Forum non conveniens, Ecuador.   Forum non conveniens, Ecuador. This country rejects cases filed in it under the mentioned theory, due to lack of jurisdiction. The excerpts that follow are citations from their complete originals, filed in Delgado v. Shell Co., 890 F. Supp. (S.D. Tex. 1995). The declaration of Congress, as well as the opinion of the Attorney General’s Office, partially transcribed below, derive from the same case. A complete version of the opinion from the Attorney General’s Office can fe found in Maria Aguinda et al. v. Texaco, Inc., USDC, S.D., NY. It should be added that in Latin America, the decision of a foreign judge, with jurisdiction over the case, ordering the plaintiffs to file such case in another country is seen as politically offensive.

            Public Declaration of the President of the International Affairs Commission of the Honorable National Congress of Ecuador, Don Gustavo Larrea, signed on 1/25/95:

            Companies of highly industrialized countries import technical procedures and goods capable of causing accidents of catastrophic proportions, with hundreds or thousands of victims, or causing severe damage to the environment. Our judicial system, in responding to a socioeconomic reality that is different from that of highly industrialized countries, is not designed to resolve massive accidents of catastrophic proportions as a result of the application of dangerous industrial techniques or the use of a highly noxious substance. It is not just, or proper, that the harm caused by products or highly noxious techniques from societies of great industrial development be redressed only by our Judiciary Power, which, logically, is not adequately equipped with the infrastructure or mechanisms necessary for these cases. (Page 2).

            Our legal system accords the plaintiff in a personal action the right to choose the defendant’s domiciliary courts as the forum. When there is concurrent jurisdiction between our courts and a foreign court –and when the foreign country concerned also considers that there is concurrent jurisdiction- the choice of the foreign court by a national plaintiff is completely valid accorfding to both legal systems in question. In that case, if the foreign court imposes on the natinal plaintiff the obligation to return to his country and to refile the petition here, it is also imposing upon our Judiciary Power to adjudicate the case and to completely disregard the mentioned legal principle that accords the plaintiff the choice of forum. (Page 2).

            The application of the theory of forum non conveniens violates various multilateral international treaties, among which: the Convention to Determine the Condition of Foreigners in the Territory of the Contracting Parties, article 5, the American Declaration of the Rights and Liberties of Man, arts. II, XVII and XVIII and the Universal Declaration of the Rights of Man, arts. VII and VIII. Ecuador has also signed bilateral treaties with the United States of America that give access to citizens of another country to their courts, such as the Treaty of Peace, Friendship and Commerce signed by both countries on June 13, 1839. (Page 3).

            Official Opinion of the Attorney General’s Office, signed by Don Leonidas Plaza Verduga, on 15/1/97, in a letter addressed to the US Attorney General, Ms. Janet Reno:

            If according to this Treaty [bilateral treaty of Peace, Friendship, commerce and navigation] the access to the courts is open and free, it is not clear how the application of a judicial theory (“forum non conveniens”), inferior in ranking to international treaties, can close the doors of American courts to citizens of my country. (Page 2).

            The bilateral treaty makes certain that the doors of our courts are not closed on American plaintiffs because of their condition as foreigners. It is because of that, among other reasons, that the Ecuadorian plaintiffs in the two cases, to which this letter obeys, expected reciprocity from American judges. (Page 2).

            Such reciprocity is not only a basic element of international comity, but it facilitates juridical cooperation between our two countries, which Ecuador has a genuine desire to increase, to help fighting common problems, such as the illicit traffic of drugs and others that, unfortunately, has received a strong blow with the behavior of American courts concerning cases where Ecuadorian citizens have an interest. (Page 2).

            My country considers that our citizens are treated in a discriminatory way due to the application of the “forum non conveniens” theory. An example of such discrimination is reflected in the order handed down by the Honorable Judge Sim Lake, the pertinent part of which says, in Spanish, as follows:

            “While the district courts must respect the choice of forum made by an American plaintiff, the choice of an American forum made by a foreign plaintiff deserves less deference.” (Lineas Maritimas Argentinas v. Schichau – Unter Wsser) (Emphasis added) (Case cited by Judge Sim Lake in his decision of Jully 11, 1995, pages 1365 and 1366). (Page 3).

            It would then seem that citizens of my country, just for being foreign, are considered as second class citizens and receive a less favorable treatment than that afforded to American nationals. This does not happen in my country, since Ecuadorian courts treat American citizens in the same way as Ecuadorian citizens, without any kind of discrimination. (Page 3).

            What does behoove us is to state our deep regret when seeing that Ecuadorian citizens are given, in the United States of America, a discriminatory treatment in court, notwithstanding that the bilateral treaties in force between both nations preclude such situation. (Page 3).

            Interpretative Law of Articles 27, 28, 29 and 30 of the Code of Civil Procedure for Cases of International Concurrent Jurisdiction, published in the Registro Oficial, 1/30/98, pp. 1 and 2:

            Art. 1  Without prejudice to their literal meaning, articles 27, 28, 29 and 30 of the Code of Civil Procedure shall be interpreted in the sense that in case of concurrent international jurisdiction, the plaintiff may freely choose between bringing suit in Ecuador or in a foreign country, except when an explicit statute provides that the matter shall be exclusively settled by Ecuadorian courts, such as in the case of a divorce action of an Ecuadorian national who contracted marriage in Ecuador. If a suit were to be filed outside Ecuador, the national competence and jurisdiction of Ecuadorian courts shall be definitely extinguished.

            Art. 2  This law shall become effective after its publication in the Registro Oficial, it is a special law and, as such, it shall prevail over any opposing law, whether general or special.

Latin American Materials on Forum Non Conveniens.

Source: Dahl’s Law Dictionary, Spanish and English (NY, third edition, 1999) pp. 218 - 240).