31 F.4th 119
2d Cir.2022Background
- Aenergy, S.A. (AE), an Angolan energy company owned by a Portuguese citizen, contracted with Angolan state entities in 2017 to provide power-plant services and sell eight GE turbines as part of ~$1.1 billion contracts. GE affiliate financed the contracts and disbursed $644 million.
- AE purchased 14 GE turbines (6 more than the contracts required). GE mistakenly believed 12 would be sold to Angola and senior GE Angola executives fabricated letters suggesting Angola had approved an amendment increasing turbines; Angola rejected the amendment.
- Angola later asserted irregularities concerning four turbines, terminated AE’s contracts (Sept. 2, 2019), and obtained an ex parte injunction in Luanda preliminarily restraining the four turbines; AE alleges state entities took possession and moved turbines to a power facility.
- AE sued Angola (invoking FSIA exceptions) and GE in the Southern District of New York (filed May 7, 2020), alleging breach, unlawful seizure, and tortious interference; the District Court conditionally dismissed on forum non conveniens grounds (May 19, 2021) and later dismissed (June 24, 2021).
- AE appealed, raising two principal legal questions: (1) whether standard forum non conveniens doctrine applies to suits brought under FSIA exceptions, and (2) whether the District Court abused its discretion in dismissing on forum non conveniens grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether forum non conveniens applies to FSIA exception suits | FSIA provides comity protections and thus displaces or heightens the standard for forum non conveniens | Traditional forum non conveniens remains available and applies to suits under FSIA exceptions | Forum non conveniens principles apply to FSIA-exception cases |
| Degree of deference to AE’s choice of New York forum | AE’s choice of forum deserves typical deference | AE is a foreign plaintiff with weak ties to U.S.; choice suggests forum shopping | Minimal deference was appropriate given foreign plaintiff status and forum-shopping indicia |
| Adequacy of Angola as an alternative forum | Angola is inadequate (time-barred damages, inability to try Angola and GE together, due process concerns, safety of AE’s owner) | Angola can adjudicate the essential dispute; parallel proceedings and equitable remedies suffice; due process alleged but not shown | Angola is an adequate alternative forum; plaintiff failed to show rare lack of basic procedural safeguards |
| Balance of private and public (Gilbert) factors and dismissal | New York convenient because of GE ties and witness safety concerns | Angola superior: key events, witnesses, documents, governing law and public interest are Angolan | Gilbert factors favor Angola (witnesses, proof, foreign law, local interest); dismissal on forum non conveniens was not an abuse of discretion |
Key Cases Cited
- Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480 (U.S. 1983) (FSIA does not appear to affect traditional forum non conveniens doctrine)
- Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422 (U.S. 2007) (courts may dismiss on forum non conveniens without resolving subject-matter jurisdiction)
- Iragorri v. United Techs. Corp., 274 F.3d 65 (2d Cir. 2001) (en banc) (three-step forum non conveniens framework and deference rules)
- Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (U.S. 1947) (private and public interest factors for forum non conveniens)
- Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64 (2d Cir. 2003) (adequate alternative forum and deference analysis)
- Blanco v. Banco Indus. de Venez., S.A., 997 F.2d 974 (2d Cir. 1993) (applying forum non conveniens to suits involving foreign sovereigns)