Forum non conveniens

• Pages: 45-47

45

international law update Volume 20, July–September 2014

© 2014 International Law Group, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

FORUM NON

CONVENIENS

E C  

 

  



  ; D C

    

’   

  

 



GDG Acquisitions, LLC (“GDG”) signed

a contract with the Government of Belize

(“Government”) to lease telecommunications

equipment to the Government. is contract was

part of Belize’s attempt to reduce the costs of oce

telephone services. e Master Lease Agreement,

negotiated by Government Minister Ralph

Fonseca and Glenn Godfrey of International

Telecommunications, Ltd. (“Intelco”) was

nanced through the International Bank of

Miami. According to the Master Lease, the

Government waived its sovereign immunity and

defense of forum non conveniens, and consented to

the jurisdiction of U.S. courts.

e Government stopped making payments

on the lease in 2008. In 2012, Intelco assigned

all of its assets to GDG, including the Master

Lease with Belize. Shortly thereafter, GDG led

the present lawsuit in the U.S. District Court for

the Southern District of Florida. GDG claims that

the Government has not made any lease payments

since 2008, but continues to possess and use the

telecommunications equipment while owing

approximately $14 million.

e Government moved to dismiss the

complaint based on (1) foreign sovereign immunity

granted by the Foreign Sovereign Immunities Act

(FSIA), 28 U.S.C. Section 1602; (2) forum non

conveniens; and (3) international comity.

e District Court did not reach the merits

of the case, but instead dismissed based on forum

non conveniens and international comity. GDG

appeals.

e U.S. Court of Appeals for the Eleventh

Circuit nds that the District Court abused its

discretion by dismissing based on forum non

conveniens without rst evaluating the forum

selection clause in the contract. Further, the

Court vacates 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.

e District Court should have rst considered

the forum selection clause of the Master Lease,

pursuant to Atl. Marine Constr. Co. v. U.S. Dist.

Court for the W. Dist. of Tex., 134 S.Ct. 568

(2013). e Court explains.

“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 plainti can reinstate

his suit in the alternative forum without undue

inconvenience or prejudice.’ Leon v. Millon Air,

Inc., 251 F.3d 1305, 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.”

“us, a district court now must consider an

enforceable forum-selection clause in the forum