Aenergy, S.A. v. Republic of Angola

21-1510-cv (L)
Aenergy, S.A. v. Republic of Angola
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2021
No. 21-1510-cv (L); 21-1752 (Con)
AENERGY, S.A., COMBINED CYCLE POWER PLANT SOYO, S.A.,
Plaintiffs-Appellants,
v.
REPUBLIC OF ANGOLA, MINISTRY OF ENERGY AND WATER OF THE
REPUBLIC OF ANGOLA, MINISTRY OF FINANCE OF THE REPUBLIC OF
ANGOLA, EMPRESA PÚBLICA DE PRODUÇÃO DE ELECTRICIDADE, EP,
EMPRESA NACIONAL DE DISTRIBUIÇÃO DE ELECTRICIDADE, GENERAL
ELECTRIC COMPANY, GENERAL ELECTRIC INTERNATIONAL, INC., GE
CAPITAL EFS FINANCING, INC.,
Defendants-Appellees.
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: FEBRUARY 1, 2022
DECIDED: APRIL 13, 2022
Before: CABRANES, LYNCH, and NARDINI, Circuit Judges.
Plaintiffs Aenergy, S.A., and Combined Cycle Power Plant Soyo,
S.A. (together, “AE”), sue various Angolan Government entities
(together, “Angola”), plus General Electric Co. and related entities
(together, “GE”). AE alleges that Angola wrongfully cancelled AE’s
Angolan power plant contracts and seized its related property in
violation of state and international law. It further alleges that GE
interfered with its contracts and prospective business relations in
violation of state law. This case presents two questions. The first is
whether standard principles of forum non conveniens apply to AE’s
lawsuit brought pursuant to exceptions to the Foreign Sovereign
Immunities Act, 28 U.S.C. § 1605. We hold that they do. The second
is whether the United States District Court for the Southern District of
New York (John P. Cronan, Judge) abused its discretion in dismissing
AE’s Complaint on forum non conveniens grounds. We hold that it did
not. Accordingly, we AFFIRM the orders of the District Court.
VINCENT LEVY (Gregory Dubinsky, Brian T.
Goldman, on the brief), Holwell Shuster &
Goldberg LLP, New York, NY, for Plaintiffs-
Appellants.
2
MICHAEL D. EHRENSTEIN (Latasha Johnson,
on the brief), Ehrenstein Sager, Coral Gables,
FL (Marc R. Rosen, Robert M. Tuchman,
Kleinberg, Kaplan, Wolff & Cohen, P.C.,
New York, NY, on the brief), for Defendants-
Appellees Republic of Angola, Ministry of
Energy and Water of the Republic of Angola,
Ministry of Finance of the Republic of Angola,
Empresa Pública De Produção De Electricidade,
EP, and Empresa Nacional De Distribuição De
Electricidade.
THOMAS H. DUPREE, JR. (Samuel Liversidge,
Ilissa Samplin, Daniel Nowicki, on the brief),
Gibson, Dunn & Crutcher LLP, Washington,
DC, for General Electric Company, General
Electric International, Inc., and GE Capital EFS
Financing, Inc.
JOSÉ A. CABRANES, Circuit Judge:
Plaintiffs Aenergy, S.A., and Combined Cycle Power Plant Soyo,
S.A. (together, “AE”), sue various Angolan Government entities
(together, “Angola”), plus General Electric Co. and related entities
(together, “GE”). AE alleges that Angola wrongfully cancelled AE’s
Angolan power plant contracts and seized its related property in
violation of state and international law. It further alleges that GE
3
interfered with its contracts and prospective business relations in
violation of state law. This case presents two questions. The first is
whether standard principles of forum non conveniens apply to AE’s
lawsuit brought pursuant to exceptions to the Foreign Sovereign
Immunities Act, 28 U.S.C. § 1605. 1 We hold that they do. The second
is whether the United States District Court for the Southern District of
New York (John P. Cronan, Judge) abused its discretion in dismissing
AE’s Complaint on forum non conveniens grounds. We hold that it did
not. Accordingly, we AFFIRM the orders of the District Court.
I. BACKGROUND
“The factual recitation here, while primarily taken from the
complaint, is supplemented with information from affidavits.” 2 AE is
an Angolan energy company owned by a Portuguese citizen, Ricardo
Machado. Beginning in 2013, AE worked with GE to construct and
service electricity-generating facilities in Angola. In August 2017,
Angola 3 awarded AE thirteen contracts totaling $1.1 billion. To pay,
1 See infra note 8.
2 Aguas Lenders Recovery Grp. v. Suez, S.A., 585 F.3d 696, 697 n.1 (2d Cir. 2009).
3 Specifically its state-owned electricity companies Empresa Pública De
Produção De Electricidade, EP (“PRODEL”) and Empresa Nacional De Distribuição
De Electricidade (“ENDE”), both defendants in this action.
4
Angola 4 secured a $1.1 billion credit facility from GE’s affiliate, 5 of
which $644 million was disbursed in December 2017. The contracts
required AE to provide power plant services and to sell Angola eight
GE-manufactured turbines. Around the same time, AE entered into
various service contracts with GE 6 and bought 14 turbines from GE—
six more than the eight turbines called for in the contracts with Angola.
GE mistakenly thought that 12 of these turbines would be
promptly sold by AE to Angola. As a result, GE over-estimated the
extent to which the $1.1 billion credit facility issued by its affiliate
would be used to pay GE itself—an error with serious accounting
consequences. While Angola considered AE’s proposal on behalf of
GE to amend the contracts to include 12 rather than eight turbines,
Wilson da Costa—CEO of GE’s Angola business—fabricated letters
indicating that Angola had already approved the change, which he
and Leslie Nelson—the head of GE’s sub-Saharan Africa business—
distributed to other GE employees. Angola 7 subsequently rejected
AE’s proposed amendment to the contracts.
4Specifically its Ministry of Finance of the Republic of Angola (“MINFIN”),
a defendant in this action.
5 Specifically GE Capital EFS Financing, Inc. (“GE Capital”), a defendant in
this action.
6 Including with GE International, Inc. (“GE International”), a defendant in
this action.
Specifically the Ministry of Energy and Water of the Republic of Angola
7
(“MINEA”), a defendant in this action.
5
Several months later, da Costa presented the forged letters to
Angolan officials, and GE subsequently maintained that the $644
million disbursement had in fact paid for 12 turbines, not eight as
reflected in Angola’s contracts with AE. As a result, on September 2,
2019, Angola—pointing to purported irregularities related to the four
disputed turbines—terminated its contracts with AE in favor of
contracting with GE directly. AE appealed this decision, and the
record indicates that the Supreme Court of Angola has received
briefing. On October 4, 2019, Angola initiated a civil suit in Luanda
Provincial Court to restrain the four turbines. After holding an ex parte
injunction hearing, the Luanda Provincial Court preliminarily
restrained the turbines. AE alleges that Angola’s state-owned
electricity companies—not the court-designated custodian—now
possess the turbines and have moved them to a power plant facility.
AE filed its Complaint in the District Court on May 7, 2020. AE
alleges that Angola—which AE sues under exceptions to the Foreign
Sovereign Immunities Act (“FSIA”) 8—breached its contract and took
8 The FSIA provides in relevant part that:
A foreign state shall not be immune from the jurisdiction of courts
of the United States or of the States in any case—
...
(2) in which the action is based upon a commercial activity carried
on in the United States by the foreign state; or upon an act performed
in the United States in connection with a commercial activity of the
foreign state elsewhere; or upon an act outside the territory of the
United States in connection with a commercial activity of the foreign
6
AE’s turbines in violation of New York state and international law. AE
further alleges that GE tortiously interfered with AE’s contracts and
prospective business relations in violation of New York state law.
After briefing, oral argument, and post-argument letter briefing, the
District Court on May 19, 2021, conditionally dismissed AE’s
Complaint on forum non conveniens grounds, finding that the courts of
Angola would be a more “convenient” forum. 9 On June 24, 2021, the
District Court removed the conditions, and dismissed the case. AE
timely appealed both orders.
II. DISCUSSION
AE argues as to Angola that forum non conveniens dismissal is
unavailable—or, at least, the standard for dismissal must be higher—
state elsewhere and that act causes a direct effect in the United
States;
(3) in which rights in property taken in violation of international law
are in issue and that property or any property exchanged for such
property is present in the United States in connection with a
commercial activity carried on in the United States by the foreign
state; or that property or any property exchanged for such property
is owned or operated by an agency or instrumentality of the foreign
state and that agency or instrumentality is engaged in a commercial
activity in the United States . . . .
28 U.S.C. § 1605(a). We assume without deciding that AE’s jurisdictional claims are
correct. See Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 432 (2007)
(“A district court . . . may dispose of an action by a forum non conveniens dismissal,
bypassing questions of subject-matter . . . jurisdiction . . . .”).
9See Aenergy, S.A. v. Republic of Angola, No. 20-CV-3569, 2021 WL 1998725(S.D.N.Y. May 19, 2021).
7
where a claim is brought against a foreign state under an exception to
the FSIA. AE argues as to GE, and alternatively as to Angola, that the
District Court erred or “abused its discretion” in dismissing the
Complaint on forum non conveniens grounds. We consider and reject
each of AE’s arguments.
A. Standard Forum Non Conveniens Principles Apply to AE’s
Claims Under the FSIA
AE argues that “[t]he FSIA does not permit application of
standard [forum non conveniens] doctrine.” 10 To support its position,
AE points out that the FSIA is designed to give foreign states “some
protection from the inconvenience of suit as a gesture of comity.” 11
Because Congress has already considered convenience to foreign
states, and “the central focus of the forum non conveniens inquiry is
convenience,” 12 AE argues that applying forum non conveniens
principles here would upset the careful balance struck by Congress.
10 Pls.’ Br. 20. It is arguable that AE waived this argument below by noting
it only in a footnote and “solely for preservation purposes.” See Pls.’ Mem. of Law
in Opp’n to Defs.’ Mots. to Dismiss at 51 n.50, Aenergy, S.A. v. Republic of Angola,
No. 20-CV-3569, Dkt. No. 79 (S.D.N.Y. Nov. 2, 2020); cf. United States v. Svoboda, 347
F.3d 471, 480 (2d Cir. 2003) (“[W]e do not consider an argument mentioned only in
a footnote to be adequately raised or preserved for appellate review.” (citation
omitted)). We assume without deciding that AE waived this argument, but exercise
our discretion to address its merits. See In re Nortel Networks Corp. Sec. Litig., 539
F.3d 129, 133 (2d Cir. 2008) (“[T]his court has discretion to consider arguments
waived below because our waiver doctrine is entirely prudential.”).
11 Dole Food Co. v. Patrickson, 538 U.S. 468, 479 (2003).
12 Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249 (1981).
8
We reject AE’s argument. Initially, it is inconsistent with the
principle articulated by the Supreme Court that the FSIA “does not
appear to affect the traditional doctrine of forum non conveniens.” 13
While we have not squarely decided the issue after briefing, our
holdings have assumed that this principle is an accurate and valid
statement of the law. We cited it explicitly in affirming a conditional
dismissal on forum non conveniens grounds and noted that “[t]he
traditional doctrine of forum non conveniens is still applicable in cases
arising under the FSIA.” 14 And we implicitly assumed its validity in
at least two other cases, where we found proper the forum non
conveniens dismissal of complaints brought under an exception to the
FSIA. 15
This approach is sensible, as the principles underlying the forum
non conveniens doctrine apply with equal weight—indeed, in some
cases perhaps with greater weight—to lawsuits against foreign states.
For example, it may be inconvenient for a foreign state to retain
competent counsel, submit to pre-trial discovery, and produce its
13 Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 490 n.15 (1983).
14Blanco v. Banco Indus. de Venez., S.A., 997 F.2d 974, 977 (2d Cir. 1993) (italics
added) (brackets omitted) (quoting Proyecfin de Venez., S.A. v. Banco Indus. de Venez.,
S.A., 760 F.2d 390, 394 (2d Cir. 1985)).
15See Figueiredo Ferraz E Engenharia de Projeto Ltda. v. Republic of Peru, 665
F.3d 384, 393 (2d Cir. 2011); In re Arb. between Monegasque De Reassurances S.A.M. v.
Nak Naftogaz of Ukr., 311 F.3d 488, 501 (2d Cir. 2002).
9
officials for trial in U.S. courts. 16 While a United States jury may have
little or no relation to disputes involving a foreign state, 17 there may be
a strong interest in resolving claims brought against a foreign state in
that state’s courts, particularly when the allegations relate to the state’s
domestic conduct. 18 And litigation involving foreign states may
require applying foreign law. 19 These general principles, while not
applicable to every lawsuit involving a foreign sovereign, suggest that
the forum non conveniens doctrine remains useful in the FSIA context as
a “tool that helps prevent this country’s judicial system from becoming
the courthouse to the world, or an international court of claims.” 20
None of AE’s arguments to the contrary are persuasive. Forum
non conveniens does not require a case-by-case consideration of comity,
and therefore is consistent with the FSIA’s purpose in establishing a
Cf. Behrens v. Pelletier, 516 U.S. 299, 308 (1996) (indicating in the qualified
16
immunity context that standing trial and participating in pretrial discovery “can be
peculiarly disruptive of effective government” (citation omitted)).
17 See Iragorri v. United Techs. Corp., 274 F.3d 65, 74 (2d Cir. 2001) (en banc).
18Cf. Allstate Life Ins. Co. v. Linter Grp. Ltd., 994 F.2d 996, 1002 (2d Cir. 1993)
(finding “a strong local interest in trying [a] case in Australia” because it involved
“one of the largest [liquidations] in Australian history and the actions undertaken
by the Banks in furtherance of the alleged fraud were carried out in Australia by
Australian corporations”).
19Scot. Air Int’l, Inc. v. Brit. Caledonian Grp., PLC, 81 F.3d 1224, 1234 (2d Cir.
1996) (“When deciding a forum non conveniens motion, a court may properly rely on
the difficulties attending the resolution of questions of foreign law.”).
20Monegasque de Reassurances S.A.M. v. Nak Naftogaz of Ukr., 158 F. Supp. 2d
377, 382 (S.D.N.Y. 2001), aff’d, 311 F.3d 488 (2d Cir. 2002).
10
“comprehensive set of legal standards.” 21 The fact that the FSIA gave
foreign states “some protection from the inconvenience of suit as a
gesture of comity” 22 does not suggest that Congress intended by
statute to override the common law principles of forum non
conveniens, 23 as the doctrine counsels a broader inquiry into a venue’s
convenience for all parties and the public. 24 Nor does applying
traditional forum non conveniens principles necessarily allow foreign
sovereigns to “avoid accountability even where Congress dictated
otherwise,” 25 as the availability of an adequate alternative forum is
required for forum non conveniens dismissal. 26 Finally, Wiwa v. Royal
Dutch Petroleum Co. 27 does not control here. In Wiwa, we held only that
“suits should not be facilely dismissed . . . unless the defendant has
fully met the burden of showing that the [factors identified in Gulf Oil
Corp. v. Gilbert, 330 U.S. 501 (1947)] tilt strongly in favor of trial in the
21 Republic of Arg. v. NML Cap., Ltd., 573 U.S. 134, 141 (2014) (citation
omitted).
22 Dole Food, 538 U.S. at 469.
See Cap. Currency Exch., N.V. v. Nat'l Westminster Bank PLC, 155 F.3d 603,
23
607 (2d Cir. 1998) (noting that forum non conveniens is a “common law doctrine” that
may be “supplanted” by statute).
See Iragorri, 274 F.3d at 73–74 (discussing factors that indicate the
24
convenience to the litigants and the public interest in the dispute).
Beierwaltes v. L’Office Federale De La Culture De La Confederation Suisse, 999
25
F.3d 808, 819 (2d Cir. 2021).
26 Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 74–75 (2d Cir.
2003).
27 226 F.3d 88 (2d Cir. 2000).
11
foreign forum.” 28 Wiwa thus does not suggest, much less support,
AE’s thesis that forum non conveniens has no place or a lesser place in
FSIA cases.
B. The District Court Did Not Abuse Its Discretion in
Dismissing AE’s Complaint on Forum Non Conveniens Grounds
AE argues that the District Court erred in applying the familiar
three-step forum non conveniens analysis set forth in the unanimous en
banc decision in Iragorri v. United Technologies Corp. 29 The three steps
are “(1) determine the degree of deference properly accorded the
plaintiff’s choice of forum; (2) consider whether the alternative forum
proposed by the defendants is adequate to adjudicate the parties’
dispute; and (3) balance the private and public interests implicated in
the choice of forum.” 30
We “begin with the assumption that [AE’s] choice of forum will
stand unless the defendant[s] meet[] the burden of demonstrating”
that the three-step analysis favors dismissal. 31 At the same time, forum
non conveniens dismissal “lies wholly within the broad discretion of the
[D]istrict [C]ourt and may be overturned only when we believe that
28 Id. at 106 (brackets, citation, and internal quotation marks omitted).
29 See generally 274 F.3d 65.
30 Celestin v. Caribbean Air Mail, Inc., --- F.4th ----, No. 20-1412, 2022 WL
963959, at *9 (2d Cir. 2022) (brackets, citation, and internal quotation marks
omitted).
31 Iragorri, 274 F.3d at 71.
12
discretion has been clearly abused.” 32 A district court has “abused its
discretion if it based its ruling on an erroneous view of the law or on a
clearly erroneous assessment of the evidence, or rendered a decision
that cannot be located within the range of permissible decisions.” 33
1. Degree of Deference
In the circumstances presented here the District Court did not
err in affording minimal deference to AE’s forum choice.
First, the District Court reasonably afforded “less deference” to
the United States forum choice of AE—an entity incorporated in
Angola—because it is a “foreign plaintiff.” 34
Second, the District Court did not err in finding that AE and its
lawsuit lacked a “bona fide connection to the United States and to the
forum of choice.” 35 Apart from a December 2017 receipt of funds
disbursed by GE’s affiliate—a transfer not at issue in the Complaint
that occurred more than a year before Angola terminated AE’s
contracts—AE has “offered no proof that [it has] connections to the
United States and failed to demonstrate that New York is convenient
32 Id. at 72 (citation and emphasis omitted).
In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (brackets, citations, and internal
33
quotation marks omitted).
34 See Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 154 (2d Cir.
2005).
35 Iragorri, 274 F.3d at 72 (footnote omitted).
13
for [it].” 36 The District Court thus properly concluded that it does not
appear “that considerations of convenience favor the conduct of the
lawsuit in the United States.” 37
We find unpersuasive in this context AE’s lead argument on
appeal: that the District Court erred by dismissing its complaint on
forum non conveniens grounds after holding that New York “would be
relatively convenient for [GE] since [it is] either at home here or in a
nearby district.” 38 We have declined to assign “a plaintiff’s choice of
forum . . . presumptive deference simply because the chosen forum is
[a] defendant’s home forum,” especially where the selection “suggests
the possibility that [the] plaintiff’s choice was made for reasons of trial
strategy.” 39 Caution was particularly apt here, where many of the
contracts at issue specify that disputes will be heard in an Angolan
arbitral forum—a fact that “modifies” forum non conveniens doctrine so
that the “usual tilt in favor of the plaintiff’s choice of forum gives way
to a presumption in favor of the contractually selected forum.” 40
36Pollux, 329 F.3d at 74 (affording minimal deference based on “only a faint
connection to the United States” where the plaintiffs’ “interactions with [the
defendant] were centered in [the alternate forum]”).
37 Iragorri, 274 F.3d at 72.
38 Aenergy, 2021 WL 1998725, at *9.
39 Pollux, 329 F.3d at 74.
40 Fasano v. Yu Yu, 921 F.3d 333, 335 (2d Cir. 2019) (brackets and citation
omitted).
14
Third, the District Court’s finding that AE’s decision to file suit
here while pursuing similar claims abroad “smacks of forum
shopping” 41 was not “a clearly erroneous finding of fact.” 42 Plaintiffs
are entitled to less deference “the more it appears that [their] choice of
a U.S. forum was motivated by forum-shopping reasons.” 43 We have
stated that one indication of forum shopping is “attempts to win a
tactical advantage resulting from local laws that favor the plaintiff’s
case.” 44 Here, the District Court had ample basis to find that AE
sought a tactical advantage in New York, as AE “first chose a different
forum to litigate the termination of the AE-MINEA Contracts:
Angola[,] . . . [and] thus far, AE has not found success in those Angolan
proceedings.” 45
41 Aenergy, 2021 WL 1998725, at *10.
42 Pollux, 329 F.3d at 70.
43 Iragorri, 274 F.3d at 72.
44 Id.45 Aenergy, 2021 WL 1998725, at *10. Two other Courts of Appeals have held
that filing suit here while pursuing claims abroad may support a factual finding of
forum shopping. See Vivendi SA v. T-Mobile USA Inc., 586 F.3d 689, 695 (9th Cir.
2009) (holding that “the district court did not abuse its discretion when it concluded
that [the plaintiff] was engaging in forum shopping by filing suit in the United
States” in light of “the actions [the plaintiff] ha[d] filed across Europe”); Interface
Partners Int’l Ltd. v. Hananel, 575 F.3d 97, 102–03 (1st Cir. 2009) (same, where the
plaintiff “engaged in nearly four years of discovery in an Israeli forum—a forum it
initially chose—and . . . subsequently moved to dismiss its suit ‘on the verge of
being ready for trial’” (footnote omitted)).
15
Nor was the District Court’s decision “an error of law,” 46 as
courts in this Circuit are not required to discount parallel litigation in
assessing whether a plaintiff is forum shopping. AE cites several cases
that decline to consider parallel litigation while balancing the private
interest factors identified by the Supreme Court in Gilbert. 47 But the
Gilbert factors relate to “the convenience of the litigants,” 48 not a
plaintiff’s “reasons” for selecting a particular forum, which is at the
heart of the forum shopping inquiry. 49 AE’s reliance on Bigio v. Coca-
Cola Co. 50 is likewise misplaced because there, unlike here, the district
court did not find that the plaintiffs were forum shopping. 51
In sum, the District Court did not err in affording minimal
deference to AE’s choice of a New York forum.
46 Pollux, 329 F.3d at 70.
47 See, e.g., DiRienzo v. Philip Servs. Corp., 294 F.3d 21, 31 (2d Cir. 2002)
(holding that “related litigation” involving a different class of plaintiffs was due
“little weight” in applying the Gilbert convenience factors); Peregrine Myan. Ltd. v.
Segal, 89 F.3d 41, 47 (2d Cir. 1996) (holding that a parallel suit brought by the same
plaintiff against different defendants in Hong Kong did not suggest that a United
States venue was inconvenient).
48 Iragorri, 274 F.3d at 73.
49 Id. at 72.
50 448 F.3d 176 (2d Cir. 2006).
51See generally Bigio v. Coca-Cola Co., No. 97-CV-2858, 2005 WL 287397, at *2
(S.D.N.Y. Feb. 3, 2005).
16
2. Adequate Alternative Forum
“An alternative forum is adequate [1] if the defendants are
amenable to service of process there, and [2] if it permits litigation of
the subject matter of the dispute.” 52 AE argues that Angola does not
“permit[] litigation” 53 because (1) AE’s contract damages claim is time-
barred in Angola, (2) AE could not have its claims against Angola and
GE tried in the same Angolan court, and (3) Angola provides
inadequate due process. 54
AE first argues that it is jurisdictionally time-barred in Angola
from seeking breach of contract damages from Angola. We assume
without deciding that AE’s expert has correctly interpreted Angolan
law. “In rare circumstances, . . . where the remedy offered by the other
forum is clearly unsatisfactory, the other forum may not be an
adequate alternative.” 55 However, “the availability of an adequate
alternative forum does not depend on the existence of the identical
52 Pollux, 329 F.3d at 75.
53 Pls.’ Br. 38.
54 AE also argues that Angola is inadequate because AE’s owner, Machado,
cannot travel there to testify due to safety concerns. This argument is unrelated to
whether Angola “permits litigation of the subject matter of the dispute.” Pollux,
329 F.3d at 75. It suggests instead that Angola is an inconvenient forum, see Iragorri,
274 F.3d at 75, and AE argued as much below. We thus consider this argument as
part of the Gilbert analysis.
55 Piper, 454 U.S. at 254 n.22.
17
cause of action in the other forum, nor on identical remedies.” 56 Nor
does “the prospect of a lesser recovery . . . justify refusing to dismiss
on the ground of forum non conveniens,” 57 provided that “the essential
subject matter of the dispute can be adequately addressed” by the
foreign court. 58
Notwithstanding the asserted unavailability of breach of
contract damages against Angola, the District Court did not err in
holding that these are not examples of “rare circumstances” where the
remedies afforded by a foreign forum can be said to be inadequate.
The District Court correctly noted that AE brings “eight [other] claims”
against both Angola and GE. 59 And even if AE cannot recover
damages on its breach of contract claim against Angola, it has sought
equitable contract remedies in Angola, 60 allowing the Angolan court
to address the essential subject matter of the dispute.
AE next argues that Angola and GE cannot be tried in the same
Angolan court. While Angola and GE contest this position, we assume
56 Norex, 416 F.3d at 158 (brackets, citation, and internal quotation marks
omitted).
57 Alcoa S. S. Co. v. M/V Nordic Regent, 654 F.2d 147, 159 (2d Cir. 1980) (en
banc) (italics added) (affirming dismissal where the plaintiff in Trinidad could
“recover only $570,000 rather than $8,000,000”).
58 Cap. Currency Exch., 155 F.3d at 610–11.
59 Aenergy, 2021 WL 1998725, at *13.
60See App’x 592 (quoting AE’s prayer in the Supreme Court of Angola that
the contracts “should be considered in force”).
18
without deciding that AE’s claims against Angola would proceed in
the Supreme Court of Angola, while its claims against GE would
proceed in Luanda Provincial Court.
This does not suggest that Angola is an inadequate alternative
to New York. This conclusion finds support in Olympic Corp. v. Societe
Generale. 61 There, a U.S. corporation filed a complaint against a French
bank, which in turn filed a third-party complaint against a French
company. 62 We reversed the district court’s forum non conveniens
dismissal as to the complaint, but affirmed as to the third-party
complaint, holding in effect that courts in different countries were
adequate to resolve related disputes. 63 Our statement that “a court
must satisfy itself that the litigation may be conducted elsewhere
against all defendants” 64 thus does not require a single foreign court.65
Finally, AE argues that Angola’s judiciary will not provide due
process. It points specifically to the seizure of its turbines and
61 462 F.2d 376 (2d Cir. 1972).
62 Id. at 377–78.
63 Id. at 379–80.
64 PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 73 (2d Cir. 1998).
65 The ability to try related claims in one courtroom may relate to the
convenience of a foreign venue. See Piper, 454 U.S. at 259 (“It would be far more
convenient . . . to resolve all claims in one trial.”). But AE does not raise, and has
thus waived, any argument that the Gilbert factors favor joinder. See Frank v. United
States, 78 F.3d 815, 833 (2d Cir. 1996) (“Issues not sufficiently argued are in general
deemed waived and will not be considered on appeal.”), judgment vacated on other
grounds, 521 U.S. 1114 (1997).
19
equipment pursuant to an order issued after an ex parte hearing, and
subsequent transport of two of its turbines to a state-owned power
facility. 66 A finding of a “lack of due process in the foreign forum”
may support a finding that that forum is not adequate. 67 “[W]hile the
plaintiff bears the initial burden” of production in this regard, “the
defendant bears the ultimate burden of persuasion as to the adequacy
of the forum.” 68 To make such an initial showing, plaintiffs must
demonstrate “inadequate procedural safeguards.” 69 “[S]uch a
[showing] is rare,” 70 because “it is not the business of our courts to
assume the responsibility for supervising the integrity of the judicial
system of another sovereign nation.” 71
The District Court properly held that AE had failed to meet its
initial burden of production, concluding that seizure pursuant to an ex
parte hearing did not “render[] a judicial system inadequate”; indeed
“courts in this country hold ex parte hearings in appropriate
circumstances.” 72 This holding reasonably characterized both our
66While AE before the District Court referred to State Department and other
reports describing corruption in Angola, it does not raise these reports on appeal.
Accordingly, we do not consider them. See Frank, 78 F.3d at 833.
67 See Abdullahi v. Pfizer, Inc., 562 F.3d 163, 189 (2d Cir. 2009).
68 Id.69 PT United, 138 F.3d at 73.
70 Id.71 Blanco, 997 F.2d at 982 (brackets and citation omitted).
72 Aenergy, 2021 WL 1998725, at *13.
20
judicial process 73 and that of Angola, where AE does not dispute that
the court has ordered only preliminary relief, and where permanent
relief requires an adversary process of the sort now underway. 74 AE
likewise does not dispute that the Angolan judiciary is independent
from the executive branch. AE’s argument that the seized turbines
“went . . . to state-owned power companies that have since deployed
them,” 75 suggests at most that the Angolan court’s trustee has failed to
fulfill its obligations. AE has proffered no evidence that Angola’s
courts cannot in appropriate circumstances address this asserted
failure. Nor has it proffered evidence that the Angolan court “secretly
gave [the turbines] to [Angola],” 76 or committed any other
impropriety.
Relatedly, the District Court did not err in finding “relevant”
AE’s “decision to do business in Angola.” 77 We agree that it is
“anomalous” for AE—an Angolan corporation—to enter into multiple
contracts worth more than a billion dollars with the Angolan
73 See, e.g., Fed. R. Civ. P. 65(b) (authorizing ex parte temporary restraining
orders in limited circumstances).
74 See App’x 190 (Angola’s expert declaration stating that the property was
seized as a “temporary ex-parte provisional remed[y],” and that “title to the
property remains with [AE] pending final adjudication of the [P]arties competing
rights”), 588 (AE’s expert declaration stating that Angola and AE have filed papers
related to a “plenary process,” which is required for Angola to obtain permanent
relief).
75 See Pls.’ Br. 44.
76 See Pls.’ Reply 27.
77 Aenergy, 2021 WL 1998725, at *15.
21
government, subject to Angolan law and adjudication in many cases
in an Angolan forum, and “then [to] argue to an American court that
the [Angolan] system of justice is so . . . corrupt as not to provide an
adequate forum for the resolution of . . . contractual disputes.” 78
We conclude that the District Court did not err in finding that
Angola is an adequate alternative forum.
3. Gilbert Factors
“[E]ven where the degree of deference [to a foreign plaintiff’s
choice of forum] is reduced [at step one], the action should be
dismissed only if the chosen forum is shown to be genuinely
inconvenient and the selected forum significantly preferable.” 79 To
assess this issue, we consider private and public interest factors. With
respect to the private interest factors, we assess “the relative ease of
access to sources of proof; [the] availability of compulsory process for
attendance of unwilling, and the cost of obtaining attendance of
willing, witnesses; [the] possibility of view of premises, if view would
be appropriate to the action; and all other practical problems that make
trial of a case easy, expeditious and inexpensive.” 80 With respect to
public interest factors, we consider “administrative difficulties
associated with court congestion; the unfairness of imposing jury duty
78 Blanco, 997 F.2d at 981.
79 Bigio, 448 F.3d at 179 (brackets, citation, and internal quotation marks
omitted).
80 Iragorri, 274 F.3d at 73–74 (quoting Gilbert, 330 U.S. at 508).
22
on a community with no relation to the litigation; the interest in having
localized controversies decided at home; and avoiding difficult
problems in conflict of laws and the application of foreign law.” 81
The District Court did not err by holding that the Gilbert factors
suggest that New York is genuinely inconvenient and Angola is
significantly preferable.
Concerning the private interest factors, the District Court
reasonably held that Angola offers greater “relative ease of access to
sources of proof.” 82 All of the key events occurred in Angola. This
includes the fabrication of letters indicating Angola’s agreement to
buy more turbines, GE’s insistence that the contracts had been
amended, and the Angolan President’s termination of the contracts.
By contrast, the disbursement of funds in New York by GE’s affiliate
is not in dispute. And GE’s United States-based employees are
unlikely to be crucial witnesses, as they are alleged only to have
“rel[ied] on” and received “report[s]” and “update[s]” from GE’s
employees in Angola. 83
The District Court did not err in holding that “[t]he Angolan
government is at the heart of this case” and giving priority to the
availability of “Angolan state officials.” 84 In light of their official roles,
81 Aguinda v. Texaco, Inc., 303 F.3d 470, 480 (2d Cir. 2002).
82 Aenergy, 2021 WL 1998725, at *17.
83 Compl. ¶¶ 109, 162, 164.
84 Aenergy, 2021 WL 1998725, at *17.
23
it is “unlikely that many would be willing to travel to New York to
testify; and the cost, in any event, would be prohibitively great.” 85 We
disagree with AE’s argument that the testimony of Angolan
government witnesses does not meaningfully bear on “the precise
issues that are likely to be actually tried.” 86 To the contrary, these
witnesses may offer testimony on important topics, including GE’s
alleged efforts to convince Angola to allow it to take over AE’s
contracts and the basis and good faith of Angola’s alleged claim of
contractual irregularities. Moreover, AE’s initial disclosures list 36
witnesses affiliated with the Angolan government, which is
inconsistent with its claim that such witnesses are irrelevant.
The District Court likewise did not err in concluding that
translating “testimony from non-English speaking witnesses (or those
that . . . would prefer to testify in another language) . . . would be a
costly, difficult endeavor.” 87 Translation for Angolan state officials
who prefer to testify in their country’s official language (Portuguese)
“would result in significant cost to the parties and delay to the court,”
which “militates strongly in favor of [Angola] as a more appropriate
forum for this litigation.” 88 The same is true of many “relevant
documents”—including the contracts at issue and related written
85 Fitzgerald v. Texaco, Inc., 521 F.2d 448, 451–52 (2d Cir. 1975).
86 Iragorri, 274 F.3d at 74.
87 Aenergy, 2021 WL 1998725, at *18.
88 Blanco, 997 F.2d at 982.
24
communications that would require translation from Portuguese to
English.” 89
The District Court reasonably evaluated the potential testimony
of specific witnesses. Regarding da Costa and Nelson—the former
CEO of GE’s Angola business and the former head of GE’s sub-
Saharan Africa business, respectively, and “two witnesses that all
parties seem to agree would be essential at trial”—the District Court
found it “far from certain” 90 that either would be subject to a subpoena
as “a national or resident of the United States [who is in a foreign
country].” 91 This was not a clearly erroneous assessment of the
evidence. Da Costa may not be a U.S. resident, as his green card
appears to have expired in 2019. Indeed, the record suggests that he
may be an Angolan citizen residing in Angola. In any case, it is unclear
whether a U.S. subpoena could be served upon or enforced against
either da Costa or Nelson. And even assuming that da Costa and
Nelson could be made available in New York, the District Court did
not abuse its discretion in giving priority to the testimony of “officials
from the Angolan government,” 92 as discussed.
89 Aenergy, 2021 WL 1998725, at *18.
90 Id. at *17 n.7.
91 Id. (quoting 28 U.S.C. § 1783(a)). Under some circumstances “[a] court of
the United States may order the issuance of a subpoena requiring the appearance
as a witness before it, or before a person or body designated by it, of a national or
resident of the United States who is in a foreign country.” 28 U.S.C. § 1783(a).
92 Aenergy, 2021 WL 1998725, at *17 n.7.
25
The same is true of AE’s owner, Machado—“an important
witness in this action” who claims he cannot testify in Angola due to
“grave security concerns.” 93 It is of course true that a witness’s “fear
for [his] safety” is “relevant to the balancing inquiry.” 94 But the
District Court reasonably discounted these concerns because
Machado’s company, AE, continues to seek reinstatement of its
Angolan contracts. 95 Even “assum[ing] [that] Machado’s fears are
legitimate,” the District Court did not abuse its discretion in holding
that “because all other private interest factors weigh in favor of
dismissal, . . . such fears [do not] tip the balance in a meaningful
way.” 96
Regarding the public interest factors, the District Court correctly
held that “[t]his case has little to do with New York and a lot to do
with Angola.” 97 As discussed, AE has not put at issue the alleged
transfer of funds in New York, and GE’s United States-based
employees are alleged principally to have relied upon and received
reports from GE’s employees in Angola. While the United States has
an interest in regulating its corporate citizens in this case, that interest
93 Id. at *19.
94 Iragorri, 274 F.3d at 75.
95 Aenergy, 2021 WL 1998725, at *19.
96 Id.97 Id.26
is relatively limited, and Angola has a significantly stronger interest in
addressing disputes related to its government contracts. 98
Finally, the District Court reasonably concluded that this case
would require it “to confront ‘difficult problems in conflict of laws and
the application of foreign law.’” 99 As discussed, the contracts at issue
are subject to Angolan law. The District Court properly held that this
suggests that Angola is a superior forum. 100
In sum, the District Court reasonably found that AE’s forum
choice was entitled to minimal deference; that Angola is an adequate
alternative forum; and that the public and private Gilbert factors favor
Angola. The District Court thus did not err in dismissing AE’s
complaint under the doctrine of forum non conveniens.
CONCLUSION
To summarize, we hold as follows:
(1) Standard principles of forum non conveniens apply to AE’s
lawsuit brought pursuant to an exception to the Foreign
Sovereign Immunities Act, 28 U.S.C. § 1605; and
98See Allstate, 994 F.2d at 1002 (Australia had a stronger interest to resolve
“one of the largest [liquidations] in Australian history,” involving actions “carried
out in Australia by Australian corporations,” despite U.S. securities laws.).
99 Aenergy, 2021 WL 1998725, at *20 (citation omitted).
See Scot. Air Int'l, 81 F.3d at 1234 (indicating that a need for the application
100
of foreign law supports forum non conveniens dismissal).
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(2) the District Court did not err in dismissing AE’s Complaint
on forum non conveniens grounds.
For the foregoing reasons, we AFFIRM the District Court’s May
19, 2021, and June 24, 2021, orders.
28