shall be at the principal place of business of the supplier . . . All matters arising under this contract and any disputes arising hereunder shall be exclusively governed by the law of the Federal Republic of Germany." General Electric, 29 F.3d at 1097. In all of these cases, the relevant language, in context, was construed to create a mandatory and exclusive forum selection clause.
ATN cites three cases, one each from the Ninth Circuit and the Second Circuit, and a third from a district court in Utah, in which those courts construed forum selection clauses to be voluntary even though they used the term "shall" coupled with a specific locale. In Hunt Wesson Foods v. Supreme Oil Company, 817 F.2d 75 (9th Cir. 1987), the Ninth Circuit held a forum selection clause to be permissive even though it read: "[t]he courts of California, County of Orange, shall have jurisdiction over the parties in any action at law relating to the subject matter or interpretation of this contract." Id. at 76. As that court wrote: "[a]lthough the word `shall' is a mandatory term, here it mandates nothing more than that the Orange County courts have jurisdiction." Id. at 77.
The Second Circuit followed this reasoning in John Boutari and Son Wines and Spirits v. Attiki Importers and Distributors Inc., 22 F.3d 51 (2d Cir. 1994), holding that a forum selection clause stating that "any dispute . . . shall come within the jurisdiction of the competent Greek Courts," was permissive. Id. at 52. The Second Circuit noted that the language of the clause in question stated only that Greek Courts would have jurisdiction, but did not go so far as to exclude jurisdiction in other courts. The Second Circuit went on to note though, that "if mandatory venue language is employed, the [forum selection] clause will be enforced." Id. at 53.
The district court case from Utah, Utah Pizza Service v. Heigel, 784 F. Supp. 835 (D. Utah 1992), held that "a mandatory [forum selection] clause contains clear language showing that jurisdiction is appropriate in the designated forum and none other." Id. at 838. The case can, of course, can be disregarded as it directly conflicts with the holding of its reviewing court, the Tenth Circuit Court of Appeals, in Milk `n' More, which came only three months after Utah Pizza Service was decided.
The language of subsection 16.3 of the ATN/Guyana contract explicitly states that the parties agree to submit themselves to the jurisdiction of the courts of a particular place — Guyana — and, under subsection 16.1, to have their disputes settled under a particular law — Guyanese law. The import of Section 16 in its entirety is thus apparent: subsection 16.3 of the contract constitutes a mandatory forum selection clause, and ATN and Guyana must, therefore, settle their disputes arising out of the contract in the courts of Guyana.
Finally, Guyana argues in its motion to dismiss that this Court is an inconvement forum for purposes of this case. The Court agrees. Any presumption in favor of the plaintiffs choice of forum here, of course, is attenuated by the fact that Guyana was added as an afterthought defendant and the usual presumption may, in any case, be overcome when private and public interest factors clearly point towards trial in an alternative forum. See Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).
To prevail on a motion to dismiss on forum non conveniens grounds a defendant must show that an alternative forum exists and that the balance of public and private interests favors dismissal. See Piper Aircraft, 454 U.S. at 241. The private interest factors include ease of access to proof, compulsory process to obtain the attendance of hostile witnesses, the cost of transporting friendly witnesses, and other problems that represent impediments to an expeditious and inexpensive trial. The public interest factors to consider are the desirability of clearing foreign controversies from congested dockets, the extent of any local interest in resolving the controversy, and the ease with which the present forum will be able to apply the laws of an unfamiliar jurisdiction. Id. at 241 n. 6; see also Croesus EMTR Master Fund L.P. v. Federative Republic of Brazil, 212 F. Supp.2d 30, 38-40 (D.D.C. 2002).
ATN contends — without offering proof — that there are significant problems with the Guyanese legal system, including delays, and potential corruption. ATN was, however, not so concerned about the state of public integrity or the Guyanese judicial system when it voluntarily committed itself and its considerable investment, in its contract with Guyana, to a long term relationship with the government of Guyana and its judicial system. The Court finds no compelling reason to find that the courts of Guyana are not a suitable alternative forum in which plaintiff can receive an adequate and satisfactory remedy. See Nemariam v. The Federal Democratic Republic of Ethiopia, 315 F.3d 390, 395 (D.C. Cir. 2003).
A balancing of the relevant factors, both public and private, reveals the scale heavily tipped in favor of Guyana's argument that this is indeed an inconvenient forum for everyone save the original defendants who are no longer parties to this case. Virtually all of the relevant evidence is in Guyana. The public factors weigh even more heavily in favor of dismissing this action. The District of Columbia has no connection at all with the controversy. For these reasons, the Court holds that Guyana is a proper forum for this lawsuit.
For the foregoing reasons, it is, therefore,
ORDERED, that defendants Secretary John W. Snow and Jose A. Fourquet's motion to dismiss is granted; and it is
FURTHER ORDERED, that defendant Inter-American Development Bank's motion to dismiss is granted; and it is
FURTHER ORDERED, that defendant Guyana's motion to dismiss is granted; and it is
FURTHER ORDERED, that the Clerk of the Court shall forthwith enter final judgment for all defendants dismissing the complaint with prejudice.