Forum Non Conveniens on Appeal: The Case for Interlocutory Review

Court-access doctrine in transnational litigation is plagued by uncertainty. Without a national court-access policy, federal courts often reach inconsistent forum non conveniens decisions even on very similar facts. This inconsistency is compounded by the district court’s largely unreviewable discretion in making those forum-access decisions, which precludes effective resolution of these conflicts through the appellate process. As a result, the law underlying the forum non conveniens doctrine remains unsettled, creating systemic inefficiency both in litigation procedure and in regulatory policy. This article, prepared for the symposium “Our Courts and the World: Transnational Litigation and Civil Procedure,” argues that expanding appellate review can increase consistency and better align policy choices with litigation realities. It proposes three options for increasing appellate supervision of court-access doctrine. The ideal solution is for Congress to adopt a comprehensive forum non conveniens statute that weighs competing policy goals such as comparative sovereign interests, foreign relations, and economic realities, and creates a court-access procedure that accounts for these interests. Political realities may make such legislation unlikely, however. A close second-best option is to proceed through the rulemaking process: an amendment to the Federal Rules of Civil Procedure that authorizes discretionary appeal of the denial of forum non conveniens motions could still go a long way toward minimizing the costs of systemic uncertainty. Finally, until such a statutory or rulemaking change takes effect, parties should urge the courts to apply current ad hoc discretionary review procedures broadly. Although these procedures may increase cost and delay in individual cases, they are likely to increase systemic efficiency over the long run