Forum Non Conveniens and Parallel Foreign Proceedings

AuthorErnesto Sanchez
Pages245-258
245
§ 21.1 INTRODUCTION
Courts can also dispose of actions by means of forum non conveniens dismissals, “bypassing ques-
tions of subject-matter and personal jurisdiction, when considerations of convenience, fairness,
and judicial economy so warrant.”1 Assertions of forum non conveniens by defendants in FSIA
matters, then, can eectively supplement cases for dismissal,2 especially if parallel foreign pro-
ceedings regarding the same underlying disputes are ongoing.
§ 21.2 FORUM NON CONVENIENS
e common law doctrine of forum non conveniens governs whether a foreign court, as opposed
to a U.S. court, provides a more convenient and appropriate forum for a case. A federal court
has discretion to dismiss a case on forum non conveniens grounds “‘when an alternative forum has
jurisdiction to hear [the] case, and . . . trial in the [plainti’s] chosen forum would establish . . .
oppressiveness and vexation to a defendant . . . out of all proportion to plainti’s convenience,
or . . . the chosen forum [is] inappropriate because of considerations aecting the court’s own
administrative and legal problems.’”3 Forum non conveniens dismissals thus reect a court’s evalu-
ation of a “‘range of considerations, most notably the convenience to the parties and the practi-
cal diculties that can attend the adjudication of a dispute in a certain locality.’”4
e U.S. Supreme Court has characterized forum non conveniens as “‘a supervening venue
provision, permitting displacement of ordinary venue rules when a trial court thinks that juris-
diction ought to be declined.’”5 Indeed, the federal venue transfer statutes discussed in Chapter
20—28 U.S.C. §§ 1404(a) and 1406(a)—are actually codications of the doctrine, diering
only by oering the option of transferring an action in lieu of dismissal.6 Much of these statutes’
surrounding case law consequently implicates forum non conveniens, as well as venue.
1. Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 432 (2007).
2. See Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 490-91 n.15 (1983) (noting, in dicta, that the FSIA
allows for forum non conveniens dismissals).
3. Sinochem, 549 U.S. at 429 (quoting American Dredging Co. v. Miller, 510 U.S. 443, 447-48 (1994) (quoting Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981) (quoting Koster v. (American) Lumbermens Mutual Casualty Co., 330
U.S. 518, 524 (1947))).
4. Id. (quoting Quackenbush v. Allstate Insurance Co., 517 U.S. 706, 723 (1996)).
5. Id. at 429 (quoting American Dredging, 510 U.S. at 453).
6. See 28 U.S.C. §§ 1404(a) (“For the convenience of parties and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district or division where it might have been brought.”), 1406(a) (mandating
that a court “shall dismiss, or if it be in the interest of justice, transfer a wrongly led case to any district or division in
which it could have been brought”); see also N  B § 7:14 (characterizing 28 U.S.C. §§ 1404(a) and 1406(a)
as “statutory cousins” of forum non conveniens doctrine).
FOR U M NO N CO N V E N I E N S A N D PA R AL LE L
FOR E IGN PRO C E E DI N G S
21
ForSovImmunAct_book.indb 245 4/11/13 3:32 PM

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