US courts are a magnet for global disputes. With potentially expansive jurisdictional rules, broad discovery, and the potential for massive awards, plaintiffs often seek to pull non-US defendants into American courts—even when the connection to the US is minimal.
But being sued in the US is not always in a defendant’s best interests. So, what can a non-US party do to avoid distant and potentially costly litigation in the US?
Challenges to Forum Broadly
A common first move in any US case involving a non-US defendant is to challenge the court’s personal jurisdiction over the defendant, but two issues may arise. First, procedural rules typically limit personal jurisdiction challenges to a defendant’s first submission. Failing to contest or losing a challenge may essentially ‘lock’ a party into accepting the court’s jurisdiction or risking default judgment. Second, challenges to a court’s personal jurisdiction may not work if the plaintiff can show any number of connections to the US.
In the alternative, when related proceedings are threatened in a non-US court, a party may seek an anti‑suit injunction—an order issued by one court restraining a party from initiating or continuing litigation in another jurisdiction, typically to prevent duplicative proceedings, inconsistent rulings, or strategic forum shopping.
Challenging the Status Quo of Venue under Forum Non Conveniens
Where these jurisdictional challenges and anti-suit injunctions are not available, the next step might be to explain to the US court the inefficiency and impracticality of litigating in the chosen US venue over other more relevant countries. While US courts generally respect a plaintiff’s choice of forum, they have discretionary power to dismiss a case when another country’s judicial system is more appropriate: That is what forum non conveniens is all about.
The doctrine of forum non conveniens allows a court to dismiss a case—even if jurisdiction is technically proper—in favor of a different country’s judicial venue that is more appropriate and/or convenient for the litigation and the non-US parties. In cross-border cases, this assessment becomes more complex, as courts must evaluate whether a foreign legal system provides an adequate alternative while balancing the logistical challenges of cross-border evidence and witness testimony.
The Two-Step Balancing Act
To prevail on a forum non conveniens motion, the moving party must navigate a rigorous two-step inquiry. It is not enough to simply say a foreign court is "better"; the burden is on the defendant to prove the necessity of the move.
Step 1. Is there an adequate alternative? The court must first confirm that a viable alternative forum exists. Where the alternate forum is another US court, this is merely a question of whether the target forum has jurisdiction. For target forums outside the US, the court must also consider whether “parties will not be deprived of all remedies or treated unfairly,” even if standards of due process differ from those in the US. Differences in the kinds of claims a plaintiff can bring are also unlikely to change the court’s forum non conveniens analysis as long as some form of remedy is available.[1]
Step 2. The “Private and Public Interest” Factors. If an adequate alternative forum exists, courts then apply a balancing test of public and private interests to determine whether justice and efficiency are best served elsewhere:
- Private Interests: These focus on the parties to the case—Where are the witnesses located? How difficult is it to transport physical evidence? Can the court compel unwilling witnesses to testify? For international cases, evidence and witnesses are often overseas, making litigation in the US more complicated and costly.
- Public Interests: These focus on the court system itself, in particular, judicial efficiency and the jurisdiction’s interest in the outcome. For international cases, however, a key factor is the entanglement with non-US laws. Although not definitive, courts may look more favorably on dismissal where the case involves grappling with complicated and unknown laws.
This is a complex and fact-intensive analysis. Simply: the more a dispute revolves around a non-US jurisdiction, the more likely a court is to dismiss in favor of forum non conveniens.
Why Timing is Everything
In litigation, speed often wins. If you intend to challenge the court’s jurisdiction or the laying of venue, you must act early. Although forum non conveniens does not have the same strict deadlines as a jurisdictional challenge, waiting until deep into the discovery phase might signal to the court that the US forum isn't actually that “inconvenient,” making a dismissal much harder to obtain.
Navigating the Risks
Obtaining a dismissal based on forum non conveniens can save significant costs and logistical headaches, but it often comes with strings attached. US judges frequently condition these dismissals on the defendant agreeing to “waive” certain defenses in their home country, such as statutes of limitations, to ensure the plaintiff still gets their day in court. If it is unclear whether the non-US jurisdiction will accept the case, the court may also pause the proceedings or issue a conditional dismissal until it can be sure.
The Takeaway: Act Fast and Consider All the Elements
Forum non conveniens is a vital safeguard against "forum shopping," but successfully asserting the defense remains an uphill battle. Success requires showing that the US is not just an inconvenient location, but an illogical one for the specific dispute at hand.
[1] In some cases, the US court may also require that the defendant waive any jurisdictional challenges to proceeding in the chosen non-US forum. We address this concept in more detail below.
