Forum Non Conveniens -- Conditional Dismissals - Part 1 Chapter 27 - The Practice of International Litigation - 2nd Edition
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
The doctrine of forum non conveniens, when applied to international cases, permits a court to exercise its discretion to dismiss a case as to which it has jurisdiction on the basis that it would be more convenient for the proceedings to be held in the courts of a country other than the United States. In applying the doctrine of the United States the courts have followed various criteria set forth by the Supreme Court in Gulf Oil v. Gilbert, 430 U.S. 501 (1947) and Piper Aircraft v. Reyno, 454 U.S. 235 (1981). Before engaging in an analysis balancing the convenience of each possible forum, however, a court is required to make a determination that the courts of the country to which a transfer is contemplated or requested constitutes an adequate forum.
A recent case in the Second Circuit, BCCI v. State Bank of Pakistan, 2001 WL 1517034 (2d Cir. November 29, 2001), has set forth an analytical framework to assist courts in making the threshold determination as to whether a foreign forum is adequate for purposes of having a case transferred to it. The framework set forth in the BCCI case is useful because it sets forth ways in which, where appropriate, forum non conveniens dismissals may be made conditional.
Adequacy of Alternative Foreign Courts
Litigants opposing dismissal on forum non conveniens grounds have based their arguments against such dismissal on various alleged shortcomings of the foreign courts which would serve as alternative fora. One such type of argument focuses on corruption in the alternative forum and may be supported by a variety of types of evidence. Thus, in Eastman Kodak v. Kavlin, 978 F. Supp. 1078 (S.D. Fla. 1997), in which the author represented the plaintiff, Eastman Kodak, the court determined that the Bolivian defendants, moving for dismissal in favor of the courts of Bolivia of a lawsuit brought against them in federal court in Florida, failed to carry their burden of establishing that the Bolivian courts constituted an adequate alternative forum. The primary focus of the court's analysis was the widespread presence of corruption in the Bolivian courts, see id. at 1085 — 1087. The Kodak court observed:
“But most importantly, plaintiffs do not simply argue that the Bolivian system is corrupt in general. They argue, with strong supporting evidence, that the system is easily manipulable by the well-connected and that extortionate use of the criminal justice system is routine in ordinary commercial cases.”
Id. at 1086. The court held that, on the basis of evidence of corruption of the Bolivian courts, “. . . for now, the Court can only rule that defendants have not met their burden of proving the existence of an adequate alternative forum to hear plaintiffs’ claims.” Id. at 1087.
Other courts, however, that have considered the adequacy of foreign fora in the forum non conveniens context have, as mentioned in the Kodak opinion, id. at 1084, found evidence of corruption in particular foreign courts to be insufficient to warrant denial of motions to dismiss in favor of foreign courts.