Originally from Dispute Resolution Journal

The doctrine of forum non conveniens is the usual means for deciding questions of forum in U.S. courts. But until recently, the doctrine had never been considered when deciding whether to confirm an international arbitral award. This article looks at this issue in the aftermath of a ground-breaking decision by the 2nd Circuit applying this doctrine in the international arbitration context.

In today’s global economy, with multinational entities doing business with and bumping up against one another, it is not surprising that disputes inevitably arise that could be heard in multiple jurisdictions. Nor is it surprising that many plaintiffs, after surveying their options, choose to file their claims in the United States. Litigants are attracted to the high quality of U.S. courts, the willingness of U.S. courts to exercise jurisdiction over international disputes, and, rightly or wrongly, the belief that U.S. courts are ready to award large sums of damages.

Though the evidence is primarily anecdotal, the trend seems to apply to international arbitration as well. More prevailing parties in international arbitration are using U.S. courts as the place for “confirming” their arbitration awards— i.e., converting an arbitration award from a non-judicial document into a court-approved judgment that may be used as basis for seizing assets and other enforcement measures. Prevailing parties may be swayed by the perception that U.S courts will not act as “courts of appeal” at the confirmation stage, so that losing parties in an arbitration are often left with little to argue. So, rather than confirming an award in a country where the respondent is headquartered or based, the successful petitioner tries to avoid the respondent’s “home court advantage” by seeking confirmation in a neutral forum—the United States.