China as a Suitable Alternative Forum in a Forum Non Conveniens Motion

AuthorCourtney L. Gould
Courtney L. Gould
This article discusses the U.S. Federal standard regarding a
motion to dismiss for forum non conveniens as it is applied to the
alternative fora of the People’s Republic of China. The discussion
focuses on how a specific forum within the PRC should be analyzed
for suitability under this U.S. standard due to the somewhat unique
aspects of the PRC legal system. By analogy to Federal forum non
conveniens case law, this article provides suggestions for courts and
practitioners to apply the standard to the PRC judiciary. In doing
so however, the article intends to identify and distinguish which
aspects of the current U.S. conception of the PRC system are based
in reality, and which are based in rumor or stereotype.
The confusion associated with litigation in a global world is no
longer reserved for first year Civil Procedure exam hypotheticals – it
is now part of the every day challenges of complex civil litigation.
Indeed, cross-border litigation and the prevalence of forum non
conveniens (FNC) motions continually push the boundaries of U.S.
courts’ knowledge of foreign legal systems. While the analysis of
the public and private interest in each FNC motion raises certain
case-specific and domestic legal issues, determining whether the
foreign jurisdiction provides a suitable alternative forum requires a
broad understanding of the jurisdiction and the particular challenges
it might present to the parties. For countries outside of familiar
Europe, and especially for countries with constantly developing legal
systems such as the People’s Republic of China (P.R.C. or China),
the analysis in cases thus far has been somewhat lacking. Further,
J.D., UCLA School of Law, 2010; Semester Certificate, Tsi nghua University LL.M. Program, 2009;
B.S., Vanderbilt University, 2007. I would like to thank Prof. Randall Peerenboom for his gracious
help with this article, as well as Prof. Donald Cla rke, Prof. Robert Berring, the Tsinghua LL.M.
Program, the UCLA Pacific Basin Law Jou rnal and the China Law Association for their part in my
development within the China Law discipline. Thank you to Mr. Isaac Miller for your many draft edits
and support always. Finally, thanks and credit to Mr. Bruce Friedman for providing me his example
and guidance while working on the Danone v. Zong case, with this article as a result.
because the FNC test does not currently articulate exactly what
determines the suitability of a forum, it is unclear what type of
evidence is admissible and persuasive, and in what direction
commonly offered evidence weighs.
This article will identify and analyze the specific issues U.S.
courts face in applying the FNC test to cases where removal to a
Chinese court is requested. Part II outlines the requirements of the
FNC test and how it has been employed for cases involving various
foreign jurisdictions. Part III provides a brief primer on aspects of
the Chinese legal system pertinent to the FNC analysis, focusing on
those aspects that differ from the U.S. system. Lastly, Part IV
begins with an overview of past federal and state cases involving
FNC motions for dismissal to a Chinese forum and then discusses the
potential institutional, substantive, and procedural areas of concern
that arise during the FNC suitability analysis. Part IV also suggests
considerations for parties and courts engaging in the examination of
a Chinese forum.
Generally, a two-part test is applied in both federal and state
courts when considering a FNC motion.1 The first part, and the
focus of this article, is whether the alternative forum proposed by the
defendant is adequate to hear the case.2 The second part requires
the court to balance the private interests of the litigants and the
public interest in retaining the litigation in US.3 However, it is
worth noting that despite technical advances which make information
1 Some courts, such as in the Second Circuit, include a fi rst level of inquiry regarding the degree of
deference due to the plaintiff. See Iragorri v. United Techs. Corp., 274 F.3d 65, 71, 73-74 (2d Cir.
2001) (en banc). Essentially, this is an elaboration on the “lesser-deference” rule that a plaintiff
engaging in forum shopping as opposed to selecting the forum for convenience shou ld not have its
forum choice entitled to a presumption of substantial deference. See Piper Aircraft Co. v. Reyno, 454
U.S. 235, 255-56 (1981). However, other cou rts draw from the Piper Aircraft Co. test that the concern
of forum shopping should be considered within the assessment of the defendant’s burden, discussed
2 See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947) superseded by statute the Jones Act, 46
U.S.C. App. c 688(a) as recognized in Am. Dredging Co. v. Miller, 51 0 U.S. 443 (1994).
3 Id. For a detailed analysis of this part of the FNC test, please see generally Emily J. Derr,
Striking a Better Public-Private Balance in Forum Non Conveniens, 93 CORNELL L. REV. 819 (2008).
Courts consider as private interest factors the ease of access to evidence, availability of compulsory
process and cost to compel attendance of witnesses, possibility of view of premises and if view would
be appropriate to the action, as well as any other practical problems that make trial of a case easy,
expeditious and expensive; public factors include the administrative difficulties of court congestion,
local interest in having local controversies d ecided at home, avoidance of unnecessary problems in
conflict of laws or application of foreign law, and the unfairness of burdening citizens in an unrelated
forum with jury duty. See Michael Greenberg, The Forum Non Conveniens Motion and the Death of
the Moth: A Defense Perspective in the Post-Sinochem Era, 72 ALB.L.REV. 321, 344 (2009).
on foreign law and legal systems readily available to U.S. judges, a
lack of confidence in their knowledge about foreign jurisdictions
continues to cause judges to allow transfer of cases involving foreign
elements to the foreign jurisdiction on the grounds that the difficulty
of discovering and applying foreign law is overly burdensome to the
A. Procedural and Substantive Adequacy
To determine whether an alternative forum is adequate, both
procedural and substantive adequacy is considered. A court must
be assured that the defendant(s), including any and all defendants
other than those “not essential” to the case, will be subject to service
of process in the proposed alternative forum.5 As a condition of
dismissal to the foreign jurisdiction, U.S. courts often request
defendants stipulate to personal jurisdiction, accept service of
process, and waive any statute of limitations defense.6 Defendants
are also often requested to make available all witnesses and
documents in the foreign forum proceedings as well as satisfy any
final judgment entered by the foreign court.7
The substantive prong of the suitability analysis considers
whether the foreign forum deprives the plaintiff of the opportunity
for a remedy. The Court in Piper Aircraft Co. v. Reyno clearly
states that a difference in the law between the plaintiff’s preferred
U.S. forum and defendant’s preferred forum is not enough alone to
render a forum inadequate. 8 Rather, an alternative forum is
adequate as long as the parties will not be deprived of all remedies or
treated unfairly, even though they may not enjoy the same benefits as
they might receive in a U.S. court.9
4 See Derr, supra note 3, at 828-29.
5 See Murray v. British Broadcasting Corp ., 81 F.3d 287, 293 n.2 (2d Cir, 1996)
6 See Greenberg, supra note 3, at 350 nn.149-52.
7 See id. at 350. This article will assume stipulation, particularly as most defendants do so easily in
order to facilitate a favorable resu lt to their FNC motion, see, e.g.,Mercier v. Sheraton Int’l Inc., 981
F.2d 1345, 1353 (1st Cir.1992). But, circuits split on whether conditions are possibly even a
mandatory element for FNC dismissal, compare Leetsch v. Freedman, 260 F.3d 1100, 1104 (9th Cir.
2001) (noting conditions are permissible to assure adequacy but not required) with Vasquez v.
Bridgestone/Firestone, Inc., 325 F.3d 665, 675, Prod. Liab. Rep. (CCH) P 16594 (5th Cir. 2003)
(holding conditions as a mandatory elem ent of a FNC dismissal).
8 See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 25 4-55 (1981).
9 See id. The Ninth Circuit held that the assessment of the adequacy of a rem edy should examine
the remedy, and not the cause of action. Lueck v. Sundstrand Corp., 236 F.3d 1137, 1141-42 (9th Cir.
1993). This means th at if, for example, products liability is not a cause of ac tion in the P.R.C., but a
remedy for an injury from a product may be provided through perhap s some other tort or contract basis,
the remedy is adequate. Such a position has not been expressly followed by other circuits.

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