Abstract

This article discusses the U.S. Federal standard regarding a motion to dismiss for forum non conveniens as it is applied to the alternative fora of the People’s Republic of China. The discussion focuses on how a specific forum within the PRC should be analyzed for suitability under this U.S. standard due to the somewhat unique aspects of the PRC legal system. By analogy to Federal forum non conveniens case law, this article provides suggestions for courts and practitioners to apply the standard to the PRC judiciary. In doing so however, the article intends to identify and distinguish which aspects of the current U.S. conception of the PRC system are based in reality, and which are based in rumor or stereotype.


I. Introduction

The confusion associated with litigation in a global world is no longer reserved for first year Civil Procedure exam hypotheticals – it is now part of the every day challenges of complex civil litigation. Indeed, cross-border litigation and the prevalence of forum non conveniens (FNC) motions continually push the boundaries of U.S. courts’ knowledge of foreign legal systems. While the analysis of the public and private interest in each FNC motion raises certain case-specific and domestic legal issues, determining whether the foreign jurisdiction provides a suitable alternative forum requires abroad understanding of the jurisdiction and the particular challenges it might present to the parties. For countries outside of familiar Europe, and especially for countries with constantly developing legal systems such as the People’s Republic of China (P.R.C. or China), the analysis in cases thus far has been somewhat lacking. Further, because the FNC test does not currently articulate exactly what determines the suitability of a forum, it is unclear what type of evidence is admissible and persuasive, and in what direction commonly offered evidence weighs.

This article will identify and analyze the specific issues U.S. courts face in applying the FNC test to cases where removal to a Chinese court is requested. Part II outlines the requirements of theFNC test and how it has been employed for cases involving various foreign jurisdictions. Part III provides a brief primer on aspects of the Chinese legal system pertinent to the FNC analysis, focusing on those aspects that differ from the U.S. system. Lastly, Part IV begins with an overview of past federal and state cases involving FNC motions for dismissal to a Chinese forum and then discusses the potential institutional, substantive, and procedural areas of concern that arise during the FNC suitability analysis. Part IV also suggests considerations for parties and courts engaging in the examination of a Chinese forum.