ARTICLES
THE ERRORS OF COMITY: FORUM NON CONVENIENS
RETURNS TO THE SECOND CIRCUIT
Alan Scott Rau*
I. MONDE RE AND FORUM NON CONVENIENS
Precisely what is a federal court expected to do when asked to enforce a
foreign arbitral award – what constraints do the Conventions impose on its normal
course of adjudication? Here of course is a vast question – one that would call on
all our hard-earned learning – and it is one that I hardly claim to be able to address
here.1 But there is one small isolated piece of the puzzle that recurs frequently,
and which has in particular been troublesome to the Second Circuit. This is the
narrow subject for today’s lesson: What remains of the inherent power of a
common-law court to defer or dismiss litigation of a Convention case on the
grounds that it constitutes an “inconvenient” forum?2
A decade ago a federal district court in Monde Re, “relying on the doctrine of
forum non conveniens,” dismissed a petition to confirm a foreign arbitral award,
and the Second Circuit affirmed.3 But the received wisdom of the cognoscenti