Amicus Curiae Brief — New Mighty U.S. Trust, et al., Petitioners v. Robert Shi, as Executor of the Will of Yueh-Lan Wang, et al.

No. 19-232

In the

Supreme Court of the United States

NEW MIGHTY U.S. TRUST, ET AL.,

Petitioners,

v.

ROBERT SHI, ET AL., AS EXECUTORS

OF THE WILL OF YUEH-LAN WANG,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of A ppeals

for the District of Columbia Circuit

MOTION FOR LEAVE TO FILE BRIEF

AND BRIEF OF AMICUS CURIAE

PROFESSOR GEORGE A. BERMANN

IN SUPPORT OF PETITIONERS

David B. Toscano

Counsel of Record

Frances E. Bivens

Rebecca L. Martin

David J. Richards

Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, New York 10017

(212) 450-4000

david.toscano@davispolk.com

Counsel for Amicus Curiae

Professor George A. Bermann

291276

A

(800) 274-3321 • (800) 359-6859

MOTION FOR LEAVE TO

FILE AMICUS CURIAE BRIEF

Professor George A. Bermann respectfully requests

leave to file this timely amicus curiae brief in support of

the Petition. His distinguished career and vast experience

with transnational litigation, as outlined below, uniquely

qualify him to assist the Court in its consideration of the

Petition. Professor Bermann’s interest in the Petition is to

defend the forum non conveniens doctrine, which is highly

significant to transnational litigation, against errant legal

developments in the lower courts.

Professor Bermann moves because Respondents,

who have waived their right to oppose the Petition, have

nonetheless objected to this brief. Respondents assert

that he “has been retained as a paid expert witness in a

related matter abroad by the same persons who control

[Petitioner] New Mighty U.S. Trust.” They refer to

Professor Bermann’s retention, more than five years ago,

by counsel for four Bermuda trusts as an expert witness

before the Supreme Court of Bermuda. Counsel included

Skadden, Arps, Slate, Meagher & Flom LLP, which

represents Petitioners before this Court. In 2013 and 2014,

Professor Bermann submitted two sworn affidavits to the

Bermuda court, opining on U.S. discovery in aid of foreign

litigation pursuant to 28 U.S.C. § 1782.

Respondents’ objection to this brief based on

Professor Bermann’s past expert work lacks merit. This

brief has no connection with Professor Bermann’s work

as a paid expert in the Bermuda litigation. The subject

matter of his expert opinions is different from the forum

non conveniens issues addressed in this brief. Professor

Bermann has had no dealings or contact whatsoever—

directly or indirectly—with the trusts since that time, and

he has absolutely no financial interest in the outcome of the

Bermuda litigation or this litigation. Moreover, Professor

Bermann is represented by his own counsel before this

Court and, as noted in the amicus brief, no counsel for a

party authored the brief in whole or in part, and no party

or its counsel made a monetary contribution intended to

fund the preparation or submission of the brief.

For all of these reasons, Professor Ber mann

respectively requests that the Court grant him leave to

file this amicus curiae brief in support of Petitioners.

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ii

TABLE OF CITED AUTHORITIES

Page

CASES

Asahi Metal Indus. Co. v. Super. Ct.,

480 U.S. 102 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Bristol-Myers Squibb Co. v. Super. Ct. of Cal.,

137 S. Ct. 1773 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Dahl v. United Techs. Corp.,

632 F.2d 1027 (3d Cir. 1980) . . . . . . . . . . . . . . . . . . . . . 7

Gulf Oil Corp. v. Gilbert,

330 U.S. 501 (1947) . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 9

Leroy v. Great W. United Corp.,

443 U.S. 173 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Piper Aircraft Co. v. Hartzell Propeller, Inc.,

454 U.S. 235 (1981) . . . . . . . . . . . . . . . . . . . . . 4, 5, 7, 10

PTW Energy Servs., Inc. v. Carriere,

2019 WL 3996874 (D. Colo. Aug. 23, 2019) . . . . . . . . . 7

Shi v. New Mighty U.S. Trust,

918 F.3d 944 (D.C. Cir. 2019) . . . . . . . . . . . . . . . . 4, 5, 7

Sinochem Int’l Co. Ltd. v.

Malay. Int’l Shipping Corp.,

549 U.S. 422 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7

iii

Cited Authorities

Page

Stewart v. Dow Chem. Co.,

865 F.2d 103 (6th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . 7

World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

STATUTES AND RULES

Fed. R. Civ. P. 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

OTHER AUTHORITIES

George A. Bermann et al., Application of the

Doctr ine of For um Non Conveniens in

Summary Proceedings for the Recognition

and Enforcement of Awards Governed by

the New York and Panama Conventions,

24 A m. Rev. Int’l A rb. 1 (2013) . . . . . . . . . . . . . . . . . . 3

Maggie Gardner, Retiring Forum Non Conveniens,

92 N.Y.U. L. Rev. 390 (2017) . . . . . . . . . . . . . . . . . . . 7, 8

Walter W. Heiser, Forum Non Conveniens

and Choice of Law: The Impact of Applying

Foreign Law in Transnational Tort Actions,

51 Wayne L. Rev. 1161 (2005) . . . . . . . . . . . . . . . . . . . 8

William L. Reynolds, The Proper Forum for a Suit:

Transnational Forum Non Conveniens and

Counter-Suit Injunctions in the Federal Courts,

70 Tex. L. Rev. 1663 (1992) . . . . . . . . . . . . . . . . . . . . . 8

iv

Cited Authorities

Page

U.S. Department of State, Preparation of Letters

Rogatory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

U.S. Department of State, Taiwan Judicial

Assistance Information . . . . . . . . . . . . . . . . . . . . . . 8, 9

1

INTEREST OF AMICUS CURIAE1

Amicus curiae George A. Bermann is the Jean

Monnet Professor of European Union Law, Walter

Gellhorn Professor of Law, and the director of the Center

for International Commercial and Investment Arbitration

at Columbia Law School. A Columbia Law School faculty

member since 1975, Professor Bermann teaches courses

in, and has written extensively about, transnational

dispute resolution (international arbitration and

litigation), European Union law, international contracts,

administrative law, and World Trade Organization law.

He is an affiliated faculty member of the School of Law of

Sciences Po in Paris and the MIDS Masters Program in

International Dispute Settlement in Geneva. He is also a

visiting professor at the Georgetown Law Center.

Professor Bermann is an active international

arbitrator in commercial and investment disputes; chief

reporter of the American Law Institute’s Restatement

of the Law, The U.S. Law of International Commercial

and Investor-State Arbitration; co-author of the United

Nations Commission on International Trade Law

(“UNCITRAL”) Secretariat Guide on the Convention on

1. No counsel for a party authored the brief in whole or in part,

and no party or its counsel made a monetary contribution intended

to fund the preparation or submission of the brief. On September

10, 2019, Professor Bermann timely notified counsel of record for

Petitioners, and counsel that represented Respondents before

the Court of Appeals, of his intent to file this brief. Petitioners

consented. The parties have been given at least 10 days notice of

amicus’ intention to file. Petitioners have consented to the filing

of this brief. Respondents have not, so amicus moves for leave to

file in the attached motion.

2

the Recognition and Enforcement of Foreign Arbitral

Awards; chair of the Global Advisory Board of the New

York International Arbitration Center; co-editor-in-chief

of the American Review of International Arbitration;

and founding member of the governing body of the

International Chamber of Commerce Court of Arbitration

and a member of its standing committee.

Professor Bermann is interested in this case

because the decision below, effectively erases the

difference between the time-honored doctrine of forum

non conveniens and the distinct concept of personal

jurisdiction, by giving decisive weight to the defendants’

residence in the plaintiffs’ chosen of forum. The decision

is a significant departure from prior Supreme Court

precedent, and accordingly requires thorough review and

scrutiny by this Court to ensure the continued vitality of

this Court’s precedents as well as the survival of forum

non conveniens, a doctrine that serves a critical function

in transnational litigation.

SUMMARY OF ARGUMENT

The Court of Appeals erred as a matter of law by, in

effect, according dispositive weight to the fact that the

defendants are at home in the foreign plaintiffs’ chosen

forum. The decision below is contrary to this Court’s

controlling precedents. Its effect is to displace the

forum non conveniens doctrine by personal jurisdiction

principles. If allowed to stand, the decision below will

deprive defendants, witnesses, and forums (both domestic

and foreign) of the long-recognized benefits of a forum

non conveniens dismissal when foreign plaintiffs sue

defendants in their home forums on claims with little,

3

if any, connection to the chosen forums. Even though a

foreign plaintiff sues a U.S. defendant at its home, the

litigation may still be one that does not, on the balancing

of all relevant criteria, belong in U.S. court. To hold

otherwise would be to maintain that suits brought against

a U.S. party under the general jurisdiction of a U.S. court

are immune from dismissal on forum non conveniens

grounds. No court has taken that position before.

ARGUMENT

Forum non conveniens is a resource-conserving

doctrine that permits a trial court, in its discretion, to

decline jurisdiction over a case whose connections to the

United States are attenuated when there is an adequate

alternative foreign forum. See George A. Bermann et al.,

Application of the Doctrine of Forum Non Conveniens

in Summary Proceedings for the Recognition and

Enforcement of Awards Governed by the New York and

Panama Conventions, 24 A m. Rev. Int ’l A rb. 1, 1 (2013).

In concluding that the District Court committed a

“clear abuse of discretion,” the Court of Appeals placed

too heavy a thumb on the scale in favor of the foreign

plaintiffs’ chosen forum merely because the defendants

are at home there. Indeed, the Court of Appeals effectively

accorded dispositive weight to that fact by assigning the

defendants’ residence in the forum critical importance at

each step of its forum non conveniens analysis.

First, in determining the amount of deference due to

plaintiffs’ choice of forum, the Court of Appeals reasoned

that the District Court “failed to adequately address” that

“the Trusts were sued in their home jurisdiction, which

4

weighs heavily against dismissal.” Shi v. New Mighty

U.S. Trust, 918 F.3d 944, 950 (D.C. Cir. 2019). Second,

in weighing the private interest factors, the Court of

Appeals reasoned that “[t]he district court clearly failed

to hold the Trusts to their ‘heavy burden’ to show that a

foreign forum is significantly more convenient than a U.S.

forum that is their home jurisdiction.” Id. at 952 (citation

omitted). Third, in assessing the public interest factors,

the Court of Appeals reasoned that “[t]he Trusts can

hardly complain now that they are burdened by being sued

in their home jurisdiction when Y.C. Wang specifically

bestowed upon the District of Columbia an interest in this

case by establishing the Trusts here.” Id.

Thus, the fact that the defendants are at home in

the plaintiffs’ chosen forum was critical to the Court of

Appeals’ attempt to overcome the “substantial deference”

it owed to the District Court’s forum non conveniens

dismissal. Piper Aircraft Co. v. Hartzell Propeller, Inc.,

454 U.S. 235, 257 (1981). Indeed, the Court of Appeals’

forum non conveniens inquiry was dominated by the

defendants’ relationship with the forum, which effectively

displaced all the other factors relevant to a proper

evaluation of forum non conveniens. The fact that a

defendant is sued at home does, in and of itself, favor a

court’s retaining jurisdiction to hear a case, but it does

not, in and of itself, dictate that result. The Court of

Appeals’ fixation on a single fact flies in the face of this

Court’s unambiguous admonition against placing “central

emphasis . . . on any one factor.” Id. at 249–50.

The heavy weight that the Court of Appeals placed

on the defendants’ home is disproportionate to the

importance that this Court generally attributes to the

5

location of parties in the forum non conveniens inquiry.

In Piper Aircraft, the Court reasoned that it may be

reasonable to assume that the plaintiff’s choice of forum

is convenient, but “[w]hen the plaintiff is foreign . . . this

assumption is much less reasonable. Because the central

purpose of any forum non conveniens inquiry is to ensure

that the trial is convenient, a foreign plaintiff’s choice

deserves less deference.” Piper Aircraft, 454 U.S. at

255–56; Sinochem Int’l Co. Ltd. v. Malay. Int’l Shipping

Corp., 549 U.S. 422, 423 (2007). Thus, when the plaintiff

is not at home in its chosen forum, its choice is entitled to

less, but certainly still some, deference.

In contrast, the decision below holds that the fact that

the defendants are at home in the plaintiffs’ chosen forum

“weighs heavily against dismissal.” Shi, 918 F.3d at 950.

Thus, the Court of Appeals placed greater weight (against

forum non conveniens dismissal) on the defendants’ being

U.S.-based than this Court in Piper Aircraft placed (in

favor of forum non conveniens dismissal) on the plaintiffs’

being non-U.S.-based. As this case shows, the Court of

Appeals’ lopsided weighing has the practical effect of

precluding at-home defendants from invoking forum non

conveniens. The Court of Appeals does not explain why, in

a multi-factor analysis centered solely on convenience, a

defendant’s residence in the forum should, in and of itself,

be outcome-determinative when the same is not true for

a plaintiff’s residence outside the forum.

Significantly, the very fact on which the Court of

Appeals fixated—namely, that the defendants are at

home in the forum—functions as the basis of the District

Court’s jurisdiction over the defendants, without which

the action could not proceed in the first place. Personal

6

jurisdiction “goes to the court’s power to exercise control

over the parties.” Leroy v. Great W. United Corp., 443

U.S. 173, 180 (1979).

“ The primary focus of [the Court’s] personal

jurisdiction inquiry is the defendant’s relationship to the

forum . . . .” and “the ‘primary concern’ is ‘the burden on

the defendant.’” Bristol-Myers Squibb Co. v. Super. Ct. of

Cal., 137 S. Ct. 1773, 1779, 1780 (2017) (quoting World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)).

That inquiry is central to the due process implications

of subjecting a defendant to the burdens of litigating in

a distant forum, and to the limits on the forum’s power

over a defendant that lacks meaningful connections to

the forum. See, e.g., Bristol-Myers Squibb Co., 137 S. Ct.

at 1780–81; World-Wide Volkswagen, 444 U.S. at 292–94.

But forum non conveniens doctrine is highly distinct

from personal jurisdiction doctrine. The forum non

conveniens inquiry does not address the authority of a

court to hear a case; it concerns the court’s suitability to do

so. It is therefore understandably multidimensional. The

relevant factors include private interest factors such as

the “relative ease of access to sources of proof; availability

of compulsory process for attendance of unwilling, and

the cost of obtaining attendance of willing, witnesses,”

and public interest factors such as “local interest in

having localized controversies decided at home” and the

appropriateness of “having the trial of a diversity case

in a forum that is at home with the state law that must

govern the case, rather than having a court in some other

forum untangle problems in conflict of laws, and in law

foreign to itself.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501,

508–09 (1947).

7

Significantly, this Court has explained that forum

non conveniens analysis “presupposes” that the plaintiff’s

chosen forum has jurisdiction over the defendant.

Sinochem, 549 U.S. at 434; Gilbert, 330 U.S. at 504.

Therefore, the existence of personal jurisdiction should

not drive forum non conveniens analysis, and it is

well established that courts may invoke the forum non

conveniens doctrine to dismiss an action brought in the

defendant’s home forum, where the court has personal

jurisdiction over the defendant. See, e.g., Piper Aircraft,

454 U.S.; Dahl v. United Techs. Corp., 632 F.2d 1027 (3d

Cir. 1980); Stewart v. Dow Chem. Co., 865 F.2d 103 (6th

Cir. 1989); PTW Energy Servs., Inc. v. Carriere, 2019 WL

3996874 (D. Colo. Aug. 23, 2019).

By placing the factor that is central to personal

jurisdiction analysis—presence—at the core of its

assessment of forum non conveniens, the Court of

Appeals essentially subjected the outcome of a forum non

conveniens application to jurisdictional analysis. Notably,

that is precisely the result advocated by a law review

article—entitled “Retiring Forum Non Conveniens”—

cited by the Court of Appeals in the decision below. Shi,

918 F.3d at 951 (citing Maggie Gardner, Retiring Forum

Non Conveniens, 92 N.Y.U. L. Rev. 390, 409 (2017)).

The article expressly advocates “reform” of this Court’s

forum non conveniens doctrine “to exclude its application

in cases involving local defendants.” Gardner, supra, at 417.

Under that view, forum non conveniens would be entirely

displaced where, as here, the court has general jurisdiction

over the defendant. Where the issue is specific jurisdiction,

the article likewise proposes “to scrap the forum non

conveniens approach” in favor of a personal jurisdiction

8

analysis based on “updating and narrowing” the fairness

factors set forth in Asahi Metal Industry Co. v. Superior

Court, 480 U.S. 102 (1987). Gardner, supra, at 434. By

giving the defendants’ home status decisive weight, the

Court of Appeals has, in effect, already implemented the

article’s plan for “retiring” forum non conveniens.

Focusing principally, if not exclusively, on the

defendant’s ties to the forum assumes that the plaintiff’s

chosen forum is necessarily a convenient one for the

defendant and witnesses. That assumption is unfounded.

See William L. Reynolds, The Proper Forum for A Suit:

Transnational Forum Non Conveniens and Counter-Suit

Injunctions in the Federal Courts, 70 Tex. L. Rev. 1663,

1695 (1992) (“Over half of the dismissals in my sample

involved American defendants, all of whom were corporate,

sometimes joined with foreign defendants. These results

should not surprise anyone. Both private and public

interests analysis can easily point to a proper forum abroad

for an American company.”); Walter W. Heiser, Forum Non

Conveniens and Choice of Law: The Impact of Applying

Foreign Law in Transnational Tort Actions, 51 Wayne L.

Rev. 1161, 1175 (2005) (concluding that a presumption that

the state where a corporate defendant has its principal place

of business is a convenient forum is “very weak”).

This case illustrates the flaws in that assumption. For

example, while there are tools for developing evidence

transnationally, Taiwan is not a party to the Hague

Convention on the Taking of Evidence Abroad in Civil

or Commercial Matters. 2 Thus, compelling evidence

2. U.S. Department of State, Taiwan Judicial Assistance

Information, https://travel.state.gov/content/travel/en/legal/

Judicial-Assistance-Country-Information/Taiwan.html.

9

production or the deposition of an unwilling witness in

Taiwan for use in U.S. litigation requires a lengthy process

using letters rogatory 3 and may yield only restricted

questioning performed by a judge rather than counsel.4

By ignoring Gilbert’s “flexible” analysis that—like the

District Court below—would have considered the totality

of circumstances in this case that compel dismissal in

favor of Taiwan, and instead fixating on the defendants’

residence, the Court of Appeals effectively abrogated a

critical antidote to international forum shopping. Under

the Court of Appeals’ framework, defendants sued in their

home forum are left with little, if any, recourse against

forum-shopping by foreign plaintiffs.

3. U.S. Department of State, Preparation of Letters

Rogatory, https://travel.state.gov/content/travel/en/legal/travellegal-considerations/internl-judicial-asst/obtaining-evidence/

Preparation-Letters-Rogatory.html (“Execution of letters

rogatory may take a year or more.”).

4. According to the U.S. Department of State, “[i]f the

letters rogatory requests the taking of evidence, the Taiwan

court will not permit examination of witnesses by attorneys;

witnesses would be examined by the court on the basis of written

questions.” U.S. Department of State, Taiwan Judicial Assistance

Information, https://travel.state.gov/content/travel/en/legal/

Judicial-Assistance-Country-Information/Taiwan.html; see also

Fed. R. Civ. P. 28, advisory committee’s note to 1963 amendment

(“In executing a letter rogatory the courts of other countries

may be expected to follow their customary procedure for taking

testimony. In many noncommon-law countries the judge questions

the witness, sometimes without first administering an oath, the

attorneys put any supplemental questions either to the witness

or through the judge, and the judge dictates a summary of the

testimony, which the witness acknowledges as correct.”).

10

CONCLUSION

Forum non conveniens has long occupied a crucial

role in ensuring the fairness and efficiency of transnational

proceedings brought in the United States. Because the

decision below represents a significant departure from

prior Supreme Court precedent, anchored in Piper

Aircraft, and a significant infringement on this Court’s

role in defining the doctrine of forum non conveniens, it

requires thorough review and scrutiny by this Court. This

Court should grant the Petition.

Respectfully submitted,

David B. Toscano

Counsel of Record

Frances E. Bivens

Rebecca L. Martin

David J. Richards

Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, New York 10017

(212) 450-4000

david.toscano@davispolk.com

Counsel for Amicus Curiae

Professor George A.

Bermann