How Corrupt Are Your Courts? Too Corrupt To Be Fair?





  • First, when plaintiffs forcefully argue that their claims will not get an adequate hearing due to judicial corruption, we should take those allegations seriously. After all, a court system susceptible to bribery or other improper influence cannot be fair and impartial. If we believe, as the Canadian court in Norex Petroleum did, that “[n]o litigant should have to run the risk that the court hearing the dispute might be corrupt,” the value of plaintiff’s access to justice and a fair trial should be weighed more heavily than concerns about international comity.
  • Second, by treating the corruption of a foreign forum with the level of seriousness that the impact of corruption can have on the fairness and integrity of a courtroom, the US judiciary could take a strong stand against judicial corruption, and thereby play a more active, albeit indirect, role in global anticorruption efforts.

That said, even if the standard of review were adjusted, courts would still need to devise a reliable way to assess claims of foreign judicial corruption. Both US and Canadian courts currently rely on a haphazard mix of expert affidavits and foreign office country reports, which most judges are not well-equipped to evaluate, and which tends to produce inconsistent outcomes. Expert affidavits in particular are particularly open to subjective interpretations that produce inconsistent outcomes across court systems (in Norex, the US court based its ruling, in part, on the credibility of the defendant’s expert over that of the plaintiff’s). Instead, rather than depend on plaintiffs and defendants to provide whatever evidence they think would be most persuasive, courts should clarify that they will consider only a narrower and more standardized set of tools for evaluating allegations of foreign judicial corruption. Consistent with the American judiciary’s deference to the executive in international matters, eliminating the role of expert witnesses entirely and relying on US State Department assessments could provide courts with a consistent doctrinal approach (though this might actually make these assessments even more defendant friendly). Alternatively, courts could rely on an international ranking or establish a threshold level that judiciaries need to meet on the World Justice Project’s rule of law score.

American courts pride themselves on their ability to provide adequate protections to litigants while maximizing administrability and consistency. Current forum non conveniens jurisprudence fails to ensure a fair hearing for plaintiffs and is frequently inconsistent and unclear. If judicial corruption is a serious enough concern that the American Bar Association recently launched a judicial integrity initiative, and American courts consider impartiality and reliability to be important systemic values, then courts should standardize they way they assess the adequacy of a foreign forum and weigh corruption allegations more heavily when considering forum non conveniens motions in the context of transnational litigation.

3 thoughts on “How Corrupt Are Your Courts? Too Corrupt To Be Fair?

  1. Thanks for the great post Travis. I’m left wondering about two things. Firstly, are there other kinds of cases for which the judiciary is deferential to State Department reports? Or international organization rankings like the World Justice Project’s? Perhaps the former, but I imagine a few of the Justices on the Supreme Court would be apoplectic if they saw a federal court rely on an IO’s rankings.

    Secondly, you mention in passing that the plaintiff’s access to justice should be given more weight than comity concerns. Do you have any recommendations for how to balance them? I’m in favor of judges explicitly discussing their relative values for the case before them, but I think many would consider the two to be apples and oranges.

  2. I am curious to what extent parties are able t use contracting to preempt the use of potentially corrupt jurisdictions. It would imagine that the failure to block forum non conveniens motions in the U.S. has either led to additional contractual language surrounding jurisdiction or encouraged more parties to turn to arbitration rather than risk getting mired in a corrupt jurisdiction.

  3. How Corrupt Are Your Courts? Too Corrupt To Be Fair?

    -I am really appreciated with this post from Travis. ‘Court’ the very name is enough to understand – what is CORRUPTION. I have very limited idea about the writings and article referring ‘Court’. But abundant articles are there to criticize the legal stories around this world.
    However, in this opportunity, I have to say some basics about ‘Court’. In democratic development court is the final institution to stamp against a complain within a constitutional purview of a sovereign country. Any fail in judiciary is also a final rescue from a criminal act of any level, and on the contrary, an innocent may be convicted for punishment, even to hang.
    Such a systemic-game is the major weapons of political leaders of democracy. That means a open ‘Hub of CORRUPTION’.
    On the said perspectives, so many bla- bla-bla/s are without any scientific meaning to come to a conclusion or solve. As per humanitarian point of view, justice must be open to all of mankind. But the total system is money-oriented, first. Then anyone of no-money is not entitle for judgment at all. Again, when one is enough of needful money, then competition arrives with manipulation of documents and proofs. When there is sufficient documents or proofs, then scale of argument makes major role for final court order. It is just in a nut-shell, actually it is a “Mahabharat”.
    All these steps are involved of a number of peoples who are well trained and motivated to earn money in exchange of their activities- within legal part and outside of legal part.
    It is completely irrespective of any country’s constitutional boundaries. Now there is the more sophisticated play-ground to change the judicial modification by direct application of governmental power, which is overall beyond of legal institution.
    Why, why, why such meaningless arguments are being considering for scientific articles or comments??

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