Effron on Future of Forum Non Conveniens

Brooklyn Law School Professor of Law Robin Effron has posted on SSRN Atlantic Marine and the Future of Forum Non Conveniens. In December of 2013, the US Supreme Court issued a unanimous decision upholding a general contractor’s ability to require its subcontractors to litigate disputes in the state or federal court of its choosing. The article is schedule for publication later this year in the Hastings Law Journal. Here is the abstract:

This essay explores the impact of the Supreme Court’s unanimous opinion in Atlantic Marine Construction Co., Inc. v. U.S. District Court on forum non conveniens doctrine. Although Atlantic Marine concerned a § 1404(a) transfer within the federal system, and therefore does not directly address forum selection clauses pointing to foreign forums, the case will undoubtedly have an impact on how courts treat forum selection clauses that point to a foreign forum. In this essay, I will argue that the Atlantic Marine opinion relies on a strict coupling of § 1404(a) and forum non conveniens for its holding. As a result, lower courts will be more likely to conflate these two doctrines that had been slowly but surely developing on parallel tracks. This essay explains why merging or conflating § 1404(a) and forum non conveniens doctrine is problematic, both as a general matter and as applied to the specific context of forum selection clauses. It also demonstrates that the Court’s blunder is symptomatic of problems inherent in the current § 1404(a) and forum non conveniens standards, as well as doctrinal difficulties in federal enforcement of forum selection clauses.