The Judgment Enforceability Factor in Forum Non Conveniens Analysis

33 Pages Posted: 10 Apr 2016 Last revised: 16 Mar 2018

See all articles by Tarik Hansen

Tarik Hansen

George Washington University

Christopher A. Whytock

University of California, Irvine, School of Law

Date Written: April 8, 2016

Abstract

The forum non conveniens doctrine gives courts the discretion to dismiss a lawsuit on the ground that a court in a foreign country is more appropriate and convenient for adjudicating the parties’ dispute, and the Supreme Court has provided a list of private and public interest factors to guide this discretion. One of the private interest factors, however, remains poorly understood: the enforceability of a judgment if one is obtained. As a result, the judgment enforceability factor is often neglected by judges and lawyers. When it is applied, it tends to be applied inconsistently or in a conclusory manner.

This Article explains the proper role of the judgment enforceability factor in forum non conveniens analysis, and provides a simple framework to guide its application by judges and lawyers. Part II explains the context of the Article’s analysis by providing a brief overview of the forum non conveniens doctrine and how the enforceability factor fits into it. Part III argues that the judgment enforceability factor is important not only doctrinally, but also for justice and efficiency. Part IV identifies the problem: Notwithstanding the judgment enforceability factor’s importance, it is often neglected; when it is not neglected, it tends to be applied inconsistently; and even when the factor is properly interpreted, it is often applied in a conclusory manner. Part V offers a solution to this problem by drawing on the best practices of judges, the law of foreign judgments, and the realities of transnational litigation to develop a framework for the proper application of the enforceability factor. By taking the judgment enforceability factor seriously, judges can help ensure that the forum non conveniens doctrine will effectively advance the goals of justice and efficiency.

Keywords: forum non conveniens, jurisdiction, recognition, enforcement, foreign judgments, conflict of laws, transnational litigation, international litigation

Suggested Citation

Hansen, Tarik and Whytock, Christopher A., The Judgment Enforceability Factor in Forum Non Conveniens Analysis (April 8, 2016). Iowa Law Review, Vol. 101, No. 2, 2016, Forthcoming; UC Irvine School of Law Research Paper No. 2016-13. Available at SSRN: https://ssrn.com/abstract=2761134

Tarik Hansen

George Washington University ( email )

2121 I Street NW
Washington, DC 20052
United States

Christopher A. Whytock (Contact Author)

University of California, Irvine, School of Law ( email )

401 East Peltason Drive, Suite 1000
Irvine, CA 92697-8000
United States
(949) 824-0496 (Phone)

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