Andrew Van Duyn, <\/strong>Associate at Debevoise & Plimpton<\/strong><\/a>
Roshni Chakraborty, <\/strong>Law Clerk at Debevoise & Plimpton<\/strong><\/a>
Alex Nehrbass, <\/strong>Law Clerk at Debevoise & Plimpton<\/strong><\/a>
Aidan Salamone, <\/strong>Law Clerk at Debevoise & Plimpton<\/strong><\/a><\/p>\n\n\n\n
\n\n\n\n
Introduction and Overview<\/strong><\/h2>\n\n\n\nNew York Arbitration Week 2025 brought together leading arbitration practitioners from around the world to discuss pressing issues shaping international arbitration. The programming included an event hosted at Debevoise & Plimpton<\/strong><\/a>\u2019s New York office in which participants tackled an unsettled question: Is forum non conveniens <\/em>(“FNC<\/strong>“) <\/em>available in proceedings to enforce a foreign arbitral award under the New York Convention in the United States? The issue has split the Second and D.C. Circuits and remains unaddressed by the Supreme Court, leaving open fundamental questions about the extent of judicial discretion permitted by the Convention.<\/p>\n\n\n\nThe event took the form of a mock argument before a three-\u2018Justice\u2019 panel. Benno Kimmelman<\/strong><\/a> of Kimmelman Arbitration introduced the topic and provided background on the case to be argued, Belize Soc. Dev. Ltd. v. Gov’t of Belize<\/a><\/em>\u2014a matter on which Mr. Kimmelman had served as counsel, and that had prominently featured the issue of forum non conveniens<\/em> (though the Supreme Court ultimately denied certiorari). Frances Bivens<\/strong><\/a> of Davis Polk<\/a> and Mark Friedman<\/a><\/strong> of Debevoise & Plimpton argued the case before a distinguished panel comprising Lindsay Gastrell<\/strong><\/a>, Independent Arbitrator at Arbitration Chambers<\/a>, Marc Goldstein<\/a><\/strong>, Independent Arbitrator at MJG Arbitration & Mediation<\/a>, and Viren Mascarenhas<\/a><\/strong>, founding partner of Mascarenhas Law PLLC. After the arguments, attendees had the opportunity to watch the \u2018Justices\u2019 deliberate and decide the case before them. The session ended with a lively discussion among the participants and a Q&A with the audience.<\/p>\n\n\n\n<\/div>\n\n\n\nThe Mock Argument<\/strong><\/h2>\n\n\n\nThe debate was spirited and highlighted a pertinent question in the world of international arbitration. Forum non conveniens<\/em> is a judge-made discretionary doctrine allowing courts to dismiss cases when another forum is deemed more convenient. Whether it can be applied to deny enforcement of foreign arbitral awards under the New York Convention (1958)<\/a> goes to the very heart of U.S. obligations under the treaty. The Convention, adopted in 1958, was designed to unify the standards by which arbitral awards are enforced in signatory countries. Yet the language of Article III requires that each contracting state \u201crecognize arbitral awards as binding and enforce them in accordance with the rules of procedure<\/strong> of the territory where the award is relied upon,\u201d leaving open the door to country-specific procedural rules. Though an arguably procedural doctrine such as forum non conveniens <\/em>may fit the language of Article III, it also detracts from the unity the Convention was designed to promote.<\/p>\n\n\n\nThat very issue turned into a Circuit split. The Second Circuit, in Figueiredo Ferraz e Engenharia de Projeto Ltda. v. Republic of Peru<\/a><\/em> (2011), held that forum non conveniens<\/em> could be applied to Convention awards. The court reasoned that forum non conveniens<\/em> is properly construed as a \u2018procedural rule\u2019 thus permitted under Article III<\/a>. The D.C. Circuit took the opposite view, though on narrow grounds: it found that FNC was effectively inapplicable in enforcement proceedings since only an American court could attach American assets.<\/p>\n\n\n\nThe arguments took on this sharp divide.<\/p>\n\n\n\n
Ms. Bivens argued that the case was clear-cut: forum non conveniens<\/em> is a procedural rule\u2014as determined by the Supreme Court in American Dredging<\/em>\u2014and thus the language of Article III plainly permits its application. Ms. Bivens argued that procedural differences between jurisdictions were envisioned by the drafters of the Convention, who understood that such variability was essential to managing the practical realities of international enforcement. Other procedural rules\u2014such as statutes of limitations\u2014 regularly result in non-enforcement, she pointed out. Moreover, Ms. Bivens argued, forum non conveniens<\/em> provides U.S. courts with a necessary escape valve that permits dismissal when the enforcement proceedings involve particularly egregious cases of forum-shopping or clear foul play by the enforcing party.<\/p>\n\n\n\nMr. Friedman\u2019s counterargument focused on the fundamental incompatibility of forum non conveniens<\/em><\/em> with the purpose of the Convention. Mr. Friedman reasoned that proper construction of the treaty\u2014including of its text, structure, and purpose\u2014makes it impossible to accept that the drafters had intended for a highly discretionary doctrine such as FNC to be snuck into the Convention via Article III\u2019s reference to \u2018rules of procedure.\u2019 Mr. Friedman argued that the Supreme Court has itself held that the substance-procedure distinction hinges on context. According to Mr. Friedman, invoking the FNC doctrine in enforcement proceedings results in an inquiry that is substantive in nature and fundamentally at odds with the exclusive grounds for non-enforcement listed under Article V of the Convention. The U.S., under Mr. Friedman\u2019s analysis, had therefore given up its courts\u2019 right to invoke the FNC \u2018escape valve\u2019 when it signed on to the Convention.<\/p>\n\n\n\nThe resolution of this question has significant implications for international arbitration practice. If forum non conveniens<\/em> is available, award creditors face the prospect of U.S. courts declining enforcement based on discretionary factors\u2014even when no Article V defense applies. This uncertainty arguably undermines the predictability and finality that the New York Convention was designed to provide. And international arbitration itself could suffer. If the enforcement of an award in the United States becomes less predictable, the decision to pursue international arbitration proceedings may become incrementally less attractive. On the other hand, nations have a substantial interest in maintaining their courts\u2019 discretion on matters traditionally within their realm of decision-making, and the Convention has been deemed to allow for country-to-country variation on other rules that straddle the substance \/ procedure divide, such as statutes of limitations. Furthermore, U.S. courts applying the FNC <\/em>analysis to enforcement proceedings have more often than not decided against dismissal on FNC <\/em>grounds.<\/p>\n\n\n\n<\/div>\n\n\n\nFinal Considerations<\/strong><\/h2>\n\n\n\nA resolution for this issue is particularly pressing given the United States\u2019 central role in international arbitration and the frequency with which parties seek to enforce awards in U.S. courts. A Supreme Court ruling\u2014or legislative clarification\u2014would provide much-needed guidance to practitioners and parties navigating cross-border enforcement.<\/p>\n\n\n\n
Debevoise & Plimpton\u2019s New York Arbitration Week event highlighted the dynamism of arbitration practice and its growing influence on global practice, demonstrating how unresolved procedural questions at the domestic level can have far-reaching consequences for the enforceability of arbitral awards and the integrity of the international arbitration system.<\/p>\n\n\n\n
<\/div>\n\n\n\n
\n\n\n\nABOUT THE AUTHORS<\/strong><\/p>\n\n\n\nAndrew Van Duyn<\/strong> is an associate in the Litigation Department at Debevoise & Plimpton<\/strong><\/a>. Mr. Van Duyn joined Debevoise in 2021. Mr. Van Duyn received a J.D. from New York University School of Law in 2021, where he was an International Law & Human Rights Fellow and a Robert McKay Scholar. He was a managing editor of the Journal of International Law & Politics <\/em>and a staff editor of the Yearbook on International Investment Law & Policy<\/em>. Mr. Van Duyn received a B.S. cum laude<\/em> from the University of Pennsylvania, Wharton School in 2016. He is fluent in French.<\/p>\n\n\n\nRoshni Chakraborty<\/strong> is a law clerk in the Litigation Department at Debevoise & Plimpton<\/strong><\/a>. Ms. Chakraborty joined Debevoise in 2025. She received a J.D. cum laude<\/em> from Harvard Law School in 2025, where she was a Chayes Fellow and teaching fellow for numerous courses in political philosophy. She received an A.B. magna cum laude<\/em> with Highest Honors from Harvard College in 2022, where she was a member of Phi Beta Kappa. Ms. Chakraborty is fluent in Hindi and Bengali.<\/p>\n\n\n\nAlex Nehrbass<\/strong> is a law clerk in the Litigation Department at Debevoise & Plimpton<\/strong><\/a>. Mr. Nehrbass joined Debevoise in 2025. Mr. Nehrbass received his J.D. from New York University School of Law, where he was a Robert A. Katzmann Fellow and served as online editor of the NYU Journal of International Law and Politics<\/em> and president of the International Law Society. While in law school, Mr. Nehrbass also served as research assistant to Professor Linda Silberman and as law clerk to Professor Jose Alvarez. Mr. Nehrbass received a B.A. with Dean’s Honours List distinction from McGill University in 2019. He is fluent in French, Russian and German. <\/p>\n\n\n\n
The event took the form of a mock argument before a three-\u2018Justice\u2019 panel. Benno Kimmelman<\/strong><\/a> of Kimmelman Arbitration introduced the topic and provided background on the case to be argued, Belize Soc. Dev. Ltd. v. Gov’t of Belize<\/a><\/em>\u2014a matter on which Mr. Kimmelman had served as counsel, and that had prominently featured the issue of forum non conveniens<\/em> (though the Supreme Court ultimately denied certiorari). Frances Bivens<\/strong><\/a> of Davis Polk<\/a> and Mark Friedman<\/a><\/strong> of Debevoise & Plimpton argued the case before a distinguished panel comprising Lindsay Gastrell<\/strong><\/a>, Independent Arbitrator at Arbitration Chambers<\/a>, Marc Goldstein<\/a><\/strong>, Independent Arbitrator at MJG Arbitration & Mediation<\/a>, and Viren Mascarenhas<\/a><\/strong>, founding partner of Mascarenhas Law PLLC. After the arguments, attendees had the opportunity to watch the \u2018Justices\u2019 deliberate and decide the case before them. The session ended with a lively discussion among the participants and a Q&A with the audience.<\/p>\n\n\n\n The debate was spirited and highlighted a pertinent question in the world of international arbitration. Forum non conveniens<\/em> is a judge-made discretionary doctrine allowing courts to dismiss cases when another forum is deemed more convenient. Whether it can be applied to deny enforcement of foreign arbitral awards under the New York Convention (1958)<\/a> goes to the very heart of U.S. obligations under the treaty. The Convention, adopted in 1958, was designed to unify the standards by which arbitral awards are enforced in signatory countries. Yet the language of Article III requires that each contracting state \u201crecognize arbitral awards as binding and enforce them in accordance with the rules of procedure<\/strong> of the territory where the award is relied upon,\u201d leaving open the door to country-specific procedural rules. Though an arguably procedural doctrine such as forum non conveniens <\/em>may fit the language of Article III, it also detracts from the unity the Convention was designed to promote.<\/p>\n\n\n\n That very issue turned into a Circuit split. The Second Circuit, in Figueiredo Ferraz e Engenharia de Projeto Ltda. v. Republic of Peru<\/a><\/em> (2011), held that forum non conveniens<\/em> could be applied to Convention awards. The court reasoned that forum non conveniens<\/em> is properly construed as a \u2018procedural rule\u2019 thus permitted under Article III<\/a>. The D.C. Circuit took the opposite view, though on narrow grounds: it found that FNC was effectively inapplicable in enforcement proceedings since only an American court could attach American assets.<\/p>\n\n\n\n The arguments took on this sharp divide.<\/p>\n\n\n\n Ms. Bivens argued that the case was clear-cut: forum non conveniens<\/em> is a procedural rule\u2014as determined by the Supreme Court in American Dredging<\/em>\u2014and thus the language of Article III plainly permits its application. Ms. Bivens argued that procedural differences between jurisdictions were envisioned by the drafters of the Convention, who understood that such variability was essential to managing the practical realities of international enforcement. Other procedural rules\u2014such as statutes of limitations\u2014 regularly result in non-enforcement, she pointed out. Moreover, Ms. Bivens argued, forum non conveniens<\/em> provides U.S. courts with a necessary escape valve that permits dismissal when the enforcement proceedings involve particularly egregious cases of forum-shopping or clear foul play by the enforcing party.<\/p>\n\n\n\n Mr. Friedman\u2019s counterargument focused on the fundamental incompatibility of forum non conveniens<\/em><\/em> with the purpose of the Convention. Mr. Friedman reasoned that proper construction of the treaty\u2014including of its text, structure, and purpose\u2014makes it impossible to accept that the drafters had intended for a highly discretionary doctrine such as FNC to be snuck into the Convention via Article III\u2019s reference to \u2018rules of procedure.\u2019 Mr. Friedman argued that the Supreme Court has itself held that the substance-procedure distinction hinges on context. According to Mr. Friedman, invoking the FNC doctrine in enforcement proceedings results in an inquiry that is substantive in nature and fundamentally at odds with the exclusive grounds for non-enforcement listed under Article V of the Convention. The U.S., under Mr. Friedman\u2019s analysis, had therefore given up its courts\u2019 right to invoke the FNC \u2018escape valve\u2019 when it signed on to the Convention.<\/p>\n\n\n\n The resolution of this question has significant implications for international arbitration practice. If forum non conveniens<\/em> is available, award creditors face the prospect of U.S. courts declining enforcement based on discretionary factors\u2014even when no Article V defense applies. This uncertainty arguably undermines the predictability and finality that the New York Convention was designed to provide. And international arbitration itself could suffer. If the enforcement of an award in the United States becomes less predictable, the decision to pursue international arbitration proceedings may become incrementally less attractive. On the other hand, nations have a substantial interest in maintaining their courts\u2019 discretion on matters traditionally within their realm of decision-making, and the Convention has been deemed to allow for country-to-country variation on other rules that straddle the substance \/ procedure divide, such as statutes of limitations. Furthermore, U.S. courts applying the FNC <\/em>analysis to enforcement proceedings have more often than not decided against dismissal on FNC <\/em>grounds.<\/p>\n\n\n\n A resolution for this issue is particularly pressing given the United States\u2019 central role in international arbitration and the frequency with which parties seek to enforce awards in U.S. courts. A Supreme Court ruling\u2014or legislative clarification\u2014would provide much-needed guidance to practitioners and parties navigating cross-border enforcement.<\/p>\n\n\n\n Debevoise & Plimpton\u2019s New York Arbitration Week event highlighted the dynamism of arbitration practice and its growing influence on global practice, demonstrating how unresolved procedural questions at the domestic level can have far-reaching consequences for the enforceability of arbitral awards and the integrity of the international arbitration system.<\/p>\n\n\n\n ABOUT THE AUTHORS<\/strong><\/p>\n\n\n\n Andrew Van Duyn<\/strong> is an associate in the Litigation Department at Debevoise & Plimpton<\/strong><\/a>. Mr. Van Duyn joined Debevoise in 2021. Mr. Van Duyn received a J.D. from New York University School of Law in 2021, where he was an International Law & Human Rights Fellow and a Robert McKay Scholar. He was a managing editor of the Journal of International Law & Politics <\/em>and a staff editor of the Yearbook on International Investment Law & Policy<\/em>. Mr. Van Duyn received a B.S. cum laude<\/em> from the University of Pennsylvania, Wharton School in 2016. He is fluent in French.<\/p>\n\n\n\n Roshni Chakraborty<\/strong> is a law clerk in the Litigation Department at Debevoise & Plimpton<\/strong><\/a>. Ms. Chakraborty joined Debevoise in 2025. She received a J.D. cum laude<\/em> from Harvard Law School in 2025, where she was a Chayes Fellow and teaching fellow for numerous courses in political philosophy. She received an A.B. magna cum laude<\/em> with Highest Honors from Harvard College in 2022, where she was a member of Phi Beta Kappa. Ms. Chakraborty is fluent in Hindi and Bengali.<\/p>\n\n\n\n Alex Nehrbass<\/strong> is a law clerk in the Litigation Department at Debevoise & Plimpton<\/strong><\/a>. Mr. Nehrbass joined Debevoise in 2025. Mr. Nehrbass received his J.D. from New York University School of Law, where he was a Robert A. Katzmann Fellow and served as online editor of the NYU Journal of International Law and Politics<\/em> and president of the International Law Society. While in law school, Mr. Nehrbass also served as research assistant to Professor Linda Silberman and as law clerk to Professor Jose Alvarez. Mr. Nehrbass received a B.A. with Dean’s Honours List distinction from McGill University in 2019. He is fluent in French, Russian and German. <\/p>\n\n\n\nThe Mock Argument<\/strong><\/h2>\n\n\n\n
Final Considerations<\/strong><\/h2>\n\n\n\n
\n\n\n\n
![\"\"](\"https:\/\/dailyjus.com\/wp-content\/uploads\/2025\/10\/2025-10-daniel-hemerly-ferreira-2.jpg\")
<\/figure>\n<\/div>\n\n\n