Is It Too Dangerous To Litigate In Israel?
April 15, 2025
Many international contracts contain forum selection clauses stating that litigation must occur in the courts of a particular country. While these clauses provide a welcome measure of certainty as to where future disputes will be resolved, they are sometimes viewed as inconvenient by plaintiffs who would prefer to sue in the United States.
In an attempt to avoid foreign forum selection clauses, U.S. plaintiffs will sometimes argue that they are unenforceable because litigation in the chosen forum will be so “gravely difficult and inconvenient” that the plaintiffs “will for all practical purposes be deprived of [their] day in court.” In one long-running case in the U.S. District Court for the Southern District of New York (Judge George B. Daniels), Knowyourmeme.com Network v. Nizri, a group of U.S. plaintiffs advanced precisely this argument. They argued that a forum selection clause selecting the courts of Israel was unenforceable because Israel’s ongoing war in Gaza made it too dangerous to litigate there.
In this post, I first briefly recount the facts and procedural history of the case. I then provide a few thoughts on the court’s decision to reject the plaintiffs’ argument and enforce the forum selection clause.
Background
In Knowyourmeme.com Network v. Nizri, the plaintiffs (all U.S. corporations) sued the defendants (an Israeli corporation and its affiliates) in New York for allegedly breaching a contract. The defendants moved to dismiss for forum non conveniens based on an exclusive forum selection clause choosing the courts of Israel. The plaintiffs argued that the clause was drafted too narrowly to reach the claims asserted. The court rejected this argument and granted the defendants’ motion to dismiss on August 30, 2021. The plaintiffs appealed this decision to the Second Circuit, which affirmed the lower court’s decision on October 11, 2023.
The plaintiffs subsequently petitioned for a panel rehearing and rehearing en banc in the Second Circuit. They argued that they were entitled to a rehearing because Israel’s war in Gaza was an “extraordinary circumstance” that had developed after the Second Circuit’s original affirmance. The petition for a rehearing en banc was denied on November 27, 2023. Undeterred, the plaintiffs filed a motion with the district court on August 5, 2024, seeking to reopen the case and to vacate the court’s original judgment. The plaintiffs argued that “extraordinary circumstances” had rendered application of original judgment inequitable because the war constituted a “material change” that rendered Israeli courts “so dangerous as to be unreasonable and seriously inconvenient.”
Dangerousness
In support of their argument that it was too dangerous to litigate in Israel, the plaintiffs pointed out that (1) Israel’s economy was struggling as a result of the ongoing conflict, and (2) the U.S. State Department had issued a Level 3 Travel Advisory that encouraged U.S. citizens to “reconsider” travel to Israel. The court did not find either argument convincing. It observed that:
A travel warning or advisory does not, by itself, make litigation in that country dangerous and unreasonable. Moreover, Plaintiffs provide no evidence that the war in Israel has impeded or will impede the functioning of Israel’s judiciary such that justice cannot properly be served. They claim that there is “no confirmation” that Israeli courts would make accommodations for nonresident litigants, but they provide no evidence that the courts would not make these accommodations. More broadly, Plaintiffs provide evidence of strife in Israel but do not provide any evidence beyond mere speculation that this strife functionally precludes them from obtaining justice there.
This analysis is, in my view, entirely correct. In a forthcoming paper, Dangerous Foreign Courts, I address the role that State Department Travel Advisories should play in cases when the plaintiffs claim that it is too dangerous to litigate abroad. I argue that only Level 4 Travel Advisories—which specifically advise U.S. citizens not to travel to a particular country—should play a decisive role in such cases. The fact that no Level 4 Travel Advisory had been issued for Israel strongly supports the district court’s decision to deny the plaintiffs’ motion to reopen.
The plaintiffs also cited a number of prior cases that the district court deemed “inapposite” because the clause was enforced in each instance. The only case invoked by the plaintiff where the court refused to enforce a foreign forum selection clause was the Eighth Circuit’s decision in McDonnell Douglas Corp. v. Islamic Republic of Iran (1985). In that case, the court concluded that a clause choosing the courts of Iran was unenforceable due to the ongoing war between Iran and Iraq. Judge Daniels rightly distinguished McDonnell on the ground that the plaintiffs had failed to present evidence showing the same “level of turmoil, danger, and inconvenience” in Israel today.
Conclusion
It seems unlikely that the plaintiffs in Knowyourmeme.com Network v. Nizri would have prevailed even if they had managed to identify additional cases where the courts had refused to dismiss a case for forum non conveniens due to dangerous conditions in the foreign forum. Nevertheless, such cases exist. In an appendix to Dangerous Foreign Courts, I identify twenty-four decisions in which U.S. courts declined to dismiss a case for forum non conveniens after concluding that it was too dangerous for the plaintiffs to litigate abroad. This list should prove useful to future litigants who allege that a foreign forum is too dangerous… assuming, of course, that their arguments are supported by the facts on the ground.