by Ashley Deeks
VOLUME 55 :: No. 2
VOLUME 55 :: No. 2
The Cape Town Convention’s Improbable-but-Possible Progeny Part Two: Bilateral Investment Treaty-Like Enforcement Mechanism
This Note will explore four additional justifications for refusing to certify a class consisting of foreign citizens — justifications that draw on and are bound up with the doctrine of forum non conveniens. These justifications are occasionally evaluated by district courts in concluding whether to certify a class, but are not relied on often enough, and the academic literature only discusses them sparingly and descriptively.
First, if choice of law principles dictate that foreign law applies to foreign class members, the class will likely fail the commonality and typicality requirements of Rule 23(a) and the superiority and predominance requirements of Rule 23(b)(3). Second, including foreign citizens would increase the manageability burdens on overtaxed U.S. courts, which could fail the requirements imposed by Rules 23(b)(3)(C) and 23(b)(3)(D). Third and related, courts have found that including foreign citizens would fail to provide the superior method to resolve the dispute under Rule 23(b)(3) because of the difficulty of providing notice to foreign citizens. Fourth, as the class action device becomes more common in foreign countries, comity concerns should cause U.S. courts not to include foreign plaintiffs who have a remedy easily available in their home countries. While some courts have occasionally invoked each of these latter four justifications, many courts have often based their decisions of whether to certify a class consisting of foreign plaintiffs by trying to predict if a foreign country would give preclusive effect to their judgment. In short, there is little consensus on the criteria best suited to resolving this important issue.
This Note will argue that the principles of the doctrine of forum non conveniens should be more frequently applied to prevent certification of a class consisting of any foreign citizens for the four reasons that courts and commentators often overlook. These arguments provide a more administrable approach for deciding certification rather than that of a court attempting to discern whether a foreign court would preclude class members from getting a second bite in subsequent litigation in a foreign forum.
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