United States District Court, District of Columbia
July 28, 1999
ROSEMARIE MARRA, ET AL., PLAINTIFFS,
VASO PAPANDREOU, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Urbina, District Judge.
Granting the Defendants' Motion to Dismiss the Complaint
This matter comes before the court upon the motion of the
defendants, former Greek Prime Minister Vaso Papandreou, the
Ministry of Tourism of Greece and the Greek National Tourist
Organization, to dismiss the complaint of the plaintiffs,
Rosemarie Marra and Marrecon Enterprises, S.A. Defendants seek
to dismiss the complaint on the grounds that the District of
Columbia is a forum non conveniens and that the parties'
contract selected Greece as the forum for disputes related to
the contract. For the reasons which follow, the court holds
that according to the plaintiffs' own translation of the
contract, the forum-selection clause is both enforceable and
applicable. Accordingly, the court will grant summary judgment
to the defendants on the ground of the forum-selection clause.
The Court does not reach the defendant's request to dismiss the
complaint on the ground of forum non conveniens.
A. The Parties
The plaintiffs in this action are Marrecon Enterprises, S.A., a
Liberian corporation with its principal place of business in
New York ("Marrecon") and its sole shareholder, Rosemarie
Marra, who is a citizen and resident of New York. See Compl.
¶¶ 4,5. The defendants are the Greek Minister of Tourism Vaso
Papandreou, the Ministry of Tourism of Greece ("the Ministry")
and the Greek National Tourist Organization ("GNTO")
(collectively, "the Greek government"). The GNTO is owned and
operated by the Greek government. See Compl. ¶ 8.
The Greek government revoked a casino license which had been
granted to Marrecon and its partners. Marra alleges that the
revocation breached the Greek government's contract with
Marrecon and its partners and unlawfully expropriated their
B. The Solicitation, Submission and Approval of Casino
On April 20, 1994, Greece promulgated Law No. 2206 ("Law
2206"), authorizing a bidding process for ten casino licenses.
See Mot. to Dis. filed January 29, 1999 ("Mot. to Dis."), Ex.
A. Also in April 1994. Greece sent tourism officials to meet
with potential casino investors in Manhattan. See Compl. ¶
14. The Greek government
also advertised in United States periodicals to induce American
investors to bid for the licenses. See Compl. ¶¶ 2, 16.
Pursuant to Law 2206, the Minister of Tourism issued
"Resolution 920" on June 6, 1994. Resolution 920 announced a
competition for casino licenses and required bidders to submit
bids, written in Greek, to the Ministry in Athens. See Brusca
Dec., Ex B ¶ 4. Bidders were required to deposit two million
drachmas with the Bank of Greece. See id. ¶ 7.2.
On September 9, 1994, Marrecon and six corporate partners ("the
consortium") jointly submitted a bid for a license to develop
and operate a casino/hotel/marina complex in the Flisvos
district of Attica.*fn1 On January 31, 1995, the Ministry
awarded a license to the consortium. See id., Ex. G.
Resolution 37 contained a forum-selection and choice-of-law
In January 1995, the consortium paid a license fee of eleven
billion drachmas ($44 million). See Compl. ¶¶ 3, 18. Under the
terms of Law 2206 and the consortium's license, the Greek
government was entitled to receive annual license-renewal fees,
30% of the casino's gross revenue, and a convention center
constructed by the consortium. See Marra Dec.*fn2 ¶ 23.
After thirty years, title to the casino, marina and hotel would
pass to the government. See id. ¶ 19.
C. The Revocation of the Consortium's Casino License
In October 1995, the Prime Minister resigned and his successor
appointed defendant Papandreou as Minister of Development.
See Marra Dec. ¶ 40. On February 7, 1996, Marra alleges,
Minister Papandreou publicly stated that she would honor all
agreements entered into by her predecessor. See Compl. ¶ 20.
In March 1996, the Greek State Council issued an opinion that
the resolution awarding the casino licenses (Resolution 37) was
revocable under Greek law. See Brusca Dec., Ex. H at 15-18,
20-23. Likewise, the Government License Committee issued an
opinion stating that Resolution 37 was not legal. See id.,
Ex. I at 6. On May 21, 1996, the Minister retroactively revoked
the consortium's license. See Compl. ¶ 21. The government
proffered five reasons in support of the revocation, all
turning on the interpretation of Greek law.
In October 1996, the Greek government refunded the $41 million
license fee paid by the consortium (without interest for the 21
months the Greek government held the funds).
D. Procedural History of this Action
Marra filed suit in this court in June 1996, alleging breach of
contract and unlawful expropriation. See Compl. ¶¶ 23-26.
Marra seeks $1.6 billion in damages, plus interest, costs and
attorneys fees. The Greek government moved to dismiss the
complaint on the grounds that the action is barred by (1) the
Foreign Sovereign Immunities Act of 1976 ("FSIA"), 28 U.S.C. § 1330,
1602-1611; (2) the Act of State doctrine; (3) the
doctrine of forum non conveniens; (4) lack of standing; and
(5) lack of personal jurisdiction.
Subsequently Marra moved for permission to conduct discovery
relating to the grounds asserted in the motion to dismiss. The
requested discovery included depositions of high-ranking Greek
officials. In September 1997 the court decided to determine
FSIA jurisdiction before considering the government's other
defenses. Accordingly, the court granted discovery on the FSIA
issue (relating to the defendants' efforts to solicit casino
investment funds in the United States). The court denied
without prejudice the defendants' motion to dismiss.
In November 1997 the Greek government sought and received
mandamus relief in the United States Court of Appeals for the
District of Columbia Circuit. See In re Minister Papandreou,
139 F.3d 247 (D.C.Cir. 1998). In June 1998, the Court of
Appeals instructed this court to explore potentially
dispositive non-FSIA jurisdictional defenses before ordering
discovery of Greek officials on the FSIA issue. See id. at
254. After remand, this court stayed all discovery pending
resolution of dispositive motions. The defendants then filed
the instant motion.
E. Actions in Greek Courts Concerning the Consortium's
In July 1996 the consortium itself filed a petition in a Greek
administrative court to nullify the revocation of its license.
See id., Ex. O. In January 1997, the court denied the
petition, see id. at p. 27, and the consortium appealed. See
id., Ex. P. In addition, the consortium filed an action in
Greek civil court seeking compensation. The civil court denied
the requested relief and the consortium has appealed. Both
appeals are still pending. See id. ¶¶ 1, 2.
The defendants contend that the complaint must be dismissed on
the grounds that a contractual forum-selection clause requires
Marra to litigate this matter in Greece. In support of that
motion, the defendants submit exhibits which go far beyond the
pleadings; likewise, plaintiffs' opposition relies upon
affidavits and other exhibits. Accordingly, the court treats
the motion as a motion for summary judgment. See Fed.R.Civ.P.
12(b); Fed.R.Civ.P. 56.
A. The Standard for Summary Judgment
Summary judgment is appropriate upon a finding that "there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). The substantive law upon which a claim
rests determines which facts are "material." See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). If a fact bears upon an essential element
of the legal claim, then it is material; otherwise, it is not.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986). To prevail on a motion for summary
judgment, the moving party bears the burden of establishing
that there are no genuine issues of material fact and that the
nonmoving party has failed to offer sufficient evidence to
support a valid claim. See Anderson, 477 U.S. at 256, 106
S.Ct. 2505; Celotex, 477 U.S. at 325, 106 S.Ct. 2548. In
ruling on the motion, the court must accept the evidence of the
nonmoving party as true and must draw all justifiable
inferences in favor of the nonmoving party. See Anderson, 477
U.S. at 255, 106 S.Ct. 2505. It is not sufficient, however, for
the nonmovant to establish a "mere . . . scintilla of evidence
in support of [its] position . . .; there must be evidence on
which the jury could reasonably find" for the nonmovant. Id.
at 252, 106 S.Ct. 2505. If the evidence in favor of the
nonmovant "is merely colorable, or is not significantly
probative, summary judgment may be granted." Id. at 249-50,
106 S.Ct. 2505 (citations omitted).
B. Contractual Forum-Selection Clause
The defendants contend that the forum-selection clause in the
requires the plaintiffs to litigate this matter in Greece. For
the reasons which follow, the court agrees.
1. Should the Defendants Be Estopped from Invoking the
Marra contends that the Greek government should be estopped
from invoking the forum-selection clause, maintaining that "the
defendants illegally revoked the very license they purport to
rely on for this forum selection clause, and . . . the alleged
reasons for revocation are not valid ones identified in the
license." Opp. to Mot. to Dis. at 23. This argument "puts the
cart before the horse." For this argument to succeed, the court
would have to hold that the defendants unlawfully revoked the
consortium's license. That would require the court to reach the
merits of the plaintiffs' claims. The court cannot reach the
merits of those claims, however, until and unless it finds that
the forum-selection clause does not apply.
A District Court in New York rejected the same argument raised
by the plaintiffs here:
This Court finds no merit to the plaintiffs' argument that [the
defendant] should be precluded from invoking provisions of the
contract before this Court because [the defendant] has
allegedly repudiated the contract. The plaintiffs' action
against [the defendant] arises under the contract. The mere
fact that [the defendant] in its defense alleges that it
properly terminated the contract with [the plaintiff] does not
preclude [the defendant] from looking to the contract for all
purposes in this action. [The defendant] is therefore not
estopped from invoking any venue provisions found to exist in
Contacare, USA, Inc. v. Laboratories Contapharm, 1986 WL
3504, *2 (W.D.N.Y. 1986). Accordingly, the defendants are not
estopped from invoking the forum-selection clause.
2. Enforceability of the Forum-Selection Clause.
Because the defendants are not estopped from invoking the
clause, the court must determine whether it is enforceable. In
M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct.
1907, 32 L.Ed.2d 513 (1972), the Supreme Court held that
forum-selection clauses are "prima facie valid and should be
enforced unless enforcement is shown . . . to be `unreasonable'
under the circumstances." See id. at 9-10, 92 S.Ct. 1907.
Indeed, "a valid forum selection clause [should be] given
controlling weight in all but the most exceptional cases."
Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33, 108 S.Ct.
2239, 101 L.Ed.2d 22 (1988) (Kennedy, J., concurring). The
court concludes that this is not such an exceptional case.
The presumption in favor of enforcing a forum-selection clause
applies even if the clause was not the product of negotiation.
See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111
S.Ct. 1522, 1528, 113 L.Ed.2d 622 (1991); Milanovich v. Costa
Crociere, S.p.A., 954 F.2d 763, 768 (D.C.Cir. 1992). The court
will enforce a forum-selection clause unless the opposing party
demonstrates that (1) formation of the clause was tainted by
fraud or overreaching; (2) enforcement would effectively
deprive the complaining party of his day in court or deprive
him of any remedy; or (3) enforcement would contravene a strong
public policy of the forum state. See Bremen, 407 U.S. at
12-13, 15-18, 92 S.Ct. 1907. The court concludes that none of
these exceptions to enforceability applies.
a. Voluntariness of Forum-Selection Clause
First, Marra has not alleged, nor does the record disclose any
evidence that the forum-selection clause was the product of
"fraud or coercion."*fn3 "[D]uress is any
wrongful threat of one person by words or other conduct that
induces another to enter into a transaction under the influence
of such fear as precludes him from exercising free will and
judgment . . . ." Sind v. Pollin 356 A.2d 653, 656 (D.C.
1976) (citation and internal quotation omitted). Marrecon bid
for and received the casino license as part of a multinational
consortium of seven corporations; the transaction was an
arm's-length transaction negotiated by well-financed parties
with the advice of counsel.*fn4 Indeed, the plaintiffs argue
that the forum-selection clause does not apply, not that it is
unenforceable. Even if the government had threatened not to
sign the agreement unless the consortium consented to the
clause, that would not constitute duress. Cf. Overseas
Partners v. PROGEN Musavirlik ve Yonetim, 15 F. Supp.2d 47, 53
b. The Plaintiffs Have Not Shown that Enforcement of the
Clause Will Unfairly Deprive Them of Any Remedy in Greek Court
i. Jurisdiction and Fairness of Greek Courts
Second, the plaintiffs have not demonstrated that enforcement
of the clause will "deprive them of any remedy." In making this
determination, the court conducts the same analysis used to
determine whether there is an "adequate alternative forum" in
the forum non conveniens context.
Ordinarily, a foreign court provides an adequate forum "when
the defendant is amenable to process in the other jurisdiction.
In rare circumstances, however, where the remedy offered by the
other forum is clearly unsatisfactory, the other forum may not
be an adequate alternative . . . . Thus, for example, dismissal
would not be appropriate where the alternative forum does not
permit litigation of the subject matter of the dispute." Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 254 n. 22, 102 S.Ct. 252,
70 L.Ed.2d 419 (1981). See, e.g., North Branch Prods. v.
Fisher; 284 F.2d 611 (D.C.Cir. 1960) (district court should
not have dismissed Michigan corporation's complaint against
Canadian resident where it did not appear that Canadian court
would have subject-matter jurisdiction or that plaintiff would
be able to obtain jurisdiction over defendant in Michigan),
cert. den., 365 U.S. 827, 81 S.Ct. 713, 5 L.Ed.2d 705 (1961).
It is clear that the defendants are amenable to process in
Greece and that the Greek courts have subject-matter
jurisdiction. This is evidenced by the fact that the
consortium, of which plaintiff Marrecon is a member, has
prosecuted actions in Greek courts which assert a
breach-of-contract claim against the defendants. See Brusca
Dec., Ex. O. The Greek courts exercised jurisdiction and
reached the merits of those actions. See id., Ex. P. See
generally Bank of Crete v. Koskotas, 1991 WL 280714, *1
(S.D.N.Y. 1991) (jurisdiction established by fact that
defendant "is a resident of Greece and has already been sued in
Furthermore, the plaintiffs have not alleged that Greek law
does not provide a cause of action for breach of contract or
for unlawful expropriation of private property.
Cf. Mendes Junior International Co. v. Banco Do Brasu, S.A.,
15 F. Supp.2d 332, 337-38 (S.D.N.Y. 1998) (Brazil was adequate
forum even though plaintiff alleged that Brazilian law did not
provide cause of action for breach of duty of good faith and
fair dealing or commercial reasonableness).
Lastly, the plaintiffs have not alleged that the Greek courts
are hostile or biased such that they will not fairly consider
the plaintiffs' claims. See Continental Grain Export v.
Ministry of War-Etka Co. Ltd., 603 F. Supp. 724, 729 (S.D.N Y
1984) (refusing to enforce forum-selection clause which would
have sent American litigants to Islamic revolutionary courts of
ii.Greater Inconvenience and Cost of Suit in Greece
This court recognizes, however, that the ability to bring
suit in a foreign forum does not necessarily equate with the
ease of doing so. Because the plaintiffs are opposing a
motion for summary judgment, the court assumes, without
deciding, that the plaintiffs will find it less convenient,
more time-consuming and more expensive to litigate this dispute
in Greece. Even so, the expense and inconvenience of litigating
in a foreign forum does not render that forum inadequate. See
Overseas Partners, 15 F. Supp.2d at 55 (Turkey was not rendered
an inadequate forum by requirement that foreign plaintiffs post
bond equal to 10% of amount at stake); Effron v. Sun Line
Cruises, 67 F.3d 7, 10-11 (2d Cir. 1995) ("[T]he costs and
difficulties entailed in suing in Greece, being but the obvious
concomitants of litigation abroad do not satisfy the Bremen
standard."). "Only a showing of inconvenience so serious as to
foreclose a remedy. perhaps coupled with a showing of bad
faith, overreaching or lack of notice, would be sufficient to
defeat a contractual forum selection clause." Carnival Cruise
Lines, 111 S.Ct. at 1528. Moreover, the burdens to the
plaintiffs of litigating, in Greece,
although undeniably significant — were or should have been
readily apparent to plaintiff a sophisticated commercial
entity, at the time it agreed to the . . . forum selection
clause . . . . Apparently, at that point, plaintiff considered
these obstacles to be manageable or it would not have entered
into the contract. Plaintiff has not alleged that . . . new
factual circumstances, which could not have been reasonably
foreseen at the time of contracting, have arisen.
Id.See also Bremen, 407 U.S. at 17-18, 92 S.Ct. 1907 (when
"obstacle" to litigating in foreign forum was clearly
foreseeable at time of contract, it was less persuasive). "[I]t
would be unrealistic to think that the parties did not conduct
their negotiations . . . with the consequences of the forum
clause figuring prominently in their calculations." Id. at
14, 92 S.Ct. 1907.
iii.Potential Preclusive Effect of Consortium's Actions
The court rejects any suggestion that the plaintiffs would be
unfairly "denied any remedy" in a Greek court because of the
potential preclusive effect of the consortium's litigation
there.*fn5 The plaintiffs might be bound by the Greek
judgment as to any claim by the consortium that the revocation
breached the license contract. Specifically, the plaintiffs
might be bound by the Greek courts' rulings as to the validity
of the government's stated reasons for revoking the license.
But this court would not discern any injustice if the
plaintiffs were bound by those rulings. Ms. Marra and her
corporation could have asserted these claims in Greece and, as
discussed below, the forum-selection clause required them to do
In any event, Ms. Marra emphasizes that she has two claims
which could not have been decided in the consortium's
Greek litigation: (1) a claim for "compensation for a violation
of international law [unlawful expropriation], a claim not
available to my former partners as citizens of Greece against
their own government" and (2) a claim for "unique damages by
virtue of my sale of Interglobe stock to my former
partners.*fn6" See Marra Dec. ¶ 49. Accepting the
plaintiffs' representation as true, the Greek courts have not
yet considered those claims. Thus, even if the judgments in the
consortium's Greek litigation are given preclusive effect
against the plaintiffs, those judgments will not preclude their
expropriation and stock-sale claims.
iv.Less Liberal Discovery and Witness Rules in Greece
Marra contends that Greece is an inadequate forum-because its
rules of civil procedure restrict a party's ability to conduct
discovery and call witnesses far more than the Federal Rules of
Civil Procedure. Specifically, the plaintiffs contend that
while a Greek judge has discretion to request that a party
produce documents, "[n]on-compliance . . . may lead to the
imposition of . . . [a] fine . . . between . . . $.30 and
$3.00." Dec. of Prof. Kerameus dated April 5, 1999 ¶ 8. In
addition, "witnesses cannot be forced either by the judge or by
the opponent party to appear in court or when appearing, to
testify. The court is expected to charge — but, in fact, seldom
does — the absent witness with the expenses of his
non-appearance as well as a fine varying between . . . $170 to
$1,000." Id. ¶ 11. Lastly, under Greek law, "a party can call
upon two witnesses at most . . . [u]nder totally exceptional
circumstances, and upon a showing of good cause, the court may
increase the number to three." Id. ¶ 10. For purposes of this
motion the court accepts the plaintiffs' characterization of
Greek rules of civil procedure.
Even so, the cited features of Greek civil procedure will not
deprive the plaintiffs of their "day in court" as that phrase
has been traditionally understood. "[T]he right to a day in
court means not the actual presentation of the case, but the
right to be duly cited to appear and to be afforded an
opportunity to be heard." Olsen v. Muskegon Piston Ring Co.,
117 F.2d 163, 165 (6th Cir. 1941). A foreign forum is not
inadequate unless its procedures are so deficient as to be
"wholly devoid of due process." ACLI Internat'l. v. Banque
Populaire Suisse, 652 F. Supp. 1289, 1295-96 (S.D.N.Y. 1987);
accord Kempe v. Ocean Drilling & Exploration, 683 F. Supp. 1064,
1067 (E.D.La. 1988), aff'd, 876 F.2d 1138 (5th Cir.),
cert. den., 493 U.S. 918, 110 S.Ct. 279, 107 L.Ed.2d 259
Consonant with this principle, the Court of Appeals for the
District of Columbia Circuit has upheld enforcement of a
forum-selection clause against an American plaintiff despite
the plaintiff's objection that the foreign forum's discovery
procedures were inadequate. See Commerce Consultants
Internat'l. v. Vetrerie Riunite, 867 F.2d 697 (D.C.Cir. 1989)
(plaintiff required to litigate in Italy). Federal courts
around the country overwhelmingly agree that a foreign forum's
restrictive discovery or procedural rules do not render that
forum inadequate. See, e.g., PT United Can Co. Ltd. v. Crown
Cork & Seal Co., 138 F.3d 65, 75 (2d Cir. 1998) (Indonesia was
adequate forum); Lockman Found. v. Evangelical Alliance
Mission, 930 F.2d 764, 768 (9th Cir. 1991) (Japan); Monegro
v. Rosa, 1998 WL 556527, *4 to *5 (N.D.Cal. 1998) (Dominican
Republic), recon. den., 1999 WL 38906 (N.D.Cal. 1999);
Mediterranean Golf, Inc. v. Hirsh, 783 F. Supp. 835, 848
(D.N.J. 1991); Ernst v. Ernst, 722 F. Supp. 61, 67 (S.D.N Y
1989) (France). A foreign forum is not inadequate because of
asserted deficiencies in
its discovery rules generally*fn7 or its documentary
discovery rules in particular.*fn8 Nor is a foreign forum
rendered inadequate because it offers little or no opportunity
for depositions. See Breindel & Ferstendig v. Willis Faber &
Dumas Ltd., 1996 WL 413727 (S.D.N.Y. 1996): Zipfel v.
Halliburton Co., 832 F.2d 1477, 1484 (9th Cir. 1987), cert.
den., 486 U.S. 1054, 108 S.Ct. 2819, 100 L.Ed.2d 921 (1988).
The court will not conclude that Greece is an inadequate forum
even if its discovery rules are substantially more restrictive
Furthermore, a foreign forum may be adequate even if it does
not permit American-style cross-examination at trial. See
Cliffs-Neddrill Turnkey International v. M/T Rich Duke,
734 F. Supp. 142, 146 (D.Del. 1990) (Netherlands was adequate forum
despite absence of American-style discovery and
cross-examination). Therefore, Greece is not an inadequate
forum merely because it restricts the right to call witnesses
more than United States rules do.
In short, the overwhelming consensus of the decisions is that
"the unavailability of beneficial litigation procedures similar
to those in federal district court does not render an
alternative forum inadequate." Scottish Air International v.
British Caledonian Group, 81 F.3d 1224, 1234 (2nd Cir. 1996).
The plaintiffs have not shown that the procedures of the Greek
judicial system are so deficient as to constitute a complete
denial of due process. Accordingly, this court joins other
federal courts in finding that Greece is an adequate forum for
litigation of the parties' rights. See, e.g., Effron v. Sun
Line Cruises, 67 F.3d 7, 10-11 (2d Cir. 1995); Damigos v.
Flanders Compania Naviera, 716 F. Supp. 104 (S.D.N.Y. 1989);
Hollander v. K-Lines Hellenic Cruises, S.A., 670 F. Supp. 563
c. Enforcement of the Clause Must Not Contravene a Strong
U.S. or D.C. Public Policy
Finally, the plaintiffs have not identified any "strong public
policy" which would be violated by requiring them to abide by
their contract.*fn10 To the contrary, federal common law
reflects a strong policy of upholding forum-selection clauses
for transactions which have contacts with more than one
country. In the absence of such a clause, there would be
considerable uncertainty as to the proper forum for the
resolution of disputes concerning the license.
Such uncertainty will almost invariably exist with respect to
any contract touching two or more countries, each with its own
substantive laws . . . . A contractual provision specifying in
advance the forum in which disputes shall be litigated and the
law to be applied is, therefore, an almost indispensable
precondition to achievement of the orderliness and
essential to any international business transaction.
Scherk, 417 U.S. at 516, 94 S.Ct. 2449.*fn11
clause establishing ex ante the forum for dispute resolution
has the salutary effect of dispelling any confusion about where
suits arising from the contract must be brought, sparing
litigants the time and expense of pretrial motions to determine
the correct forum . . . ." Asia North America Eastbound Rate
Agreement v. Pacific Champion Service Corp., 864 F. Supp. 195,
199 (D.D.C. 1994) (quoting Carnival Cruise Lines, 499 U.S. at
592, 111 S.Ct. 1522). In light of these policies, there is
nothing inherently objectionable about the Greek government
seeking the certainty which a forum-selection clause affords.
The clause enabled the government to award casino licenses
without the prospect of being forced to defend claims in the
diverse home courts of the licenseholders. Cf. Armstrong v.
Accrediting Council, 980 F. Supp. 53
, 59 (D.D.C. 1997) ("It is
both rational and reasonable for a lender to operate
consistently under the laws of its home state, rather than to
be forced to operate under 51 different laws . . .," which
would be the result if the court refused to enforce the
forum-selection clause), aff'd, 168 F.3d 1362
am. on den. of reh'g., 177 F.3d 1036 (D.C.Cir. 1999).
In short, the plaintiffs have not met the "heavy burden of
proof which commercial entities involved in international
business transactions must satisfy in order to set aside a
valid forum selection clause." Overseas Partners, 15
F. Supp.2d at 54-55.*fn12 Accordingly, the court concludes
that the forum-selection clause will be enforced if it is
1. Applicability of the Forum-Selection Clause
To determine whether the forum-selection clause applies, the
court turns to the language of the license agreement itself.
The Greek government awarded the casino license to the
consortium by Resolution 37, which was originally written in
Greek. The parties disagree over the proper English translation
of Resolution 37's forum-selection clause. In ruling on a
motion for summary judgment, the court must accept the evidence
of the nonmoving party as true, construe the facts in the light
most favorable to the nonmovant and draw all justifiable
inferences in favor of the nonmoving party. See Anderson, 477
U.S. at 255, 106 S.Ct. 2505; see also New Moon Shipping Co. v.
Man B&W Diesel Ag, 121 F.3d 24, 29 (2nd Cir. 1997) ("[A] party
seeking to avoid enforcement of such a contractual clause is
also entitled to have the facts viewed in the light most
favorable to it . . . ."); cf. Banco Del Estado v. Navistar
International Transp., 954 F. Supp. 1275, 1285 (N.D.Ill. 1997)
(where parties disagreed over proper translation of Spanish
contract term, "the [nonmovant]'s version must be credited" for
purposes of motion to dismiss). Accordingly, the court assumes
arguendo that the plaintiffs' translation of the clause is
According to the plaintiffs' translation, the forum-selection
[A]ny dispute or disagreement between the State or the
National Tourism Organization and the joint venture [the Marra
consortium] arising from the application of this license, the
interpretation or performance of its terms, the extent of the
rights and obligations of the State and the holder of the
license, and in general any matter that may occur concerning a
license, shall be settled by the Greek courts.
Opp. to Mot. to Dis. at 22 (emphasis added).
The plaintiffs assert, "As with any other contractual
provision, in determining the scope of [the forum-selection]
clause, courts construe the clause in line with the intent of
the parties." Opp. to Mot. to Dis. at 22. Taken in isolation,
that is not an accurate statement of the common law governing
the construction of contracts. In interpreting a contractual
term, the court must
adhere to the objective law of contracts, whereby the written
language embodying the terms of an agreement will govern the
rights and liabilities of the parties, irrespective of the
intent of the parties at the time they entered the contract,
unless the written language is not susceptible of a clear and
definite undertaking, or unless there is fraud, duress or
Kyriakopoulos v. George Washington Univ., 866 F.2d 438, 444
n. 1 (D.C.Cir. 1989) (quoting Howard Univ. v. Best,
484 A.2d 958
, 967 (D.C. 1984) (internal citations omitted)). "[W]here a
contract is clear and unambiguous on its face, a court will
assume that the meaning ordinarily ascribed to th[e] words
reflects the intentions of the parties and . . . will not look
to extrinsic evidence of intent to guide the interpretive
process." Amerada Hess Pipeline Corp. v. FERC, 117 F.3d 596,
604 (D.C.Cir. 1997) (citation and internal quotation omitted).
There is no evidence to suggest that the forum-selection clause
is the result of "fraud or duress", nor do the plaintiffs
allege that it was the product of mutual mistake. Therefore,
the court will not look beyond "the four corners" of the clause
to divine its meaning "unless the written language is not
susceptible of a clear and definite undertaking." See
Kyriakopoulos, 866 F.2d at 444 n. 1.
According to the plaintiffs' translation, the forum-selection
clause encompasses their claims. The clause concludes with a
broad catch-all phrase which holds the revocation issue within
its ambit. The clause remits the parties to Greece to litigate
"in general any matter that may occur concerning a license
. . . ." See Opp. to Mot. to Dis. at 22. The claim that a
license was unlawfully revoked plainly qualifies as "a matter
. . . concerning a license."
In short, the language of the clause is not ambiguous.
"Therefore, the Court need not, and indeed may not, go beyond
the text of the contract in its interpretation." Overseas
Partners, 15 F. Supp.2d at 52 (enforcing "clear"
forum-selection clause in breach-of-contract action and
refusing to consider document which postdated contract);
accord American Home Prods. v. Liberty Mut. Ins. Co.,
748 F.2d 760, 765 (2d Cir. 1984). Consequently, the court will not
consider the evidence proffered by the plaintiffs in support of
their argument that the parties did not intend the
forum-selection clause to apply to this dispute.
Because the plaintiffs have not shown that the forum-selection
clause is unenforceable or inapplicable, refusal to enforce the
clause "would not only allow the [plaintiff] to repudiate its
solemn promise but would, as well, reflect a parochial concept
that all disputes must be resolved under our laws and in our
courts." Matter of Cromalloy Aeroservices, 939 F. Supp. 907,
911 (D.D.C. 1996). Accordingly, the court concludes that the
license agreement obligates plaintiffs to bring these claims
only in the courts of Greece.
2. Applicability of the Forum-Selection Clause to Ms.
Marrecon is bound by the clause because it is a member of the
consortium that signed the license agreement. Although Ms.
Marra was not a party to the agreement, she is bound by the
clause as the owner of Marrecon. A non-party is bound by a
contract term if it is "closely related to the dispute such
that it becomes foreseeable that it will be bound."
Manetti-Farrow, Inc. v. Gucci America, 858 F.2d 509, 514 n. 5
(9th Cir. 1988); accord Lipcon v. Lloyd's, London,
148 F.3d 1285, 1299 (11th Cir. 1998): Hugel v. Lloyd's, 999 F.2d 206,
209 (7th Cir. 1993).
3. The Court Attaches Conditions to the Dismissal to Protect
the Plaintiffs' Ability to Bring Suit in Greece
As with dismissal under the doctrine of forum non conveniens,
the court's final task is to "ensure that [Marra] can reinstate
[her] suit in [Greece] without undue convenience or prejudice."
El-Fadl v. Central Bank of Jordan, 75 F.3d 668, 679 (D.C.Cir.
1996). To effectuate this purpose, the court will attach two
conditions to its order of dismissal.
First, defendants must appoint an agent to receive service of
process in New York or the District of Columbia for suit in
Greece. See Id. at 679 ("[T]he court may condition a
dismissal on [defendant]'s agreement to be served in the
District of Columbia for suit in Jordan.").
Second, the court recognizes that applicable limitations
periods established by Greek law may have expired during the
pendency of this action. Accordingly, the defendants must agree
to waive any statute of limitations or laches defense in any
action which the plaintiff's file in Greece related to this
dispute within six months from the instant dismissal. See Pain
v. United Technologies Corp., 637 F.2d 775, 780 (D.C.Cir.
1980), cert. den., 454 U.S. 1128, 102 S.Ct.980, 71 L.Ed.2d
116 (1981); see also Hodes v. S.N.C. Achille Lauro,
858 F.2d 905, 916 (3d Cir. 1988), cert. dis., 490 U.S. 1001, 109 S.Ct.
1633, 104 L.Ed.2d 149 (1989); Fluroware, Inc. v. Dainichi
Shoji K.K., 999 F. Supp. 1265, 1271 (D.Minn. 1997); cf. Krol
v. AAMCO Transmissions. Inc., 1991 WL 276006 (E.D.Pa. 1991).
(enforcement of forum-selection clause unreasonable when it
would result in the plaintiffs claims being time-barred). In
the event that the defendants fail to comply with these
conditions, this court reserves the right to vacate its order
of dismissal and reinstate this action for further proceedings.
For the foregoing reasons, the court concludes that the
forum-selection clause in the consortium's license agreement is
enforceable and applies to this dispute. Accordingly, the court
shall grant summary judgment to the defendants and dismiss the
complaint with prejudice subject to the conditions set forth in
An appropriate Order directing the parties in a fashion
consistent with this Memorandum Opinion is separately and
contemporaneously executed and issued this 27 day of July,
Granting the Defendants' Motion to Dismiss Pursuant to the
Contractual Forum Selection Clause
For the reasons set forth in this court's separately and
contemporaneously issued Memorandum Opinion,
it is this 26th day of July, 1999
ORDERED that the mandatory forum-selection clause set forth
in Article 7 of Ministerial Decision and Approval No. 37 of the
Hellenic Republic of Greece, dated January 31, 1995, shall be
and hereby is enforced; and it is
FURTHER ORDERED that the complaint of the plaintiffs,
Rosemarie Marra and Marrecon Enterprises S.A., shall be and
hereby is dismissed with prejudice
pursuant to said clause, subject to the conditions set forth
below; and it is
FURTHER ORDERED that no later than August 15, 1999 the
defendants shall collectively designate one agent to receive
service of process in the District of Columbia or New York City
for any lawsuit related to this dispute which the plaintiffs
may choose to file in the courts of Greece; and it is
FURTHER ORDERED that the defendants shall waive any
statute-of-limitations or laches defense which they might
otherwise be entitled to assert in any action which the
plaintiffs file in the courts of Greece related to this dispute
within six months of the date of this order; and it is
FURTHER ORDERED that the defendants shall file with this
court, by Wednesday, August 4, 1999, a writing dated and signed
by a representative of each defendant acknowledging and
consenting to the terms of this order; and it is
FURTHER ORDERED that if the plaintiffs notify the court that
the defendants have failed to comply with the above conditions,
the court shall be entitled to require the defendants to rebut
the allegation of noncompliance by written submission, by
appearing in court or both; and it is
FURTHER ORDERED that if the court finds that the defendants
have failed to comply with the above conditions, the court
shall have the discretion to vacate this order of dismissal and
reinstate this action for further proceedings in this court;
and it is
FURTHER ORDERED that the court retains jurisdiction to the
extent necessary to enforce the terms of this order.