for that reason. But it is apparent that many individuals participated in the events of which plaintiffs complain. For that reason plaintiffs sensibly add five "John Doe" defendants to the six they name; and quaere, given the scope of the conspiracy alleged, whether that is sufficient. It is by no means clear that defendants could compel the attendance of all significant participants at a trial in New York. Furthermore, most of the relevants documents, which in the nature of the case must be voluminous, are in Hebrew and accordingly would have to be translated for litigation here.
These are factors which must be considered in forum non conveniens analysis. Judge Weinfeld's opinion in Fustok v. Banque Populaire Suisse, 546 F. Supp. 506, 511 (S.D.N.Y. 1982), granting a forum non conveniens motion for dismissal, is worth quoting at some length:
A significant fact which emphasizes that Switzerland, particularly the Canton of Geneva, is the central location of all material witnesses and documents is the claim by Fustok that his accountants and other representatives unearthed the alleged fraudulent scheme after examining the Geneva records and documents of Banque and Advicorp. The simple fact that will not down is that if, as plaintiff alleges, a fraud was perpetrated by switching transactions to the detriment of plaintiff and to the benefit of the defendants, the actors who perpetrated the fraud did so in Geneva. when fraud charges are mode, it is desirable that the factfinder have the benefit of demeanor testimony of witnesses who would be available in Geneva and not in the United States.
Apart from the availability of material witnesses in Geneva, the pertinent documentary evidence is also located there. All bookkeeping records of Banque involving the silver transactions are in Geneva or elsewhere in Switzerland. So, too, are the Advicorp accounting documents regarding the transactions, minutes of Advicorp meetings, and correspondence between Advicorp and Banque. Many of the relevant documents are in French, Italian or German and would have to be translated.
Comparable factors in the case at bar militate in favor of trial of plaintiffs' claims in Israel.
Whether the Israeli Court Would Be a Fair Forum
Forum non conveniens analysis is not meaningful unless there exists an alternative forum. Ordinarily that requirement is satisfied if the defendant is "amiable to process" in the other jurisdiction. Gilbert at 506-07. However, Piper Aircraft recognized that in "rare circumstances," where "the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative, and the initial requirement may not be satisfied." 454 U.S. at 254 n.22. Piper Aircraft gave as an example a case "where the alternative forum does not permit litigation of the subject matter of the dispute," as in Phoenix Canada Oil Co. Ltd. v. Texaco, Inc. 78 F.R.D. 445 (Del. 1978), in which the district court refused to dismiss "where alternative forum is Ecuador, it is unclear whether Ecuadorian tribunal will hear the case, and there is no generally codified Ecuadorian legal remedy for the unjust enrichment and tort claims asserted)." Id.
Absent such a fundamental obstacle to a plaintiff's recovery (which is not suggested at bar), American courts are not prone to characterizing a sovereign nation's courts as "clearly unsatisfactory." International comity plays a part in this context as well. Procedural differences do not rise to that level. "Some inconvenience or the unavailability of beneficial litigation procedures similar to those available in the federal district courts does not render an alternative forum inadequate." Shields v. Mi Ryung Constr. Co., 508 F. Supp. 891, 895 (S.D.N.Y. 1981). In Sheilds Judge Cannella entered a conditional order of forum non conveniens dismissal requiring an Arizona resident to peruse his claim against a South Korean corporation in the courts of Saudi Arabia. Nor is a foreign tribunal eliminated as an alternative forum because its filing fees require an American plaintiff to reduce its claim for damages. Diatronics v. Elbit Computers, Ltd., 649 F. Supp. 122, 127-28 (S.D.N.Y. 1986), aff'd, 812 F.2d 712 (2d Cir. 1987) (Delaware corporation required by forum non conveniens dismissal to litigate claim in Israel).
In the case at bar, it cannot be gainsaid that plaintiffs make serious charges, involving a great deal of money, against high officials of the Israeli government. Plaintiffs say that these circumstances will prevent them from obtaining a fair hearing in the Israeli courts, so that Israel cannot be regarded as an alternative forum for forum non conveniens purposes.
Plaintiffs' initial condemnation of the Israeli court system was uncompromising. They said in their Main Brief at 22:
In short, Israel does not provide an "adequate" alternative forum because, in light of the controversial nature of the plaintiffs' allegations, the Israeli courts will not give them a fair hearing. The Israeli courts are subject to the influence of the government officials and agencies whom the plaintiffs are suing and are unlikely to credit the plaintiffs' allegations of official involvement in visut and acquiescence, for purposes of a "cover-up," in bank mismanagement in succeeding years. The only judicial forum where this conspiracy of silence can effectively be broken is a federal court in the United States.
Plaintiffs submitted no affidavits from individuals familiar with Israeli courts, or any other evidentiary material, to support that mass indictment of a democratic nation's judicial system. Defendants' reply papers include affidavits from two Israeli law professors stressing the independence of Israeli judges, who are tenured until the reach they age of 70. Indeed, readers of newspapers are aware of the fact that Israeli courts are entirely capable of making judgments displeasing to those in high civil or military authority.
Plaintiff, in a surreply submission permitted by this Court, offered an affidavit by Kenneth Mann, an Israeli law professor and attorney. The Mann affidavit is more moderate, at least in tone. He argues that the report of the Beisky Commission, established by the Israeli Parliament to investigate the bank shares crisis, and two decisions of the Israeli Supreme Court articulate a "passive bystander thesis" in respect of the BOI and other government officials: a thesis which, in Professor Mann's words, "holds that the commercial banks got away with a scheme of their own doing under the careless eye of the BOI and other government officials, while specifically rejecting the idea that the BOI conspired with the banks to establish and facilitate the visut." Affidavit at P 6. Those circumstances, Professor Mann argues, have created a "negative predisposition" against claims that government officials actively participated in misconduct, a phenomenon which "critically weakens the judicial neutrality necessary to a full and balanced consideration in an Israeli court of the . . . issues so central to the plaintiff's New York suit." Id. at P 22. Professor Mann concludes his affidavit by saying:
While I cannot say with certainty that any particular lower court in Israel will be adversely influenced by what has already happened, it is abundantly clear that, as a matter of institutional due process in civil litigation, the plaintiffs' reasons for seeking an alternative forum are well justified.
Id. at P 37.
Any moderation in the plaintiffs' criticism of the Israeli judicial system is more apparent than real. The concept of a "negative predisposition" (unknown in any forum non conveniens jurisprudence) is made up of subjective and objective elements. "Negative" is the subjective element; it reflects plaintiffs' concern that the perceived predisposition disfavors their cause. Presumably defendants, if they acknowledged the existence of a judicial predisposition, would regard it as a "positive" one. But the key word is "predisposition." Plaintiffs say that the circumstances of the case give rise to the existence of a predisposition against them on the part of the Israeli courts.
That is as serious a charge as can be made against a judge. Judges swear an oath to decide cases on the facts and on the controlling law, without fear of or favor to any party, individual or government. Predisposition is "the state of being predisposed," in turn defined as to "make someone inclined to something in advance," The American Heritage Dictionary of the English Language (ed. 1976); perhaps in this case, a judicial inclination to reject plaintiffs' claims in advance of hearing and seeing the evidence.
I am not prepared to indulge the assumption that Israeli judges, if presented with plaintiffs' claims, would be so affected by a "negative predisposition" that they would fail faithfully to discharge the solemn duty that lies at the heart of the judicial office. I do not find it necessary to consider the detailed arguments of counsel with respect to the real meaning of the Beisky Commission report, or whether the two Israeli Supreme Court cases cited by Professor Mann bear directly or indirectly, or to what extent, upon plaintiff's particular claims.
I prefer to rest my decision on the ground that plaintiffs' preference for an American court cannot be indulged on the basis of an American judge's speculation that his Israeli colleagues would violate their oaths of office.
The proper inquiry goes to the court system, and not to the particular personalities or claims involved. Chief Judge Weinstein made that point in Murty v. Aga Khan, 92 F.R.D. 478 (E.D.N.Y. 1981), in which an American citizen resident in New York sued that formidable and wealthy spiritual and political leader and French citizen the Aga Khan. Judge Weinstein granted a motion to dismiss on forum non conveniens grounds and relegated the plaintiff to the courts of France. In doing so, Judge Weinstein rejected plaintiff's suggestion that he could not get a fair hearing suing the Aga Khan in that country. Relying in part upon that concept of comity which informs my conclusions in the case at bar, Judge Weinstein said at 92 F.R.D. 482:
Plaintiff's complaints about the influence which defendant can and will bring to bear on the French judicial system--though fervently presented--are not supported. He alleges neither that the French judiciary is inadequately protected from interference nor that it lacks appropriate procedural safeguards. The adequacy of a foreign forum for purposes of transfer of venue turns not on the status any individual litigant may hold in a foreign society, but on the soundness and procedural fairness of that society's court system.
Principles of comity as well as common knowledge preclude our characterizing the French judicial system as any less fair than our own; the French courts can be expected to protect American litigants.
In the case at bar, plaintiffs' expert Professor Mann is careful to refrain from saying that "any particular lower court in Israel will be adversely influenced" by the circumstances described in his affidavit. Stripped of rhetoric, all his affidavit really says is that he understands why plaintiffs would rather sue on their claims in the United States than in Israel. That is not a sufficient basis for regarding Israel as an inadequate forum. And it will be a black day for comity among sovereign nations when a court of one country, because of a perceived "negative predisposition," declares the incompetence or worse of another nation's judicial system.
Accordingly I conclude that the particular factors relied upon by the plaintiffs do not overcome the manifest truth that trial of plaintiffs' claims in Israel will be most convenient and will better serve the ends of justice.
Many of the reasons why that is so appear in the preceding discussion. To recapitulate, the Israeli courts constitute an adequate alternative forum for plaintiffs' claims. I reject plaintiffs' contention that they cannot get a fair hearing in the courts of Israel, or that the remedy offered by that forum is clearly unsatisfactory for any reason. Israeli law governs the propriety of defendants' conduct. The vast majority of the witnesses reside in Israel. Plaintiffs have not shown that any witnesses with probative evidence to give reside in New York. Sussman resides in California. Ira Guilden is dead. It is not clear from plaintiffs' vague representations what admissible evidence Paul Guilden or others who knew Ira Guilden would be competent to give. While two Bank of Hapoalim employees are identified as having participated in the transfer of the loan proceeds through the New York branch, the motion papers reveal that one of these has retired to Israel and the other is dead. The great majority of the pertinent documents are in Hebrew. Israel's public interest in the issues raised by these charges dwarfs the public interest of New York, which is minimal. All in all, this is a quintessential case for application of the forum non conveniens doctrine.
Accordingly, and in the exercise of my discretion, I grant defendants' motion and conditionally dismiss the complaint, without prejudice to the merits of plaintiff's claims, on the ground of forum non conveniens. I reach no other issue.
Dismissal is on the following conditions:
(1) That defendants waive any statute of limitations defense under Israeli law that may have arisen since the commencement of the captioned action in this Court; and
(2) That plaintiff Sussman receive written assurances from the appropriate Israeli authorities that he will not be detained in Israel by reason of his traveling to that country to defend against the claims pending against him relating to this matter or to assert the claims embraced in the complaint. I make that condition in order to address a concern expressed on behalf of Sussman on this motion. I direct that an agreement signifying the agreement of the defendants and the Government of Israel to these conditions be filed with this Court within sixty (60) days of the date of this Opinion. Upon the filing of that agreement, the conditional order of dismissal will be made absolute. Discovery is stayed in the interim.
It is SO ORDERED.
Dated: New York, New York
July 17, 1992
CHARLES S. HAIGHT, JR.
UNITED STATES DISTRICT JUDGE