Hannah L. Buxbaum on “Foreign Governments as Plaintiffs in U.S. Courts and the Case Against “’Judicial Imperialism’”

In Foreign Governments as Plaintiffs in U.S. Courts and the Case Against “Judicial Imperialism” (Washington and Lee Law Review, forthcoming, 2016) Professor Hannah L. Buxbaum refutes the prevalent claim that the application by U.S. courts of U.S. law to persons or conduct within foreign countries necessarily interferes with their sovereignty and amounts to “judicial imperialism.” Professor Buxbaum offers a typology of almost 300 claims initiated by foreign governments in U.S. courts which includes suits for damages suffered within the foreign jurisdiction (such as India’s claim concerning the Bhopal disaster). She demonstrates that “the imperialism narrative interferes with a fair assessment of the judicial role in global governance.”

As she points out, several of the foreign governments that sue in U.S. courts cite the potential benefits to their citizens who otherwise would have no meaningful opportunity to obtain compensation locally. Others have claimed that the U.S. defendants (such as tobacco companies) had participated in practices that harmed the foreign governments by depriving them of tax revenue, which, they argued, violated U.S. law (one such suit that is still pending was brought by the European Community against RJR Nabisco).

Where the damaging conduct affects many countries simultaneously, “the lack of adequate regulation in some jurisdictions means that the actors may realize a gain from their conduct despite paying fines or damages in others … such conduct will be insufficiently deterred, creating additional enforcement costs even in the jurisdictions that do have effective regulation. All countries affected by such activity, in other words, have a domestic interest in ensuring adequate levels of regulation at the global level.”