The opinion of the court was delivered by: CEDARBAUM
This is a suit by an agency of the Russian Federation against an American insurance company on a contract governed by German law. The American insurance company argues that Finland is a more convenient forum and moves to dismiss the complaint on the ground of forum non conveniens. None of the relevant documents is in the Finnish language. None of the applicable law is Finnish. The insurance company maintains its principal place of business in New York. For the reasons that follow, the motion is denied.
Central Principal Dwelling Board of the Ministry of Defense of the Russian Federation ("Ministry of Defense") sues on three guarantees issued to Arge Benoba Wohnungsbau, an international joint venture, for the benefit of the United Armed Forces of the Commonwealth of Independent States. The guarantees were issued by the Finnish branch office of New Hampshire Insurance Company, a Pennsylvania corporation with its principal place of business in New York. (Answer P 5.) The guarantees were issued in connection with an agreement between Arge Benoba and the United Armed Forces for the construction of a housing project in Belarus. That agreement is governed by Russian law. Under the guarantees, New Hampshire "irrevocably and independently guaranteed" to pay the United Armed Forces upon its first written request for payment and its written declaration that Arge Benoba had failed to fulfill the agreement. The guarantees are written in German and governed by German law.
In March of 1994, the Finnish member of Arge Benoba filed for bankruptcy in Finland. The complaint alleges that following the bankruptcy, "all activities related to the construction . . . ceased." (Complaint P 24.)
To prevail on a motion to dismiss based on forum non conveniens, the moving party must demonstrate first that an adequate alternative forum for deciding the dispute exists. An alternative forum where the defendant is subject to jurisdiction is adequate except in "rare circumstances." Blanco v. Banco Industrial de Venezuela, S.A., 997 F.2d 974, 981 (2d Cir. 1993) (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981)). New Hampshire argues that Finland is an adequate alternative forum for resolution of this case; Ministry of Defense does not challenge that contention.
Second, the defendant must prove that "the balance of convenience tilts strongly in favor of trial in the foreign forum." R. Maganlal & Co. v. M.G. Chem. Co., 942 F.2d 164, 167 (2d Cir. 1991). Generally, courts apply a "strong presumption in favor of plaintiff's choice of forum," although a foreign plaintiff's choice of forum is entitled to less deference than would be the choice of an American plaintiff. See id. at 167-68 (citing Piper, 454 U.S. at 255-56). "However, this reduced weight is not an invitation to accord a foreign plaintiff's selection of an American forum no deference since dismissal for forum non conveniens is the exception rather than the rule." See id. at 168 (citations and internal quotation marks omitted).
In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1947), the Supreme Court enumerated the private interest and public interest factors that courts are to consider in applying the doctrine of forum non conveniens. The private interests set forth in Gilbert are:
the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.
Id. at 508. Courts are also to consider questions related to the enforceability of a possible judgment. See id. The public interest factors include "administrative difficulties flowing from court congestion; . . . imposing jury duty on citizens of the forum; . . . the local interest in having controversies decided at home; and . . . the avoidance of unnecessary problems in the application of foreign law." See Allstate Life Ins. Co. v. Linter Group Ltd., 994 F.2d 996, 1001 (2d Cir.) (citing Gilbert), cert. denied, 126 L. Ed. 2d 334, 114 S. Ct. 386 (1993); see also Piper, 454 U.S. at 241 n.6.
The private interest Gilbert factors do not favor dismissal. The principal issues in this case are questions of law; namely, the legal relationship between Ministry of Defense and the United Armed Forces, and the proper construction and legal significance of the guarantees under German law. The first requires evidence from Russia, the Commonwealth of Independent States, and experts on their governments. Resolution of the second rests upon the guarantees themselves, all of which are written in German and none of which is written in Finnish. Those documents have been brought to New York and translated into English. Expert witnesses ...