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.
American courts sometimes find themselves in the uncomfortable position of having to pass judgment on the adequacy or fairness of courts of other countries. Sometimes, as discussed in a previous chapter, this happens in the context of an action to enforce a judgment entered in another country. The need to judge another nation’s courts may also arise when a party seeks dismissal of an action in the United States on forum non conveniens grounds, in favor of an alternative forum abroad.
When a court faced with a motion to dismiss on the basis of forum non conveniens addresses the threshold issue of the adequacy of the proposed foreign forum it must draw conclusions as to the quality of administration of justice in that forum. In doing so, the court must determine what information – and what sources of information – should be looked to in making that decision. Recent decisions shed light on the type of evidence – in terms of form and substance – that courts have found persuasive in determining the adequacy of a foreign forum in forum non conveniens motions.