Forum Non Conveniens

70 Volume 22, October–December 2016 international law update
© 2016 International Law Group, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) |
Fifth Circuit affirms dismissal
of employment dispute over work
performed for American company in
Kuwait based on forum non conveniens
DynCorp International, L.L.C. (“DynCorp”),
an American company with its principal place of
business in Texas, provides logistics support services
to U.S. Army. In 2011, DynCorp extended an oer
to Jonathan Barnett, a Georgia resident, to work for
DynCorp in Kuwait. DynCorp and Barnett signed
a one-year Foreign Service Employment Agreement
drafted by DynCorp in Texas. In February 2012,
Barnett signed a similar one-year contract, and in
March 2013, an extension of the same contract (the
According to the Agreement, Barnett’s
geographical location of employment was Kuwait;
his base wages were set in American dollars, while
his overtime and working holiday compensation
were to be paid at premium rates in accordance
with Kuwait Labor Law. Furthermore, Barnett’s
work schedule, holidays, medical leave benets,
circumstances under which he could be terminated,
and compensation due upon termination were
also to be determined according to Kuwait law.
Moreover, the Agreement incorporated a forum-
selection clause, which stated: “is Contract shall
be governed by and interpreted exclusively under
the laws of Kuwait and all disputes between the
Parties shall be resolved exclusively in Kuwait.
Upon completing a one-week training program
in Texas, Barnett ew to Kuwait where he worked
two years plus. According to Barnett, he worked
seventy-two hours per week, including some of his
“o days” and public holidays.
In March 2013, DynCorp informed Barnett
that his employment would soon be terminated
because DynCorp would no longer provide
services at Barnett’s location. In its letter, DynCorp
promised Barnett that he would receive an end-of-
service indemnity, accrued and unused leave credit,
and other benets; and that any balance of wages
due would be distributed on the next scheduled pay
date after Barnett’s departure from Kuwait. In June
2013, Barnet concluded his work for DynCorp and
left Kuwait.
In March 2015, Barnett led and action in a
federal court in Texas alleging that he never received
all of the wages and benets DynCorp owed him,
and that DynCorp breached the Agreement by
failing to provide him overtime pay, paid leave,
end-of service payment, and premature contract
termination damages as he is entitled by Kuwait
Labor Law.
DynCorp moved to dismiss Barnett’s action on
the basis of forum non conveniens. In its motion to
dismiss DynCorp argued that Agreement’s forum-
selection clause mandates that the action be litigated
in Kuwait. In his response to the motion Barnett
argued that forum-selection clause is void under
Texas law and unenforceable under federal law. He
specically argued that under Texas Civil Practice
& Remedies Code section 16.070 the forum-
selection clause is void because it directs litigation
to a forum in which the limitations period for
breach of an employment contract is less than two
years. Relying on the decision in Atlantic Marine
Construction Co. v. United States District Court, 134
S. Ct. 568 (2013), the district court granted the
motion. Barnett appealed.
e United States Court of Appeals for the
Fifth Circuit arms district court’s decision.
e key issue here is whether a forum-selection
clause in an agreement is void if it directs litigation
to a forum in which the laws are less favorable than
the law of the state in which the agreement was
e Court reviewed this case de novo.
Deciding on which jurisdiction’s law governs,
and to what eect, the Court states:
“Atlantic Marine tells us that a ‘valid’ forum-
selection clause pointing to a foreign tribunal
requires forum non conveniens dismissal absent
unusual circumstances. 134 S. Ct. at 581-83 &
n.8. But in Atlantic Marine, ‘there was no dispute
that the forum-selection clause was valid.’ Id. at
576. And the Court noted, without elaboration,
that its analysis ‘presuppose[d] a contractually valid

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