"Equal treaty rights": a response to Professor Paust.

• Author: Weintraub, Russell J.
• Position: Response to Jordan J. Paust, Houston Journal of International Law, vol. 26, p. 405, Winter 2004

1. THERE IS NO AUTHORITY THAT BASING FORUM NON CONVENIENS DECISIONS ON PLAINTIFF'S RESIDENCE VIOLATES U.S. TREATIES

   Professor Jordan J. Paust published an article in this Journal contending that Texas Civil Practice and Remedies Code section 71.051 is "violative of treaty law of the United States and cannot prevail under the Supremacy Clause of the U.S. Constitution." (1) The opinions that Professor Paust cites from the European Court of Human Rights and the United Nations Human Rights Committee do not support his contention but, on the contrary, refute it.

   According to Professor Paust, the fatal defect in section 71.051 is that it permits a forum non conveniens stay or dismissal of a suit brought by a plaintiff who is not a Texas resident but forbids such a stay or dismissal "if the plaintiff is a legal resident of this state." (2) Professor Paust asserts that discrimination on the basis of who is a "legal resident," which the statute defines as the equivalent of domicile, (3) violates numerous U.S. Friendship, Commerce, and Navigation treaties that promise to afford citizens of other countries access to U.S. courts equivalent to the access of U.S. citizens. (4) Moreover, he contends that residence is a "status" within the meaning of Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR), (5) which contains one of the basic undertakings of the ICCPR parties:

   Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (6) Because residence is a "status," Professor Paust asserts that any discrimination based on residence violates Article 2(1).

2. NATIONAL TREATMENT

   Professor Paust characterizes an article that I published in 1994 as "assuming in error" (7) that, because section 71.051 discriminates on the basis of residence and not citizenship, it does not violate U.S. treaties that guarantee citizens of foreign countries equal access to U.S. courts with U.S. citizens. (8) My position in 1994 and today is that if a treaty guarantees citizens of other countries equal access to our courts with U.S. citizens, a court that would deny access to a non-resident U.S. citizen is free to deny access to a non-resident citizen of another country. The Second Circuit has recently agreed with the statement that I made nine years previously:

   Plaintiffs are only entitled, at best, to the lesser deference afforded a U.S. citizen living abroad who sues in a U.S. forum. This was precisely the level of deference the district court assigned plaintiffs' choice of forum: it gave them the same initial deference in choosing a United States court as it would a United States citizen discounted by the fact that plaintiffs are not residents of the United States. (9) Justice Marshall's majority opinion in Piper Aircraft Co. v. Reyno (10) states that "a plaintiffs choice of forum is entitled to greater deference when the plaintiff has chosen the home forum." (11) When the plaintiff does not sue at home, the plaintiffs choice of forum "deserves less deference." (12) Federal circuit courts discriminate on the basis of a U.S. citizen's residence when deciding whether to grant a forum non conveniens dismissal, because a forum in another country is more appropriate. This discrimination occurs even when the U.S. plaintiff resides in the United States but outside of the district where the plaintiff has sued. In Gemini Capital Group, Inc. v. Yap Fishing Corp., (13) the Ninth Circuit affirmed a forum non conveniens dismissal of a California corporation's suit in the District of Hawaii, stating that the trial court properly gave plaintiffs choice of forum "less deference" than would have been given to a Hawaiian company suing in its home state. (14) In Iragorri v. United Technologies Corp., (15) the Second Circuit, sitting en banc, took a more nuanced approach to when a district judge should give less deference to the choice of forum by a plaintiff who resides in the United States but outside the district:

   It is not a correct understanding of the rule to accord deference only when the suit is brought in the plaintiffs home district. Rather, the court must consider a plaintiffs likely motivations in light of all the relevant indications. We thus understand the Supreme Court's teachings on the deference due to plaintiffs forum choice as instructing that we give greater deference to a plaintiffs forum choice to the extent that it was motivated by legitimate reasons, including the plaintiffs convenience and the ability of a U.S. resident plaintiff to obtain jurisdiction over the defendant, and diminishing deference to a plaintiffs forum choice to the extent that it was motivated by tactical advantage. (16) The reason why residence is an important factor when a trial judge rules on a forum non conveniens motion is the common sense suspicion that a plaintiff who could sue at home but chooses not to is forum shopping. As Justice Jackson explained, "[a]n advantage which it is hoped will be reflected in a judgment is what makes plaintiffs leave home and incur burdens of expense and inconvenience that would be regarded as oppressive if forced upon them." (17)

   In...