Is China a Suitable Alternative Forum ?
In Daventree Ltd. v. Republic of Azerbaijan (S.D.N.Y. 2004) 349 F.Supp.2d 736, the court found that "in contrast with general allegations of corruption, the possibility that the Sovereign defendants could dictate the outcome of this dispute through their control over Azeri courts would effectively foreclose the plaintiffs' right to pursue their claims and render the Azerbaijan courts an inadequate forum." (Id. at p. 756.)
With respect to Chinese courts, plaintiffs claim that "there is increasing recognition that Chinese courts are sub-par." the cases they cite do not support their claim, much less a claim that the "no remedy at all" exception applies.
In S & D Trading Academy, LLC v. AAFIS, Inc. (S.D.Tex. 2007) 494 F.Supp.2d 558, the court found that China was a suitable alternative forum, in that Chinese law recognized the plaintiff's causes of action, and the defendant agreed to submit to the jurisdiction of the Chinese court. (Id. at p. 571.)
The court did refer to "the current nationwide concern about China's lackadaisical enforcement of intellectual property rights," but this was in the context of the balancing of public and private interests, the court noting that this concern "heightens local interest in cases in which international corporations are accused of wrongfully using and profiting from U.S. intellectual property." (Id. at p. 573, fn. 13.)
In BP Chemicals Limited v. Jiangsu Sopo Corp. (E.D.Mo. 2006) 429 F.Supp.2d 1179, the court found China to be an inadequate forum.
However, this finding, too, was based upon a balancing of public and private interests, particularly the plaintiff's choice of forum.
Additionally, the court found the defendant failed to meet its burden of proving "'all elements necessary for the court to dismiss a claim based on forum non conveniens.'" (Id. at p. 1183.)
In other cases, China has been accepted as a suitable alternative forum.
In Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp. (2007) 549 U.S. 422 167 L.Ed.2d 15, 127 S.Ct. 1184, the court found the litigation should be dismissed on forum non conveniens grounds based on the pendency of litigation in China. (Id. at p. 435.)
In China Tire Holdings v. Goodyear Tire and Rubber (N.D. Ohio 2000) 91 F.Supp.2d 1106, the court gave collateral estoppel effect to a prior holding that the plaintiff's claims most appropriately would be adjudicated in China. (Id. at pp. 1110-1111.)
In In re Compania Naviera Joanna S.A. (D.S.C. 2007) 531 F.Supp.2d 680, the court noted that "while a description of the prospects for pursuing litigation in China paints an unrosy picture for claimants, it does not suggest that they are left without a remedy." (Id. at p. 687.)
An alternative forum is suitable if it has jurisdiction and the action in that forum will not be barred by the statute of limitations. (Morris v. AGFA Corp., supra, 144 Cal.App.4th at p. 1464.)
It bears emphasis that "it is sufficient that the action can be brought, although not necessarily won, in the suitable alternative forum." (Ibid.; see Roman v. Liberty University, Inc. (2008) 162 Cal.App.4th 670, 683 75 Cal. Rptr. 3d 828.)
That the law is less favorable to the plaintiffs in the alternative forum, or that recovery would be more difficult if not impossible, is irrelevant to the determination whether the forum is suitable unless "the alternative forum provides no remedy at all." (Stangvik v. Shiley Inc., supra, 54 Cal.3d at p. 764; see Roman, supra, at p. 683; Boaz v. Boyle & Co., supra, 40 Cal.App.4th at p. 710.)
The "no remedy at all" exception applies "only in 'rare circumstances,' such as where the alternative forum is a foreign country whose courts are ruled by a dictatorship, so that there is no independent judiciary or due process of law." (Shiley Inc. v. Superior Court, supra, 4 Cal.App.4th at pp. 133-134.)
"This exception has been applied in cases where the proposed alternative forum is in a foreign country that lacks an independent judiciary. (Id. at p. 134, fn. 4.)
For example, in Rasoulzadeh v. Associated Press (S.D.N.Y. 1983) 574 F.Supp. 854, 861, the court held that an alternative forum in Iran was not available since the courts there were administered by Iranian mullahs and the plaintiffs were likely to be shot if they returned to Iran. Similarly in Phoenix Canada Oil Co. Ltd. v. Texaco, Inc. (D.Del. 1978) 78 F.R.D. 445, 455, the court found that Ecuador was not a suitable forum since it did not have an independent judiciary. Courts controlled by a military junta in Chile were likewise found unsuitable. (Canada Overseas Ores Ltd. v. Compania, etc. (S.D.N.Y. 1982) 528 F.Supp. 1337, 1342.)" (Chong v. Superior Court (1997) 58 Cal.App.4th 1032, 1037 68 Cal. Rptr. 2d 427.)