declares something entirely different — that Ihor Bakai, Naftogaz's
chairman in 2000, simply transferred money through a United States bank
account for his own personal use. See Hardison Decl., ¶ 81. There is
no evidence before the Court, however, to suggest that the arbitral award
— if confirmed here — would be easier to enforce against
Ukraine in the United States rather than in Ukraine. Finally, the Court
finds that other practical matters and judicial economy would be well
served by having this case litigated in Ukraine.
On the present record, the Court concludes that the balance of private
interest factors weighs heavily in favor of dismissal.
b. The Public Interest Factors
The public interest factors to be weighed by the Court include: (a)
administrative difficulties relating to court congestion; (b) imposing
jury duty on citizens of the forum; (c) having local disputes settled
locally; and (d) avoiding problems associated with the application of
foreign law. See Gilbert, 330 U.S. at 508-09; Ilusorio, 103 F. Supp.2d at
First, the Ukranian courts appear no more congested than the busy
courts in this District. Second, there is a significant interest in
having localized matters decided at home with local law governing the
case. See Ilusorio, 103 F. Supp.2d at 678. Moreover, "there is a
legitimate interest in ensuring that disputes with little connection to
the district be litigated elsewhere." CCS Int'l. Ltd. v. ECI
Telesystems, Ltd., No. 87 Civ. 4646, 1998 WL 512951, at *10 (S.D.N.Y.
Aug. 18, 1998).
In this case, the Court finds no connection between the dispute herein
and New York or the United States, other than the signature of the United
States on the Convention. On the other hand, this action is tied
inextricably to the interests of the State of Ukraine. As Ukraine
pointedly notes, "the United States has little or no interest in
adjudicating this dispute between a citizen of Monaco and citizens of
Ukraine, concerning a contract between a Ukranian citizen and a Russian
citizen, raising issues of corporate relationships under Ukranian law."
Ukraine's Memo at 21.
Finally, Monde Re, citing to Fed.R.Civ.P. 44.1, asserted in its
petition that it intended to raise issues concerning the law of Ukraine in
connection with this matter see Pet., ¶ 33), and Russian law "is the
law chosen under the Contract." Declaration of Peter Maggs, sworn to
Mar. 26, 2000, ¶¶ 10-16, 25-33; Hardison Decl., ¶¶ 43-47, 50-63.
Although reluctance to apply foreign law is not dispositive, courts have
a legitimate interest in avoiding the difficulty with questions of
conflicts of law and the application of foreign law. See Boosey & Hawkes
Music publishers Ltd. v. Walt Disney Co., 145 F.3d 481, 491 (2d Cir.
1998). Here, Ukraine has a great interest in applying its own laws,
especially with respect to establishing the ownership interests of
Naftogaz, while this Court has an interest in avoiding the intricacies
attendant to the application of Ukrainian law. Accordingly, the Court
concludes that public interest concerns also weigh heavily in favor of
dismissal of the case.
CONCLUSION AND AMENDED ORDER
For the reasons stated above, it is hereby
ORDERED that the Court's July 31, 2001 Order is amended to incorporate
the discussion in this Decision and Amended Order; and it is further
ORDERED that Ukraine's motion to dismiss on forum non conveniens
[## 14, 15, 16, 32, 33] is granted; and it is further
ORDERED that, in view of the dismissal of this case on the ground of
forum non conveniens, determination of Naftogaz's motion to dismiss [##
12, 13, 31] is rendered moot and should be removed from the Court's
motion docket; and it is finally
ORDERED that the time to file an appeal from this Decision and Amended
Order shall be extended, upon a request complying with Rule 4(a)(5) of
the Federal Rules of Appellate Procedure, to thirty (30) days from the
date of this Decision and Amended Order.
The Clerk of Court is directed to close this case.