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Full-text: August 19 2002
Deportation/exile of the Chagos Islanders

United States District Court for the District of Columbia

Filed Aug 19 2002 Nancy Mayer Whittington, Clerk U.S. District Court




 

No. 1:01-CV-02629 (RMU)

 )
Olivier Bancoult, et al.,)
Plaintiffs,)
)
v.)
)
Robert S. Mcnamara, et al.,)
Defendants.)
 )

Notice of Filing

Plaintiffs hereby give notice of the filing of the original judgement entered in the Supreme Court of Mauritius on August 7, 2002 a faxed copy of which was filed on August 7, 2002 as Attachment 1 to Plaintiffs’ Notice to the Court Concerning Mauritius Court Judgement.


Signature: Michael E. Tigar

 

Respectfully submitted,

{Signature}

Michael E. Tigar
Professor of Law
American University
Washington College of Law
4801 Massachussetts Avenue, N.W.
Washington, D.C. 20016
Bar Identification No. 103762

Dated: August 19, 2002

 

Attachment: De Chazal du Mee & Cie v. Olivier Bancoult (Supreme Court of Mauritius, August 7 2002) (anti-suit injunction and forum non conveniens)

Supreme Court of Mauritius

In Chambers

The Supreme Court of Mauritius


In the matter of:–

De Chazal du Mee & Cie

Applicant

v.

1.  Olivier Bancoult
2.  M.I. France-Chariot
3.  Chagos Refugee Group

Respondents

______________________

Judgment

The three respondents together with two other persons who are not domiciled in Mauritius have as plaintiffs brought an action before the United States District Court for the District of Columbia (the foreign court) against the applicant and eleven other persons as defendants, including the Government of the United States of America. It is not disputed that the plaintiffs before the foreign court are either persons originating from the Chagos Archipelago or associations representing those persons and that the action before the foreign court has been entered on behalf of all those persons. It is equally not disputed that the plaintiffs in the foreign court are seeking relief essentially for the wrongful acts done by the defendants, including the applicant, generally relating to the respondents’ removal from the Chagos Archipelago, their alleged subjection to torture, genocide, racial discrimination and cruel, inhuman and degrading treatment and, in the case of the applicant, more especially, its implementation of the other defendants’ policy of deliberately excluding the respondents from employment opportunities on Diego Garcia which is the largest island of the Chagos Archipelago.

The present application is for an injunction prohibiting the respondents from continuing with the action lodged before the foreign court. {p.2}

It is the contention of the applicant that the respondents have in their claim before the foreign court lumped different causes of action against different persons for the sole purpose of their own convenience and have artificially created a jurisdiction against the applicant. The applicant has further averred that the natural forum is Mauritius the more so as all parties to the present application are either Mauritian citizens or entities domiciled in Mauritius and the services which it provided in connection with the recruitment of workers for Diego Garcia were carried out solely and exclusively in Mauritius. Moreover, the respondents have no personal interest inasmuch as they have purported to enter an action before the foreign Court on behalf of unnamed persons originating from the Chagos Archipelago. Finally, the applicant has claimed that the respondents’ action before the foreign court is unconscionable, oppressive, vexatious and is tantamount to forum shopping and that great prejudice is being caused to it by that action.

The case for the respondents is that they are suing before the foreign court not only the applicant, but also the Government of the United States of America and a number of senior United States officials for having taken the decision, amongst others, to discriminate against them and their fellow native citizens from the Chagos Archipelago in the recruitment of workers for Diego Garcia. Except for the applicant, all the other defendants before the foreign court are domiciled in the United States. The applicant itself has an office and a representative in Washington D.C. It is in the performance of a contract for recruitment for an American-based entity that the causes of action against the applicant have arisen. The discriminatory hiring practices are supported by an affidavit from a former employee of the applicant. Consequently, the respondents have contended that the foreign court is the most appropriate forum and that their action is neither unconscionable nor vexatious and that in any event the applicant’s inconvenience does not exceed theirs.

It is settled law that in matters of conflict of laws, the courts in Mauritius will be guided by the French rules of private international law: Austin v. Bailey [1962 MR 113]. {p.3}

In France the principle enshrined in its domestic law that, where there are several defendants, the plaintiff can choose to go before the court where any one of the defendants resides has been extended to French private international law. However, it appears that the French courts require that {en} ¶

“... comme en matière interne, et même à plus forte raison, le défendeur qui fixe la compétence doit être un défendeur réel et sérieux, non une personne n’ayant qu’un lien secondaire avec le litige et contre laquelle le demandeur agirait afin d’établir une compétence française, à l’encontre du ou des codéfendeurs; encore moins ne saurait-il s’agir d’un défendeur fictif ou complaisant” ¶

vide Bernard Audit’s Droit International Privé, p.310.

It is equally settled law that the power of the Judge in Chambers to grant injunctions is a form of equitable remedy which we have imported from English procedural law. In Dicey & Morris – The Conflict of Laws – (12th Ed. p.408) the principles in relation to an anti-suit injunction are thus stated:

“English Courts have long exercised a jurisdiction to restrain a party from instituting or prosecuting proceedings in a foreign Court. As long ago as 1834 it was said that this jurisdiction is grounded ‘not upon any pretension to exercise of judicial ... rights abroad’ but upon the fact that the party to whom the order is directed is subject to the in personam jurisdiction of the English Court. But although the injunction operates only in personam against the party to the foreign litigation, the remedy is an indirect interference with the process of the foreign Court and jurisdiction must be exercised with caution.... The underlying principle is that jurisdiction is exercised ‘where it is appropriate to avoid injustice’, or, as it was once put, where the foreign proceedings are ‘contrary to equity and good conscience’...”.

In the case of Société Nationale Industrielle Aérospatiale v. Lee Kui Jak (1987) AC 871 the Privy Council held that where a remedy was available both in England and in the foreign court, the English court would in general only restrain the plaintiff from pursuing proceedings in the foreign court if the pursuit would be vexatious or oppressive. The English court must be the natural forum for the action, and it must take account of the injustice to the {p.4} defendant if the plaintiff is allowed to pursue the foreign proceedings, and also the injustice to the plaintiffs if he is not allowed to do so.

The principles governing such anti-suit injunctions have recently been considered in the case of Leucudon Ltd & Ors v. La Serenissima & Ors [2001 MR 161] where the learned Judge, after considering a number of decisions by English courts relating to anti-suit injunctions or stay of proceedings, refused, in the exercise of his discretion, to grant the injunction because of the indolence of the applicants who had furthermore submitted themselves to the jurisdiction of the foreign court.

It is appropriate that I state that it was not the case before me that Mauritius and the United States of America are parties to a treaty or convention of the same type as the Brussels Convention or the Lugano Convention to which both the United Kingdom and France are parties.

It results from the above that, in order to obtain an in personam injunction against the respondents, the applicant needs to establish that –

(a)  Mauritius is the natural forum for the respondents’ action against the applicant;

(b)  the pursuit in the foreign court would be vexatious and oppressive in the widest sense; and

(c)  the injustice to the applicant if the respondents are allowed to pursue the proceedings in the foreign court far outweighs any potential injustice to the respondents if they are not allowed to do so.

After considering the facts of the present case and bearing in mind the principles governing such applications, I am unable to exercise my discretion in favour of the applicant, and this for the following reasons. {p.5}

First, the applicant is only one of twelve defendants before the foreign court in a suit which ex facie shows that the causes of action against all the defendants are connected. All the other eleven defendants are domiciled in the country of the foreign court, that is the United States of America. The applicant is alleged to have implemented an unlawful decision of the other defendants and in so doing to have participated in the illegal acts of the other defendants.

Second, it is a fundamental principle that where there are several defendants, a plaintiff may choose to initiate proceedings before the court where any one of them is domiciled. It is to be noted that one of the defendants is the Government of the United States of America and can only be sued before a US court.

Third, the respondents are not the only plaintiffs in the suit pending before the foreign court. There are two other plaintiffs who are domiciled in the Seychelles. Irrespective of any order which may be issued against the respondents, the applicant will still have to enter an appearance before the foreign court.

Fourth, the respondents’ action before the foreign court is not a frivolous one, the more so as it is supported by the affidavit evidence of a former employee of the applicant.

Fifth, the pursuit of split causes of action before different jurisdictions may lead to conflicting and irreconcilable judgments.

Finally, on the whole I find that more injustice would be caused to the respondents if the order was granted than to the applicant if the order was refused.

For the reasons given above, the application is refused, with costs, and I certify as to counsel.

"A Certified true copy of the original" Registry, Supreme Court

 

07 August 2002

 

(sd)  K P Matadeen

{Signed: Justice Keshoe Parsad Matadeen}

{Attestation: Raj Jhuboo, Clerk to Justice K.P. Matadeen}

______________________

Certificate of Service

I, Meghan A. Colloton, hereby certify that on this 19th day of August, 2002, I caused to be served by first-class mail, postage pre-paid, a true copy of the foregoing Notice of Filing on:

Cynthia T. Andreason
LeBoeuf, Lamb, Greene & MacRae, LLP
1875 Connecticut Ave. N.W.
Washington, DC 20009-5728

Attorney for Defendant De Chazal Du Mee

Elaine Marzetta Lacy
U.S. Department of Justice
Torts Branch
1331 Pennsylvania Avenue, NW
Washington, D.C. 20004

Attorney for Defendant United States of America

Richard Montague
U.S. Department of Justice
Civil Division
Suite 8122
1425 New York Avenue, N.W.
Washington, D.C. 20005

Attorney for Individual Federal Defendants

Harry Reasoner
Vinson & Elkins
1001 Fannin Street, Suite 2300
Houston, TX 77002-6760

Attorney for Halliburton Corporation

 

Signature: Meghan A. Colloton

{Signature}

Meghan A. Colloton

 

Source: Photocopy of a duplicate original (the Court’s file copy).

By CJHjr: Scanned, converted to text (OCR: FineReader 6.0), formatted (xhtml/css), links, text {in braces}, added paragraphing (for ease of reading) marked with this trailing paragraph symbol: ¶ .

This case: Bancoult v. McNamara, complaint filed, Dec. 20 2001, refused to adjudicate, 370 F.Supp.2d 1 (D.D.C., No. 01-CV-2629, Dec. 21 2004), appeal docketed, Feb. 22 2005, affirmed refusal to adjudicate, 445 F.3d 427 {justia, altlaw, 147kb.pdf, copy} (D.C. Cir., No. 05-5049, April 21 2006), petitions to rehear and en banc filed, June 5 2006, denied, July 11 2006, petition for certiorari docketed, Oct. 11 2006, refused to review refusal to adjudicate, certiorari denied, 549 U.S. — (U.S., No. 06-502, Jan. 16 2007).

Commentary: Diego Garcia: The Criminal Question Doctrine and Bancoult v. McNamara.

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.

CJHjr

Posted Dec. 7 2002. Updated June 10 2008.

http://homepage.ntlworld.com/jksonc/docs/bancoult-d50.html

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