000 to 70,000 Eritreans and Ethiopians of Eritrean descent from the country. (5) Many of the deportees were merchants; the Ethiopian government froze their assets and revoked their business licenses. (6)

In June 2000, Ethiopia and Eritrea signed a provisional cease-fire; six months later, the nations formally agreed to end their dispute. (7) The peace treaty between the nations created a Claims Commission charged with, inter alia, using binding arbitration to decide all conflict-related claims for loss, damage, or injury by the nationals of one nation against the government of the other resulting from violations of international law. (8) By the terms of the agreement, individuals cannot bring claims before the Commission. Instead, each government may bring claims on behalf of its nationals and certain other individuals. (9)

One of the merchants expelled from Ethiopia was Hiwot Nemariam. After her expulsion, Nemariam emigrated to the United States. She brought suit against the government of Ethiopia and its national commercial bank, which controlled her confiscated assets, in federal court in June 2000--just days after the signing of the cease-fire agreement. (10)

In November 2000, Ethiopia and the national bank moved to dismiss Nemariam's federal case, in part on forum non conveniens grounds. Nine months later, the district court granted the motion, determining that the Commission provided an adequate alternative forum and that the private and public interest factors key to forum non conveniens analysis weighed decisively in favor of the Commission.

However, the D.C. Circuit reversed, holding that the Commission did not provide an adequate alternative forum to aggrieved individuals and reinstating Nemariam's federal court case. The court focused only on the first part of the forum non conveniens test and was troubled by two factors. (11) First, the Commission could not award relief directly to individuals, who could not be parties before it. Second, because individuals could not appear before the Commission, the governments bringing claims on their behalf could potentially set off individuals' claims. That is, the governments could net out the amounts they each owed to the other's nationals, with the government that owed a net amount paying only that amount to the other for distribution.

II

At first glance, the D.C...