Forum Non Conveniens
Last updated on September 15, 2026
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Forum Non Conveniens
When a Court Declines to Hear a Case Because Another Forum Is More Appropriate
A court may sometimes have jurisdiction over a dispute, have proper venue, and be legally capable of hearing the case, yet still determine that the litigation should take place somewhere else.
The doctrine that addresses this situation is forum non conveniens.
Forum non conveniens is a judicial doctrine under which a court may decline to exercise jurisdiction when another available forum is substantially more appropriate or convenient for resolving the dispute. Cornell Law School’s Legal Information Institute describes the doctrine as the court’s discretionary power to decline jurisdiction when another forum may more conveniently hear the case.
The doctrine is particularly important in disputes involving multiple states or countries. A lawsuit might be filed in the United States even though the accident occurred abroad, most witnesses live abroad, relevant documents are abroad, and the parties have stronger connections to another country. Conversely, a dispute might be filed in a state that technically has jurisdiction but has little practical connection to the controversy.
Forum non conveniens allows a court to ask a practical question:
Even though this court can hear the case, is this really the appropriate place for the case to be tried?
That question is different from asking whether the court has jurisdiction.
It is also different from asking whether the parties contractually selected a particular forum.
1. What Does Forum Non Conveniens Mean?
The Latin phrase forum non conveniens essentially means an inconvenient forum.
The doctrine recognizes that jurisdiction and convenience are not always the same thing.
A court may have lawful authority over the parties but still conclude that another available court is substantially better positioned to resolve the dispute.
For example, imagine that:
- a plaintiff is a citizen of Scotland;
- the defendant is a U.S. corporation;
- an airplane accident occurred in Scotland;
- the aircraft was operated in Scotland;
- most witnesses are in Scotland;
- most physical evidence is in Scotland;
- Scottish authorities investigated the accident; and
- Scottish law may govern the dispute.
The plaintiff nevertheless files the case in a U.S. federal court.
The U.S. court may have personal jurisdiction and subject-matter jurisdiction.
But the defendant may argue that Scotland is the more appropriate forum.
That is the type of problem forum non conveniens addresses.
2. Forum Non Conveniens Does Not Mean the Court Lacks Jurisdiction
This is one of the most important points.
A court considering forum non conveniens is not necessarily saying:
“We have no jurisdiction.”
Instead, it may be saying:
“We have jurisdiction, but another available forum is substantially more appropriate.”
This distinction separates forum non conveniens from a jurisdictional dismissal.
If a court truly lacks personal jurisdiction, the case cannot ordinarily proceed there merely because the court would be convenient.
Forum non conveniens operates at a different level.
It assumes that the court has a legally sufficient basis to hear the case but asks whether exercising that authority is appropriate.
3. Forum Non Conveniens Is Discretionary
Forum non conveniens is generally a discretionary doctrine.
A court does not automatically dismiss every case that could be litigated somewhere else.
In fact, the existence of another possible forum is not by itself sufficient.
The court must consider the circumstances of the particular case.
The Supreme Court has emphasized that the doctrine requires flexibility rather than a rigid mechanical formula.
In Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), the Supreme Court identified private and public interest considerations that courts should evaluate when determining whether another forum is substantially more appropriate.
The doctrine therefore involves judicial balancing rather than an automatic rule.
4. Why Does the Doctrine Exist?
The judicial system has an interest in preventing litigation from being conducted in a forum that has little practical relationship to the dispute when another competent forum is available.
A case can impose substantial burdens on:
- the parties;
- witnesses;
- courts;
- jurors;
- government institutions;
- third parties; and
- the legal system generally.
For example, imagine a foreign accident involving foreign witnesses and foreign evidence.
Trying the case in the United States could require:
- transporting witnesses across borders;
- translating documents;
- resolving foreign-law questions;
- obtaining evidence through international procedures;
- determining the applicability of foreign law; and
- asking an American jury to resolve a controversy primarily connected with another country.
Forum non conveniens gives courts a mechanism for addressing those practical problems.
5. Forum Non Conveniens and Forum Shopping
Forum non conveniens is also connected to the problem of forum shopping.
Forum shopping occurs when a litigant chooses among available jurisdictions because one forum is perceived as more favorable.
Cornell Wex explains that forum shopping can occur among state courts, federal courts, and courts in different countries.
Forum shopping is not automatically unlawful.
A plaintiff is generally entitled to choose a forum in which the plaintiff has a legitimate right to sue.
But the law does not necessarily allow a plaintiff to impose extreme burdens on the defendant and the judicial system merely because the selected forum appears advantageous.
Forum non conveniens provides a mechanism through which a court can evaluate whether the plaintiff’s chosen forum is sufficiently connected to the dispute.
6. The Plaintiff Normally Chooses the Forum
American procedural law generally recognizes an important principle:
The plaintiff ordinarily has some control over where litigation begins.
This is logical.
The plaintiff is the person who initiates the lawsuit and ordinarily chooses among courts that have jurisdiction and proper venue.
But that choice is not absolute.
The plaintiff’s selection may receive less deference when the chosen forum has little connection to the dispute, particularly when the plaintiff is not a resident or citizen of that forum.
This principle became particularly important in Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). The Supreme Court explained that a foreign plaintiff’s choice of a U.S. forum may receive less deference than a domestic plaintiff’s choice of a home forum because the assumption that the chosen forum is convenient is weaker.
7. The Two Fundamental Questions
A traditional forum non conveniens analysis generally requires courts to address two central questions.
First:
Is there an adequate alternative forum available?
Second:
Do the relevant private and public interests favor dismissal in favor of that alternative forum?
Both questions matter.
A defendant cannot ordinarily obtain dismissal simply by saying:
“Another country would be more convenient.”
The defendant generally needs to identify an available alternative forum capable of hearing the dispute.
The court must then consider whether the balance of relevant interests justifies dismissal.
8. The Adequate Alternative Forum
The first major requirement is the existence of an adequate alternative forum.
The alternative forum must generally be available to the parties and capable of resolving the dispute.
For example, if a U.S. court is asked to dismiss a case in favor of a foreign court, the defendant may need to demonstrate that the foreign court can exercise jurisdiction over the relevant parties.
The alternative forum must be more than a theoretical possibility.
It must be a functioning judicial forum in which the plaintiff can pursue the underlying dispute.
9. Availability of the Alternative Forum
Availability generally concerns whether the defendant is amenable to process and whether the alternative court can exercise jurisdiction.
Suppose a defendant says:
“The plaintiff should sue us in Country X.”
If the defendant itself cannot be sued in Country X, the proposed alternative may not solve the problem.
A court therefore needs confidence that the proposed forum is genuinely available.
In appropriate circumstances, a defendant may agree to submit to the jurisdiction of the foreign court as a condition of dismissal.
That can help establish the availability of the alternative forum.
10. Adequacy Does Not Mean Identical Law
An important principle from Piper Aircraft is that an alternative forum does not become inadequate merely because its law is less favorable to the plaintiff.
In Piper Aircraft, the plaintiffs preferred U.S. law because Scottish law did not provide the same strict-liability theory available under U.S. law.
The Supreme Court nevertheless held that the difference in substantive law did not automatically prevent dismissal.
The alternative forum generally must provide a meaningful remedy, but it does not have to provide exactly the same legal rules or damages available in the U.S. forum.
This distinction is critical.
Otherwise, virtually any difference between two legal systems could defeat forum non conveniens.
11. When Is an Alternative Forum Inadequate?
An alternative forum may be inadequate when the plaintiff would effectively have no meaningful remedy.
For example, an alternative forum might be inadequate if:
- it has no jurisdiction over the dispute;
- it cannot provide any meaningful judicial remedy;
- the legal system cannot adjudicate the subject matter;
- the defendant cannot be brought before the court; or
- extraordinary circumstances make the forum incapable of fairly resolving the controversy.
The standard is generally demanding.
A foreign forum does not become inadequate merely because:
- damages are lower;
- discovery is narrower;
- litigation is slower;
- substantive law differs; or
- the plaintiff would prefer American procedural rules.
12. Inadequate Does Not Mean Less Favorable
This distinction deserves emphasis.
Suppose a U.S. plaintiff could potentially recover $5 million under American law but only $1 million under the law of the alternative forum.
That difference may be highly significant to the plaintiff.
But it does not necessarily mean that the foreign forum is legally inadequate.
The question is not:
“Is the alternative forum equally favorable?”
The question is closer to:
“Can the alternative forum provide a meaningful judicial remedy?”
Piper Aircraft is the leading Supreme Court authority for this principle.
13. The Private Interest Factors
Once an adequate alternative forum is identified, courts consider the interests of the parties and the practical burdens of litigation.
The classic framework comes from Gulf Oil Corp. v. Gilbert.
Private interest factors can include:
- access to sources of proof;
- availability of witnesses;
- ability to compel unwilling witnesses;
- cost of obtaining witnesses;
- ease of obtaining relevant evidence;
- possibility of viewing premises or physical evidence;
- enforceability of a resulting judgment;
- practical problems associated with conducting the trial; and
- other considerations affecting the convenience of the litigants.
The exact formulation is not rigid.
The central question is practical:
Which forum can handle the dispute more efficiently and conveniently?
14. Access to Evidence
Evidence is often one of the most important factors.
Consider a dispute concerning an industrial accident in Germany.
The machinery is in Germany.
The factory employees are in Germany.
The inspection reports are in Germany.
The accident investigators are in Germany.
The medical records are in Germany.
The plaintiff nevertheless files in a U.S. court.
A court may conclude that Germany has a substantial practical advantage because most of the evidence is located there.
Modern technology has reduced the importance of physical documents in some cases, but it has not eliminated evidentiary considerations.
15. Witness Availability
Witnesses can be particularly important.
A witness who lives in another country may be difficult or expensive to bring to the United States.
A court may also have limited ability to compel a foreign witness who refuses to participate.
The availability of compulsory process therefore matters.
If virtually all eyewitnesses are located in the alternative forum, this may strongly support dismissal.
16. Compulsory Process
Courts cannot always compel witnesses who are outside their territorial authority.
This can create serious practical problems.
Imagine a case involving a foreign factory accident where ten essential witnesses live abroad and cannot easily be compelled to testify in the United States.
Even if those witnesses are willing to participate, travel may be expensive.
If they are unwilling, the problem can be considerably greater.
The availability of compulsory process is therefore a traditional private-interest consideration.
17. Cost of Obtaining Witnesses
Travel, accommodation, translation, document preparation, and related expenses can make cross-border litigation extremely expensive.
A court may consider whether trying the case in the selected forum would impose disproportionate burdens on the parties.
The doctrine does not require every case to be tried in the cheapest possible location.
Rather, cost is considered together with the other factors.
18. Access to Physical Evidence
Some disputes depend heavily on physical evidence.
Examples include:
- defective machinery;
- construction sites;
- accident locations;
- damaged vehicles;
- industrial facilities;
- real property;
- medical facilities; and
- environmental sites.
If the court or fact finder would benefit from examining a location or object that is situated in the alternative forum, that can support dismissal.
The more geographically concentrated the evidence, the stronger this consideration may become.
19. Ability to Join Third Parties
Another important consideration is whether the alternative forum allows all relevant parties to participate in the same litigation.
Suppose an accident involves:
- the manufacturer;
- the distributor;
- the local operator;
- a maintenance company; and
- an insurer.
If some of those parties are subject to jurisdiction in one country but not another, fragmented litigation could result.
A court may consider whether the proposed alternative forum permits the dispute to be resolved more comprehensively.
This was significant in Piper Aircraft, where the availability of Scottish parties and potential third-party defendants in Scotland supported the alternative forum.
20. Enforceability of the Judgment
A judgment is useful only if it can realistically be enforced.
Courts may therefore consider whether a judgment issued in one forum will be enforceable against relevant assets or parties.
For example, if the defendant’s principal assets are located in the alternative forum, that forum may have practical advantages.
Conversely, if enforcement would be extraordinarily difficult in the proposed alternative forum, that could weigh against dismissal.
Enforcement is only one factor, however.
It does not automatically determine the outcome.
21. The Public Interest Factors
Forum non conveniens also considers the interests of the judicial system and the broader community.
The classic public factors from Gulf Oil include:
- administrative burdens on courts;
- local interest in resolving local controversies;
- application of local law;
- avoidance of unnecessary conflict-of-laws problems;
- burdening jurors with disputes unrelated to their community; and
- avoiding unnecessary complexity in applying foreign law.
These considerations recognize that litigation affects more than the parties themselves.
22. Local Interest in Local Controversies
A community may have a legitimate interest in resolving disputes arising within that community.
Suppose a factory in Texas causes an environmental incident affecting Texas residents.
Texas has a strong interest in the dispute.
A foreign court may have considerably less interest in resolving the matter.
Conversely, if an accident occurs in France involving French residents and French businesses, France may have a stronger local interest.
The location of the underlying events can therefore matter significantly.
23. Applying Foreign Law
Courts may also consider the difficulty of applying foreign law.
An American federal court may be capable of applying foreign law, but doing so can impose additional complexity.
The court may need to determine:
- which country’s law governs;
- what the foreign law provides;
- how foreign statutes are interpreted;
- how foreign courts interpret those statutes; and
- whether multiple legal systems apply to different claims.
In Piper Aircraft, the Supreme Court recognized the problems that can arise when American courts must resolve disputes involving foreign law.
24. Conflict-of-Laws Complexity
Forum non conveniens can prevent a court from becoming deeply involved in a complicated foreign-law dispute when another forum has a substantially stronger connection to the controversy.
For example, suppose a lawsuit concerns:
- an accident in Japan;
- Japanese plaintiffs;
- Japanese witnesses;
- Japanese medical records;
- Japanese regulatory authorities; and
- Japanese law.
If the only significant American connection is that the defendant is a U.S. corporation, a U.S. court may consider whether Japan is the more appropriate forum.
This does not mean that U.S. courts cannot apply foreign law.
It means that the practical burden of doing so can become one factor in the forum analysis.
25. The Burden on the Court
Courts have limited judicial resources.
A dispute requiring extensive foreign discovery, translation, foreign-law analysis, international witness procedures, and unfamiliar regulatory evidence may impose substantial burdens.
Forum non conveniens recognizes that those burdens can be relevant.
The doctrine therefore considers not only:
“Which forum is more convenient for the plaintiff?”
but also:
“Which forum is better positioned to resolve this controversy efficiently?”
26. The Burden on Jurors
Jury service is another public-interest consideration.
Jurors may be asked to decide disputes involving events occurring thousands of miles away and having little connection to their community.
For example, residents of an American state may have little local interest in a foreign accident involving foreign parties.
A court may therefore consider whether it is appropriate to impose the burden of such litigation on local jurors.
This is especially relevant when another jurisdiction has a strong local interest in the dispute.
27. The Plaintiff’s Choice of Forum
A plaintiff’s choice generally receives some deference.
But the degree of deference matters.
A plaintiff who sues in the plaintiff’s home forum may have a stronger justification for that choice.
A foreign plaintiff suing in the United States may receive less deference when the dispute has little connection to the United States.
This was one of the important holdings of Piper Aircraft.
The doctrine therefore does not treat every plaintiff’s choice identically.
28. Domestic Plaintiffs and Foreign Plaintiffs
The distinction can be illustrated simply.
Domestic plaintiff
A resident of Florida is injured in Florida and sues in Florida.
The plaintiff’s selection of Florida is naturally entitled to substantial respect.
Foreign plaintiff
A resident of France is injured in France and sues in Florida because Florida law might produce a larger recovery.
The Florida forum may receive considerably less deference if the dispute otherwise has little connection with Florida.
The distinction does not create an automatic rule.
It affects the weight given to the plaintiff’s initial choice.
29. Forum Non Conveniens and the Plaintiff’s Strategic Choice
A plaintiff may sometimes choose a forum because it offers:
- higher damages;
- broader liability rules;
- more extensive discovery;
- favorable procedural rules;
- favorable jury practices;
- stronger statutory remedies; or
- a more favorable interpretation of substantive law.
Forum non conveniens does not require a court to ignore these realities.
But the Supreme Court has held that the possibility of a less favorable substantive law in the alternative forum does not, by itself, defeat dismissal.
The doctrine would become largely ineffective if every difference in substantive law automatically prevented dismissal.
30. Piper Aircraft Co. v. Reyno
Piper Aircraft Co. v. Reyno is one of the most important modern forum non conveniens cases.
The case arose from an airplane accident in Scotland.
The victims were Scottish.
The accident occurred in Scotland.
Many witnesses and pieces of evidence were located in Scotland.
The plaintiffs nevertheless pursued litigation in the United States, where the legal environment was potentially more favorable.
The Supreme Court upheld dismissal in favor of Scotland.
The Court rejected the proposition that a difference in substantive law automatically makes the alternative forum inadequate.
The case remains foundational because it clarifies the relationship between:
- plaintiff’s choice;
- foreign plaintiffs;
- adequacy of the alternative forum;
- private interests;
- public interests; and
- differences in substantive law.
31. Gulf Oil Corp. v. Gilbert
Before Piper Aircraft, the Supreme Court established the classic balancing framework in Gulf Oil Corp. v. Gilbert.
The Court emphasized that forum non conveniens involves practical considerations concerning both the parties and the court.
The private factors focus on matters such as:
- evidence;
- witnesses;
- compulsory process;
- trial costs;
- physical evidence; and
- practical litigation burdens.
The public factors focus on matters such as:
- local interests;
- court congestion;
- application of local law;
- conflict-of-laws complexity; and
- the burden on jurors.
The framework remains central to understanding the doctrine.
32. No Single Factor Usually Controls
Forum non conveniens is not ordinarily determined by one isolated factor.
For example:
“All witnesses are abroad.”
That may be important.
But it does not automatically require dismissal.
Likewise:
“The accident occurred abroad.”
That may be important.
But it does not automatically determine the forum.
Courts generally consider the totality of the circumstances.
The doctrine is designed to preserve flexibility because international and interstate disputes vary enormously.
33. The Balance Must Strongly Favor the Alternative Forum
The plaintiff’s chosen forum is not displaced merely because another forum might be somewhat better.
The circumstances generally must support the conclusion that the alternative forum is substantially more appropriate.
This protects the plaintiff’s legitimate right to choose a forum.
The defendant therefore bears an important burden when asking a court to override the plaintiff’s selection.
34. Forum Non Conveniens Is Not a Convenience Contest
The doctrine does not simply ask:
“Which forum is slightly more convenient?”
Instead, courts examine whether the existing forum is sufficiently inappropriate, considering the relevant private and public interests, and whether another adequate forum is available.
This distinction is important.
If the plaintiff’s forum is reasonably connected to the dispute and the alternative forum is only marginally better, dismissal may be inappropriate.
The doctrine is intended for cases where the balance meaningfully points elsewhere.
35. Conditions on Dismissal
A court may sometimes impose conditions when granting a forum non conveniens dismissal.
For example, the defendant may be required to:
- submit to jurisdiction in the alternative forum;
- accept service there;
- waive certain jurisdictional defenses;
- make relevant evidence available;
- satisfy certain procedural requirements; or
- agree to participate in the foreign litigation.
These conditions help ensure that dismissal actually results in a viable alternative forum rather than leaving the plaintiff without a practical avenue for relief.
36. Defendant’s Agreement to Foreign Jurisdiction
Suppose a U.S. company argues:
“This case belongs in France.”
The plaintiff responds:
“But you cannot be sued in France.”
The U.S. court may require the defendant to agree to submit to French jurisdiction.
Such an undertaking can address the availability problem.
The exact conditions depend upon the court and the circumstances.
37. Dismissal Rather Than Transfer
Traditional forum non conveniens generally results in dismissal, not transfer.
This is particularly important when the alternative forum is outside the United States.
A U.S. federal court ordinarily cannot simply transfer a case directly into a foreign country’s judicial system using the ordinary federal transfer statute.
Instead, the U.S. case may be dismissed so that the plaintiff can pursue the action in the foreign forum.
That distinction becomes particularly important in international litigation.
38. Transfer Between U.S. Federal Courts
When the alternative forum is another U.S. federal district, however, the situation is different.
Federal law provides mechanisms for transferring cases between federal districts.
Under 28 U.S.C. § 1404(a), a federal district court may transfer a civil action to another federal district in appropriate circumstances.
Therefore, when the preferred forum is another federal court within the United States, transfer may be the appropriate mechanism rather than traditional forum non conveniens dismissal.
39. Atlantic Marine Construction Co. v. U.S. District Court
The Supreme Court’s decision in Atlantic Marine Construction Co. v. U.S. District Court is especially important here.
The case involved a valid forum-selection clause designating another federal forum.
The Supreme Court explained that § 1404(a) provides the appropriate mechanism for transferring the case to another federal district when a valid forum-selection clause points there.
This distinguishes interstate federal transfer from the traditional international forum non conveniens context.
Cornell’s Wex discussion likewise identifies Atlantic Marine as an important case concerning the relationship between forum non conveniens and federal transfer.
40. Forum Selection Versus Forum Non Conveniens
The distinction between the two doctrines is fundamental.
Forum selection clause
The parties themselves agree on the forum.
Forum non conveniens
The court decides whether another forum is more appropriate.
A forum selection clause therefore reflects contractual choice.
Forum non conveniens reflects judicial discretion.
The two doctrines can interact.
If parties have selected an exclusive forum, the court’s analysis changes because the parties have already allocated the risk of litigation location.
41. A Valid Forum Selection Clause Changes the Analysis
Suppose a contract states:
“All disputes shall be litigated exclusively in the courts of New York.”
The plaintiff nevertheless files in Texas.
The defendant asks the Texas court to enforce the forum clause.
This is different from an ordinary forum non conveniens case.
The parties have already agreed that New York is the appropriate forum.
Under Atlantic Marine, a valid forum-selection clause receives substantial weight in the federal transfer analysis.
The court is no longer starting with a blank slate.
42. Forum Non Conveniens Without a Forum Selection Clause
Now imagine that no contract exists.
A French plaintiff sues a U.S. company in New York over an accident in France.
There is no forum-selection clause.
The defendant argues that France is the appropriate forum.
The New York court must independently evaluate:
- availability of France;
- adequacy of French courts;
- evidence;
- witnesses;
- local interests;
- applicable law;
- court burdens;
- plaintiff’s forum choice; and
- other relevant circumstances.
This is the classic forum non conveniens inquiry.
43. International Cases
Forum non conveniens is especially significant in international litigation.
International disputes may involve:
- foreign accidents;
- international commercial contracts;
- multinational corporations;
- overseas manufacturing;
- maritime disputes;
- aviation accidents;
- environmental claims;
- foreign investment;
- international banking;
- cross-border torts; and
- disputes involving foreign property.
In these cases, the location of evidence and witnesses can be spread across several legal systems.
Forum non conveniens provides courts with a flexible mechanism for managing that complexity.
44. Maritime and Shipping Cases
Maritime disputes have historically played an important role in the development of forum non conveniens doctrine.
Shipping cases can involve:
- vessels registered in one country;
- owners incorporated in another;
- cargo loaded in another country;
- accidents occurring in international waters;
- crews from several countries; and
- contracts governed by yet another jurisdiction’s law.
The practical burdens of litigating such cases in an unrelated forum can be substantial.
Forum non conveniens can therefore play an important role in international maritime litigation.
45. Aviation Cases
Aviation disputes similarly illustrate the doctrine.
An aircraft may be:
- manufactured in one country;
- owned by a company in another;
- operated by an airline headquartered elsewhere;
- piloted by foreign personnel;
- carrying foreign passengers; and
- involved in an accident in a fifth country.
The Piper Aircraft litigation demonstrates how these connections can influence the forum analysis.
The location of the accident, victims, witnesses, evidence, and regulatory authorities may all be relevant.
46. Product Liability Cases
Product liability cases can also produce forum non conveniens disputes.
Imagine that a product is manufactured in the United States but sold and used in Brazil, where a Brazilian consumer is injured.
The consumer sues in the United States.
The manufacturer may argue that Brazil is the appropriate forum because:
- the injury occurred there;
- the plaintiff lives there;
- witnesses are there;
- medical records are there;
- local regulations apply; and
- Brazil has a strong interest in the dispute.
The U.S. court would then conduct the appropriate analysis.
The mere fact that the manufacturer is American does not automatically make the United States the appropriate forum.
47. Medical and Pharmaceutical Litigation
Cross-border medical disputes may raise similar issues.
A patient might receive medical treatment abroad and later sue a foreign hospital or physician in the United States.
Relevant considerations could include:
- location of treatment;
- location of medical records;
- location of medical personnel;
- applicable medical standards;
- local regulatory law;
- location of injury;
- residence of the patient; and
- ability to obtain evidence.
The fact that the patient later returns to the United States does not necessarily make a U.S. court the most appropriate forum.
48. Environmental Disputes
Environmental disputes often have strong territorial connections.
Suppose pollution occurs in one country and affects land, water, or residents in that country.
The local government and community may have a strong interest in resolving the dispute.
Local environmental regulations may also govern.
A foreign court may technically have jurisdiction over the defendant but still determine that the country where the environmental harm occurred is the more appropriate forum.
49. Real Property Disputes
Real property creates a particularly strong connection to the place where the property is located.
If the dispute concerns ownership, possession, boundaries, or rights in land, the location of the property may be highly significant.
Courts may consider:
- local property law;
- local records;
- local witnesses;
- local authorities; and
- the ability to enforce orders affecting the property.
The territorial nature of property rights can therefore weigh heavily in forum analysis.
50. Online and Digital Disputes
Modern technology has complicated forum non conveniens analysis.
An online transaction may involve:
- a customer in one state;
- a company in another;
- servers in another country;
- payment processors elsewhere; and
- digital evidence stored around the world.
The fact that the transaction occurred online does not eliminate geographical connections.
Courts may still examine:
- where the parties are located;
- where the relevant conduct occurred;
- where the injury occurred;
- where witnesses are located;
- where records are maintained; and
- which jurisdiction has the strongest regulatory interest.
Digital commerce therefore changes some practical considerations without eliminating the doctrine.
51. Foreign Law Does Not Automatically Require Dismissal
A court may be required to apply foreign law and still retain the case.
The existence of foreign law is only one factor.
Otherwise, every international dispute could automatically be dismissed.
The question is whether the overall circumstances make another forum substantially more appropriate.
A federal court is capable of determining foreign law when necessary.
The relevant question is whether doing so, combined with the other factors, makes the chosen forum inappropriate or excessively burdensome.
52. Different Substantive Law Is Not Enough
This principle deserves repetition because it is frequently misunderstood.
A plaintiff cannot ordinarily defeat forum non conveniens merely by showing:
“I will receive less money under the law of the alternative forum.”
That argument was central to Piper Aircraft.
The Supreme Court explained that the possibility of a less favorable substantive law ordinarily should not receive controlling weight.
The alternative forum must instead be evaluated as a functioning judicial system capable of providing a meaningful remedy.
53. Choice of Law Comes After Forum Analysis
Forum non conveniens and choice of law are closely related but separate.
The court may first ask:
Should this case be heard here?
If the answer is no, the court may dismiss in favor of another forum.
If the case remains, the court may then ask:
Which jurisdiction’s substantive law applies?
This sequencing matters.
A court does not necessarily need to conduct a complete choice-of-law analysis before deciding that another forum is substantially more appropriate.
Indeed, one of the practical purposes of forum non conveniens is sometimes to avoid unnecessary conflicts-of-law analysis.
54. The Doctrine Can Prevent Unnecessary Comparative-Law Analysis
Imagine that a dispute has strong connections to Brazil, Brazil’s law likely applies, most evidence is in Brazil, and the parties and witnesses are Brazilian.
If the U.S. court concludes that Brazil is the appropriate forum, it may avoid conducting an extensive analysis of Brazilian substantive law.
The foreign court can address the dispute under its own legal system.
This can conserve judicial resources.
55. Forum Non Conveniens and Federal Courts
In federal litigation, forum non conveniens is particularly important in cases involving foreign forums.
Federal courts may exercise discretion to dismiss in favor of an adequate foreign forum when the relevant factors strongly support dismissal.
The doctrine is therefore particularly significant in:
- diversity cases;
- international commercial disputes;
- international torts;
- maritime litigation;
- aviation disputes; and
- multinational corporate disputes.
56. State Courts
State courts also recognize doctrines concerning inconvenient forums, although the precise rules can vary by state.
The exact terminology, statutory framework, and standards may therefore differ.
A lawyer analyzing a forum non conveniens issue must determine:
- whether the case is in state or federal court;
- which jurisdiction’s procedural law applies;
- whether a statute governs;
- whether the alternative forum is domestic or foreign; and
- what precedent controls.
The federal framework is influential but should not automatically be treated as identical to every state’s doctrine.
57. Forum Non Conveniens and Subject-Matter Jurisdiction
A particularly interesting Supreme Court decision is Sinochem International Co. v. Malaysia International Shipping Corp.
The Supreme Court held that a federal court may, in appropriate circumstances, address forum non conveniens before conclusively resolving certain jurisdictional questions.
This recognizes the practical nature of the doctrine.
If a case plainly belongs in another available forum, a court may sometimes resolve the non-merits issue without first undertaking every potentially complex jurisdictional inquiry.
Cornell Wex identifies Sinochem as an important part of the modern doctrine.
58. Why Sinochem Matters
Normally, courts carefully examine whether they have jurisdiction before proceeding with a case.
But jurisdictional questions themselves can sometimes be complicated.
Suppose a dispute clearly belongs in another country and the forum non conveniens factors overwhelmingly favor dismissal.
If the court can resolve the case on that basis without reaching a difficult jurisdictional question, judicial economy may favor addressing forum non conveniens first.
Sinochem recognizes this possibility.
The decision therefore demonstrates the practical and discretionary character of the doctrine.
59. Sua Sponte Forum Non Conveniens
Forum non conveniens is most commonly raised by a defendant.
But a court may sometimes consider the issue on its own initiative.
A court may recognize that:
- the dispute has little connection to the forum;
- another forum is plainly available;
- most evidence and witnesses are elsewhere; and
- the chosen forum would impose significant burdens.
Even without a defendant’s motion, the court may have authority under applicable law to consider whether dismissal is appropriate.
The doctrine remains discretionary.
60. The Defendant’s Burden
The defendant seeking dismissal generally has to present a persuasive case.
The defendant should identify the alternative forum and explain why it is:
- available;
- adequate;
- substantially more convenient; and
- better suited to resolve the dispute.
Simply stating that another country would be easier is usually insufficient.
The defendant should connect the argument to the actual facts of the litigation.
61. Evidence Matters
A strong forum non conveniens motion is often fact-specific.
A defendant may identify:
- witnesses by location;
- documents by location;
- physical evidence;
- applicable foreign law;
- regulatory authorities;
- third-party defendants;
- enforcement issues; and
- travel or discovery burdens.
The more concrete the evidence, the more persuasive the argument may become.
A generalized assertion of inconvenience is considerably weaker.
62. The Plaintiff’s Counterarguments
The plaintiff may respond by showing that:
- the alternative forum is unavailable;
- the alternative forum cannot provide a meaningful remedy;
- important evidence is in the United States;
- essential witnesses are in the United States;
- the defendant has strong U.S. connections;
- the dispute involves U.S. conduct;
- U.S. law applies;
- the plaintiff has legitimate reasons for selecting the forum; or
- dismissal would create serious practical difficulties.
The court then weighs the competing considerations.
63. Conditional Dismissal
Courts may sometimes make dismissal conditional.
For example, the court may state:
“The case is dismissed on the condition that the defendant submit to the jurisdiction of the courts of Country X.”
This prevents the defendant from obtaining dismissal in the United States and then arguing in the foreign forum that it cannot be sued there.
Conditional dismissal can therefore protect against procedural manipulation.
64. What Happens After Dismissal?
A forum non conveniens dismissal does not necessarily resolve the underlying dispute.
Instead, the plaintiff may be expected to bring the case in the alternative forum.
The dismissal therefore concerns the location of litigation, not the merits of the claim.
Cornell Wex notes that a forum non conveniens dismissal does not itself operate as a bar to refiling on res judicata grounds.
This is an important distinction from a judgment resolving the merits.
65. Dismissal Is Not an Adjudication on the Merits
Suppose a U.S. court dismisses a case because France is the more appropriate forum.
The U.S. court has not necessarily decided:
- whether the defendant was negligent;
- whether the contract was breached;
- whether damages are owed; or
- whether the plaintiff ultimately wins.
The court has decided that the dispute should be litigated elsewhere.
The substantive controversy remains unresolved.
66. Appellate Review
Because forum non conveniens involves judicial discretion, appellate courts generally give substantial deference to the trial court’s decision.
The Supreme Court has emphasized that the determination is committed to the trial court’s sound discretion.
An appellate court does not simply substitute its own preferred balancing of the factors.
This reflects the trial court’s ability to evaluate the practical circumstances of the litigation.
67. Forum Non Conveniens Is Fact-Specific
No universal formula can determine the outcome of every case.
One dispute might strongly favor dismissal because:
- the accident occurred abroad;
- all witnesses are abroad;
- the plaintiff is foreign;
- foreign law governs; and
- the alternative court is clearly available.
Another dispute might remain in the United States because:
- the defendant’s conduct occurred in the United States;
- critical evidence is here;
- important witnesses are here;
- U.S. law applies; and
- the plaintiff has a strong connection to the forum.
The doctrine is therefore highly dependent on the facts.
68. A Practical Example: An International Aviation Accident
Imagine an aircraft manufactured by an American company crashes in Italy.
The passengers are Italian.
The airline is Italian.
The pilot is Italian.
The accident investigation occurs in Italy.
Most witnesses are Italian.
Most medical records are Italian.
The plaintiff nevertheless files a lawsuit in a U.S. federal court because American product-liability law may be more favorable.
The defendant moves for dismissal based on forum non conveniens.
The court would consider:
- Whether Italy is available.
- Whether Italian courts can provide a meaningful remedy.
- The location of witnesses.
- The location of evidence.
- The location of the accident.
- Italy’s interest in the controversy.
- The burden on the U.S. court.
- The plaintiff’s reasons for selecting the United States.
- The relevant law.
- The overall balance of private and public interests.
This is closely analogous to the reasoning in Piper Aircraft.
69. A Practical Example: A U.S. Environmental Dispute
Now imagine a chemical company headquartered in Germany operates a facility in Ohio.
A chemical release occurs in Ohio and harms Ohio residents.
The defendant argues that Germany is a more convenient forum because its headquarters and corporate records are located there.
The plaintiff objects.
The U.S. court might conclude that Ohio has stronger connections because:
- the accident occurred there;
- the victims live there;
- local environmental law may apply;
- local authorities investigated the event;
- local witnesses are important; and
- Ohio has a strong interest in regulating conduct occurring within the state.
The existence of foreign corporate records would not necessarily outweigh those considerations.
70. A Practical Example: International Contract Litigation
Suppose a U.S. company and a Japanese company enter into a distribution agreement.
The contract contains no forum-selection clause.
The Japanese company later alleges breach and files suit in New York.
The defendant argues that Japan is the more appropriate forum because:
- negotiations occurred primarily in Japan;
- the Japanese company’s employees are there;
- most documents are there;
- the products were sold in Japan;
- Japanese law may apply; and
- the alleged breach occurred primarily in Japan.
The plaintiff responds that:
- the U.S. company is located in New York;
- some negotiations occurred there;
- payments were made through New York;
- key witnesses are in New York; and
- the plaintiff has substantial connections to the state.
The court would weigh the competing factors rather than applying an automatic rule.
71. Forum Non Conveniens and Multiple Forums
Sometimes more than two forums are possible.
A dispute might potentially be litigated in:
- California;
- New York;
- Germany; or
- France.
The court hearing the case does not necessarily have to identify the single most convenient forum in the world.
The question is whether the proposed alternative forum is sufficiently available and adequate and whether the relevant factors justify dismissal from the current forum.
This is another reason why the doctrine is discretionary rather than mechanical.
72. Forum Non Conveniens and Parallel Litigation
A separate complication arises when litigation is already pending in another country.
For example:
- a plaintiff files in New York;
- the defendant files a related action in Germany.
The existence of parallel proceedings can make the forum analysis more significant.
The court may consider:
- duplication;
- inconsistent judgments;
- efficiency;
- jurisdictional conflicts;
- the connection of each forum to the dispute; and
- the possibility of coordinated resolution.
Forum non conveniens is not identical to doctrines governing parallel proceedings, but the issues can overlap.
73. Forum Non Conveniens and International Comity
International comity can also intersect with forum non conveniens.
When another sovereign’s courts have a strong interest in resolving a dispute, respect for that foreign judicial system may support the conclusion that the foreign forum is appropriate.
But comity does not mean that every foreign connection requires dismissal.
The doctrine remains a balancing inquiry.
74. Public Policy Does Not Automatically Defeat Dismissal
A plaintiff may argue:
“U.S. law provides stronger protection.”
That argument alone may not defeat dismissal.
The Supreme Court in Piper Aircraft made clear that a difference in substantive law is ordinarily not enough to prevent forum non conveniens dismissal.
However, if the alternative forum is effectively incapable of providing a meaningful remedy, the analysis changes.
The distinction between less favorable law and no meaningful remedy is fundamental.
75. Forum Non Conveniens and Access to Justice
The doctrine must be applied carefully because dismissal can create real burdens for plaintiffs.
A plaintiff may face:
- travel;
- language barriers;
- foreign procedural rules;
- higher litigation costs;
- unfamiliar courts;
- different evidentiary rules; or
- reduced remedies.
Courts therefore must balance convenience against the plaintiff’s legitimate ability to pursue the claim.
The doctrine is not intended to create a procedural escape route for defendants.
76. The Central Balance
The underlying tension can be expressed simply.
On one side:
A plaintiff should ordinarily be able to choose a lawful forum.
On the other:
A defendant and the judicial system should not be forced into an extraordinarily burdensome forum when another adequate forum is clearly more appropriate.
Forum non conveniens attempts to balance these interests.
77. Forum Non Conveniens Versus Venue
Venue and forum non conveniens should not be confused.
Venue asks whether a particular geographic location is legally proper under applicable venue rules.
Forum non conveniens asks whether the court should nevertheless decline to hear the case because another forum is substantially more appropriate.
A court can therefore have proper venue and still dismiss on forum non conveniens grounds.
This distinction is particularly important in federal civil procedure.
78. Forum Non Conveniens Versus Personal Jurisdiction
Personal jurisdiction asks:
Does this court have authority over the defendant?
Forum non conveniens asks:
Even if the court has authority, should the dispute be heard here?
A court may therefore have personal jurisdiction and still dismiss for forum non conveniens.
This makes forum non conveniens a doctrine of judicial discretion and appropriateness, rather than simply jurisdiction.
79. Forum Non Conveniens Versus Forum Selection
The distinction can be summarized as follows:
| Doctrine | Central Question |
|---|---|
| Personal jurisdiction | Can this court exercise authority over the defendant? |
| Venue | Is this geographic location legally proper? |
| Forum selection | Did the parties agree on where litigation should occur? |
| Forum non conveniens | Should this court decline the case because another forum is substantially more appropriate? |
| Choice of law | Which jurisdiction’s substantive law governs? |
Understanding these distinctions is essential to analyzing cross-border litigation.
80. A Practical Framework for Analyzing Forum Non Conveniens
When a forum non conveniens issue arises, a useful analytical sequence is:
Step 1: Identify the current forum
Determine which court is hearing the case.
Step 2: Confirm the jurisdictional setting
Determine whether the court has personal and subject-matter jurisdiction and whether venue is proper, while recognizing that Sinochem may permit certain forum non conveniens issues to be addressed before resolving every jurisdictional question.
Step 3: Identify the proposed alternative forum
Determine where the defendant wants the case litigated.
Step 4: Determine availability
Can the defendant be sued there?
Can the court hear the dispute?
Step 5: Determine adequacy
Can the plaintiff obtain a meaningful remedy?
Step 6: Examine private interests
Consider:
- witnesses;
- evidence;
- compulsory process;
- costs;
- third parties;
- physical evidence; and
- enforceability.
Step 7: Examine public interests
Consider:
- local interests;
- court burdens;
- applicable law;
- conflict-of-laws problems;
- jury burdens; and
- administrative concerns.
Step 8: Consider the plaintiff’s choice
Determine how much deference the plaintiff’s selection deserves under the circumstances.
Step 9: Consider contractual provisions
Determine whether a forum-selection clause exists and changes the analysis.
Step 10: Determine the appropriate procedural result
The court may retain the case, transfer it when federal transfer law applies, or dismiss it in favor of an adequate alternative forum.
81. Key Takeaways
The most important principles of forum non conveniens are:
- Forum non conveniens is a judicial doctrine concerning the appropriate forum for litigation.
- A court may have jurisdiction and still decline to hear a case on forum non conveniens grounds.
- The doctrine is discretionary and fact-specific.
- The defendant generally identifies an alternative forum.
- The alternative forum must generally be available.
- The alternative forum must generally be adequate.
- Adequate does not mean identical to the U.S. forum.
- A less favorable substantive law does not automatically make an alternative forum inadequate.
- The classic framework comes from Gulf Oil Corp. v. Gilbert.
- Piper Aircraft Co. v. Reyno is a foundational Supreme Court case concerning international forum non conveniens.
- A foreign plaintiff’s choice of a U.S. forum may receive less deference than a domestic plaintiff’s choice of a home forum.
- Private-interest factors concern practical burdens on parties and witnesses.
- Public-interest factors concern the interests of courts, jurors, and the community.
- The location of witnesses and evidence can be highly significant.
- The ability to compel unwilling witnesses can matter.
- The ability to join relevant third parties can matter.
- The local interest in resolving local controversies can matter.
- The difficulty of applying foreign law can matter.
- Forum non conveniens does not normally decide the merits of the underlying dispute.
- Dismissal may be conditioned on the defendant’s submission to the alternative forum.
- Traditional international forum non conveniens generally results in dismissal rather than direct transfer to a foreign court.
- Transfer between U.S. federal districts is governed by different statutory mechanisms, including 28 U.S.C. § 1404(a).
- Atlantic Marine is particularly important when a valid forum-selection clause identifies another federal forum.
- Sinochem recognizes that a federal court may, in appropriate circumstances, address forum non conveniens without first resolving every jurisdictional question.
- Forum non conveniens is different from personal jurisdiction, venue, forum selection, and choice of law.
82. Frequently Asked Questions
What is forum non conveniens?
Forum non conveniens is a judicial doctrine allowing a court, in appropriate circumstances, to decline an otherwise available forum because another adequate forum is substantially more appropriate or convenient for resolving the dispute.
Does forum non conveniens mean the court lacks jurisdiction?
No. A court may have jurisdiction but nevertheless decide that another forum is more appropriate.
Who usually raises forum non conveniens?
The defendant commonly raises the doctrine through a motion seeking dismissal, although a court can sometimes consider the issue on its own initiative.
Must there be another available forum?
Generally, yes. The existence of an adequate alternative forum is a central part of the analysis.
Does the alternative forum have to provide exactly the same legal remedies?
No. Under Piper Aircraft, the alternative forum generally does not have to provide identical substantive law or remedies. A difference in law is not automatically enough to make the alternative forum inadequate.
Does the plaintiff’s choice of forum receive deference?
Yes, generally, but the amount of deference depends on the circumstances. A plaintiff’s home forum generally receives greater deference than a foreign plaintiff’s selection of a forum with relatively weak connections to the dispute.
What are private-interest factors?
They concern practical litigation considerations such as evidence, witnesses, compulsory process, litigation costs, physical evidence, third parties, and enforceability.
What are public-interest factors?
They concern considerations affecting courts and the community, including local interests, court congestion, application of foreign law, conflict-of-laws complexity, and the burden on jurors.
Can a court dismiss a case because foreign law is less favorable?
Generally, the possibility that foreign law will be less favorable to the plaintiff does not by itself defeat forum non conveniens. Piper Aircraft is the leading authority.
Can a forum-selection clause affect forum non conveniens?
Yes. A valid forum-selection clause can substantially change the analysis because the parties have already contractually selected the forum.
Is forum non conveniens the same as venue?
No. Venue concerns whether a particular geographic location is legally proper. Forum non conveniens concerns whether the court should nevertheless decline the case because another forum is more appropriate.
Is forum non conveniens the same as choice of law?
No. Forum non conveniens concerns where litigation should occur. Choice of law concerns which jurisdiction’s law should govern.
What happens when a case is dismissed for forum non conveniens?
The plaintiff may generally pursue the dispute in the alternative forum, subject to the terms and conditions of the dismissal.
Can dismissal be conditional?
Yes. A court may condition dismissal on requirements such as the defendant submitting to jurisdiction in the alternative forum.
What is the most important Supreme Court case on forum non conveniens?
There are several foundational decisions. Gulf Oil Corp. v. Gilbert established the classic private- and public-interest framework; Piper Aircraft Co. v. Reyno clarified the modern international doctrine; Atlantic Marine addressed the relationship between forum selection and federal transfer; and Sinochem addressed the timing of forum non conveniens analysis relative to jurisdictional questions.
Conclusion
Forum non conveniens occupies an important position in the law of jurisdiction and conflict of laws because it recognizes a simple but consequential reality: the fact that a court can hear a dispute does not necessarily mean that it should hear the dispute.
The doctrine gives courts a mechanism for declining cases when another available and adequate forum is substantially better positioned to resolve them.
Its application requires a careful examination of both private and public interests. Courts consider the location of evidence, witnesses, third parties, and physical objects; the ability to compel testimony; litigation costs; local interests; the burden on courts and jurors; the possibility of applying foreign law; and the practical ability of the alternative forum to provide meaningful relief.
The doctrine is particularly important in international litigation. A dispute may technically be brought in the United States while having its strongest factual, legal, and social connections to another country. In such circumstances, Gulf Oil, Piper Aircraft, and subsequent Supreme Court decisions provide a framework for determining whether the U.S. forum should retain the case.
But forum non conveniens should never be confused with the doctrines that surround it.
Personal jurisdiction asks whether the court has authority over the defendant.
Venue asks whether the geographic location is legally proper.
A forum-selection clause asks where the parties have agreed to litigate.
Forum non conveniens asks whether the court should nevertheless decline the case in favor of another adequate forum.
Choice of law asks which jurisdiction’s substantive law should govern.
Those questions often arise together in cross-border litigation, but they answer different legal problems.
For that reason, forum non conveniens is one of the essential doctrines for understanding how American courts manage disputes that cross state and national boundaries.
The information provided in this article ("Forum Non Conveniens") is for general educational and informational purposes only and does not constitute formal legal advice. Reading this content does not create an attorney-client relationship. Laws vary by jurisdiction; consult a licensed attorney for specific legal matters.
Tsvety, LL.M., M.A.
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