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                                                                                 [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 13-11616
                              ________________________

                          D.C. Docket No. 1:12-cv-20558-WJZ



GDG ACQUISITIONS, LLC,

                                                         Plaintiff - Appellant,

versus

GOVERNMENT OF BELIZE,

                                                         Defendant - Appellee.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                      (April 22, 2014)

Before MARCUS, Circuit Judge, and COOGLER * and BOWEN, ** District Judges.

MARCUS, Circuit Judge:

*
  Honorable L. Scott Coogler, United States District Judge for the Northern District of Alabama,
sitting by designation.
**
  Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District of
Georgia, sitting by designation.
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      GDG Acquisitions, LLC (“GDG”) alleges that the Government of Belize

(“Government”) breached a contract for the lease of office telecommunications

equipment. Without reaching the merits of the dispute, the district court dismissed

on two alternative grounds, pursuant to the doctrines of forum non conveniens and

international comity. As we see it, the district court abused its considerable

discretion in dismissing for forum non conveniens without first evaluating the

significance of a forum-selection clause in the underlying contract. See Atl.

Marine Constr. Co. v. U.S. Dist. Court for the W. Dist. of Tex., 

(2013). Therefore, we vacate the forum non conveniens dismissal and remand to

allow the district court to determine the enforceability and significance of the

forum-selection clause.

      In addition, we vacate the district court’s dismissal on the alternative ground

of international comity. “Retrospective” international comity does not apply

without a judgment from a foreign tribunal or parallel foreign proceedings. See

Ungaro-Benages v. Dresdner Bank AG, 

, 1238 (11th Cir. 2004).

Nor does this commercial contract dispute fall within the markedly more limited

reach of “prospective” international comity, a doctrine we have reserved for

exceptional diplomatic circumstances. See 

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                                        A.

      The tale of this case begins with an effort by the Government of Belize (the

“Government”) to reduce its expenditures on office telephone services. In 2002,

Government Minister Ralph Fonseca entered into discussions with a Belizean

company, International Telecommunications, Ltd. (“Intelco”), to lease hardware

equipment including telephones, cables, routers, and servers. Fonseca negotiated

in Florida and in Washington, D.C., with Glenn Godfrey, a former Attorney

General of Belize who was the founder and a director of Intelco. Fonseca and

Godfrey reached an agreement, though the parties in this litigation now dispute

whether Fonseca had the authority to contract on behalf of the Government. On

December 18, 2002, Fonseca and Godfrey met in Miami to close the deal with

representatives of the International Bank of Miami, a United States bank that

financed the deal.

      Fonseca, as the Government’s “Minister of Budget Management,” and

Godfrey, as Intelco’s “Chairman,” signed a “Master Lease Agreement” obligating

Intelco to lease the equipment to the Government in exchange for quarterly rent

payments totaling $6,748,189.20 between 2003 and 2007. Intelco assigned these

payments to the International Bank of Miami for a single upfront cash payment

from the bank of $5 million. The Master Lease Agreement characterized itself as a

“net lease” that required the Government to make payments unconditionally,


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without any right to abatement or reduction for any reason. The lease terms

provided that Intelco had no obligation to provide services once the Government

took possession of the phone equipment in Florida.

      The Master Lease Agreement contained provisions stating that the

Government waived its sovereign immunity and consented to suit in the United

States:

      [R]ights and obligations under this Master Lease or any Lease
      Schedule shall be determined exclusively in accordance with the
      governing laws of the State of Florida, irrespective of conflict of law
      principles. Lessee irrevocably submits to the exclusive jurisdiction of
      any of the federal and state courts in the State of Florida in any action
      or proceeding arising out of or relating to the Master Lease or any
      Lease Schedule, and Lessee hereby irrevocably agrees that all claims
      in respect of such action or proceeding may be heard and determined
      in any court of competent jurisdiction in the State of Florida.

The lease also contained a waiver of objections to venue or to claims of

inconvenient forum:

      Lessee hereby irrevocably waives any objection which it may now or
      hereafter have to the laying of venue of any suit, action or proceeding
      arising out of or relating to the Master Lease or any Lease Schedule
      and hereby further irrevocably waives any claim that any such suit,
      action or proceeding brought in any such court has been brought in an
      inconvenient forum. Lessee specifically acknowledges that Miami-
      Dade County, Florida is a proper venue for the Lessor to bring suit
      against Lessee pursuant to the Master Lease or any Lease Schedule.

      The Master Lease Agreement obligated the Government to return the

equipment to Intelco at the end of 2007 or to continue paying rent at the same rate,

month-to-month, for up to a year. After one year, the Government had to return
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the equipment or continue rent payments. Fonseca and Godfrey agreed to a second

lease of additional equipment to run from 2003 to 2008, also for $6,748,189.20 in

rent and also assigned to the International Bank of Miami, under the terms of the

same Master Lease Agreement. The Government made the rental payments in full

for the terms of the two leases, totaling $13.5 million. The complaint in this case

alleges that the Government has not made any additional lease payments as

required by the Master Lease since 2008, even though it continues to possess and

use the equipment.

                                          B.

      Glenn D. Godfrey, formerly of Intelco, created GDG as a Florida limited

liability company, with its principal office in Houston, Texas, on or about January

26, 2012. Godfrey remains GDG’s sole member. On or about Feburary 1, Intelco

assigned all of its assets to GDG, including its interest in the Belize agreements.

On February 10, GDG sued the Government of Belize in the United States District

Court for the Southern District of Florida. GDG alleged that the Government owes

it approximately $14 million in unpaid rent, with the amount growing each month.

The Government maintains that the equipment is defective and that the Master

Lease Agreement is null and void because Fonseca lacked constitutional power,

and thus actual authority, to sign telecommunications agreements for the

Government of Belize.


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      The Government moved the district court to dismiss on three grounds: (1)

foreign sovereign immunity pursuant to the Foreign Sovereign Immunities Act, 28

U.S.C. §§ 1602 et seq.; (2) the doctrine of forum non conveniens; and (3) the

doctrine of international comity. The district court found first that the case should

be dismissed because of forum non conveniens. According to the court, a Belizean

forum was available and adequate. In addition, balancing the private factors, the

original contract had been made in Belize between Belizean entities, even though

rights under the agreement had been assigned to GDG, an American entity, before

the suit commenced. Witnesses and documents were more readily accessible in

Belize and enforcing a judgment would be easier for a Belizean court. Similarly,

the district court found that public interest factors favored dismissal.

Administrative challenges and the difficulty of applying foreign law made trying

the case in federal court more burdensome. Finally, GDG could reinstate its

lawsuit in Belize, where the Government was subject to jurisdiction.

      The district court alternatively found dismissal appropriate pursuant to the

doctrine of international comity, which “encompasses the principle of respect for

the acts of sovereign nations.” Belize Telecom, Ltd. v. Gov’t of Belize, 

, 1305 (11th Cir. 2008). After weighing the strengths of the foreign and

domestic interests in this case, the district court concluded that Belizean interests

prevailed because of the need to interpret and apply Belize’s law and because the


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case involved telecommunications services that could affect the citizens of Belize.

The district court did not reach the question of whether foreign sovereign

immunity precluded subject matter jurisdiction. See Sinochem Int’l Co. v.

Malaysia Int’l Shipping Corp., 

, 432 (2007) (“A district court . . . may

dispose of an action by a forum non conveniens dismissal, bypassing questions of

subject-matter and personal jurisdiction, when considerations of convenience,

fairness, and judicial economy so warrant.”).

      GDG appealed the dismissal, arguing that the district court erred in its

application of both forum non conveniens and international comity. GDG moved

for supplemental briefing after the United States Supreme Court decided Atlantic

Marine, which addressed the effect of a forum-selection clause on forum non

conveniens 

. We granted the motion and both parties

filed supplemental briefs.

      The district court had jurisdiction over this action because the Government

of Belize is a foreign state. See 28 U.S.C. § 1330. We have appellate jurisdiction

because dismissal came in a final order. See 28 U.S.C. § 1291.

                                         II.

      We review the district court’s forum non conveniens dismissal for abuse of

discretion. Aldana v. Del Monte Fresh Produce N.A., 

, 1288 (11th

Cir. 2009). Therefore, we will “affirm unless we find that the district court has


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made a clear error of judgment, or has applied the wrong legal standard.” 

States v. Frazier, 

, 1259 (11th Cir. 2004)). Based on

controlling Supreme Court case law decided after the district court issued its

dismissal order, we conclude that the district court erred because it conducted its

forum non conveniens analysis without first considering the application of the

forum-selection clause found in the Master Lease Agreement. See Atl. Marine,

.

      To obtain dismissal for forum non conveniens, “[t]he moving party must

demonstrate that (1) an adequate alternative forum is available, (2) the public and

private factors weigh in favor of dismissal, and (3) the plaintiff can reinstate his

suit in the alternative forum without undue inconvenience or prejudice.” Leon v.

Millon Air, Inc., 

, 1310-11 (11th Cir. 2001). Just last year, the

Supreme Court in Atlantic Marine explained that an enforceable forum-selection

clause carries near-determinative weight in this analysis:

      When parties agree to a forum-selection clause, they waive the right to
      challenge the preselected forum as inconvenient or less convenient for
      themselves or their witnesses, or for their pursuit of the litigation. A
      court accordingly must deem the private-interest factors to weigh
      entirely in favor of the preselected forum. . . .

            As a consequence, a district court may consider arguments
      about public-interest factors only. Because those factors will rarely
      defeat a transfer motion, the practical result is that forum-selection
      clauses should control except in unusual cases.



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(emphasis added). Thus, a district court now must consider an

enforceable forum-selection clause in the forum non conveniens analysis. A

binding forum-selection clause requires the court to find that the forum non

conveniens private factors entirely favor the selected forum.

      This approach is consonant with the Supreme Court’s longstanding

recognition “that privately bargained-for forum-selection clauses [are] a necessary

component of the expanded international commercial relationships of our time.”

Estate of Myhra v. Royal Caribbean Cruises, Ltd., 

, 1240 (11th Cir.

2012); see Scherk v. Alberto-Culver Co., 

, 516 (1974) (“A contractual

provision specifying in advance the forum in which disputes shall be litigated and

the law to be applied is, therefore, an almost indispensable precondition to

achievement of the orderliness and predictability essential to any international

business transaction.”); The Bremen v. Zapata Off-shore Co., 

, 12-13

(1972) (“There are compelling reasons why a freely negotiated private

international agreement, unaffected by fraud, undue influence, or overweening

bargaining power, such as that involved here, should be given full effect.” (footnote

omitted)); see also Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 

, 631 (1985) (“The Bremen and Scherk establish a strong presumption in

favor of enforcement of freely negotiated contractual choice-of-forum

provisions.”).


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      In this case, the district court dismissed for forum non conveniens without

addressing the significance of the forum-selection clause. In the face of this recent

high court ruling, we are obliged to vacate the forum non conveniens dismissal.

See Atl. 

(“The calculus changes . . . when the parties’

contract contains a valid forum-selection clause . . . .”); La Seguridad v. Transytur

Line, 

, 1308 (11th Cir. 1983) (“[T]he court abuses its discretion

when it fails to balance the relevant factors.”). We remand to allow the district

court to determine in the first instance whether the forum-selection clause in the

Master Lease Agreement is enforceable. If the forum-selection clause binds the

Government, the district court must find that the forum non conveniens private

factors unequivocally support the selected forum. See Atl. 

. The forum non conveniens analysis should then proceed, with the

understanding that “[i]n all but the most unusual cases . . . ‘the interest of justice’ is

served by holding parties to their bargain.” 

      The Government argues nevertheless that the district court need not have

considered the forum-selection clause, for two reasons. First, the Government

claims that the provision is “permissive,” not “mandatory.” See Global Satellite

Commc’n Co. v. Starmill U.K., Ltd., 

, 1272 (11th Cir. 2004). “A

permissive clause authorizes jurisdiction in a designated forum but does not

prohibit litigation elsewhere.” 

clause, by contrast, “dictates an


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exclusive forum for litigation under the contract.” 

Inc. v.

Redan, 

, 1262 n.24 (11th Cir. 1999)). The Government points to one

sentence from the forum-selection clause in which “Lessee specifically

acknowledges that Miami-Dade County, Florida is a proper venue for the Lessor to

bring suit against Lessee pursuant to the Master Lease or any Lease Schedule.”

But the lease also provides that the “Lessee irrevocably submits to the exclusive

jurisdiction of any of the federal and state courts in the State of Florida in any

action or proceeding arising out of or relating to the Master Lease . . . .” (emphasis

added). Second, the Government argues that the court need not have looked to the

forum-selection clause because the Government overcame the presumption of

validity. See The 

. The Government claims it made a

sufficient showing before the district court that the clause was unenforceable as

either “unreasonable and unjust” or invalid due to “fraud or overreaching.” 

is that both arguments require the interpretation and analysis of

the Master Lease Agreement. We are reluctant to address them until the district

court has had an opportunity to consider them first. On remand, the district court

should determine whether the Master Lease Agreement contains a mandatory

forum-selection clause that binds the Government.

                                          III.




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      We also review the district court’s decision to dismiss based on international

comity for abuse of discretion. Belize 

. International

comity is an abstention doctrine that reflects “the extent to which the law of one

nation, as put in force within its territory, whether by executive order, by

legislative act, or by judicial decree, shall be allowed to operate within the

dominion of another nation.” Hilton v. Guyot, 

, 163 (1895).

“International comity serves as a guide to federal courts where ‘the issues to be

resolved are entangled in international relations.’” 

(quoting In re Maxwell Commc’n Corp., 

, 1047 (2d Cir. 1996)).

The doctrine of comity “is not a rule of law, but one of practice, convenience, and

expediency.” Somportex Ltd. v. Phila. Chewing Gum Corp., 

, 440

(3d Cir. 1971). “Although more than mere courtesy and accommodation, comity

does not achieve the force of an imperative or obligation. Rather, it is a nation’s

expression of understanding which demonstrates due regard both to international

duty and convenience and to the rights of persons protected by its own laws.” 

international comity is applied retrospectively, when courts

consider whether to respect the judgment of a foreign tribunal or to defer to

parallel foreign proceedings. See 

. For

retrospective international comity, courts consider whether the foreign court was




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competent, whether the foreign judgment was fraudulent, and whether that

judgment violated American public policy notions of decency and justice. 

rarely, courts have applied international comity prospectively,

without a conflicting past or present foreign proceeding. See 

cases,

“domestic courts consider whether to dismiss or stay a domestic action based on

the interests of our government, the foreign government and the international

community in resolving the dispute in a foreign forum.” 

federal courts evaluate several factors,” namely, (1) “the strength of

the United States’ interest in using a foreign forum,” (2) “the strength of the

foreign governments’ interests,” and (3) “the adequacy of the alternative forum.”

has this Court ever sustained the dismissal of a lawsuit based on a

prospective application of international comity. In Ungaro-Benages, a plaintiff

claimed that two German banks stole her family’s ownership interest in a

manufacturing company as part of the Nazi program of “Aryanization.” 

The district court granted summary judgment based in part on the

doctrine of international comity, and a panel of this Court affirmed. 

President Clinton had reached an agreement with the German government to

achieve a “legal peace” by establishing a private foundation -- funded by voluntary

contributions from the German government and German companies -- to hear


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claims brought by victims of the Nazi regime. 

This Court “decide[d]

to abstain based on the strength of our government’s interests in using the

Foundation, the strength of the German government’s interests, and the adequacy

of the Foundation as an alternative forum.” 

We noted that “the

President has the constitutional authority to settle the international claims of

American citizens, even if the claimants would prefer litigation in American

courts,” 

American and German governments have entered into

extensive negotiations over this subject and those negotiations affect thousands of

other victims of the Nazi regime,” 

      To support its application of prospective international comity, this Court in

Ungaro-Benages cited only three cases, all from the Second Circuit. In two, the

Second Circuit ultimately refused to abstain. See Jota v. Texaco, Inc., 

(2d Cir. 1998) (considering whether to dismiss proceedings related to

environmental damage in Ecuador based on Ecuador’s interest in foreign or

domestic resolution and holding dismissal on grounds of forum non conveniens

and comity erroneous); Pravin Banker Assocs. v. Banco Popular Del Peru, 

(2d Cir. 1997) (affirming district court’s refusal to stay an action brought

by an American holder of Peruvian debt while Peru attempted to renegotiate its

commercial debt under the Brady Plan). Thus, Ungaro-Benages relied on only one

case that actually dismissed domestic claims to allow foreign proceedings. See Bi


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v. Union Carbide Chems. & Plastics Co., 

(2d Cir. 1993). In Bi, the

Second Circuit applied the “act of state doctrine” when India created an

adjudication mechanism that granted exclusive government standing to represent

the victims of a mass tort, the Bhopal disaster. 

The Bi court concluded:

      We hold that when a recognized democracy determines that the
      interests of the victims of a mass tort that occurred within its borders
      will be best served if the foreign government exclusively represents
      the victims in courts around the world, we will not pass judgment on
      that determination, and we will permit only the foreign government
      access to our courts to litigate those claims, subject of course to our
      own requirements for standing.

case, we think the district court abused its discretion in its application

of the three Ungaro-Benages factors that bear on prospective international comity.

Notably, in Ungaro-Benages, all three factors favored dismissal. First, “[t]he

United States government ha[d] consistently supported the Foundation as the

exclusive forum” after the “President entered into negotiations with the German

government and determined that the interests of American citizens, on the whole,

would be best served by establishing the Foundation Agreement” because it

“creat[ed] a comprehensive compensatory scheme.” 

Second, “the

German government ha[d] a significant interest in having the Foundation be the

exclusive forum for these claims in its efforts to achieve lasting legal peace with




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the international community.” 

Foundation was an adequate forum.

Ungaro-Benages, here the United States does not have a

significant interest in the foreign adjudication of this matter. The district court

recognized that “the United States does have a general interest in seeing that a

party’s contractual obligations are honored.” We agree. In this case, “the United

States has a strong interest in ensuring the enforceability of valid debts under the

principles of contract law, and in particular, the continuing enforceability of

foreign debts owed to United States lenders.” Pravin Banker 

; see Allied Bank Int’l v. Banco Credito Agricola de Cartago, 

,

521-22 (2d Cir. 1985) (“The United States has an interest in ensuring that creditors

entitled to payment in the United States in United States dollars under contracts

subject to the jurisdiction of United States courts may assume that, except under

the most extraordinary circumstances, their rights will be determined in accordance

with recognized principles of contract law.”). The Master Lease Agreement was

negotiated and signed in the United States. Intelco completed its performance by

presenting the telephone equipment for acceptance in Florida. GDG, one of the

parties to the litigation, is an American entity. Litigation in a federal forum

advances the United States’ interest in enforcing agreements formed and

performed on American soil in disputes involving an American party. Tellingly, in


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Ungaro-Benages the United States submitted a Statement of Interest that

represented that it was “in the foreign policy interests of the United States for the

case to be dismissed.” 

. No statement of foreign policy interest

from the United States appears in the current record, and we can discern no such

interest favoring the foreign adjudication of this matter. Thus, the first Ungaro-

Benages factor weighs against dismissal.

      As for the second factor, the district court abused its discretion in

determining that the Government of Belize possesses a strong interest in litigation

abroad, strong enough to outweigh the interest of the United States. To the

contrary, the Government of Belize lacks a sufficiently strong interest in foreign

adjudication. This dispute resembles so many other garden-variety commercial

contract actions: GDG sues for breach of an equipment lease contract, but the

Government claims it is not bound by the agreement. The record contains no

indication that Belize has established an exclusive method of adjudicating this type

of contract dispute that would be undermined by prosecution in federal court. In

Ungaro-Benages, an American suit would have undermined the German

Foundation’s uniform system for paying Nazi-era claims to thousands of 

. In Bi, a federal court action would have conflicted with

exclusive Indian government standing to litigate liability for the Bhopal 

. In other words, Germany and India had powerful and easily


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discernible interests in protecting their dispute-resolution systems involving

thousands of claimants from the corrosion or collapse that would occur if the

claims were handled by federal courts. Here, in sharp contrast, GDG’s suit does

not affect a collective solution to widespread harms. Its federal claims conflict

with no foreign system or proceedings.

      As a litigant, the Government of Belize now may prefer to handle this suit in

its own courts. But a foreign sovereign party’s post hoc preference to defend a

contract action at home is not a cognizable prospective international comity

interest. Prospective international comity requires a serious problem that would be

created by federal court proceedings but that would not be present if the matter

were adjudicated abroad. Here, we can see no such problem. The parties dispute

only the performance under a contract, and the United States is an adequate forum.

The Government’s invocation of contract cases involving the retroactive

application of international comity says little about whether courts should extend

prospective international comity to this commercial contract dispute. Though a

Belizean forum may be altogether adequate, adequacy is not enough. Ultimately,

prospective international comity does not apply because neither the United States

nor Belize has the requisite interest.

      As we view it, the district court erred when it reached the opposite

conclusion based on Belize Telecom. 

. A materially different set of


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facts in that case led us to find it “clear that the interests of Belize far outweigh[ed]

the American interests.” 

The Belize Telecom dispute arose when the

Government of Belize took control of shares of Belize Telecommunications

Limited, “the primary provider of telecommunications in Belize.” 

The

litigants disputed whether the Government acted in accordance with that

company’s articles of association, as interpreted according to Belize law, when it

removed the company’s directors and elected a new slate. Crucially, Belize

Telecom involved a retrospective international comity dismissal, which entails a

wholly different test and different analysis than in prospective cases. See Ungaro-

. While the Court’s opinion mentioned foreign and

domestic interests, Belize Telecom did not weigh them in the context of the

Ungaro-Benages prospective framework.

      Moreover, none of the three foreign interests cited in Belize Telecom apply

here. First, in Belize Telecom “[n]one of the parties to the litigation [wa]s an

American corporation,” and the lawsuit was only “tangentially” connected to the

United States because it involved payments due to an American 

. Here, GDG is an American corporation. And the contract in dispute was

negotiated, signed, and performed in the United States.

      Second, the action in Belize Telecom threatened to affect the mass “delivery

of telecommunications services” to the citizens of Belize. 

here, where


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the record contains no indication that the case will have any impact on the

provision of Belizean telecommunications services. Moreover, we are not inclined

to give weight to another nation’s interest merely because of the use of a product

purchased in the United States. If foreign purchasers could avoid contract actions

in American courts by simply citing the use of goods abroad, international comity

abstention would lose its moorings. American merchants rely on the availability of

United States courts when dealing with foreign nations in international commerce.

Such commerce could be constricted if a merchant knew that an expansive

prospective international comity doctrine would allow a foreign government

counterparty to remove any suits to its own courts. This result would harm foreign

governments, who could have greater difficulty obtaining favorable terms in

American transactions. While the Government may now have an ex post interest

in litigation in Belize, it may have had an ex ante interest in a federal forum.

      Third, Belize Telecom “involve[d] the interpretation of the articles of

association of a Belizean corporation pursuant to Belize law.” 

In this

case, American law applies. The contract unambiguously provided that rights and

obligations related to the lease “shall be determined exclusively in accordance with

the governing laws of the State of Florida, irrespective of conflicts of laws

principles.” It may be true that adjudication in federal court could require some

application of Belizean law in determining whether Fonseca acted with the


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authority to bind the Government to the Master Lease Agreement. But federal

courts regularly interpret and apply foreign law without offending international

interests. See Fed. R. Civ. P. 44.1. And the bulk of the law to be applied to the

interpretation of the contract in this case plainly is American. In short, we think

the district court abused its discretion in determining that Belize’s preference for

“seeing that its national laws are properly interpreted” is the type of strong interest

that warrants prospective international comity dismissal.

      To date, we have reserved prospective international comity abstention for

rare (indeed often calamitous) cases in which powerful diplomatic interests of the

United States and foreign sovereigns aligned in supporting dismissal. We decline

to transform prospective international comity into a forum-selection tool for

sovereign litigants to wield in common breach of contract actions. Because

neither the United States nor Belize has a strong interest in adjudication of this

matter abroad, the district court erred in applying international comity

prospectively.

                                          IV.

      The district court erred in dismissing on each alternative ground. We vacate

the forum non conveniens dismissal and remand to the district court so that it may

determine the enforceability of the forum-selection clause and its significance to

the forum non conveniens analysis. We also vacate its dismissal based on


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prospective international comity because that exceptional doctrine does not apply

to the commercial dispute in this case.

      VACATED and REMANDED.




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