JON O. NEWMAN, Circuit Judge:
This is an interlocutory appeal from the denial of a motion to dismiss, primarily on the ground of forum non conveniens ("FNC"), a petition seeking confirmation of an international arbitration award. A principal public interest factor to be weighed in assessing the FNC claim is a Peruvian statute that limits the amount of money that an agency of the Peruvian government may pay annually to satisfy a judgment. The limit is three percent of the agency's annual budget.
This case arises from a consulting agreement entered into by the Appellee and the
A Peruvian statute imposes, in some circumstances, a limit of three percent of the budget of a governmental entity on the amount of money the entity may pay annually to satisfy a judgment.
In January 2008, the Appellee filed a petition in the Southern District to confirm the Award and obtain a judgment for $21,607,003. The petition was brought pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), the Inter-American Convention on International Commercial Arbitration (the "Panama Convention"), enforceable pursuant to the FAA, see id. § 301, or, alternatively, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention"), also enforceable pursuant to the FAA, see id. § 201. Jurisdiction was based on the FAA, 9 U.S.C. § 203, and the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1330(b). In opposing a motion by the Appellants to dismiss, the Appellee alleged that Peru has substantial assets in New York, resulting from the sale of bonds. The Appellants acknowledge the existence of these funds. In September 2009, the District Court denied the Appellants' motion to dismiss, which had asserted various grounds, including lack of subject matter jurisdiction under the FSIA, FNC, and international comity. The District Court ruled, among other things, that the Program and the Republic are not separate entities under Peruvian Law, see Figueiredo, 655 F.Supp.2d at 369, that Peru is therefore subject to the Award despite not having signed the consulting agreement, see id. at 367-71, that jurisdiction was proper under the FSIA, see id. at 371-72, and that dismissal was not appropriate under FNC, see id. at 374-77, the Agreement's forum selection clause, see id. at 377, or international comity, see id. at 377-78. The Court appears not to have explicitly considered whether the three percent cap statute was relevant to any of the threshold issues it decided, and had no occasion to consider what effect, if any, that statute might have on the Appellants' payment obligation because the Court did "not reach the ultimate question whether the Award should be confirmed." Id. at 378.
The Appellants filed an interlocutory appeal, No. 09-3925, from the denial of their motion to dismiss, predicating appellate jurisdiction on the collateral order, doctrine, which is applicable to an order denying a motion to dismiss that had sought FSIA immunity, see Kensington International Ltd. v. Itoua, 505 F.3d 147, 153 (2d Cir.2007).
Although courts are normally obliged to consider issues of subject matter jurisdiction prior to other issues, the Supreme Court has approved the practice of this Court, see In re Arbitration Between Monegasque De Reassurances S.A.M. v. Nak Naftogaz of Ukraine, 311 F.3d 488, 497-98 (2d Cir.2002); In re Minister Papandreou, 139 F.3d 247, 255-56 (D.C.Cir.1998), of exercising discretion to consider an FNC dismissal without first adjudicating issues of subject matter jurisdiction. See Sinochem International Co. v. Malaysia International Shipping Corp., 549 U.S. 422, 429-34, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). We have concluded that it is appropriate to do so in this case.
We review a district court's rejection of an FNC claim for abuse of discretion, but may reverse if we conclude that the court has made an error of law. Monegasque, 311 F.3d at 498.
The FNC standards concern both private and public interests. See American Dredging Co. v. Miller, 510 U.S. 443, 448, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994); Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509-09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 74 (2d Cir.1998). Among the public interests are "a local interest in having localized controversies decided at
In the pending case, the District Court recognized that although the Panama Convention establishes jurisdiction in the United States, "`there remains the authority to reject that jurisdiction for reasons of convenience, judicial economy and justice.'" Figueiredo, 655 F.Supp.2d at 374-75 (quoting Monegasque, 311 F.3d at 497). The Court then appropriately gave somewhat reduced deference to the foreign plaintiff's choice of forum, id. at 375 (citing Monegasque, 311 F.3d at 498), and considered several private and public interest factors, see id. at 376-77.
In considering the factor of the adequacy of an alternative forum, the District Court concluded that although Peruvian law permits execution of arbitral awards, "only a United States court `may attach the commercial property of a foreign nation located in the United States,'" id. at 375-76 (quoting TMR Energy Ltd. v. State Property Fund of Ukraine, 411 F.3d 296, 303 (D.C.Cir.2005)). In deeming a Peruvian forum inadequate for the stated reason, we think the District Court erred. It is no doubt true that only a United States court may attach a defendant's particular assets located here, but that circumstance cannot render a foreign forum inadequate. If it could, every suit having the ultimate objective of executing upon assets located in this country could never be dismissed because of FNC. Yet in Monegasque, to cite a recent example, we upheld an FNC dismissal in favor of suit abroad even though the plaintiff had obviously sought a judgment in the United States in order to execute upon a foreign government's assets here.
"An alternate forum is adequate if the defendants are amenable to service of process there, and if it permits litigation of the subject matter of the dispute." Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 75 (2d Cir.2003) (citing
The parties recognize that public interest factors are to be considered in determining whether an FNC dismissal is appropriate. See Gilbert, 330 U.S. at 508-09, 67 S.Ct. 839; Iragorri v. United Technologies Corp., 274 F.3d 65, 73-74 (2d Cir.2001). The Appellants contend that the cap statute is a relevant, perhaps decisive, public factor to be weighed in the discretionary FNC decision. The Appellee responds that the cap statute cannot warrant FNC dismissal because "such laws are contrary to the United States' public policy in favor of international arbitration." Brief for Appellee at 63.
The parties are similarly at odds with respect to international comity, which is the "recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or other persons who are under the protection of its laws." Hilton v. Guyot, 159 U.S. 113, 164, 16 S.Ct. 139, 40 L.Ed. 95 (1895); see JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 423 (2d Cir.2005). The Appellants point out that a conflict between domestic and foreign law is an important criterion for a comity dismissal, see Hartford Fire Insurance Co. v. California, 509 U.S. 764, 798, 113 S.Ct. 2891, 125 L.Ed.2d 612 (1993); In re Maxwell Communication Corp., 93 F.3d 1036, 1047-48 (2d Cir.1996), and contend that enforcement of the Award in the United States cannot be achieved without disregarding Peru's cap statute. The Appellee responds that comity considerations, just like FNC considerations, do not warrant dismissal on the ground of comity in view of the strong United States policy favoring the enforcement of foreign arbitral awards,
We agree with the Appellants that the cap statute is a highly significant public factor warranting FNC dismissal. Although it obviously has special significance for one of the parties in this litigation, Peru, and to that extent differs from public factors such as court congestion, see Gilbert, 330 U.S. at 508, 67 S.Ct. 839, which are independent of particular litigants, there is nonetheless a public interest in assuring respect for a sovereign nation's attempt to limit the rate at which its funds are spent to satisfy judgments.
In the somewhat similar context of abstention, the Supreme Court has observed that deferring to litigation in another jurisdiction is appropriate where the litigation is "intimately involved with sovereign prerogative" and it is important to ascertain the meaning of another jurisdiction's statute "from the only tribunal empowered to speak definitively." Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 28-29, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959). The rate at which public funds may be disbursed to satisfy public obligations is surely "intimately involved with sovereign prerogative" and the Peruvian courts are "the only tribunal[s] empowered to speak authoritatively" on the meaning and operation of the cap statute.
With the underlying claim arising (1) from a contract executed in Peru (2) by a corporation then claiming to be a Peruvian domiciliary (3) against an entity that appears to be an instrumentality of the Peruvian government, (4) with respect to work to be done in Peru, the public factor of permitting Peru to apply its cap statute to the disbursement of governmental funds to satisfy the Award tips the FNC balance decisively against the exercise of jurisdiction in the United States.
Despite these private and public factors favoring an FNC dismissal, Figueiredo contends that FNC dismissal is not warranted because of the interest of the United States favoring enforcement of arbitration agreements in international contracts, see Scherk v. Alberto-Culver Co., 417 U.S. 506, 520 n. 15, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974), and the provision of the Panama Convention authorizing enforcement of international arbitration awards. See Panama Convention, Art. 4, Jan. 30, 1975, O.A.S.T.S. No. 42. Although enforcement of such awards is normally a favored policy of the United States and is specifically contemplated by the Panama Convention, that general policy must give way to the significant public factor of Peru's cap statute. Moreover, Article 4 of the Convention explicitly provides that execution of international arbitration awards "may be ordered . . . in accordance with the procedural laws of the country where it is to be executed. . . .," and FNC is a doctrine "of procedure," American Dredging Co. v. Miller, 510 U.S. 443, 453, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994). See Monegasque, 311 F.3d at 495-96 (making same point with respect to similar wording of the New York Convention, June 10, 1958, 21 U.S.A. 2517, T.I.A.S. No. 6997, 330 U.N.T. 53.)
The District Court also said that Peru should not be able to prevail on the ground of FNC because it entered into the Panama Convention, see Figueiredo, 655 F.Supp.2d at 377, suggesting that Peru thereby assumed the risk that any award against it would be enforced in a signatory country like the United States. However, not only does the Convention contemplate
For all of the reasons stated, we conclude that the petition should be dismissed on the ground of FNC.
Reversed and remanded with directions to dismiss the petition.
GERARD E. LYNCH, Circuit Judge, dissenting:
By acceding to the Inter-American Convention on International Commercial Arbitration ("Panama Convention"), our country has committed itself to open our courts to the enforcement of international arbitral awards as if they were foreign judicial judgments. This commitment requires us to recognize and enforce international arbitral awards in the vast majority of cases. Today, however, the majority concludes that this commitment may be trumped by a Peruvian statute limiting the portion of its annual budget that an entity of the state may pay towards the satisfaction of a lawfully obtained arbitration award. Neither the majority nor any party argues that this foreign statute operates on our soil of its own force. Nor could they; it is well established that, with few exceptions, none of which are relevant here, forum law governs the enforcement of foreign judgments, even when resolution of the underlying dispute turned on the law of another jurisdiction. See Restatement (Second) of Conflict of Laws § 99 (1969) ("The local law of the forum determines the methods by which a judgment of another state is enforced."). Rather, the majority concludes that Peru's three-percent cap on the payment of judgments is a public interest factor—indeed, the dispositive factor— weighing in favor of a forum non conveniens dismissal. Because I question both the applicability of the forum non conveniens doctrine on the facts of this case and the majority's conclusion that the relevant considerations weigh in favor of dismissal, I respectfully dissent.
At the outset, it is important to emphasize that this is simply an action to confirm an award to which the plaintiff is unquestionably entitled. If Figueiredo had sought to adjudicate the underlying merits of its dispute with Peru (or its agency, the "Program") in an American court, the forum non conveniens doctrine would have obvious bite: neither party has any particular connection to the United States; the locus of the transaction was entirely domestic to Peru; none of the witnesses or documents relevant to resolving the dispute is located here; and the United States has no interest in the dispute, while Peru has a significant interest. But that is emphatically not this case. The adjudication
By using the mechanism of forum non conveniens to import a substantive and self-serving provision of Peruvian law into what should properly be a summary proceeding, the majority significantly undermines the background expectations against which the parties made their contract. As the Supreme Court has recognized, "uncertainty will almost inevitably exist with respect to any contract touching two or more countries, each with its own substantive laws and conflict-of-laws rules. 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." Scherk v. Alberto-Culver Co., 417 U.S. 506, 516, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974). Increasingly, the forum that is specified in such agreements is international arbitration. Between 1993 and 2003, the number of international arbitrations overseen by the leading arbitral institutions nearly doubled, and as of 2005 it was estimated that nearly ninety percent of transnational commercial contracts contained an arbitration provision. See Christopher R. Drahozal, New Experiences of International Arbitration in the United States, 54 Am. J. Comp. L. 233, 233 & n. 1 (2006).
Parties that contract across national lines choose to resolve their disputes via arbitration for many reasons. But no doubt one of the most important—particularly, though not exclusively, where one party is a sovereign—is that they do not necessarily trust the court systems of the relevant countries, and believe that the arbitral forum provides more reliable justice. See, e.g., H.M. Holtzmann, Arbitration: An Indispensable Aid to Multinational Enterprise, 10 J. Int'l L. & Econ. 337, 337-38 (1975) (noting that "[w]hen disputes arise, the multinational corporation is usually unwilling to go to the courts of the government with whom it is in conflict"); see also Leonard v. Quigley, Accession by the United States to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 70 Yale L.J. 1049, 1051 (1961) ("The businessman doing business in several countries has an additional reason for preferring arbitration to local judicial remedies—the fear of discrimination against the foreigner, consciously felt in actual bias or unconsciously exhibited by preference for local principles of law.").
But because arbitrators have no power to enforce their judgments, international arbitration is viable only if the awards issued by arbitrators can be easily reduced to judgment in one country or another and thereby enforced against the assets of the losing party. Until relatively recently, a party that had prevailed in an international arbitration faced significant uncertainty in its efforts to satisfy its award. In some jurisdictions, enforcement required a full trial on the merits of the underlying dispute. See Quigley, supra, at 1051 & n. 15. At a minimum, many countries maintained procedures for the enforcement of foreign awards that were substantially more onerous
The Panama Convention and its predecessor agreement, the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention"), were designed to overcome these obstacles. As the Supreme Court has noted, "[a] parochial refusal by the courts of one country to enforce an international arbitration agreement," and a fortiori an arbitration award, not only undermines business confidence, but also "invite[s] unseemly and mutually destructive jockeying by the parties to secure tactical litigation advantages." Scherk, 417 U.S. at 516-17, 94 S.Ct. 2449. This dynamic, in turn, threatens to "damage the fabric of international commerce and trade, and imperil the willingness and ability of businessmen to enter into international commercial agreements." Id. at 517, 94 S.Ct. 2449. It was precisely these concerns that motivated the drafters of the New York Convention, at the urging of the International Chamber of Commerce, to craft a document that would carefully circumscribe the bases on which the courts of a signatory nation could disregard an arbitration provision or refuse to enforce an arbitral award. Thus, the committee report that accompanied the initial draft of the treaty emphasized that the inclusion of the word "only" in what is now Article V was intended to "make[] it clear" that once the procedural requirements for enforcement are met "no other grounds except those included in this article may be invoked as a defense."
It is beyond question that the Peruvian statute limiting the amount that government agencies can be compelled to pay on judgments against them is not, of its own force, a basis for an American court to refuse to enforce an arbitration award against a Peruvian governmental entity, and the majority does not suggest otherwise. Rather, it declines to enforce the award on the ground of forum non conveniens, though—as discussed below—it then distorts that doctrine by making its application turn entirely on that very provision of Peruvian law.
Given that forum non conveniens is not listed as a defense to enforcement in either the New York or the Panama Convention, a strong case can be made that, by acceding to the treaties, the United States has made the doctrine inapplicable to enforcement proceedings that they govern. Moreover, because forum non conveniens is a discretionary doctrine that resists attempts "to catalogue the circumstances which will justify or require either grant or denial of [the] remedy," Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), superseded on other grounds by 20 U.S.C. § 1404, its application in these circumstances would seem to dramatically undercut the treaty drafters' efforts to foster confidence in the reliability and efficacy of international arbitration. For these reasons, the Ninth Circuit has rejected the application of forum non conveniens in the related context of actions governed by the Warsaw Convention,
Applying forum non conveniens to enforcement actions is inconsistent with the New York and Panama Conventions in another way as well. In addition to limiting states' discretion to deny enforcement in individual cases, the treaties seek "to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries." Scherk, 417 U.S. at 520 n. 15, 94 S.Ct. 2449. Forum non conveniens, however, is unknown in civil law countries. See Ronald Brand, Comparative Forum Non Conveniens and the Hague Convention on Jurisdiction and Judgments, 37 Tex. Int'l L.J. 467, 468 (2002). Consequently, applying
That is not only my analysis; it is also the position taken by the draft Restatement (Third) of the U.S. Law of International Commercial Arbitration (Council Draft No. 2, Sept. 27, 2010). Section 5-21(a) of the Restatement flatly states that "[a]n action to enforce a [New York or Panama] Convention award is not subject to a stay or dismissal on forum non conveniens grounds." The accompanying Reporters' Note explains that
Id., Reporters' Note (a), at 245.
The majority nevertheless concludes that forum non conveniens is applicable to this case, because it is a "procedural law," compliance with which may act as a bar to the enforcement of an arbitral award, even where none of the enforcement limitations explicitly set out in Article V applies. See Panama Convention art. IV (noting that an arbitral decision's "execution or recognition may be ordered in the same manner as that of decisions handed down by national or foreign ordinary courts, in accordance with the procedural laws of the country where it is to be executed") (emphasis added). In so concluding, the majority is on firm precedential ground in this Circuit. In In re Arbitration Between Monegasque De Reassurances S.A.M. v. Nak Naftogaz of Ukraine ("Monegasque"),
I recognize that Monegasque is a binding precedent of this Court and that, although interpreting a different treaty, it fairly implies that forum non conveniens will be an available ground for declining to recognize an arbitration award under the Panama Convention. I note, however, that there are substantial reasons to think that
The Monegasque court supported its interpretation of the treaty by noting that the drafters of the New York Convention had considered and rejected a proposal to adopt a procedure for enforcement that would be uniform across all of the signatory states. Yet, examined in context, the source upon which the court relied makes clear that the procedural variations envisioned were of a much more technical nature and pertained chiefly to whether a signatory country could treat international awards differently from domestic ones. See Quigley, supra, at 1065 (citing as one such procedural idiosyncrasy the fact that El Salvador and Sweden require foreign awards to "be submitted to the Court for a determination whether the requirements of relevant international instruments had been satisfied, while domestic awards are granted summary execution"). Indeed, prior to Monegasque, "most observers considered that [the `procedure'] provision related to the form of enforcement, not the conditions for enforcement." William W. Park, Respecting the New York Convention, 18 ICC Int'l Ct. of Arb. Bull. 65, 70 (2007). In other words, the "procedure" provisions of the treaties permit variation with regard to the manner in which signatory states enforce international arbitration awards; they do not provide a means by which a state may decline to enforce such awards at all.
Based on these observations and others, a number of commentators have argued that our decision in Monegasque places the United States in breach of its treaty obligations under the New York (and now Panama) Convention. See, e.g., William W. Park & Alexander A. Yanos, Treaty Obligations and National Law: Emerging Conflicts in International Arbitration, 58 Hastings L.J. 251, 255-56 (2006); Int'l Commercial Disputes Comm., Ass'n of the Bar of N.Y.C., Lack of Jurisdiction and Forum Non Conveniens as a Defense to the Enforcement of Foreign Arbitral Awards, 15 Am. Rev. Int'l Arb. 407, 428 (2004); Pelagia Ivanova, Note, Forum Non Conveniens and Personal Jurisdiction: Procedural Limitations on the Enforcement of Foreign Arbitral Awards Under the New York Convention, 83 B.U. L.Rev. 899, 907-11, 920 (2003).
For these reasons, if I were free to consider this issue as one of first impression, I would be inclined to conclude, contrary to Monegasque, that the doctrine of forum non conveniens is not available at all in an action such as this one. While I am not free to reconsider the holding of Monegasque, perhaps these observations will be of use in persuading other courts that are not bound by its authority to give further thought to this issue.
Even accepting, as I am bound by precedent to do, that forum non conveniens may be asserted as a ground for refusing to
First, and perhaps most importantly, Monegasque affirmed a district court's dismissal on the basis of forum non conveniens, while here the majority reverses the district court's decision to entertain an action over which it undisputedly had jurisdiction. It is well established that federal courts have a "virtually unflagging obligation. . . to exercise the jurisdiction given them." Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). The forum non conveniens doctrine represents a narrow exception to this rule rooted in "the inherent power of the courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Monegasque, 311 F.3d at 497 (internal quotation marks omitted). Because it is primarily a doctrine of case management, we have emphasized that the district court's decision on a motion to dismiss for forum non conveniens is entitled to considerable deference. In Iragorri v. United Technologies Corp., this Court, sitting en banc, stated in a unanimous opinion:
274 F.3d 65, 72 (2d Cir.2001) (ellipses, brackets, and internal citations omitted) (emphasis in the original).
In light of the broad discretion of the district court in these matters and the general obligation of federal courts to accept the jurisdiction that Congress gives them, it is unsurprising that, although this Court has reversed a district court's decision to grant a motion to dismiss on the basis of forum non conveniens in ten prior cases, I have not identified even a single case in which we have found fault with a district court that denied such a motion. This case therefore represents a first for our Court, a fact that should give the majority pause.
Monegasque is distinguishable from this case in other respects as well. The Monegasque court emphasized at length the legal and factual difficulties that were presented by the plaintiff's efforts to impute the primary defendant's contractual liability to its sovereign parent, the Ukraine. The court emphasized that the case "[did] not lend itself to summary disposition," because "extensive discovery" and a trial
The majority finds no fault with that analysis, and offers no suggestion that the district court erred, as a matter of fact or law, in holding that this case, unlike Monegasque, can be resolved in the Southern District of New York without undue inconvenience to either party or to the court.
Moreover, nothing in Monegasque is inconsistent with the view that courts must be cautious in applying forum non conveniens in the context of actions to enforce arbitration awards under the New York and Panama Conventions, and must not be misled into assuming that dismissal is required simply because the underlying dispute has little or no nexus to the United States. Such caution is amply warranted in light of the text and the history of the Conventions as well as the need to ensure the dependability and impartiality of international arbitration so as to promote transnational commerce. See Scherk, 417 U.S. at 517, 94 S.Ct. 2449. The entire point of the Conventions is to "assure transacting businesses that arbitration clauses and arbitral awards will be enforced, and that
Accordingly, even on the assumption that in some circumstances a court in a signatory state may invoke forum non conveniens in declining to entertain an enforcement action, we should be especially wary of applying that doctrine expansively or in novel ways that suggest that enforcement plaintiffs should be referred back to the very courts they sought to avoid in resorting to arbitration.
Yet even apart from the special considerations dictated by the Panama Convention, I cannot conclude, based on a standard application of the forum non conveniens doctrine, that the district court abused its discretion in declining to dismiss this case. Dismissal on the basis of forum non conveniens is permissible only "when trial in the chosen forum would establish oppressiveness and vexation to a defendant out of all proportion to plaintiff's convenience, or when the chosen forum is inappropriate because of considerations affecting the court's own administrative and legal problems." Piper, 454 U.S. at 241, 102 S.Ct. 252 (internal quotation marks and ellipses omitted). The somewhat unusual facts of Monegasque notwithstanding, it will seldom be the case that these conditions are satisfied in a suit to enforce an international arbitration award.
Again, the essentially summary nature of enforcement proceedings matters. Forum non conveniens is intended to minimize practical problems so as to "make trial of a case easy, expeditious and inexpensive." Gulf Oil, 330 U.S. at 508, 67 S.Ct. 839 (emphasis added). But in a summary proceeding to confirm an arbitration award, "the proof and logistics factors attendant to trial are non-existent." Melton v. Oy Nautor Ab, No. 97-15395, 1998 WL 613798, at *2 (9th Cir. Aug. 10, 1998) (Tashima, J., dissenting). In this case, for example, there was only one substantive issue before the district court, a pure question of law as to whether the Program was an organ of the Peruvian state rather than a state "instrumentality" having an independent existence. The district court did
Nonetheless, the Court holds today, apparently for the first time in its history, that the district court's decision to retain jurisdiction over the case "cannot be located within the range of permissible decisions," Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir.2001). It reaches this result by way of logic that is unprecedented and, I believe, specifically foreclosed by controlling Supreme Court law. Despite recognizing (as do the parties) that Peru's three-percent judgment cap does not apply here as a matter of choice of law, the majority nevertheless concludes that the cap should apply to this proceeding and that its inapplicability here renders the United States an inconvenient forum. As a result, the plaintiff is left to seek its remedy in the Peruvian courts—the very forum it entered arbitration to avoid— where the cap undisputedly will apply. The majority is aware of course that, under Piper v. Reyno, "[t]he possibility of a change in substantive law should ordinarily not be given conclusive or even substantial weight in the forum non conveniens inquiry." 454 U.S. at 247, 102 S.Ct. 252. It therefore achieves this result by a sleight of hand: asserting that although, in the normal course, forum non conveniens is self-consciously blind to how dismissal will affect the substantive law that governs the case, when one of the parties is a sovereign, substantive legal issues may be transformed into public interest factors and considered in the analysis.
This position finds no support in Piper, Monegasque, or any other judicial precedent of which I am aware. The absence of authority is unsurprising. As is clear from its very name (whether rendered in Latin or English),
Focusing on the factors that the Supreme Court has said that courts may consider as part of the forum non conveniens analysis makes it clear both that this is so and that the district court did not abuse its discretion in declining to dismiss this case. In considering whether dismissal on forum non conveniens grounds is appropriate, a district court first "determines
At the first step, we must always start with "a strong presumption in favor of the plaintiff's choice of forum," Piper, 454 U.S. at 255, 102 S.Ct. 252, but the ease with which this presumption may be overcome will vary depending on the particular facts of each case. The ultimate inquiry is whether "considerations of convenience" motivated the plaintiff's choice of a U.S. forum or whether, instead, that choice "was motivated by forum-shopping reasons." Iragorri, 274 F.3d at 72. Although, as a general matter, "when a foreign plaintiff chooses a U.S. forum, it is much less reasonable to presume that the choice was made for convenience," id. at 71 (internal quotation marks omitted), "[i]t is not a correct understanding of the rule to accord deference only when the suit is brought in the plaintiff's home district," id. at 73. "Rather, the court must consider a plaintiff's likely motivations in light of all the relevant indications." Id. "[T]he greater the plaintiff's or the lawsuit's bona fide connection to the United States and to the forum of choice . . ., the more difficult it will be for the defendants to gain dismissal for forum non conveniens." Id. at 72 (footnote omitted, emphasis added).
Both the district court and the majority assign reduced deference to Figueiredo's choice of forum due to the fact that it is a foreign plaintiff, but I question whether that determination is correct in light of the intimate connection between the Southern District of New York and this lawsuit—which is concerned exclusively with the plaintiff's ability to enforce its award against U.S.-based assets of the defendant. Monegasque does not suggest otherwise. It is true that in that case—which, like this one, was an action to enforce an arbitral award—we said that the foreign plaintiff's choice of forum was entitled to "little deference." 311 F.3d at 499. But in so concluding, we emphasized that Monegasque's motivation in bringing its enforcement proceeding in the United States was "not apparent," and that "the jurisdiction provided by the [New York] Convention [was] the only link between the parties and the United States." Id. Here, in contrast, Figueiredo has identified specific assets in the United States against which it hopes to levy, thereby making the nexus between this action and the United States very tight indeed.
Nor is this consideration canceled, in my view, by the defendants' accusation that, in seeking enforcement here, "Figueiredo is engaged in blatant forum shopping" of the sort that in Iragorri we found to counsel against deference to the plaintiff's choice of forum. See Iragorri, 274 F.3d at 72. I
In any case, the majority does not challenge the district court's ultimate conclusion that the plaintiff's choice of forum was entitled to at least some deference. And even if the Court were to conclude that that choice is entitled to no deference at all, this factor would merely be neutral and would not tip in favor of dismissing the case.
The second step in the forum non conveniens analysis is to assess the adequacy of the alternative forum. This issue too is affected by a proper understanding of the summary nature of arbitration enforcement proceedings. The D.C. Circuit has ruled that where a plaintiff seeks to confirm an arbitral award against U.S. assets, and those assets can be reached only via a U.S. court judgment (which is the case when dealing with foreign sovereigns), then an alternative forum elsewhere is inadequate. See TMR Energy Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296, 303-04 (D.C.Cir.2005). The majority rejects this argument on the ground that, if it were correct, "every suit having the ultimate objective of executing upon assets located in this country could never be dismissed because of [forum non conveniens]." Majority Op., ante at 390. That need not necessarily be so. If this were a case in which liability on the merits had yet to be established, Figueiredo's "ultimate objective" in having any prospective award enforced in the United States would be vague and contingent. The weight of such an action would be concentrated on the yet-to-be-decided issues of underlying liability, and it therefore might be reasonable to conclude that Peru is a perfectly adequate alternative forum in which to resolve that issue.
But that is not this case. The merits of the underlying dispute have already been decided, and Figueiredo comes to us with the specific and narrow intent of enforcing its arbitration award against Peru's assets in the United States, as it is entitled to do under the Panama Convention. The resolution of that issue is not amenable to jurisdiction elsewhere.
In any event, the existence of an adequate alternative forum, like the degree of deference accorded to the plaintiff's choice of forum, is simply a preliminary inquiry. Even assuming arguendo that the plaintiff's choice of forum is entitled to little deference, and that there is an adequate alternative forum in which execution could be sought, to achieve a forum non conveniens dismissal a defendant must still show that the balance of the private and public convenience factors tips "strongly" in favor of the alternative forum. PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 74 (2d Cir.1998) (emphasis added). Although Peru argues strenuously that proof issues surrounding Figueiredo's claim of non-signer liability constitute a private convenience factor weighing in favor of dismissal, as noted above, I do not understand the majority to offer any credence to this argument.
Rather, the majority's holding is premised on the view that Peru's desire to enforce the three-percent limit on judgments against the state is a "public interest factor" that bears on the forum non conveniens analysis. The Court cites no authority for this position, because there is none. Indeed, the law tilts decidedly the other way. Consider what the Supreme Court has said about the relevant public factors bearing on a forum non conveniens decision:
Gulf Oil, at 330 U.S. at 508-09, 67 S.Ct. 839.
Some of the cited factors favor enforcement of this award in Peru, albeit weakly. Certainly, however, they do not—either individually or collectively—tilt strongly enough in favor of a Peruvian forum to overcome the preference for the plaintiff's choice of forum. As noted above, the U.S. courts are congested, but the disposition of this essentially summary proceeding would not be complicated, the case presents no serious choice-of-law issue, the persons whose affairs it touches are all parties to the litigation, and no jury trial would be required. Unquestionably, there is a "local interest in having localized controversies decided at home," but that is considerably counterbalanced by the fact that this is an international dispute in which the parties consciously consented to litigate in a private arbitration, with the resulting award subject to enforcement in the courts of any state signatory to the Panama Convention.
But however these factors cut, none of them is remotely analogous to Peru's interest in enforcing its three-percent limitation. The public factors cited by the Supreme Court, like the private interest factors, relate to the balance of conveniences—that is, to neutral reasons why it makes sense to hold a judicial proceeding in one country rather than another. The majority correctly appreciates that the plaintiff's desire to obtain a larger recovery is not a reason to reject application of forum non conveniens. Why then should the defendants' desire to avoid payment by forcing the case into a forum in which the plaintiff's recovery will be smaller be a reason to embrace it? The hopes of one party to the litigation that it will more easily prevail in the litigation are not transformed into "public factors" simply because that party is a sovereign state.
I recognize that there is something appealing about the argument that Figueiredo should not be able to levy on Peruvian assets in the United States to enforce a large judgment, and thereby escape Peruvian judgment-enforcement limitations designed to protect the budget of a developing country. But that concern is not one that sounds in the interests assessed by a forum non conveniens ruling. In other contexts, such policy considerations might figure in a choice-of-law analysis: Is Peru's interest in the controversy so great that we must respect the three-percent limitation as one that somehow is implicitly incorporated within the arbitration award? Peru, however, has not argued that its rule should be applied here as a matter of choice of law, and it candidly admitted at oral argument, and in its supplemental post-argument briefing to the Court, that it did not do so because it expected that under ordinary choice-of-law principles the enforcement of the award would be governed by U.S. law. The majority does not challenge that view, and I have no reason
If anything, the majority's underlying policy argument presents the issue of whether abstention is required in the interest of international comity. Yet the State Department tells us that Peru's failure to identify a "true conflict" between its judgment cap and U.S. law governing the enforcement of arbitral awards takes comity considerations off the table, see Hartford Fire Ins. Co. v. California, 509 U.S. 764, 798-99, 113 S.Ct. 2891, 125 L.Ed.2d 612 (1993), and I do not read the majority to disagree. Moreover, to the extent that the public factors do embrace state-level policy concerns, the government makes a compelling case that the interest of the United States in satisfying its obligations under the Panama Convention is at least as great as any interest Peru might have in imposing its limit on the payment of arbitral awards. As the government's brief points out, the United States has a longstanding commitment to promoting international commercial arbitration, as evidenced by the Federal Arbitration Act and Congress's ratification of both the New York and Panama Conventions. That commitment requires our courts to recognize and enforce international arbitral awards in the vast majority of cases.
The majority disregards all of these arguments and, notwithstanding its candid admission that it does not understand precisely how the Peruvian judgment cap operates, see Majority Op., ante at 398 n. 3, concludes that the plaintiff's award must be subject to it. Of course, given that we lack power to transfer the case to Peru or to insist that the award be enforced there, the plaintiff remains free to seek enforcement in any of the other countries that are party to the Panama Convention, some of which would no doubt see the cap as no obstacle to recovery. My concern is therefore less with the implications of the majority's holding for this particular plaintiff than with how this decision will distort the law of forum non conveniens in this Circuit and undercut the transnational effort (in which the United States is an active participant) to promote commercial arbitration. Because I believe that the majority's decision adopts an incorrect, expansive, and unprecedented approach to forum non conveniens precisely in a context in which we should be particularly cautious and restrained in its application, I respectfully dissent.
Second, he cautions that courts should be wary of using FNC to refer enforcement plaintiffs "back to the very courts they sought to avoid." Id. at 402. Although the parties' contract permitted arbitration and arbitration occurred, what the parties agreed to was "to subject themselves to the competence of the Judges and Courts of the City of Lima or the Arbitration Proceedings, as applicable." Moreover, after the Award was issued, the parties litigated in the Court of Appeals in Lima the issue of whether the arbitration was a "national arbitration" involving only domestic parties, an issue on which Figueiredo prevailed.
Third, he says we have concluded that the three-percent cap "should apply" to enforcement of the Award. Id. at 403 (emphasis in original). That overstates our view. As the dissent recognizes, we have disclaimed making any determination as to exactly how the three percent cap operates. Indeed, Figueiredo insists that there are reasons why the cap will not be applied to the payment of whatever judgment it ultimately obtains. We determine only that the existence of a statute designed to protect the rate of payment of funds of a sovereign state is a public interest factor that decisively tips the FNC balance in a case where the parties and the underlying dispute have no connection at all to this country.
Fourth, he contends that Peru is not an adequate forum because Figueiredo "comes to us with the specific and narrow intent of enforcing its arbitration award against Peru's assets in the United States." Id. at 405 But Figueiredo's intent to collect the Award out of assets in this country is merely the reason it sued here; it cannot also be the reason why it is entitled to do so, at least when Peru's assets are located in an adequate forum elsewhere.
Fifth, he appears to describe the Court's ruling as if it were a disagreement with the District Court's exercise of discretion in weighing the FNC factors. In fact, we consider the District Court to have committed legal errors both in deeming a Peruvian forum inadequate and in declining to consider the three-percent cap to be a public factor in the FNC balance.
Sixth, he suggests that an FNC dismissal, which might result in having payment of the award subject to the three percent cap if Figueiredo seeks to enforce the Award in Peru, amounts to "sleight of hand," id. at 403, because a statute that does not apply here as a matter of choice of laws would apply in Peru. But there is nothing magical about that consequence, should it occur; it would be a routine consequence of any FNC dismissal. Whenever a suit is dismissed on FNC grounds in country A, where Country B's procedural statute, like a limitation on the rate of payment of a judgment, does not apply, and the suit is refiled in country B, the procedural statute of country B applies. Foreign procedural rules normally do not apply in domestic lawsuits and normally do apply in the forum of the foreign state.
Finally, Judge Lynch points out the absence of authority for the proposition that the three percent cap is a public interest factor in the FNC balance. Since we are aware of no prior litigation in which anyone has asserted that the three percent cap or any similar statute limiting the rate of payment of a sovereign's funds is a public interest factor in the FNC balance, it is not surprising that no court has ruled on the issue—either way. Every issue has to arise somewhere for the first time.
Moreover, the majority opinion does not address whether Figueiredo could reduce its arbitration award to a judicial judgment in the courts of another signatory country and then return to the United States to attach Peruvian assets. Since the Conventions equate the enforcement of international arbitral awards with the enforcement of foreign judicial judgments, see Panama Convention art. 4 ("An arbitral decision or award that is not appealable under the applicable law or procedural rules shall have the force of a final judicial judgment."), the majority's analysis would seem to suggest that American courts would find it equally "inconvenient" for a party to seek enforcement of a foreign judicial judgment against the U.S. assets of a foreign government entity wherever the foreign state's laws would limit the equivalent remedy in the courts of that country. I find it difficult to believe, however that this Court would countenance—let alone require—the dismissal of an action to enforce a foreign court's judgment against a judgment debtor's U.S. assets on the ground that it would be more "convenient" for the judgment creditor to bring an action in a foreign court because the judgment debtor is a state agency that would be more able to limit enforcement there under domestic law.
