786 S.W.2d 674 (1990)

DOW CHEMICAL COMPANY and Shell Oil Company, Petitioners,
v.
Domingo CASTRO ALFARO et al., Respondents.

No. C-7743.

Supreme Court of Texas.

March 28, 1990. Rehearing Overruled May 2, 1990.

Joe R. Greenhill, Austin, F. Walter Conrad and Michael Samford, Houston, Russell J. Weintraub, Austin, Burt Ballanfant, Houston, for petitioners.

Charles S. Siegel, Dallas, for respondents.

OPINION

RAY, Justice.

At issue in this cause is whether the statutory right to enforce a personal injury or wrongful death claim in the Texas courts precludes a trial court from dismissing the claim on the ground of forum non conveniens. The court of appeals held that Texas courts lack the authority to dismiss on the grounds of forum non conveniens. 751 S.W.2d 208. Because we conclude that the legislature has statutorily abolished the doctrine of forum non conveniens in suits brought under section 71.031 of the Texas Civil Practice and Remedies Code, we affirm the judgment of the court of appeals.

*675 Domingo Castro Alfaro, a Costa Rican resident and employee of the Standard Fruit Company, and eighty-one other Costa Rican employees and their wives brought suit against Dow Chemical Company and Shell Oil Company. The employees claim that they suffered personal injuries as a result of exposure to dibromochloropropane (DBCP), a pesticide manufactured by Dow and Shell, which was allegedly furnished to Standard Fruit. The employees exposed to DBCP allegedly suffered several medical problems, including sterility.

Alfaro sued Dow and Shell in Harris County district court in April 1984. The amended petition alleged that the court had jurisdiction under article 4678 of the Revised Statutes.^[1] Following an unsuccessful attempt to remove the suit to federal court, Dow and Shell contested the jurisdiction of the trial court almost three years after the filing of the suit, and contended in the alternative that the case should be dismissed under the doctrine of forum non conveniens. Despite a finding of jurisdiction, the trial court dismissed the case on the ground of forum non conveniens.

Section 71.031 of the Civil Practice and Remedies Code provides:

(a) An action for damages for the death or personal injury of a citizen of this state, of the United States, or of a foreign country may be enforced in the courts of this state, although the wrongful act, neglect, or default causing the death or injury takes place in a foreign state or country, if:

(1) a law of the foreign state or country or of this state gives a right to maintain an action for damages for the death or injury;

(2) the action is begun in this state within the time provided by the laws of this state for beginning the action; and

(3) in the case of a citizen of a foreign country, the country has equal treaty rights with the United States on behalf of its citizens.^[2]

(b) All matters pertaining to procedure in the prosecution or maintenance of the action in the courts of this state are governed by the law of this state.

(c) The court shall apply the rules of substantive law that are appropriate under the facts of the case.

Tex.Civ.Prac. & Rem.Code Ann. § 71.031 (Vernon 1986). At issue is whether the language "may be enforced in the courts of this state" of Section 71.031(a) permits a trial court to relinquish jurisdiction under the doctrine of forum non conveniens.

The statutory predecessors of Section 71.031 have existed since 1913. The original law states "[t]hat whenever the death or personal injury of a citizen of this State or of a country having equal treaty rights with the United States on behalf of its citizens, has been or may be caused by a wrongful act, neglect or default ... such right of action may be enforced ... in the courts of this State...." Act of Apr. 8, 1913, ch. 161, 33d Leg., 1913 Tex.Gen.Laws 338, 338-39, repealed by Revised Statutes, § 2, 39th Leg., 1925 Tex.Rev.Civ.Stat. 2419. Another act was passed in 1917 to expand the right of action to citizens of the United States. Act of Mar. 30, 1917, ch. 156, 35th Leg., 1917 Tex.Gen.Laws 365, repealed by Revised Statutes, § 2, 39th Leg., 1925 Tex. *676 Rev.Civ.Stat. 2419. The statute was codified in 1925 and amended in 1975. Revised Statutes, sec. 1, art. 4678, 35th Leg., 1925 Tex.Rev.Civ.Stat. 2, 1283, amended by Act of May 29, 1975, ch. 530, § 2, 64th Leg., 1975 Tex.Gen.Laws 1381, 1382, repealed by Civil Practice and Remedies Code, ch. 959, § 9, 69th Leg., 1985 Tex.Gen.Laws 3242, 3322. The 1975 amendment allowed Texas courts to apply the law of the state of Texas in actions arising under old article 4678. The amendment responded to this court's decision in Marmon v. Mustang Aviation, which held that the doctrine of lex loci delicti applied to old article 4678. Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182 (Tex.1968); see Gutierrez v. Collins, 583 S.W.2d 312, 317-18 n. 3 (Tex. 1979).

Dow and Shell argued before this Court that the legislature did not intend to make section 71.031 a guarantee of an absolute right to enforce a suit in Texas brought under that provision. In his dissent, Justice Gonzalez agrees, concluding that the legislature could not have intended to preclude application of forum non conveniens to suits brought under the statute because "[f]orum non conveniens did not arrive upon the judicial landscape of this state until after the predecessors to section 71.031 were enacted." 786 S.W.2d 691. This conclusion is false. The doctrine of forum non conveniens appeared in Texas well before the enactment of article 4678 by the legislature in 1913.

I.

The doctrine of forum non conveniens arose from the doctrine of forum non competens in Scottish cases. See, e.g., Vernor v. Elvies, 6 Dict. of Dec. 4788 (1610); see also Barrett, The Doctrine of Forum Non Conveniens, 35 Calif.L.Rev. 380, 386-87 & n. 35 (1947). The Scottish courts recognized that the plea of forum non competens applied when to hear the case was not expedient for the administration of justice. In Longworth v. Hope, 3 Sess.Cas. (3d ser.) 1049, 1053 (1865), the court stated:

The next question is the question of forum non competens. Now the plea usually thus expressed does not mean that the forum is one in which it is wholly incompetent to deal with the question. The plea has received a wide signification, and is frequently stated in reference to cases in which the Court may consider it more proper for the ends of justice that the parties should seek their remedy in another forum.

Id.; see Barrett, supra, at 387, n. 35. By the end of the nineteenth century, English courts had "accepted the doctrine of forum non conveniens as a means of preventing abuse of the court's process when the plaintiff's choice of forum is vexatious and works unnecessary hardship on the defendant." Barrett, supra, at 388.

In 1929, Paxton Blair, a Wall Street lawyer, brought the term "forum non conveniens" into American law with his article entitled, The Doctrine of Forum Non Conveniens in Anglo-American Law. See generally, Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Colum.L.Rev. 1 (1929). Although Blair found only three or four cases in which the American courts had used the term, he concluded:

Upon an examination of the American decisions illustrative of the doctrine of forum non conveniens, it becomes apparent that the courts of this country have been for years applying the doctrine with such little consciousness of what they were doing as to remind one of Moliér's M. Jourdain, who found he had been speaking prose all his life without knowing it.

Id. at 21-22. Blair cited hundreds of cases dismissing suits for the same reasons now employed under the doctrine of forum non conveniens. Id. Following the publication of Blair's article, the United States Supreme Court applied the doctrine to suits in admiralty brought between aliens, Charter Shipping Co. v. Bowring, Jones, & Tidy, Ltd., 281 U.S. 515, 517, 50 S.Ct. 400, 401, 74 L.Ed. 1008 (1930); Canada Malting Co. v. Paterson S.S., Ltd., 285 U.S. 413, 422, 52 S.Ct. 413, 415, 76 L.Ed. 837 (1932); to cases involving the internal affairs of corporations, Rogers v. Guaranty Trust Co., 288 U.S. 123, 130, 131, 53 S.Ct. 295, 297, 298, 77 *677 L.Ed. 652 (1933); and to federal suits involving a state's system for regulating the oil industry, Railroad Comm'n v. Rowan & Nichols Oil Co., 310 U.S. 573, 584, 60 S.Ct. 1021, 1025, 84 L.Ed. 1368 (1940). See Barrett, supra, at 395-96. By 1941, "the familiar doctrine of `forum non conveniens'... [was] firmly imbedded in our law." Baltimore & O.R.R. v. Kepner, 314 U.S. 44, 55-56, 62 S.Ct. 6, 11-12, 86 L.Ed. 28 (1941) (Frankfurter, J., dissenting).

Texas courts applied the doctrine of forum non conveniens in several cases prior to the enactment of article 4678 in 1913. In 1890, this court in dicta recognized the power of a court to refuse to exercise jurisdiction on grounds essentially the same as those of forum non conveniens. See Morris v. Missouri Pac. Ry., 78 Tex. 17, 21, 14 S.W. 228, 230 (1890). In Morris, we stated:

We do not think the facts alleged show the action to be transitory. But, if so, it has been held in such actions, where the parties were non-residents and the cause of action originated beyond the limits of the state, these facts would justify the court in refusing to entertain jurisdiction. Railway Co. v. Miller, 19 Mich. 305. Jurisdiction is entertained in such cases only upon principles of comity, and not as a matter of right. Gardner v. Thomas, 14 Johns. 136; Wells, Juris. § 115.

Id. In Mexican National Railroad v. Jackson, 89 Tex. 107, 33 S.W. 857 (1896), this court discussed both the dissimilarity doctrine and the potentiality of docket backlog. With regard to the latter, we stated:

If our courts assume to adjust the rights of parties against those railroads, growing out of such facts as in this case, we will offer an invitation to all such persons who might prefer to resort to tribunals in which the rules of procedure are more certainly fixed, and the trial by jury secured, to seek the courts of this state to enforce their claims. Thus we would add to the already overburdened condition of our dockets in all the courts, and thereby make the settlement of rights originating outside the state, under the laws of a different government, a charge upon our own people.

Id., 89 Tex. at 112, 33 S.W. at 862. Finally, we made a statement closely resembling a current argument for forum non conveniens:

If the facts showed that this [suit] was necessary in order to secure justice, and the laws were such as we could properly enforce, this consideration [docket backlog] would have but little weight; but we feel that it is entitled to be considered where the plaintiff chooses this jurisdiction as a matter of convenience, and not of necessity.

Id. (emphasis added).

In Southern Pacific Co. v. Graham, 12 Tex.Civ.App. 565, 34 S.W. 135 (1896, writ ref'd), the court stated that a district court could, in the exercise of its sound discretion, refuse to entertain jurisdiction in a case involving foreign parties. In Missouri, Kansas & Texas Railway v. Godair Commission Co., 39 Tex.Civ.App. 298, 87 S.W. 871 (1905, writ ref'd), the court stated:

Appellant's first proposition ... is ... that all parties being nonresidents, and the injuries complained of having occurred outside of the state of Texas, the courts of this state are not bound to entertain jurisdiction. The language of this proposition implies that the state courts may entertain jurisdiction of causes in which all parties are nonresidents when the injuries complained of occurred outside of the state, though they are not bound to do so. This being true, the court in this case having entertained jurisdiction, and thus [having] determined the question of public policy in favor of entertaining jurisdiction, the appellant has no right to complain.

Id. 39 Tex.Civ.App. at 301; 87 S.W. at 872. Thus, although Justice Gonzalez is correct that the first reported case using the term "forum non conveniens" is Garrett v. Phillips Petroleum Co., 218 S.W.2d 238, 239 (Tex.Civ.App.—Amarillo 1949, writ dism'd), the doctrine itself was effectively established in Texas before the enactment of article 4678 by the legislature in 1913.

II.

We therefore must determine whether the legislature in 1913 statutorily abolished *678 the doctrine of forum non conveniens in suits brought under article 4678 [now section 71.031].

Our interpretation of section 71.031 is controlled by this court's refusal of writ of error in Allen v. Bass, 47 S.W.2d 426 (Tex. Civ.App.—El Paso 1932, writ ref'd). In Allen the court of civil appeals held that old article 4678 conferred an absolute right to maintain a properly brought suit in Texas courts. The suit in Allen involved a New Mexico plaintiff and defendant arising out of an accident occurring in New Mexico. The court of appeals reversed a dismissal granted by the trial court on grounds similar to those of forum non conveniens, holding that "article 4678 opens the courts of this state to citizens of a neighboring state and gives to them an absolute right to maintain a transitory action of the present nature and to try their cases in the courts of this state." Id. at 427 (emphasis added).

The El Paso Court of Civil Appeals clearly addressed and rejected the doctrine of forum non conveniens in Allen. Discussing the existence of the doctrine prior to the 1913 and 1917 enactments of article 4678, the court stated:

Under the many authorities we have reviewed, both state and federal, we think it might be said that the courts of this state had a discretion in the matter of exercising jurisdiction where all parties were nonresidents of the state, and the cause of action arose in the state of the nonresidents.

Id. at 426 (emphasis added). Although the court did not specify the authorities it reviewed, it is clear from the Application for Writ of Error filed in this court that the Court of Civil Appeals reviewed two pre-1913 forum non conveniens cases—Morris v. Missouri Pacific Railway, supra, and Southern Pacific Co. v. Graham, supra. See Application for Writ of Error, Bass v. Allen, App. No. 18857 (filed April 7, 1932), at 2. The petitioner before this court in Allen summarized the case as follows:

Before the passage of any statute in Texas[,] trial courts had the discretion to refuse to entertain jurisdiction of a case founded on tort committed in another State by and on residents of the State in which the tort was committed.

Morris v. Ry. Co., supra.

Bowman v. Flint, supra.

In the case of Southern Pacific v. Graham the opinion reads in part as follows:

`Had the District Court in the exercise of a sound discretion, refused to entertain jurisdiction of the case at all, this court would not have felt called upon to review its action.'

The Court of Civil Appeals in the instant case [Allen] held that to be true but under Article 4678 this discretion no longer existed and that it was now obligatory on the district courts to accept jurisdiction and try these cases.

Id. at 2-3. The petitioner in Allen argued that the Court of Civil Appeals erred in construing the term "foreign state" in article 4678 to include a state of the union. Id. at 4. The petitioner in Allen also argued that the Court of Civil Appeals erred in applying forum non conveniens to a cause of action arising in another state in the union:

While it is perhaps just and right to open our courts for the trial of causes arising in foreign countries where the denial of a forum might mean the denial of his remedial rights, still no such just demand could be made by residents of sister States against a resident of his own State for a cause which can with more ease and economy and justice be tried in that forum.

Id. at 4. Asking that this court reverse the decision of the Court of Civil Appeals and affirm the judgment of the trial court dismissing the action, the petitioners in Allen quoted from Atchison, T. & S.F. Ry. Co. v. Weeks, 254 F. 513 (5th Cir.1918). Id. at 5. In Weeks, the United States Court of Appeals for the Fifth Circuit discussed several of the same rationales given today for the application of the doctrine of forum non conveniens:

Manifestly, there are many advantages in trying such a case where the cause of action arises. The law of the cause of *679 action is the law of the place. It may be assumed that the courts of the state can more satisfactorily administer the laws of the state than can the courts of any other state. The expense incident to a trial would usually be materially less at the place of the tort than elsewhere. The imposition upon a state of the expense of maintaining courts to try causes in which the state has no interest would be difficult to justify. The maintenance of the judicial machinery involves no light burden. Many of the states, including Texas, have been unable to provide adequate machinery. No good reason could probably be made to appear why her overworked courts should be compelled to carry any part of the burdens of other states.

Id. at 518, cited in, Application for Writ of Error, Bass v. Allen, supra, at 5. Given these arguments and authorities, this court chose to refuse the Application for Writ of Error, thereby manifesting its approval of the decision of the Court of Civil Appeals in Allen v. Bass. Cf., Hamilton v. Empire Gas & Fuel Co., 134 Tex. 377, 383-84, 110 S.W.2d 561, 565-66 (Tex.Comm'n App.1937, opinion adopted).

We conclude that the legislature has statutorily abolished the doctrine of forum non conveniens in suits brought under section 71.031. Accordingly, we affirm the judgment of the court of appeals, remanding the cause to the trial court for further proceedings.

HIGHTOWER and DOGGETT, JJ., file concurring opinions.

PHILLIPS, C.J., and GONZALEZ, COOK and HECHT, JJ., file dissenting opinions.

HIGHTOWER, Justice, concurring.

Because my dissenting brethren are so enthusiastic in their praise of the doctrine of forum non conveniens, I must add a few lines of concurrence with the majority opinion. Although I would like to join the chorus singing the praises of the doctrine of forum non conveniens, I am unable to do so because the Texas legislature statutorily abolished the doctrine of forum non conveniens when it enacted the predecessors of section 71.031. TEX.CIV.PRAC. & REM.CODE ANN. § 71.031 (Vernon 1986).

The evolution of the common law has been accomplished by good judgment and common sense filling in the pages left blank by legislative bodies. Great legal minds have masterfully developed concepts that have contributed to the strength of our civilization. Although the common law doctrine of forum non conveniens has been defined in recent history, the idea is a useful tool of judicial administration in those jurisdictions that have chosen to adopt it. As the dissenting opinions point out, Texas is in a distinct minority of jurisdictions that have taken a different track.

The fact that this court has waited so long to write on the doctrine is not important. Although several opportunities have been presented, the court based its decisions on other issues. In the case at hand, the doctrine is squarely before the court. The issue for this court, however, is not whether the doctrine is a good, fair, and desirable one for the people of Texas; the issue is whether the doctrine is available because of legislative actions that have been taken.

The argument is made that section 71.031 is in fact permissive, not mandatory. In the court of appeals, the petitioners argued "that the use of the words `may be enforced' indicates that the legislature recognized the trial court's discretionary power to dismiss." 751 S.W.2d at 210 (emphasis in original). I believe that this is an incorrect interpretation of "may be enforced." In enacting section 71.031, the legislature stated that under certain circumstances, "[a]n action for damages for the death or personal injury ... may be enforced in the courts of this state, although the wrongful act, neglect, or default causing the death or injury takes place in a foreign state or country...." In other words, subject to certain limitations, causes of action for death or personal injuries are enforceable in Texas. Since the legislature has opened the courts to certain plaintiffs in certain cases by statutory enactment, *680 this court should not interfere by attempting to "rewrite" the statute.

The Texas legislature may not have intended to make Texas "the world's forum of final resort." However, the wording of section 71.031 is clear and we must respect what the legislature has done. If the legislature did not intend to statutorily preclude the adoption of the doctrine of forum non conveniens, however it may have been defined in 1913 when it enacted the predecessors of section 71.031, I encourage the legislature to amend section 71.031 to clarify its intent. Otherwise, the legislature's failure to act will evidence its adoption of our interpretation that the enactment of the predecessors of section 71.031 statutorily abolished the doctrine of forum non conveniens. See Allen Sales and Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex. 1975).

The legislature has the privilege of changing its mind. Certainly it has done so many times since 1913. In writing the constitution, the founding fathers wisely provided for regular sessions of the legislature. What one legislature enacts another may later repeal. The court must respect the enactment when it is within the powers granted to the legislature by the constitution.

DOGGETT, Justice, concurring.

Because its analysis and reasoning are correct I join in the majority opinion without reservation. I write separately, however, to respond to the dissenters who mask their inability to agree among themselves with competing rhetoric.^[1] In their zeal to implement their own preferred social policy that Texas corporations not be held responsible at home for harm caused abroad, these dissenters refuse to be restrained by either express statutory language or the compelling precedent, previously approved by this very court, holding that forum non conveniens does not apply in Texas. To accomplish the desired social engineering, they must invoke yet another legal fiction with a fancy name to shield alleged wrongdoers, the so-called doctrine of forum non conveniens. The refusal of a Texas corporation to confront a Texas judge and jury is to be labelled "inconvenient" when what is really involved is not convenience but connivance to avoid corporate accountability.

The dissenters are insistent that a jury of Texans be denied the opportunity to evaluate the conduct of a Texas corporation concerning decisions it made in Texas because the only ones allegedly hurt are foreigners. Fortunately Texans are not so provincial and narrow-minded as these dissenters presume. Our citizenry recognizes that a wrong does not fade away because its immediate consequences are first felt far away rather than close to home. Never have we been required to forfeit our membership in the human race in order to maintain our proud heritage as citizens of Texas.

The dissenters argue that it is inconvenient and unfair for farmworkers allegedly suffering permanent physical and mental injuries, including irreversible sterility, to seek redress by suing a multinational corporation in a court three blocks away from its world headquarters and another corporation, which operates in Texas this country's largest chemical plant. Because the "doctrine" they advocate has nothing to do *681 with fairness and convenience and everything to do with immunizing multinational corporations from accountability for their alleged torts causing injury abroad, I write separately.

I. THE FACTS

Respondents claim that while working on a banana plantation in Costa Rica for Standard Fruit Company, an American subsidiary of Dole Fresh Fruit Company, headquartered in Boca Raton, Florida, they were required to handle dibromochloropropane ["DBCP"], a pesticide allegedly manufactured and furnished to Standard Fruit by Shell Oil Company ["Shell"] and Dow Chemical Company ["Dow"]. The Environmental Protection Agency issued a notice of intent to cancel all food uses of DBCP on September 22, 1977. 42 Fed.Reg. 48026 (1977). It followed with an order suspending registrations of pesticides containing DBCP on November 3, 1977. 42 Fed.Reg. 57543 (1977). Before and after the E.P. A.'s ban of DBCP in the United States, Shell and Dow apparently shipped several hundred thousand gallons of the pesticide to Costa Rica for use by Standard Fruit. The Respondents, Domingo Castro Alfaro and other plantation workers, filed suit in a state district court in Houston, Texas, alleging that their handling of DBCP caused them serious personal injuries for which Shell and Dow were liable under the theories of products liability, strict liability and breach of warranty.

Rejecting an initial contest to its authority by Shell and Dow, the trial court found that it had jurisdiction under Tex.Civ.Prac. & Rem.Code Ann. § 71.031 (Vernon 1986), but dismissed the cause on the grounds of forum non conveniens. The court of appeals reversed and remanded, holding that Section 71.031 provides a foreign plaintiff with an absolute right to maintain a death or personal injury cause of action in Texas without being subject to forum non conveniens dismissal. 751 S.W.2d 208. Shell and Dow have asked this court to reverse the judgment of the court of appeals and affirm the trial court's dismissal.

Shell Oil Company is a multinational corporation with its world headquarters in Houston, Texas. Dow Chemical Company, though headquartered in Midland, Michigan, conducts extensive operations from its Dow Chemical USA building located in Houston. Dow operates this country's largest chemical manufacturing plant within 60 miles of Houston in Freeport, Texas. The district court where this lawsuit was filed is three blocks away from Shell's world headquarters, One Shell Plaza in downtown Houston.

Shell has stipulated that all of its more than 100,000 documents relating to DBCP are located or will be produced in Houston. Shell's medical and scientific witnesses are in Houston. The majority of Dow's documents and witnesses are located in Michigan, which is far closer to Houston (both in terms of geography and communications linkages) than to Costa Rica. The respondents have agreed to be available in Houston for independent medical examinations, for depositions and for trial. Most of the respondents' treating doctors and co-workers have agreed to testify in Houston. Conversely, Shell and Dow have purportedly refused to make their witnesses available in Costa Rica.

The banana plantation workers allegedly injured by DBCP were employed by an American company on American-owned land and grew Dole bananas for export solely to American tables. The chemical allegedly rendering the workers sterile was researched, formulated, tested, manufactured, labeled and shipped by an American company in the United States to another American company. The decision to manufacture DBCP for distribution and use in the third world was made by these two American companies in their corporate offices in the United States. Yet now Shell and Dow argue that the one part of this equation that should not be American is the legal consequences of their actions.

*682 II. FORUM NON CONVENIENS—"A COMMON LAW DOCTRINE OUT OF CONTROL"^[2]

As a reading of Tex.Civ.Prac. & Rem. Code Ann. § 71.031 (Vernon 1986) makes clear, the doctrine of forum non conveniens has been statutorily abolished in Texas. The decision in Allen v. Bass, 47 S.W.2d 426 (Tex.Civ.App.—El Paso 1932, writ ref'd), approved by this court, clearly holds that, upon a showing of personal jurisdiction over a defendant, article 4678, now section 71.031 of the Texas Civil Practice & Remedies Code, "opens the courts of this state to citizens of a neighboring state and gives them an absolute right to maintain a transitory action of the present nature and to try their cases in the courts of this state." Id. at 427.

Displeased that Allen stands in the way of immunizing multinational corporations from suits seeking redress for their torts causing injury abroad, the dissenters doggedly attempt to circumvent this precedent.^[3] Unsuccessful with arguments based upon Texas law, they criticize the court for not justifying its result on public policy grounds.

A. USING THE "DOCTRINE" TO KILL THE LITIGATION ALTOGETHER

Both as a matter of law and of public policy, the doctrine of forum non conveniens is without justification. The proffered foundations for it are "considerations of fundamental fairness and sensible and effective judicial administration." Hecht dissent, 786 S.W.2d 703 (quoting Adkins v. Chicago, R.I. & Pac. R.R., 54 Ill.2d 511, 301 N.E.2d 729, 730 (1973)). In fact, the doctrine is favored by multinational defendants^[4] because a forum non conveniens dismissal is often outcome-determinative, effectively defeating the claim and denying the plaintiff recovery. The contorted result of the doctrine of forum non conveniens is to force foreign plaintiffs "to convince *683 the court that it is more convenient to sue in the United States, while the American defendant argues that ... [the foreign court] is the more convenient forum." Note Foreign Plaintiffs and Forum Non Conveniens: Going Beyond "Reyno", 64 Texas L.Rev. 193, 215, nn. 144-46 (1985).

A forum non conveniens dismissal is often, in reality, a complete victory for the defendant. As noted in Irish Nat'l Ins. Co. v. Aer Lingus Teoranta, 739 F.2d 90, 91 (2d Cir.1984),

[i]n some instances, ... invocation of the doctrine will send the case to a jurisdiction which has imposed such severe monetary limitations on recovery as to eliminate the likelihood that the case will be tried. When it is obvious that this will occur, discussion of convenience of witnesses takes on a Kafkaesque quality— everyone knows that no witnesses ever will be called to testify.

In using the term forum non conveniens, "the courts have taken refuge in a euphemistic vocabulary, one that glosses over the harsh fact that such dismissal is outcome-determination in a high percentage of the forum non conveniens cases...." Robertson, Forum Non Conveniens in America and England: "A Rather Fantastic Fiction," 103 L.Q.Rev. 398, 409 (1987). Empirical data available demonstrate that less than four percent of cases dismissed under the doctrine of forum non conveniens ever reach trial in a foreign court.^[5] A forum non conveniens dismissal usually will end the litigation altogether, effectively excusing any liability of the defendant. The plaintiffs leave the courtroom without having had their case resolved on the merits.^[6]

B. THE GULF OIL FACTORS—BALANCED TOWARD THE DEFENDANT

Courts today usually apply forum non conveniens by use of the factors set forth at length in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 843-44, 91 L.Ed. 1055 (1947). Briefly summarized, those factors are (i) the private interests of the litigants (ease and cost of access to documents and witnesses); and (ii) the public interest factors (the interest of the forum state, the burden on the courts, and notions of judicial comity). In the forty-three years in which the courts have grappled with the Gulf Oil factors, it has become increasingly apparent that their application fails to promote fairness and convenience. Instead, these factors have been used by defendants to achieve objectives violative of public policy.

1. The Obsolete Private Interest Factors

In their discussion of the private interest factors supposedly designed to promote *684 convenience and fairness, the dissenters choose to avoid entire bodies of law concerning jurisdiction and venue. The dissenters ignore 154 years of Texas venue law designed to give defendants the privilege of being sued in their home country. See Langley, A Suggested Revision of the Texas Venue Statute, 30 Tex.L.Rev. 547, 547 (1952). Texas has generated more case law concerning venue than the other forty-nine states combined and has recently enacted a new venue statute. See Note, Venue Procedure in Texas: An Analysis of the 1983 Amendments to the Rules of Civil Procedure Governing Venue Practice Under the New Venue Statute, 36 Baylor L.Rev. 241, 242 n. 13, 253 (1984). It is ironic that defendants for years have sought to preserve a right to be sued in a home country, yet Shell nevertheless argues that when it is sued in its hometown, the legal fiction of forum non conveniens is needed to ensure convenience and fairness.

In his dissent, Justice Gonzalez correctly crystalizes the private interest factors as "those considerations that make the trial of a case relatively easy, expeditious, and inexpensive for the parties." 786 S.W.2d 695. Advances in transportation and communications technology have rendered the private factors largely irrelevant:

A forum is not necessarily inconvenient because of its distance from pertinent parties or places if it is readily accessible in a few hours of air travel. It will often be quicker and less expensive to transfer a witness or a document than to transfer a lawsuit. Jet travel and satellite communications have significantly altered the meaning of "non conveniens."

Calavo Growers of California v. Belgium, 632 F.2d 963, 969 (2d Cir.1980) (Newman J., concurring). See also McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957) ("[M]odern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity."). One judge asked whether "the entire doctrine of forum non conveniens should not be re-examined in the light of the transportation revolution that has occurred since [Gulf Oil]." Fitzgerald v. Texaco, Inc., 521 F.2d 448, 456 (2d Cir.1975) (Oakes, J., dissenting), cert. denied, 423 U.S. 1052,