by Andrew Flake
Following last month’s Devas Multimedia v. Antrix decision by the Ninth Circuit, an international arbitration question on which two other circuits have split may be ready for Supreme Court review: Whether, in opposing a petition under the New York Convention to confirm an international arbitration award in the United States, a respondent may raise forum non conveniens as a basis to request discretionary dismissal of the petition.
Whether a party can do so has important implications for international arbitration, a field in which we value predictability and consistency across borders. The New York Convention itself, and the related Panama Convention pertaining to Latin American and South American jurisdictions, are premised on the idea that a party to an international arbitration, once it has an award, should have the same confirmation process available to it wherever it chooses to confirm the award. Simpler is better, more predictable, less variable.
On the other hand, forum non conveniens, a litigation doctrine familiar to us from the Supreme Court’s Piper Aircraft v. Reno opinion, is a multi-factor common-law analysis that opens to a trial court’s discretion questions of whether a forum other than the U.S. is adequate; private interests involved in the selection of a U.S. judicial forum; and public interests, including the law of the alternate forum. In recognizing the doctrine in Gulf Oil Corp. v. Gilbert as generally applicable to civil cases, the Supreme Court described the principal as permitting a court “to resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.”
In the Devas Multimedia case, a dispute over the launch and lease of commercial satellites, Devas had obtained a $562.5 million panel award against Antrix, an Indian state-owned entity. Having identified Astrix assets in the U.S., Devas then chose to confirm the award in federal district court here.
Blocked from relying on foreign sovereign immunity, Astrix then invoked forum non conveniens, asserting it had adequate assets in India and that other factors, including Indian-law issues and a motion Astrix had filed in India to set aside the arbitration award, made India a far more convenient forum.
The Ninth Circuit decided for Devas. In an opinion authored by Judge Lucy Koh, it found nothing in the text of the Convention to suggest that an alternate-forum analysis was permissible. The defenses to enforcement are specific and limited.
There is a tension between a direct statute – Section 207 of Chapter 2 of the FAA, enforcing the Convention, directs that the district court “shall confirm the award” unless it finds one of the Convention’s specified grounds to refuse exists – and the sprawl of forum-related convenience arguments.
Plus, the panel did not view the doctrine as really fitting into the FAA framework: the relief Devas sought was collection against U.S. assets, which only a U.S. court can provide as against a foreign sovereign, making other country’s courts inadequate by definition. And even though Article III of the Convention allows individual countries to apply their own “procedures” for enforcement the Court read those as pertaining to the manner of confirmation, not whether an award could be confirmed at all.
From an international arbitration perspective, Judge Koh commented that the Convention’s purpose is “to unify the standards by which . . . arbitral awards are enforced in the signatory countries” and that “a discretionary, forum-by-forum defense to enforcement that would let each signatory state decline enforcement on convenience grounds is irreconcilable with the design of the Convention.”
Certainly we can see the point, comparing the predictability and uniformity that international arbitration promotes, with the complications forum non conveniens would create. A foreign party considering a confirmation petition here could well be confused by a situation in which different courts in different parts of the U.S. might approach the question differently. The Convention is set up to harmonize the process of enforcement across countries, to make it uniform, whereas forum non conveniens is inherently case-specific and fact-intensive.
In its reasoning and result, the Devas opinion lines up with the D.C. Circuit’s 2005 TMR Energy opinion, in favor of more streamlined arbitration-award confirmation.
The outlier is the Second Circuit’s Figueiredo decision from 2011, a confirmation opinion decided under the Panama Convention. Despite similar constraints in the Panama Convention on award-challenges, the Second Circuit permitted the respondent, the government of Peru, to raise forum non conveniens.
There, Peru had implemented a law limiting the budgeted government funds that could be used to pay an award or judgment. Accepting Peru’s argument that this law gave it an overriding interest in having an award confirmed in Peru, the majority directed the district court to dismiss the petition. The dissent voiced the same concerns, and walked through the same reasoning, as did the Devas court (in fact, Judge Koh hat-tipped the dissent in Figueiredo, finding it better reasoned than the majority opinion).
With the Ninth Circuit and the D.C. Circuit now in opposition to the Second, the chances of a U.S. Supreme Court grant of certiorari have increased. Whether a U.S. forum is available to foreign parties seeking to confirm awards under the New York Convention, without the possibility of an uncertain forum-based challenge by the losing party, is an issue of some weight. Whether Chapter 2 of the FAA and the New York Convention allow or displace common law forum non conveniens, and the extent to which the confirmation process across federal district courts is more or less uniform, are issues I can see the Justices wanting to decide. On the other hand, if certiorari on the question is not granted in the near term, the Second Circuit has a well-developed body of international-arbitration case law and us very much aware of the doctrinal concerns; it may well decide itself to revisit and reverse Figueiredo. ABF
[The cases discussed include Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Piper Aircraft Company v. Reyno Hartzell Propeller, Inc v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981); Devas Multimedia Private Limited et al. v. Antrix Corp. Ltd., No. 20-36024, 9th Cir. Decided Aug. 12, 2026); Figueiredo Ferraz E Engenharia De Projeto Ltda. v. Republic of Peru, 665 F.3d 384 (2nd Cir. 2011); TMR Energy Ltd. v. State Prop. Fund of Ukraine, 411 F.3d 296, 303-04 (D.C. Cir. 2005).]
.