District Court Finds New York Not an Inconvenient Forum for Enforcement of U.K. Arbitration Award Against Chinese Bank where Plaintiff's Choice Entitled to Deference and No Public or Private Interests Made Litigation Unfair or Inappropriate

The World in U.S. Courts: Spring 2016 - Personal Jurisdiction/Foreign Sovereign Immunities Act (FSIA)/Forum Non Conveniens

Crescendo Maritime Co. v. Bank of Communications Co. Ltd., U.S. District Court for the Southern District of New York, February 22, 2016

Plaintiff Crescendo Maritime obtained an arbitral award in the UK of approximately USD20 million against defendant "BOCOM," a Chinese bank, in connection with a failed shipbuilding contract. Crescendo sought to enforce the award against USD4.8 billion in assets held by BOCOM in a branch bank in New York, relying upon the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention"). BOCOM objected, arguing among other things that the Court could not enforce the award because it lacked jurisdiction over BOCOM or the assets, which were unrelated to the subject matter of the arbitration.

The District Court applied a three-part test to determine whether a discretionary dismissal on forum non conveniens grounds would be appropriate. First it concluded that the presumptive deference to Crescendo Maritime's selection of New York as a forum should not be disturbed, principally because the case presented a summary proceeding not implicating potential tactical ploys in the selection of New York, and because no obviously more convenient forum existed. Next, the Court found that China was a potential alternative forum, thus making application of the doctrine theoretically permissible. Finally, the Court found that no "private" or "public" interests favored dismissal. As to the former, issues of convenience of the parties and access to evidence would be unimportant in connection with a case already resolved through arbitration. "Public" interests likewise were not relevant, as the case would impose minimal burden on the courts and not impact the community through, for example, the need to empanel a jury. The Court thus declined to dismiss the case on forum non conveniens grounds.

[Editor's note: The Crescendo Maritime case is also addressed in the Arbitration section of this report.]

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