Forum non Conveniens: You Can Get There from HereAuthor(s): Craig C. ReillySource: Litigation, Vol. 24, No. 1, CHOICES (Fall 1997), pp. 36-40Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759960 .

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Forum non Convenient

You Can Get There from Here

by Craig C. Reilly It usually begins with an "urgent" message from a stranger whose telephone number begins "Oil." You return the call, and it is answered in a foreign language. Your caller says that he wants you to handle a sensitive lawsuit for his overseas

company. An American corporation has sued the company in an American court for breaching a contract that was to be

performed in your new client's home country. Your client wants the action dismissed. It does not want to be dragged into "American-style" litigation.

You're not sure how to react: "American-style" litigation is putting your kids through college. But to your new client, it is too uncertain, too unfamiliar and, most important, too

expensive. Your client wants to defend the suit in its own

country's courts.

From a quick check, you see that the suit will not be dis? missed for improper service of process or lack of personal jurisdiction. Then you recall the common-law doctrine of

forum non conveniens. It seems like a long shot, but it may be the only way to get there from here.

General Principles: The doctrine of forum non conve? niens permits an action to proceed in the court that will best serve the convenience of the parties and the ends of justice? even if that court is in a foreign country. Under this doctrine, "a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute," if that is in the interest of justice. Gulf Oil v.

Gilbert, 330 U.S.501, 507 (1947). The doctrine has its roots in eighteenth century Scottish law, and even today may be

unique to Anglo-American common law. Until recently, American courts applied it primarily in equity and admiralty suits. But the explosive growth of international commerce and products liability law has led courts to apply the doctrine to actions at law, both in tort and in contract.

A forum non conveniens motion resembles a motion under 28 U.S.C. ? 1404(a) to transfer venue for the convenience of the parties. In fact, before the venue transfer statute was enacted in 1948, a common-law forum non conveniens motion was used to dismiss actions that would be more con

Craig C. Reilly is with Richards McGettigan Reilly & West, P.C. in

Alexandria, Virginia.

veniently tried in another forum in the United States. See, e.g., Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). Since

then, the common-law doctrine has been applied in the fed? eral courts only when "the alternative forum is abroad." American Dredging Co. v. Miller, 510 U.S. 443,449 n.2,986 (1994). Today, there are important differences between the two kinds of motions. Most important, when a court acts under the forum non

conveniens doctrine, the suit is dismissed, not just trans? ferred. This power to dismiss is discretionary, Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981), but it may be exer? cised only in "exceptional circumstances," Gulf Oil v.

Gilbert, 330 U.S. at 504. Because dismissal is far harsher than a transfer, the court's discretion will be narrower under

forum non conveniens than under the transfer statute. See Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955).

When deciding & forum non conveniens motion, the court first asks whether there is an "adequate," alternative foreign forum, and then weighs "private" and "public" interest factors. The analysis is marked by "flexibility," and no one factor is "conclusive." See Piper Aircraft v. Reyno, 454 U.S. at 249-50.

Because "the plaintiff's choice of forum should rarely be

disturbed," the burden is on the defendant to show that the factors "strongly" favor dismissal. Gulf Oil v. Gilbert, 330 U.S. at 508. When the plaintiff is a United States citizen who sues in his "home forum," the plaintiff's choice of forum receives considerable deference, but it is not controlling. See

Piper Aircraft v. Reyno, 454 U.S. at 255-56 & nn.23-24. Other than the additional deference for an American plain? tiff's choice of forum, there is no special rule of forum non conveniens for American citizens. See Alcoa S.S. Co., Inc. v.

M/V Nordic Regent, 654 F.2d 147 (2d Cir.)(en banc), cert,

denied, 449 U.S. 890 (1980). When choosing the forum, the

plaintiff exercises the "venue privilege," but the defendant has a chance to overturn that choice.

What Law Governs? Most federal courts have ruled that federal common law, not state law, governs & forum non con? veniens motion in a diversity case, but the issue is not settled.

See, e.g., Piper Aircraft v. Reyno, 454 U.S. 248 n.13. When state and federal common law on this question are the same, a court need not choose between them.

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Under American Dredging, there should be a winning argument that federal law ought to apply in a diversity action because the common-law doctrine of forum non conveniens is a rule of "procedure rather than substance." Federal courts are "to apply state substantive law and federal procedural law" in diversity actions. Hanna v. Plumer, 380 U.S. 460, 465 (1965). This includes the federal rules and statutes, as well as "federal judge-made law," of civil procedure?pro? vided that the "twin aims" of the Erie doctrine (discouraging forum shopping and avoiding inequitable administration of the laws) are not disserved. Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 27 n.6 (1988). As noted in Amer? ican Dredging, the doctrine of forum non conveniens is

highly discretionary. Forum shopping, therefore, is not likely to be encouraged by differences between state and federal law of forum non conveniens, and the federal common-law doctrine should apply in a diversity action.

If the suit has been filed in a state court that disfavors

forum non conveniens motions, the action can be removed to federal court to take advantage of more favorable federal law.

E.g., Torreblanca de Aguilar v. Boeing Company, 806 F.

Supp. 139, 144-45 (E.D.Tex. 1992). An Adequate, Alternative Foreign Forum? For there

to be an alternative foreign forum, the defendant must only be "amenable to process" in the foreign jurisdiction. This

requires only that the defendant consent to accept process there. See Gulf Oil v. Gilbert, 330 U.S. at 506-07. The defen? dant should volunteer that consent. It will not be enough to

suggest vaguely that there may be another forum in which the action could go forward more conveniently. Instead, the defendant should identify the foreign forum by court, city, and country, and concede that it is amenable to service or will consent to service there. This is the defendant's opportunity to exercise the "venue privilege." Don't waste it.

To decide whether the foreign forum is "adequate," the Court also will ask whether the foreign court provides a

meaningful remedy for the plaintiff's claim. If no remedy at all is available, as when the foreign forum's statute of limita? tions bars the plaintiff's claim, the foreign forum will not be

adequate. Then the motion may be denied or conditioned on the defendant's waiving the foreign forum's procedural bar.

E.g., Calavo Growers of Calif, v. Generali Belgium, 632 F.2d 963 (2d Cir. 1980), cert, denied, 449 U.S. 1084 (1981).

Again, the defendant may have to compromise in order to win the motion. The defendant will be asking for fairness. The court will not permit that fairness to come entirely at the

expense of the plaintiff. The motion also may be denied if the remedy in the for?

eign forum "is so clearly inadequate or so unsatisfactory that it is no remedy at all." But the fact that foreign law is "less favorable" is not given "conclusive or even substantial

weight." Piper Aircraft v. Reyno, 454 U.S. at 254. Even

though some theories of recovery may not be recognized under foreign law and the plaintiff's "potential damages award may be smaller," dismissal still may be proper. The defendant has to show only that the foreign law, procedure, and remedies are "adequate."

For this, you will have to "prove" the content of foreign law. See Fed.R.Civ.P. 44. Obtain a declaration from an expe? rienced trial lawyer in the foreign forum and use it to describe the court system and its procedures, the claims, and the remedies that will be available overseas. Be specific and

comprehensive. Cite statutes and rules of the foreign court. Be sure to explain any unusual terminology.

Then get ready for the plaintiff's arguments, which usu?

ally begin, "But Judge. ..."

"But Judge, the plaintiff cannot recover punitive damages underforeign law." In the federal courts, this will not make the

foreign remedy "clearly inadequate." In De Melo v. Lederle Labs., 801 F.2d 1058 (8th Cir. 1986), the court affirmed the dismissal of a products liability action even though the foreign forum, Brazil, did not allow either punitive damages or an award for pain and suffering. Brazilian law did permit com?

pensation for medical expenses and lost wages. Although these forms of damages were more limited than those avail? able in the United States, the Court reasoned that they were "not so paltry as to render the available remedy illusory."

The same reasoning may apply to your case. Plaintiffs in commercial disputes often seek both tort remedies, such as

punitive damages, and contract remedies. When the tort claims merely restate the contract claims, they may be sub?

ject to dismissal or summary judgment, but a more certain way to eliminate them is to force the plaintiff into a foreign court where punitive damages are not recoverable in com? mercial disputes.

"But Judge, the plaintiff cannot get a jury trial in the for? eign forum." The right to a jury trial is a cornerstone of the American judicial system. But the fact that the plaintiff will not receive a jury trial in a foreign forum is not a reason to

deny a forum non conveniens motion. Few foreign judicial systems broadly grant the right to

trial by jury. See Piper Aircraft v. Reyno, 454 U.S. at 252 n. 18. As a result, this issue arises often, and courts typically have ruled that, even when the plaintiff is American, the lack of a jury trial in a foreign forum does not make the foreign forum "inadequate." E.g., Lockman Foundation v. Evangeli? cal Alliance Mission, 930 F.2d 764,768 (9th Cir. 1991). Pro? cedural differences are to be expected, and they do not ren? der a foreign forum inadequate unless the plaintiff is

deprived of due process. A bench trial is considered to be

adequate process.

Thus, the foreign forum will not be found "inadequate" merely because it functions differently. In fact, a foreign court sometimes may be better suited than an American court to handle the case fairly and promptly. Some countries have courts with special functions. The availability of a spe

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cialized foreign forum can favor dismissal. See Shields v. Mi

Ryung Constr. Corp., 508 F. Supp. 891 (S.D.N.Y. 1981). "But Judge, the plaintiff cannot take discovery in the for?

eign forum." Many foreign court systems do not permit extensive discovery. The American court may then condition dismissal on the defendant's agreeing to provide discovery. See Piper Aircraft v. Reyno, 454 U.S. at 257 n.25. Or the court may insist on the defendant's consenting to American

style discovery from nonparty sources in the United States for use in the foreign court. Coakes v. Arabian American Oil Co., 831 F.2d 572, 574-75 (5th Cir. 1987). The defendant should be prepared to cooperate.

"But Judge, the foreign forum requires that a nonresident

plaintiff post a hefty security bond for costs upon filing." That the plaintiff must "pay to play" does not render the foreign forum inadequate. See, e.g., Diatronics, Inc. v. Elbit Comput? ers, Ltd., 649 F. Supp. 122 (S.D.N.Y. 1985), aff'dmem., 812 F.2d 712 (2d Cir. 1987)(table). But if the district court is con? cerned about this issue, it may require the defendant to agree not to assert any financial barriers of the foreign forum.

Weighing the Factors: Once the court has determined that the alternative foreign forum is adequate, it must weigh "private" and "public" interest factors. If there is a forum selection clause, it must be weighed as well.

The "Private Interest" Factors: There are at least six "pri? vate interest" factors: (1) the relative ease of access to sources of proof before trial; (2) the availability of ways to

compel unwilling witnesses to testify at trial; (3) the cost of

obtaining attendance of willing witnesses at trial; (4) the pos? sibility of a view of premises during trial; (5) any other prac? tical considerations that may make the trial easy, expeditious and inexpensive; and (6) the enforceability of any judgment. Gulf Oil v. Gilbert, 330 U.S. at 508.

Access to sources of proof: In a commercial dispute, the

likely sources of proof are the parties' business records, the

testimony of the parties' employees, and nonparty records and witnesses. Of these, the focus will be on nonparty records and witnesses. Were the litigation to proceed in a United States federal

court, both domestic and foreign parties would be subject to

discovery under the Federal Rules. There then should be ade?

quate access to the sources of proof from both domestic and

foreign parties. Although there may be problems with the logis? tics, expense, and convenience of party discovery, none is

likely to be given much weight. (A foreign defendant can argue that discovery from it must be conducted under the Hague Con?

vention, but don't count on winning that argument, unless the circumstances are exceptional. See Societe Nationale v. United States District Court, 482 U.S. 522 (1987).)

The ease of access to nonparty sources of proof can be determinative. If many nonparty sources of proof are over?

seas, then discovery may have to follow the Hague Conven? tion or other international treaties. See Fed.R.Civ.R 28(b); 28

U.S.C. ? 1781. If letters rogatory are required to secure cru? cial evidence from foreign nonparties, then substantial delay will result. The composition, translation, and transmission of letters rogatory, followed by the issuance, execution, and return of the commission can take months. (In one case in which I was involved, letters rogatory were returned from

Turkey six months after the scheduled trial date. Fortunately, the case had been resolved in the meantime.)

Contact the State Department's Office of Citizens Con? sular Services for information about foreign discovery meth? ods and delays. This information can help you convince the court that the action should be tried overseas so that crucial evidence can be obtained without delay.

Compulsory process: The Supreme Court has recognized that disputes should be decided in courts that have the power to compel witnesses to appear at trial. "Certainly to fix the

place of trial at a point where litigants cannot compel per? sonal attendance and may be forced to try their cases on

deposition, is to create a condition not satisfactory to court,

jury and most litigants." Gulf Oil v. Gilbert, 330 U.S. at 511. In many cases, the inability of the domestic court to compel the presentation of evidence at trial has been a deciding fac? tor. It is especially important in trials that raise questions of fraud, good faith, and intent. In those cases, the factfinder's assessment of the witnesses' demeanor is critical. Howe v.

Goldcorp Inv. Ltd., 946 F.2d 944, 951-52 (1st Cir. 1991), cert, denied, 502 U.S. 1095 (1992). From the defendant's

perspective, this factor can be crucial. It is no mere matter of convenience?it bears on the essential fairness of the trial.

"But Judge, I've talked to the nonparty witnesses, and they said they would come to trial if asked." Plaintiffs' lawyers love this argument. Yet, the Supreme Court has rejected it.

Nor is [the lack of compulsory process] necessarily cured by the statement of plaintiff's counsel that he will see to getting many of the witnesses to the trial and that some of them "would be delighted to come to New York to testify." There may be circumstances where such a

proposal should be given weight. In others the offer

may not turn out to be as generous as defendant or court

might suppose it to be. Such matters are for the District Court to decide in exercise of a sound discretion.

Gulf Oil v. Gilbert, 330 U.S. at 511. Cost of witness attendance: If there are many witnesses a

long way from the courthouse, the cost of having them attend the trial can be significant. The court will not just add up the

witnesses on each side, multiply by the cost of air fare, and

compare the results. It will assess the importance of each

potential witness, and compare costs for the witnesses whose live testimony will be indispensable at trial.

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The possibility of a view: Be honest?have you ever had a court order a view of any premises during a civil trial? With

videotape and computer animation now available, a view of the premises has nearly gone the way of quill pens. If you

must rely on this factor, then do so, but be prepared for the court to be skeptical.

Practical considerations: The defendant may need to

implead other parties in the foreign forum. See Piper Aircraft v. Reyno, 454 U.S. at 259. Impleading is favored because it allows complete adjudication of the rights of all parties in one trial. This procedure is central in complex commercial

litigation of all kinds, including claims involving insurers, subcontractors, brokers, joint-obligors, and joint-tortfeasors. The lower federal courts often cite the defendant's ability to

implead other parties in a foreign court as a factor favoring dismissal of an action. E.g., De Melo v. Lederle Labs. Inc., 801 F.2d 1058 (8th Cir. 1986).

Language is another concern. E.g., Zinsler v. Marriott

Corp., 605 F. Supp 1499, 1505 (D. Md. 1985). In a commer? cial dispute, the parties may take dozens of depositions and

produce hundreds of thousands of documents. Imagine all that

discovery being conducted through interpreters. Then imagine a jury trial under those conditions! If these kinds of problems may arise, the defendant must dramatize them for the court.

Judicial economy also should be considered. If a related suit is pending in a foreign forum, then economies may be created

by dismissing the local action so that it can be pursued with the

pending foreign action. E.g., Calavo Growers v. Generali Bel?

gium, 632 F.2d at 967-68. The issues of law and fact need not be identical; there must only be some significant overlap.

Enforcement of the judgment: Whenever a foreign defen? dant is sued, the court must think about where a judgment will be enforced. This has particular weight when the plain? tiff seeks equitable relief, such as an accounting or a con? structive trust over foreign property. See, e.g., M?hr v. Allen,

"Local interest" will be more easily found for an American plaintiff.

407 F. Supp. 483 (S.D.N.Y. 1976). It would be unwieldy for an American court to administer the relief and burdensome for the parties should there be enforcement disputes. The

plaintiff's interest in a convenient forum for trial should not

outweigh the burdens that would result from the post-trial enforcement of the remedies it seeks.

The "Public Interest" Factors: The "public interest" fac? tors are (1) court congestion; (2) the imposition of jury duty on a community that may have no tie to the suit; (3) the "local interest" in the suit and its outcome; and (4) conflicts of law. See Gulf Oil v. Gilbert, 330 U.S. at 508-09.

Court congestion: The defendant must show that the for?

eign court will act promptly and pay attention to the case. It must be clear that the plaintiff will not face far more delay in the foreign forum than in the forum it chose. To make that case, you should cite statistics that compare the speed and con?

gestion of the local court's docket to that of the foreign forum.

Jury duty: The Supreme Court has recognized that "[j]ury duty is a burden that ought not be imposed upon the people of a community which has no relation to the litigation." Gulf Oil v. Gilbert, 330 U.S. at 508-09. This factor is related to the "local interest" factor, and they should be examined together.

Local interest: The court will have to decide which forum has a stronger interest in resolving the dispute. The answer

depends on the citizenship of the parties, the site of the

alleged wrong, the applicable law, and the effect the result will have on others. Whenever an American citizen is harmed, the American court has some interest in providing a

remedy. But if a foreign defendant has caused the harm, through an act that violates foreign law, then the "local inter? est" of the foreign forum in enforcing its own laws, punish? ing wrongdoers, and deterring other similar misconduct may outweigh the American forum's "local interest."

Finally, don't forget the practical impacts of the parties' citizenship. Even though there is no special rule of forum non conveniens for American plaintiffs, a "local interest" will be more easily found when an American plaintiff has brought the suit. But never let the plaintiff's American citizenship become the sole factor in the "local interest" analysis.

To generate some "local interest" in an international trans? action, the plaintiff may stress that it is an American citizen. The American plaintiff that had held itself out as a "player" in the international arena when the contract was negotiated now portrays itself as being a local "mom-and-pop" busi? ness. If this is the only reason to keep the suit in an Ameri? can court, the federal courts are likely to reject the argument:

The plaintiff falls back on its United States citizenship as the sole and only possible basis for suing these defen? dants in a court of the United States. This is not enough. In an era of increasing international commerce, parties who choose to engage in international transactions should know that when their foreign operations lead to

litigation they cannot expect always to bring their for?

eign opponents into a United States forum when every reasonable consideration leads to the conclusion that the site of the litigation should be elsewhere.

Mizokami Bros, of Arizona, Inc. v. Baychem Corp., 556 F.2d 975, 978 (9th Cir. 1977) (per curium), cert denied, 434 U.S. 1035 (1978).

Conflict of laws: Under Piper and Gilbert, there are three conflict of laws considerations that may favor dismissal. Dismissal is proper to keep the court from having to "untan?

gle problems in conflict of laws"; or to keep the court from

interpreting and applying foreign law, particularly in jury instructions; or to avoid a trial involving two sets of laws that would be confusing to the jury. Even a simple dispute in an international commercial transaction can give rise to all three concerns.

Suppose a domestic plaintiff asserts claims for breach of contract and fraudulent inducement, while the foreign defen? dant asserts that the contract, signed by an alleged agent, is voidable as ultra vires. Under typical conflict of laws rules, the alleged breach would be governed by the law of the place of performance, while the claim for fraud would be governed by the law of the place of plaintiff's injury, and the ultra vires defense would be governed by the law of the place where the

agent acted or where the contract was formed. That could lead to the selection of the law of another country?or other countries?to govern the principal issues. Based on such

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conflicts of laws, a local court may conclude that the action should be handled by a foreign court that would be more familiar with the governing law.

Forum Selection Clause: The presence of a forum selec? tion clause can be critical. As the Supreme Court has ruled, "such clauses are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be 'unrea? sonable' under the circumstances." M/S Bremen v. Zapata Off Shore Co., 407 U.S. 1,10 (1972). In Bremen, the district court

disregarded the forum selection clause in a contract (in which the parties had selected a British forum), considered the matter under the normal forum non conveniens analysis, and it retained jurisdiction. The court of appeals affirmed, but the

Supreme Court reversed and remanded for consideration in

light of its rulings on the forum selection clauses. A forum selection clause shifts the burden to the party seek?

ing to evade the forum selection clause, whether plaintiff or

defendant, to show that enforcement of the clause is "unrea? sonable" in light of the "private" and "public" interest factors, or to show that the clause is not valid on other grounds, such as fraud. But a valid forum selection clause need not trump all other factors. In the analogous field of transfer motions, a

When considering the

issues, the court is not confined to the complaint.

forum selection clause is important, but not dispositive. See Stewart Organization v. Ricoh, 487 U.S. at 30. The same

approach probably will be taken on a forum non conveniens motion. See Royal Bed & Spring Co., Inc. v. Famossul Indus tria e Comercio de Moveis Ltda., 906 F.2d 45 (1st Cir. 1990).

Forum selection clauses receive particular deference in commercial contract disputes. If the choice of forum "was made in an arm's-length negotiation by experienced and

sophisticated businessmen, [then] absent some compelling and countervailing reason it should be honored by the parties and enforced by the courts." Bremen v. Zapata, 407 U.S. at 13.

Procedural Issues: There are two important procedural aspects of & forum non conveniens motion. If these are over?

looked, you can defeat your own motion. When considering the issues, the court is not confined to

the complaint. It will compare the two sides' versions of the case "in order to appraise the justice of a trial in this forum." Ionescu v. E.F. Hutton & Co. (France) S.A., 465 F. Supp. 139, 141-45 (S.D.N.Y. 1979). The defendant must fully unveil the contentions of fact and law on which it will rely, describe all claims that it will assert, and identify all parties to be impleaded. In that way, the court can measure the suit?

ability of each forum to adjudicate the entire controversy, and not just the plaintiff's claims.

In contrast to Section 1404(a) transfer motions, it has been held that the defendant need not submit detailed affidavits to

support its forum non conveniens motion. Piper Aircraft v.

Reyno, 454 U.S. at 258. Don't believe it! The defendant bears the burden of proof and must carry the burden with affidavits or lose?or at least have its victory reversed on appeal and remanded. See Mercier v. Sheraton Infi, Inc., 935 F.2d 419 (1st

Cir. 1991), rev'g and remanding, 744 F. Supp. 380 (D.Mass. 1990), off'd after remand, 981 F.2d 1345 (1st Cir. 1992), cert,

denied, 508 U.S. 912 (1993). In Mercier, the defendant was

lucky to receive a second chance on remand to muster its win?

ning proof by affidavits. You should be prepared the first time, and should document as many points as possible.

Presenting the proof in support of your motion is easier than you might think. On motions, evidence may be pre? sented by affidavits, Fed.R.Civ.R 43(e), and declarations

made in a foreign country may be used instead of affidavits. 28 U.S.C. ? 1746. You should obtain a detailed declaration from your client to prove the relevant facts.

Appeal Issues: If your motion is granted, then the stan? dard of review should protect a district court's ruling on

appeal. That ruling "may be reversed only when there has been a clear abuse of discretion; [but] where the [district] court has considered all relevant public and private factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference." Piper Aircraft v.

Reyno, 434 U.S. at 257. The appellate court may not substi? tute its own judgment for that of the district court.

If your motion is denied, then you probably are in for more

disappointment. The denial of a forum non conveniens motion is not a "final" order or a "final collateral" order, and so it is not immediately appealable of right under 28 U.S.C.

? 1291. See Van Cauwenberghe v. Baird, 486 U.S. 517

(1988) ; see also Lauro Lines s.r.l. v. Chasser, 490 U.S. 495

(1989) (district court's refusal to enforce forum selection clause is not immediately appealable). Nonetheless, you may be able to obtain a discretionary interlocutory appeal under 28 U.S.C. ? 1292(b). Van Cauwenberghe v. Baird, 486 U.S. at 529-30. Otherwise, you may have to seek mandamus or wait to appeal after judgment.

Because the decision is discretionary, it will be very tough to prevail on mandamus. Unless the decision was so unrea? sonable or so arbitrary as to be an abuse of the district court's

discretion, mandamus surely will be denied. If your only avenue to appellate review is after judgment,

then you must show that your client's right to a fair trial was

fatally compromised, not merely inconvenienced. See Indasu Infi, CA. v. Citibank, N.A., 861 F.2d 375, 380 (2d Cir. 1988). Thus, if the motion is denied, your energy may best be devoted to the merits.

Epilogue: International commerce has increased dramat?

ically in volume and reach, and that fact has refocused atten? tion on the doctrine of forum non conveniens. Our Supreme Court has concluded that without this doctrine, "The Ameri? can courts, which are already extremely attractive to foreign plaintiffs, would become even more attractive. The flow of

litigation into the United States would increase and further

congest already crowded courts." Piper Aircraft v. Reyno, 454 U.S. at 252 & n.18. The Supreme Court also has recog? nized that "The expansion of American business and indus?

try will hardly be encouraged if... we insist on a parochial concept that all disputes must be resolved under our laws and in our courts." Bremen v. Zapata, 407 U.S. at 10. These con?

cerns underscore the increasing importance of forum non conveniens motions in litigation arising out of international business transactions.

If a contemporary international commercial dispute belongs in a foreign court instead of your local federal court, then you can get there from here. All it takes is winning a

motion under an "ancient doctrine." O

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