Sinochem Argument

Sinochem v. Malaysia Int'l Shipping Co was argued today. The transcript can be found here. Scotusblog has an argument preview here. In short, the case presents the question of whether a federal district court may dismiss a complaint on forum non conveniens grounds prior to adjudicating personal jurisdiction.

I had previously discussed Sinochem in this post regarding forum non conveniens. As I suggested, one question I have is if this rule is adopted, whether a court may dismiss on forum non conveniens with conditions (i.e., defendant waives jurisdictional challenge in foreign court). Justice Ginsburg asked this exact question to Mr. Hallward-Driemeier, who was arguing for the U.S. in support of the petitioner:

[T]here is a question about a court without personal jurisdiction dismissing on forum non conveniens ground, and that is, it's common, as you know, to condition forum non conveniens dismissals on the defendant's undertaking that the defendant will not raise the statute of limitations and other conditions. If the Court has no personal jurisdiction over the defendant, it would be unable to impose such conditions; isn't that so?

Mr. Hallward-Driemeier responded:

Our understanding of a conditional dismissal in this circumstance is that the dismissing court is explaining its understanding of the world, and that -- and facts as they bear upon its analysis, such as is the defendant subject to jurisdiction in a foreign forum. Oftentimes, the plaintiff -- if I could answer – often time the plaintiff objects to dismissal because they can't sue the defendant in the foreign forum. The defendant agrees to waive any objection to jurisdiction. That understanding of fact is a condition of the dismissal. If it later proves to be untrue because the defendant objects to jurisdiction of the foreign court, it would be open to the plaintiff to seek to reopen the first suit on that ground.

Besides this point, this case appears headed towards a clear reversal of CA3 and a rule allowing courts to dismiss on forum non conveniens grounds before deciding jurisdiction. Nonetheless, I am not sure that the government's argument is compelling here. A condition that leads to dismissal under forum non is often more than a mere "understanding of the world." It is often not a fact that happened to exist, but rather an express agreement made by defendants to secure dismissal of the U.S. suit. The defendant affirmatively acts in a manner consistent with the conditional dismissal with the understanding that such activity will allow the U.S. suit to be dismissed. To me, a court should only exercise this authority over a defendant -- and police a defendant's compliance with the condition -- after it has established that it actually has any jurisdiction over the party in the first place. While condition-less dismissals for forum non conveniens may simply be an alternative threshold ground for dismissal that a court may choose prior to deciding jurisdiction, I still don't think that is the same when a court wishes to impose conditions.