Hastings International and Comparative Law Review


Critics of the North American Free Trade Agreement (NAFTA) have often focused on Mexico's lack of regulatory enforcement of environmental protection laws. These critics fear that the passage of NAFTA will cause many industries to flock to the Mexican side of the border. These industries will degrade the local environment in the border region and drive U.S. firms complying with our more burdensome (and hence costly) environmental regulations out of business. This Note proposes as a solution to this problem, applying extraterritorial jurisdiction by U.S. courts over environmental claims arising in Mexico. Congress could, by statute, abolish forum non conveniens dismissals from U.S. courts of pollution-related causes of action arising in Mexico. Such a statute would be consistent both with constitutional due process, under International Shoe, and with the Restatement of Foreign Relations. The statute could be applied to U.S. firms, to foreign subsidiaries of U.S. firms, and even to non- U.S. firms operating in Mexico, under the Restatement's effects doctrine. If Mexico is unable to bring its standard of environmental protection up to U.S. standards, applying extraterritorial jurisdiction to the polluters will discourage them from degrading the environment and prevent them from obtaining an unfair competitive advantage over firms which are more environmentally responsible.