New Paper on Forum Non Conveniens and Foreign Sovereigns

When a foreign sovereign files a lawsuit in the United States, is it ever appropriate for the court to dismiss on the grounds that it would be more appropriate for the suit to be litigated in that sovereign’s own courts? This is the question that Eunsun Cho set out to answer in a student note published earlier this year by the Columbia Journal of Transnational Law. The abstract for that paper, titled Foreign Sovereign Plaintiffs and Forum Non Conveniens: Two-Tiered Analysis of the Foreign Sovereign’s Interest, appears below.

The local-interest factor of the forum non conveniens (FNC) doctrine requires the court to determine the foreign sovereign’s interest in the dispute. When the dispute is between two private parties, courts usually have no difficulty ascertaining the foreign sovereign’s interest. However, when a foreign government brings a suit in a U.S. court but the defendant moves the court to dismiss the case on FNC grounds in favor of the plaintiff’s country, the court faces a dilemma: even if the usual considerations indicate a strong interest on the part of the foreign forum, can the court faithfully apply the local-interest factor without giving up due respect for the foreign sovereign? How can the court take into account the sovereign authority of the plaintiff while fully discharging the court’s independent factfinding responsibility? Federal courts have not developed a consistent answer to these questions, and the absence of a coherent approach only creates more puzzles after each FNC ruling in foreign-sovereign plaintiff cases. This Note argues that the key to solving the dilemma is to focus on the relative institutional competence and legitimacy of U.S. courts and the foreign sovereign. Specifically, courts should independently assess objective indicators of sovereign interests while giving deferential treatment to the plaintiff’s judgment on the subjective aspects of its interests. This deferential review would involve accepting the substance of the foreign sovereign’s judgment while determining the weight to be given to the judgment in the overall analysis based on the credibility of the foreign sovereign as a party.