These are consolidated appeals from judgments of the United States District
We modify the judgments in one respect explained below, but otherwise affirm the dismissal of the actions by reason of forum non conveniens.
BACKGROUND
The background of this case is described in detail in the decisions of the district court, see Aquinda v. Texaco, Inc.,
A. Texaco’s Oil Operations in Ecuador
In 1964, Texaco Petroleum Company (“TexPet”), a fourth-level subsidiary of the defendant Texaco, began oil exploration and drilling in the Oriente region of eastern Ecuador. In 1965 TexPet started operating a petroleum concession for a consortium (the “Consortium”) owned in equal shares by TexPet and Gulf Oil Corporation. In 1974 the government of the Republic of Ecuador (“Republic” or “Ecuador”), through its state-owned oil agency known as PetroEcuador, obtained a 25 percent share in the Consortium. Within two years, PetroEcuador acquired Gulf Oil’s interest and became the majority stakeholder in the Consortium. Through 1989 TexPet operated a Trans Ecuadorian oil pipeline, at which time PetroEcuador took over that function. TexPet operated the Consortium’s drilling activities until July 1990, when PetroEcuador took over that responsibility as well. In June 1992, TexPet relinquished all its interests in the Consortium, leaving it owned entirely by PetroEcuador. See Jota,
B. Prior Proceedings and Proceedings Below
1. The Complaints and Proceedings Before Judge Broderick
In November 1993, Ecuadorian plaintiffs filed the first of two class action lawsuits against Texaco in the Southern District of New York on behalf of some 30,000 inhabitants of the Oriente region. See Aguinda v. Texaco, Inc., Dkt. No. 93 Civ. 7527 (S.D.N.Y. filed Nov. 3, 1993) (‘Aguinda plaintiffs”). In December 1994, residents of Peru living downstream from Ecuador’s Oriente area brought a separate class action against Texaco in the Southern District of New York on behalf of at least 25,000 residents of Peru. See Jota v. Texaco, Inc., Dkt. No. 94 Civ. 9266 (S.D.N.Y. filed Dec. 28, 1994) (“Jota plaintiffs”). Both complaints alleged that between 1964 and 1992 Texaco’s oil operation activities polluted the rain forests and rivers in Ecuador and Peru. The complaints alleged that Texaco’s activities in Ecuador were “designed, controlled, conceived and directed ... through its operations in the United States.”
The complaints sought money damages under theories of negligence, public and private nuisance, strict liability, medical monitoring, trespass, civil conspiracy, and violations of the Alien Tort Claims Act, 28 U.S.C. § 1350 (“ATCA”). They also sought extensive equitable relief to redress contamination of the water supplies and environment, including: financing for envi
Both cases were initially assigned to Judge Vincent Broderick. In December 1993, before the Jota action was filed, Texaco moved to dismiss the Aquinda complaint on grounds of 1) failure to join the Republic of Ecuador; 2) international comity; and 3) fomm non conveniens. Along with this motion, Texaco submitted a letter from Ecuador’s ambassador to the United States addressed to the U.S. Department of State, asserting that the Government of Ecuador considered the suit an affront to Ecuador’s national sovereignty. While reserving decision, the district court stated that dismissal might be appropriate as to the money damages claims because “[disputes over class membership, determination of individualized or common damages, and the need for large amounts of testimony with interpreters, perhaps often in local dialects, would make effective adjudication in New York problematic at best.” Aguinda v. Texaco, Inc., No. 93 Civ. 7527,
2. Proceedings Before Judge Rakoff
After Judge Broderick’s death in March 1995, the cases were reassigned, ultimately to Judge Rakoff. Following discovery, in November 1996 Judge Rakoff granted Texaco’s motion to dismiss the Aquinda suit on grounds of forum non conveniens and international comity. See Aquinda,
The Republic of Ecuador then filed a motion to intervene on behalf of the plaintiffs, and submitted the affidavit of Ecuador’s Attorney General stating that the Republic sought “to protect the interests of the indigenous citizens of the Ecuadorian Amazon who were seriously affected by the environmental contamination attributed to the defendant company.” Jota,
3. Plaintiffs’ First Appeal
On appeal, this court vacated the dismissal and remanded for reconsideration. We ruled that forum non conveniens dismissal was inappropriate, “at least absent a commitment by Texaco to submit to the jurisdiction of the Ecuadorian courts.... ” Jota,
4. Events Following Remand
Following our decision, Ecuador’s ambassador to the United States informed the district court that the Republic “is not willing, under any circumstance, to waive its sovereign immunity and be subject to rulings by Courts in the United States.... Therefore, the intervention of the Republic of Ecuador as a party is not necessary.” Ecuador’s attorney general agreed to the same view in a separately submitted declaration, stating that Ecuador “will accept any decision of the U.S. courts as to whether they have jurisdiction over the matter or not, ... [b]ut the Republic will not accept or agree in any manner to become or be treated as a party to the Lawsuit.”
Texaco consented to personal jurisdiction in Ecuador as to the Aquinda plaintiffs and in Peru or Ecuador as to the Jota plaintiffs. Texaco stipulated it would waive its statute of limitations defenses that matured during the period of time between the filing of the complaint and the 60th day after the dismissal of the action by the district court. It preserved such defenses, however, with respect to the passage of time prior to the initial filing of the complaints. It also offered to stipulate that plaintiffs could utilize the discovery obtained thus far in resumed proceedings in Ecuador or Peru. Texaco then renewed its motion to dismiss by reason of forum non conveniens.
5.Judge Rakoffs Second Dismissal of Plaintiffs’ Complaints
The district court deferred ruling on Texaco’s motion to dismiss “in order to give plaintiffs the chance to reopen an issue they had previously abandoned, ie., whether the courts of Ecuador (and/or) Peru are sufficiently independent and impartial to provide” due process. After briefing on this issue was completed, plaintiffs moved to disqualify Judge Rakoff. Judge Rakoff denied the motion, see Aguinda v. Texaco, Inc.,
With regard to the private and public interests, the court found that “[tjhese cases have everything to do with Ecuador and nothing to do with the United States.” Id. at 537. The court was not persuaded by plaintiffs’ argument that the balance of public interests should be re-weighed in light of their claim under the Alien Tort Claims Act. It concluded: 1) the conventional doctrine of forum non conveniens “applies in undiminished fashion” to ATCA claims, id. at 554 (citing Wiwa v. Royal Dutch Petroleum Co.,
This appeal followed.
DISCUSSION
Plaintiffs contend that the district court abused its discretion in determining that Ecuador was an adequate alternative forum and that the balance of private and public interest factors tilted in favor of dismissal. See Iragorri v. United Techs. Corp.,
After determining the degree of deference owed to a plaintiffs choice of forum, a district court engages in a two-step inquiry. First, the court must consider whether an adequate alternative forum exists. If so, it must “then balance a series of factors involving the private interests of the parties in maintaining the litigation in the competing fora and any public interests at stake.” Wiwa,
A. Does an Adequate Alternative Forum Exist?
Ordinarily, the requirement of an adequate alternative forum “will be satisfied when the defendant is ‘amenable to process’ in the other jurisdiction. In rare circumstances, however, where the remedy
Plaintiffs contend first that Ecuador does not offer an alternative forum because Law 55 precludes them from proceeding in Ecuadorian courts. Law 55 provides, “[SJhould the lawsuit be filed outside Ecuadorian territory, this will definitely terminate national competency as well as any jurisdiction of Ecuadorian judges over the matter.” Plaintiffs argue that Law 55 deprives Ecuadorian courts of competency to assert jurisdiction because both suits were first filed in the United States. They contend that dismissal for forum non conveniens would leave them without a forum in which to proceed. We agree with the district court’s skepticism as to the law’s retroactivity, as well as its application to cases dismissed for forum non conveniens. We note furthermore that following oral argument the parties submitted to us an April 30, 2002 decision of the Ecuadorian Constitutional Court declaring Law 55 unconstitutional. We need not determine the scope of Law 55, as the district court qualified its dismissal specifying that, in the event the cases were dismissed in Ecuador under Law 55 and this result were affirmed by Ecuador’s highest court, it would be open to reconsider the question.
We find no merit in plaintiffs’ further argument that Ecuadorian courts are unreceptive to tort claims. The record shows that several plaintiffs have recovered judgments against TexPet and PetroEcuador for claims arising out of the very facts here alleged. Other U.S. courts have found Ecuador to be an adequate forum for hosting tort suits. See, e.g., Delgado v. Shell Oil Co.,
Plaintiffs’ contention is predicated on the absence of tort actions on the docket of Ecuador’s Supreme Court. Given Texaco’s showing that tort judgments are awarded by Ecuador’s courts, their absence from the docket of the Supreme Court of Ecuador appears to be of little significance.
Plaintiffs’ third objection is that Ecuadorian courts do not recognize class actions. On the other hand, Ecuador permits litigants with similar causes of action arising out of the same facts to join together in a single lawsuit. While the need for thousands of individual plaintiffs to authorize the action in their names is more burdensome than having them represented by a representative in a class action, it is not so burdensome as to deprive the plaintiffs of an effective alternative forum. Cf. Blanco v. Banco Industrial de Venezuela, S.A, 997 F.2d 974, 982 (2d Cir.1993) (“[T]he unavailability of beneficial litigation procedures similar to those available in the federal district courts does not render an alternative forum inadequate.”).
Plaintiffs point further to several respects in which Ecuadorian procedure is less efficient than U.S. procedure. While Ecuador’s judicial procedures may be less streamlined than ours, that does not make Ecuador’s procedures ineffective or render Ecuador inadequate as an alternative forum. See id.,
Plaintiffs contend that Ecuadorian courts are subject to corrupt influences and are incapable of acting impartially. After ordering supplemental briefing on this question, Judge Rakoff made detailed findings. He found: 1) no evidence of impropriety by Texaco or any past member of the Consortium in any prior judicial proceeding in Ecuador; 2) there are presently pending in Ecuador’s courts numerous cases against multinational corporations without any evidence of corruption; 3) Ecuador has recently taken significant steps to further the independence of its judiciary; 4) the State Department’s general description of Ecuador’s judiciary as politicized applies primarily to cases of confrontations between the police and political protestors; 5) numerous U.S. courts have found Ecuador adequate for the resolution of civil disputes involving U.S. companies; and 6) because these cases will be the subject of close public and political scrutiny, as confirmed by the Republic’s involvement in the litigation, there is little chance of undue influence being applied. See Aguinda,
Finally, plaintiffs challenge the district court’s allowance of only 60 days for the assertion of plaintiffs’ claims in Ecuador exempt from claims of preclusion. We agree with this objection. In the district court, timely claims were brought on behalf of nearly 55,000 plaintiffs. In Ecuador, because class action procedures are not recognized, signed authorizations would need to be obtained for each individual plaintiff. This presents a formidable administrative task for which we believe 60 days is inadequate time. We therefore direct the district court to modify its ruling to make dismissal conditioned on Texaco’s agreeing to waive any defense based on a statute of limitations for limitation periods expiring between the date of filing these United States actions and one year (rather
B. Balancing Private and Public Interest Factors
Having demonstrated the availability of an adequate alternative forum, Texaco must next establish that the balance of private and public interest factors “tilt[s] strongly in favor of trial in the foreign forum.” Wiwctj
1. Private Interest Factors
Private interests include “the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of the premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Gulf Oil Corp. v. Gilbert,
If thfese cases proceeded to trial, it would be onerous for a New York court to manage the translation difficulties arising from cases with 55,000 putative class members of different indigenous groups speaking various dialects. In addition, it would be far more feasible for an Ecuadorian court to view the polluted areas in question than for a New York court to do so. We also find significant that the Republic and PetroEcuador, neither of which are parties to the current suits, could be joined if the cases were resumed in Ecuador. See Piper Aircraft,
To the extent that evidence exists within the U.S., plaintiffs’ concerns are partially addressed by Texaco’s stipulation to allow use of the discovery already obtained. Furthermore, Texaco’s counsel agreed at oral argument that Texaco would not oppose further discovery in Ecuador that would otherwise be available in the U.S.
Finally, plaintiffs raise two additional practical concerns: 1) They contend the filing fee for any civil action in Ecuador is cost prohibitive for plaintiffs, many of whom are low-income subsistence farmers; and 2) there is currently a travel advisory by the U.S. State Department for the Ecuadorian province of Sucumbios, where plaintiffs assert trial would be held. It is sufficient answer that these contentions need not be recognized when raised for the first time on appeal. In addition, however, plaintiffs acknowledge the passage of new law in Ecuador whereby filing fees for indigent persons are reduced to a minimal level. With regard to the travel advisory, plaintiffs have given no explanation as to why litigation must be conducted in the Sucumbios province.
Public interest considerations include administrative difficulties associated with court congestion; the unfairness of imposing jury duty on a community with no relation to the litigation; the interest in having localized controversies decided at home; and avoiding difficult problems in conflict of laws and the application of foreign law. Gilbert,
We conclude that the district court was within its discretion in dismissing the actions on the basis of forum non conve-niens.
CONCLUSION
The district court’s judgment dismissing for forum non conveniens is AFFIRMED, subject to the modification that the judgment be conditioned on Texaco’s agreement to waive defenses based on statutes of limitation for limitation periods expiring between the institution of these actions and a date one year subsequent to the final judgment of dismissal.
Notes
. The district court’s assessment of an alternative forum focused primarily on Ecuador. As to Peru, the court observed that ''[w]hile [it] has been presented with less information on which to assess the adequacy of the Peruvian courts, ... the Ecuadorian courts provide in any event an adequate forum in which the Peruvian plaintiffs here can bring their claims. The Peruvian forum, therefore, is simply an alternative option that the Peruvian plaintiffs may, if they wish, elect.” Aguinda,
. Plaintiffs make a similar argument with respect to Ecuador’s Code of Civil Procedure Article 15, which provides that "the judge .. . who summons the defendant first, acquires exclusive jurisdiction.” Plaintiffs did not raise this issue below, and, in any event, we find the argument to be without merit.
. Plaintiffs contend we should interpret the ATCA to encompass their environmental claim, cf. Beanal v. Freeport-McMoran, Inc.,
. Plaintiffs also cursorily argue that international comity considerations militate against dismissal and that Judge Rakoff should have recused himself. We have considered both claims and find them to be without merit.