Forum Non Conveniens in Actions to Enforce Arbitral Awards

A recent decision from an influential appellate court in New York has reaffirmed that a court may dismiss an action to confirm or enforce a foreign arbitral award on the grounds that the forum is ‘inconvenient’ under the doctrine of forum non conveniens (FNC).¹ This doctrine allows a judge’s discretion to dismiss cases when a plaintiff’s ability to bring the claim would not be fundamentally compromised, yet it would be fairer to the defendant or more efficient if the case were handled elsewhere.²

In 2002, the United States Court of Appeals for the Second Circuit decided that an action to confirm a foreign arbitral award may be dismissed under the FNC doctrine if ‘the case does not lend itself to summary disposition’ and ‘has no connection with the United States other than the fact that the United States is a Convention signatory.’³ Then, last December, it decided that when a sovereign state is being sued, that state’s interest in having the case heard at home and under its own law can weigh overwhelmingly in favour of a forum non conveniens dismissal.⁴ This is controversial because critics say that it places the US in breach of its treaty obligations under the New York⁵ and Panama⁶ Conventions, which strictly require signatory states to recognise and enforce foreign arbitral awards unless the defendant proves one of several affirmative defenses specifically listed in the treaties. Yet US courts have now declined to enforce foreign arbitral awards under each Convention before even considering these defences because, in their view, another country would be a more appropriate forum for recognition and enforcement of the award.

While the overall controversy centres on whether the US has violated its treaty obligations and what this means for the world of international commercial arbitration, the legal debate centres on a seemingly mundane disagreement about the meaning of a single word: ‘procedure’. This article will review the emerging line of case law, holding that there is no conflict between the right to enforce awards under the Conventions and the FNC doctrine, survey the opinions of various commentators on the issue, and conclude with a few remarks on my views on the question.

The forum non conveniens doctrine

The FNC is an equitable doctrine aimed at curtailing ‘forum-shopping’,⁷ which refers to litigation strategies designed to exploit a ‘home-court advantage’ or preferable legal regime available in a particular court. When an action could potentially be brought in several judicial systems, the party who chooses where to file a claim will inevitably consider its own interests first, which raises a concern that the litigation might not start on a level playing field. The doctrine may be likened to the notion that each case has one or more ‘natural forums’ where it should ideally be litigated, and that courts must sometimes step in when litigation is initiated too far afield.

The FNC analysis proceeds in three steps. Before the analysis begins, however, the party seeking to have the case dismissed - that is, the defendant who claims the plaintiff’s choice of forum for the lawsuit is prejudicial - must establish that the forum in which the plaintiff filed suit is ‘manifestly inconvenient’.⁸ The plaintiff’s choice may be inconvenient either to the defendant or, insofar as it would consume judicial resources, to the public at large.

Once the threshold test of ‘manifest inconvenience’ is met, the first step in the three-step analysis is a ‘sliding scale’⁹ evaluation of how much protection is needed in each particular case. This depends on the degree to which self-interest motivated the plaintiff’s choice of forum, but because such ‘vexatious’ motives are not always readily apparent, the plaintiff’s genuine connection with the forum stands as a proxy for good faith.¹⁰ The general rule is that ‘a plaintiff’s choice of forum is entitled to greater deference [in] the home forum... [while] a foreign plaintiff’s choice deserves less deference’.¹¹

Second, to avoid punishing the plaintiff too much in exchange for the defendant’s convenience, the court must ensure that there is an ‘adequate, available alternate forum’ where the plaintiff’s claim can be heard.¹² The court should not consider whether the substantive law is more or less favourable to either party when it evaluates adequacy because FNC is only about where the case should be heard, not how it should be decided. Lack of due process, rule of law, or a venue that will even hear the claim will render the alternative forum inadequate.

Third and finally, the court should exercise guided discretion by weighing a number of factors, taking into account both the private and public interests at stake. This ‘balancing’ step is aimed at optimising the fairness of the outcome while recognising that there is no bright-line rule that determines when inconvenience rises to the level of injustice.¹³ The factors include such practical concerns as the parties’ costs of travelling to a faraway court for litigation, the location of evidence and witnesses that will be needed to resolve the dispute, and whether the need for judges competent in foreign language or law will make a trial in the original forum unrealistic or inefficient. More general considerations include the public policy interests of a foreign country that may wish to have its own courts exercise jurisdiction over the case, the relative administrative burdens on the judicial systems of each potential forum, and the ‘local interest in having localised controversies decided at home’.¹⁴

FNC is applied relatively infrequently in the US and other common law countries, and is nonexistent in civil law jurisdictions. It is particularly rare in post-arbitration actions and other types of summary proceedings. This is because many of the factors listed above are unlikely to be present where no full-blown trial is anticipated.

The problem of ‘procedure’ and article III of the New York convention

While FNC vests considerable discretion in the court, the New York Convention leaves little room for judicial discretion. Its main operative provision, article III, states rather mechanically that member states ‘shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles’. ¹⁵ Those conditions include documentary and technical requirements, a ‘wait-and-see’ option in case a court at the seat of arbitration is already handling litigation relating to the same award, and the aforementioned defences, which relate to the fairness of the underlying arbitral proceedings and fundamental public policies of the country in which enforcement is sought.¹⁶

Article III commands local courts to enforce foreign awards but with two qualifications: they shall do so in accordance with domestic procedural rules, and under the Convention’s conditions. On the one hand, rather than specifying precisely how awards are to be enforced, the Convention opts to incorporate domestic procedure by reference; and since FNC is considered a rule of procedure in the United States,¹⁷ article III seems to permit, if not direct, that US courts apply it just as they would any other rule regarding how litigation unfolds - for example, a statute of limitations or a rule that the defendant may no longer object to jurisdiction after it makes pleadings on the merits. On the other hand, article V - one of the ‘conditions’ under which courts must enforce awards - states that enforcement ‘may be refused... only if’ a defence is proven.¹⁸ The problem is that by dismissing an enforcement action under FNC, the court effectively refuses to enforce the award, but without proof of a defence.

Monde Re: the first case applying FNC to a convention enforcement action

In Monde Re, the plaintiff sought to enforce a valid arbitral award it had won against Nak Naftogaz, a Ukrainian gas company.¹⁹ The original contract had been with Ukrgazprom, which later merged with several other companies to form Naftogaz. The Ukrainian government played some role in creating Naftogaz and remained a major shareholder.²⁰ The parties disputed whether the government controlled Naftogaz to the extent and in a manner to make Naftogaz the government’s alter ego and to make Ukraine responsible for the award, but it was impossible to resolve this question without a very complex inquiry into Ukrainian law as well as evidence, including witnesses, that were located in Ukraine and not accessible to the New York district court. Significantly, Monde Re had not yet identified any assets of either Naftogaz or the Ukrainian government in the United States.

The district court held that FNC could be used under article III of the New York Convention and dismissed the action. The Second Circuit agreed. It held that FNC was a rule of procedure that is applied in actions to enforce a domestic arbitral award and therefore could be applied in actions to enforce a foreign award.²¹ In applying the doctrine to the case at hand, the Court emphasised that, in the absence of attachable assets in the jurisdiction, ‘the motivation of Monde Re for bringing its enforcement proceeding in the United States is not apparent’, and concluded that ‘the jurisdiction provided by the Convention is the only link between the parties and the United States’.²² Because of the complexities involved in trying the alter ego issue in the US, the court agreed with the district court that the balance weighed in favour of dismissal.

Figueiredo

Monde Re has received mixed reviews,²³ but the latest case applying its reasoning on article III and FNC has received no academic support. Figueiredo, a Brazilian consulting firm, had entered into a lump-sum contract with a Peruvian government agency to help expand the drinking water and sewage services in several cities in Peru. The contract was based on the government’s initial feasibility studies, which proved to be unrealistic;²⁴ however, this ultimately caused the consulting firm to do far more work than it had anticipated, extending the term of the consulting work three times longer than planned with no additional compensation. A Peruvian arbitral tribunal, deciding ex aequo et bono, held that the Peruvian government had acted ‘in bad faith’, had been unjustly enriched by Figueiredo’s extensive work, and was therefore not entitled to enforce the lump-sum contract to make Figueiredo responsible for the substantial excess costs it had incurred in carrying out the requested works.²⁵ Figueiredo was awarded substantial damages and attempted to satisfy the award by attaching the proceeds of a Peruvian sovereign bond offering in New York.²⁶

The district court declined to dismiss Figueiredo’s action to confirm the award. Ruling on an interlocutory appeal, the Second Circuit reversed on FNC grounds. The decision turned on a Peruvian statute that limited the amount of money any government entity may pay to satisfy a judgment to three per cent of its annual budget.²⁷ Although both Figueiredo and Peru agreed that the cap would not apply if the award was paid with funds located abroad, Peru argued that enforcing the award against its assets in the US would allow Figueiredo to circumvent the applicable Peruvian law and its underlying policy - a prime example, Peru argued, of the type of forum-shopping that FNC is designed to prevent.²⁸

In considering Peru’s FNC motion,²⁹ the court characterised the cap statute as ‘a highly significant public factor warranting FNC dismissal’. The court found that, even though in this case application of this factor favoured one of the litigants before it, ‘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’.³⁰ The court did not pause to reconsider whether FNC is available at all in a Convention case, simply relying on Monde Re. It also did not make the prerequisite finding that the US was a manifestly inconvenient forum or that Figueiredo had actually had improper motives in going after Peru’s US assets, skipping straight to the three-step analysis. It held that Figueiredo’s choice of forum was entitled to little deference since it was not a US corporation and that Peru was an adequate alternative forum because ‘some assets’ of the defendant were located there,³¹ and then proceeded to balance the public and private interests at stake.

The opinion mentioned only three factors:

1. the US’ public interest in its pro-arbitration policy and fulfilling its Convention obligations, to which the court accorded little weight;
2. the connection between the underlying dispute and Peru, which the court found was stronger than the US connection, since the latter was based only on the fact that Peruvian assets were located in a New York bank;³² and
3. ‘the public factor of permitting Peru to apply its cap statute to the disbursement of governmental funds to satisfy the Award’, which the court found ‘tips the FNC balance decisively’ in favour of dismissal.³³

Figueiredo’s enforcement action was thus sent back to Peru.

Figueiredo dissent

There are two main lines of criticism of the Monde Re and Figueiredo decisions: first, that FNC should never be used in actions governed by the New York and Panama Conventions; and second, that it was wrongly applied in these cases. In a vigorous dissent to the Figueiredo opinion, Judge Lynch explored both approaches.³⁴

First, Lynch argued, the terms of the Convention preclude applying FNC to enforcement actions. ‘Given that forum non conveniens is not listed as a defence 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’.³⁵ In this regard, he argued, the term ‘procedure’ in article III should be read narrowly. FNC was ‘unlikely to have been anticipated by the treaties’ drafters and signatories’, who could not have intended for non-standard doctrines like FNC to derail recognition and enforcement actions.³⁶ Interpreting article III to create such a loophole would ‘dramatically undercut’ the Convention’s purpose,³⁷ since its goal is to provide a guarantee that arbitral awards will be predictably and uniformly enforced across Convention jurisdictions, whereas an unusual procedure like FNC creates inconsistency and surprise. ‘The Convention seeks to open the doors of foreign courts to efforts to enforce arbitration awards wherever assets are available, free of local prejudice or obstructive local rules that make enforcement difficult in the courts of the adversary state.³⁸

Second, Judge Lynch argued, even if FNC could be considered, the Convention makes enforcement actions summary proceedings in any jurisdiction where the defendant’s assets are located, so unless there are complex tangential issues (such as the questions that arose in Monde Re), a Convention state will necessarily not be ‘manifestly inconvenient.’ Since the Convention specifically allows those who win arbitral awards to seek enforcement in any signatory state, Figueiredo was not forum-shopping but simply playing by the rules; in fact, dismissing the case would unfairly allow Peru to avoid its own obligation to honour the award.

Finally, as for the balancing test, Judge Lynch argued, treaty obligations undertaken by the US to other sovereign nations should have been the paramount consideration in the balancing test because ‘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’.³⁹

Other criticism of the application of FNC to New York Convention actions

Authorities and commentators have taken different positions on Figueiredo. Thus far, there appears to be unanimous agreement that the action should not have been dismissed, but there is no consensus on which of Judge Lynch’s two arguments should have prevailed.

The ALI restatement

The American Law Institute (ALI), in the current draft of its forthcoming Restatement of International Commercial Arbitration, takes the position that the FNC can never apply in Convention actions, agreeing with Judge Lynch that article III incorporates domestic procedure only to the extent it is compatible with the Convention’s other requirements.⁴⁰ Among those is article V, which strictly requires enforcement unless an affirmative defence is proven.⁴¹ International law requires that treaties be interpreted in accordance with their object and purpose.⁴² The Reporter’s Note accompanying the draft Restatement argues that the ‘purpose [and] larger structure of the Convention’ bar a reading of article III that leads to a violation of the Convention’s other terms, including ‘employ[ing] inconvenience as an additional basis for dismissing an action for enforcement of an award that is otherwise entitled, as a matter of treaty obligation, to enforcement.⁴³

Furthermore, the draft Restatement suggests, there is no such thing as a ‘better’ or ‘more convenient’ forum for enforcement actions; any jurisdiction in which assets may be found is an appropriate forum, especially since the Convention eliminates any material differences in how an enforcement would proceed in various potential fora.⁴⁴ Finally, the Restatement asserts that the FNC is excluded from the ‘procedure’ category in its own right, independently of the Convention’s purpose or its other terms. Any rule that ‘does not address how litigation shall proceed, but whether it shall proceed’ is, by definition, ‘not a purely procedural rule’.⁴⁵

Treaty interpretation and the New York Convention’s travaux préparatoires: ‘procedural’ might mean ‘non-discretionary’

Some commentators have suggested looking to the travaux préparatoires of the New York Convention to help decipher the intended meaning of the term ‘rules of procedure’. By this measure, it is said, forum non conveniens should be excluded because (in brief) the phrase was copied straight from a previous treaty drafted primarily by civil law countries, whose representatives would never have thought of forum non conveniens when they contemplated ‘procedure’ because it simply wasn’t part of their native legal vocabulary. Further, the only discussion of ‘procedure’ concerned the risk of discriminatory procedural rules specifically governing foreign arbitral awards, and the discussion considered only the most mundane and technical procedural requirements for the enforcement of arbitral awards, rather than issues in which courts might retain discretion to hear or not hear a claim before them.⁴⁶

Conclusion

My 2004 article argued that, while forum non conveniens is rightly seen as counterintuitive in the context of arbitral award enforcement actions, this is because the factual circumstances justifying its use will be rare, not because it is legally inapposite.⁴⁷

I accepted the Second Circuit’s reasoning that the rule is a rule of procedure and that it was not inconsistent with the Convention. I urged that courts should apply the doctrine sparingly; however, the presence in the forum of attachable assets likely owned by the defendant should almost always, if not always, be a sufficient connection to the forum to justify the exercise of jurisdiction, even in an alter ego case. Additionally, if an action to enforce is nonetheless dismissed on grounds of forum non conveniens, the court should usually condition dismissal on posting of security substantially equal to any assets properly attached.⁴⁸

I will admit that there is considerable merit to the Restatement’s analysis that any rule that regulates not how a matter should proceed but whether it does is not a rule of ‘procedure’. But there are many procedural rules, such as statutes of limitations, jurisdiction and service of process, that determine whether a case proceeds to the merits. I find it hard to call a rule that is intended to determine the proper forum in which to hear a case anything other than a rule of procedure.

There is also much appeal to the view that permitting a court to exercise discretion to dismiss an action is inconsistent with the Convention’s broader command that the court hear the action. But, again, I have difficulty saying that a rule that is discretionary in application is, for that reason, not ‘procedural’. Many clearly procedural rules - such as evidentiary rules and rules of judicial notice - permit a trial court broad latitude to consider the evidence even if it might otherwise be excludable.⁴⁹

Ultimately, I continue to think it unwise to stretch the natural meaning of the word ‘procedure’ to address the difficult cases that the Second Circuit faced. I believe that the approach that best accords with widespread notions of ‘procedure’ versus ‘substance’ is that ‘procedural’ rules do not result in a ruling on the merits of the claim. In an enforcement action, the ‘merits’ are whether there is a valid award, whether one of the article V grounds is present and whether particular assets may be seized to pay the award. Anything else that may arise is ‘procedural’ for purposes of article III. On this reasoning, there is no basis for excluding FNC from the usual array of rules of procedure that can be applied in actions to enforce or confirm an international arbitral award.

The conclusion in Figueiredo seems clearly wrong, however. The Peruvian cap statute should not have been considered a public interest - a factor that generally refers to the forum’s interest in sound use of judicial resources - but was rather a particular defence that one litigant had or did not have. That the parties agreed that it would not apply to assets outside of Peru (a surprising conclusion) suggests that the rule was actually a rule allocating duties between the Peruvian courts and its executive. In any case, it had no role in the FNC analysis.

***

The question whether FNC applies to actions to confirm or enforce a foreign arbitral award is now settled in New York and other states in the Second Circuit (Connecticut and Vermont). But other circuits among the 13 circuit courts of appeals have yet to weigh in, and the United States Supreme Court has likewise not addressed the issue. It remains to be seen whether these decisions are path-breaking or aberrational in the broader context of US arbitral jurisprudence.

Notes:

* The author wishes to thank Catherine Keys, a 2012 summer associate at Sullivan & Cromwell LLP, for her invaluable assistance in the preparation of this article.

1. Figueiredo Ferraz E Engenharia de Projeto Ltda v Republic of Peru, 665 F.3d 384 (2d Cir 2011) [hereinafter Figueiredo].
2. Piper Aircraft Co v Reyno, 454 US 235, 255-56; Gulf Oil Corp v Gilbert, 330 US 501 (1947).
3. In re Arbitration between Monegasque De Reassurances SAM v Nak Naftogaz of Ukraine, 311 F.3d 488, 500 (2d Cir 2002) [hereinafter Monde Re].
4. Figueiredo, 665 F.3d at 390.
5. United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature 10 June 1958, 21 UST 2517, 330 UNTS 38 [hereinafter NY Convention], implemented by chapter 2 of the Federal Arbitration Act, 9 USCA section 201 et seq (West 1999) [hereinafter FAA].
6. Inter-American Convention on International Commercial Arbitration, opened for signature 30 January 1975, OASTS No. 42, 1438 UNTS 245, implemented by FAA Ch 3, 9 USC sections 301-307 (1994) (originally enacted as Act of 15 August 1990, Pub L No. 101-369, 1990 USCCAN (104 Stat 448) 675) [hereinafter Panama Convention]. The United States signed the Panama Convention on 9 June 1978.
7. See Gilbert, 330 US at 507-508.
8. See, eg, Focus Enter Inc v Zassi Medical Evolutions, Inc, 2007 WL 1577844, at *3 (DDC 31 May 2007); Reers v Deutsche Bahn AG, 320 F.Supp.2d 140, 158 (SDNY 2004).
9. Iragorri v United Technologies Corp, 274 F.3d 65, 71 (2d Cir 2001).
10. See Piper, 454 US at 256 No. 24 (citing Pain v United Technologies, 637 F.2d 777, 797 (DC Cir 1980)). The Second Circuit applies a ‘bona fide connection’ standard, exhorting courts to ‘consider a plaintiff’s likely motivations in light of all the relevant indications’. Iragorri, 274 F.3d at 72.
11. Piper, 454 US at 255-56.
12. See Piper, 454 US at 254 No. 22 (stating that personal jurisdiction over the defendant ‘ordinarily’ renders a forum adequate unless it is ‘clearly unsatisfactory’ in light of other considerations). Iragorri, 274 F.3d at 71-72, elaborates on the factors to be considered in this sliding scale analysis.
13. See Gilbert, 330 US at 508 (‘Wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy. The doctrine leaves much to the discretion of the court...’).
14. Gilbert, 330 US at 509.
15. NY Convention article III (emphasis added). The Panama Convention (art. 4) counterpart reads:

    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. Its 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 and the provisions of international treaties.

16. NY Convention article V.
17. Am Dredging Co v Miller, 510 US 443, 453 (1994) (FNC doctrine is ‘procedural rather than substantive’ for purposes of determining whether state (procedural) or federal (substantive) rules apply in state court). There is a precedent under the Warsaw Convention on air transport for defining ‘procedure’ differently in the context of a treaty. In Hosaka v United Airlines, 305 F.3d 989, 994 (9th Circuit 2002), the court held that a court should not apply FNC to Warsaw Convention cases, notwithstanding a treaty provision that provides, ‘[q]uestions of procedure shall be governed by the law of the court to which the case is submitted’, citing, among other things, the purpose and drafting history of the Convention. Another appeals court has reached a contrary result. In re Air Crash Disaster Near New Orleans, Louisiana on 9 July 1982, 821 F.2d 1147, 1161 (5th Circuit 1987).
18. NY Convention article V (emphasis added).
19. Monde Re was actually a reinsurer bringing the claim on behalf of the original party by subrogation, but this issue was not material to the outcome or the FNC decision.
20. Monegasque de Reassurances SAM (Monde Re) v Nak Naftogaz of Ukraine, 158 F. Supp. 2d 377, 380 (SDNY 2001).
21. Monde Re, 311 F.3d at 496:

    The signatory nations... are free to apply differing procedural rules consistent with the requirement that the rules in Convention cases not be more burdensome than those in domestic cases. If that requirement is met, whatever rules of procedure for enforcement are applied by the enforcing state must be considered acceptable, without reference to any other provision of the Convention. The doctrine of forum non conveniens, a procedural rule, may be applied in domestic arbitration cases brought under the provisions of the Federal Arbitration Act, see, eg, Matter of Arbitration Between Maria Victoria Naviera, SA v Cementos Del Valle, SA, 759 F.2d 1027, 1031 (2nd Circuit1985), and it therefore may be applied under the provisions of the Convention.

22. Id. at 499. I note that the Court in Figueiredo disputed that the absence of assets was central to the Monde Re decision, arguing that the quoted language about the absence of a link to the United States might have referred to the underlying litigation, rather than the absence of assets, and quoting language in the district court’s opinion in Monde Re expressing uncertainty about whether there were any assets in the United States. 665 F.3d at 390 No. 8. That is not how most readers, myself included, understood the decision at the time.
23. See, eg, W W Park, Respecting the New York Convention, 18 ICC International Court of Arbitration Bull. No. 2, at 7 (2007) (criticising the decision as having ‘gone astray as a matter of both logic and history’); W W Park & A A Yanos, Treaty Obligations and National Law: Emerging Conflicts in International Arbitration, 58 Hastings L Rev 251, 262 (2006) (same); The International Commercial Disputes Committee of the Association of the Bar of the City of New York, Lack of Jurisdiction and Forum Non Conveniens as Defenses to the Enforcement of Foreign Arbitral Awards (April 2005), reprinted in 15 Am Rev Int’l Arb 407 at No. 98 (2006) (arguing that Monde Re may have reached the correct result on an incorrect basis); A J van den Berg, ‘Why Are Some Awards Not Enforceable?’, in New Horizons in International Commercial Arbitration and Beyond 297, 313-14 (ICCA Congress Series, Kluwer 2005) (regarding the decision as exceptional, and American FNC jurisprudence as unique); L J Silberman, International Arbitration: Comments from a Critic, 13 Am Rev Int’l Arb. 9, 16 (2002) (criticising the decision and stating that ‘courts should not be permitted to circumvent th[e] objective [of worldwide enforcement of NY Convention arbitral awards] on the basis of considerations that are directed to concerns about the litigation of an original dispute and have little relevance to an enforcement action’); J Neuhaus, Current Issues in the Enforcement of International Arbitration Awards, 36 U Miami Inter-Am L Rev 23 (2004) (supporting the outcome of Monde Re while questioning the reasoning); C H Brower II, Reflection on Forum Non Conveniens: Monde Re was Right?!?, Kluwer Arbitration Blog (Mar. 16, 2010) http://kluwerarbitrationblog.com/blog/2010/03/16/reflections-on-forum-non-conveniens-monde-re-was-right/ (supporting both the outcome and the reasoning of Monde Re).
24. Figueiredo Ferraz E Engenharia de Projeto Ltda v Republic of Peru, Ex Aequo et Bono Arbitration Award, 2007 WL 6464902 at 32, para 42 (2007).
25. Id at 29, para 30, and 30, paras 32-35.
26. Figueiredo Complaint, 2008 WL 887298 at 1, No. 108CV00492 (18 January 2008).
27. 665 F.3d at 387 (citing Law No. 27584, article 42, as amended by Law No. 27684, currently set forth in Supreme Decree No. 013-2008-JUS, article 47).
28. Reply Brief for Defendants-Appellants in Figueiredo, 655 F.Supp.2d 361 (SDNY), 2010 WL 6351473 at 17-28 (13 August 2010).
29. Peru also raised objections to jurisdiction of the US court, but the court relied on Sinochem Int’l Co Ltd v Malaysia Int’l Shipping Corp, 549 US 422, 432 (2007), which held that forum non conveniens can be addressed before decisions on jurisdiction.
30. 665 F.3d at 392.
31. Id at 390-91. The Court also did not consider whether Peru was also an ‘available’ forum in light of the statutory cap.
32. Id at 392.
33. Id.
34. 665 F.3d at 394-99 (Lynch, J, dissenting).
35. Id. at 397.
36. Id. at 398.
37. Id. at 397.
38. Id. at 402.
39. Id. at 408.
40. Indeed, Judge Lynch cited and relied upon the Restatement in his dissent. Id. at 398 (Lynch, J, dissenting).
41. ‘Stay or dismissal of an action to confirm or enforce a Convention award based on forum non conveniens would run afoul of the Conventions’ requirement that, absent a specific Convention defense to enforcement, Contracting States confirm and enforce awards.’ Restatement (Third) of International Commercial Arbitration (Council Draft No. 3, 23 December 2011) section 4-29 comment b, at 161, available at http://extranet.ali.org/docs/ICA_CD3_online.pdf [hereinafter Restatement].
42. Vienna Convention on the Law of Treaties, article 46, 23 May 1969, 1155 UNTS 331; 8 ILM 679 (1969).
43. Restatement section 4-29, Reporters’ Note (b)(ii), at 379:44-380:14.
44. See Restatement section 4-29, Reporters’ Note (d), at 381:32-382:1.
45. Restatement section 4-29, Reporters’ Note (b)(ii), at 380:l15-18 (emphasis added). See also George Bermann, Bermann on Figueiredo Ferraz v Republic of Peru, Conflictoflaws.net (21 December 2011), http://conflictoflaws.net/2011/bermann-on-figueiredo-ferraz-v-republic-of-peru/. Bermann is the Reporter for the Restatement.
46. Eg, UN Doc No. E/Conf 26/L11 (25 May 1958); UN Doc No. E/Conf 26/L.21 (27 May 1958); UN Doc No. E/Conf 26/SR. 10, at 3-8 (12 September 1958). These documents are available at www.uncitral.org.
47. J Neuhaus, Current Issues in the Enforcement of International Arbitration Awards, 36 U Miami Inter-Am L Rev 23 (2004).
48. Id. at 35.
49. See, eg, Fed R Evid 403 (permitting court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time or needlessly presenting cumulative evidence); Fed R Evid 807 (hearsay is admissible if, among other things, the statement has ‘circumstantial guarantees of trustworthiness’ equivalent to other hearsay exceptions and ‘admitting it will best serve the purposes of these rules and the interests of justice’); Fed R Evid 201 (permitting court to take judicial notice of ‘generally known’ facts).