Affirming Forum Non Conveniens Dismissal Against Defaulting Foreign Sovereign Defendants

Introduction

This commentary examines the Fourth Circuit’s April 22, 2025 opinion in AdvanFort Company v. Zamil Offshore Services Company, a forum non conveniens appeal arising from a maritime‐security dispute. AdvanFort, a Virginia‐based anti‐piracy firm, sued Zamil Offshore (a Saudi shipyard operator) and the Saudi Ports Authority (a foreign sovereign) in the Eastern District of Virginia for tort claims stemming from alleged damage to its vessel, the Seaman Guard Virginia, while it sat in a Saudi Arabian port. The district court dismissed on forum non conveniens grounds despite the Ports Authority’s default. AdvanFort appealed, arguing that: (1) its home forum was preferable; (2) Saudi courts were unavailable or inadequate; and (3) the default by the Ports Authority precluded dismissal. The Fourth Circuit, in a published majority opinion by Judge King (joined by Senior Judge Floyd) and over Judge Thacker’s dissent, affirmed.

Summary of the Judgment

The Fourth Circuit held that:

A district court’s inherent authority to dismiss on forum non conveniens extends to defaulting defendants, so AdvanFort’s entry of default against the Ports Authority did not bar dismissal.
Zamil satisfied its burden of showing an adequate and available alternative forum in Saudi Arabia, despite arguments that AdvanFort would need to litigate against each defendant in separate Saudi tribunals.
The district court correctly “partially discounted” the deference to AdvanFort’s choice of its home forum because AdvanFort chose to do business in Saudi Arabia.
Private‐interest factors (e.g., location of evidence and witnesses, inability to compel Saudi witnesses) and public‐interest factors (e.g., local interest, avoidance of complex Saudi law) strongly favored Saudi courts.

The court thus affirmed the dismissal against both Zamil and the defaulting Saudi Ports Authority on forum non conveniens grounds, without reaching the personal‐jurisdiction question.

Analysis

Precedents Cited

Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981): Sets out the three‐step forum non conveniens framework (alternate forum availability, adequacy, and public/private interest balancing).
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (2007): Confirms inherent power to dismiss on forum non conveniens without resolving jurisdiction on the merits.
Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947): Enumerates private‐interest and public‐interest factors in forum non conveniens analysis.
DiFederico v. Marriott Int’l, Inc., 714 F.3d 796 (4th Cir. 2013): Explains when and how to “partially discount” deference to a plaintiff’s home forum choice.
Galustian v. Peter, 591 F.3d 724 (4th Cir. 2010): Requires defendants to carry burden of establishing alternative forum availability to all defendants.
Kontoulas v. A.H. Robins Co., 745 F.2d 312 (4th Cir. 1984): Emphasizes that a defendant must identify the specific court(s) that would hear a foreign dispute.
Frow v. De La Vega, 82 U.S. 552 (1872): Holds that a defaulting defendant benefits when the suit is properly dismissed on the merits as to all defendants.
U.S. ex rel. Hudson v. Peerless Ins. Co., 374 F.2d 942 (4th Cir. 1967): Reaffirms Frow’s principle in modern practice.

Legal Reasoning

The court’s reasoning unfolded in four key steps:

Inherent Authority & Default: Even though the Ports Authority defaulted under the FSIA’s 60‐day answer requirement (28 U.S.C. § 1608(d)), the district court’s inherent power to dismiss on forum non conveniens was not constrained by that default. The court relied on Sinochem’s recognition that forum non conveniens is a non‐merits ground, and on Frow’s rule that a defaulting defendant may share in the dismissal when the same analysis applies.
Availability of an Alternative Forum: Zamil had to show that Saudi Arabian courts could exercise jurisdiction over both it and the Ports Authority. AdvanFort argued it would need to sue the Ports Authority in the Board of Grievances and Zamil in the Commercial Court, “splintering” the suit. The Fourth Circuit accepted the district court’s crediting of Zamil’s expert, who explained that the Board of Grievances can, at its discretion, join private parties if statutory requirements are met, thus creating a single forum for all claims.
Adequacy of the Saudi Courts: AdvanFort alleged systemic bias and corruption in Saudi courts. The district court treated these as “generalized,” pointed to AdvanFort’s prior Saudi litigation (where its claims were dismissed but Zamil recovered only a fraction of its requested damages), and concluded the Saudi judicial system offers due process and the possibility of justice. Anecdotal allegations of corruption failed to meet the “rare circumstances” standard for inadequacy.
Public & Private Interest Balancing: The court “partially discounted” the usual deference to AdvanFort’s choice of its home forum because AdvanFort “voluntarily elected” to do business in Saudi Arabia. On private interests—location of evidence and witnesses, inability to compel Saudi witnesses, length and cost of U.S. trial—Saudi Arabia was far more convenient. On public interests—local interest, jury duty, comparative‐law burdens—Saudi Arabia again prevailed, especially because Saudi law would govern under Virginia’s choice‐of‐law rules.

Impact

This decision clarifies and solidifies several important points:

Scope of Default: A foreign sovereign’s default under the FSIA does not insulate it from a forum non conveniens dismissal. Courts retain inherent authority to dismiss all defendants—even those in default—when traditional FNC analysis applies equally.
Availability of Multi‐Tribunal Foreign Forums: A foreign forum may be deemed “available” even if claims against different defendants would typically lie in separate tribunals, so long as statutory discretion exists to consolidate them.
Deference to Home Forums: Multinational U.S. corporations may not enjoy full home‐forum deference if they choose to conduct significant business abroad. This case reinforces DiFederico’s guidance on partial deference when the dispute is rooted in foreign operations.
Foreign Corruption Allegations: Generalized or anecdotal allegations about judicial corruption will seldom defeat an FNC motion; plaintiffs must show “rare circumstances” of extreme bias or absence of remedy.

Complex Concepts Simplified

Forum Non Conveniens

A doctrine permitting a court to dismiss a case when a more appropriate forum exists abroad. The test requires (1) an available and adequate alternative forum, and if so, (2) a balancing of private‐ and public‐interest factors.

Availability vs. Adequacy

Available: The foreign forum must be able to hear the case—i.e., all parties are amenable to process there, and statutory or discretionary mechanisms exist to consolidate claims.
Adequate: The foreign system must offer a meaningful opportunity for justice—not necessarily identical procedures or outcomes, but at least basic due-process protections and a remedy.

FSIA Service & Default

Under 28 U.S.C. § 1608(a)(3), a foreign sovereign is served by mailing materials to its foreign ministry, with service deemed effective upon receipt. Section 1608(d) then gives 60 days to answer or else default may be entered.

Private‐Interest Factors

Include accessibility of evidence and witnesses, cost, location of events, and the ability to compel testimony.

Public‐Interest Factors

Include the local interests of the forums, policing administrative burdens (e.g., repetitive jury duty), and avoiding the burdens of complex foreign‐law interpretation.

Conclusion

The Fourth Circuit’s decision in AdvanFort reaffirms the strong discretion district courts possess to dismiss on forum non conveniens, even against a defaulting foreign sovereign. It clarifies that “availability” may encompass multiple tribunals so long as foreign law offers a path to consolidate claims, and that generalized corruption allegations without concrete proof rarely defeat an adequate‐forum finding. Moreover, it underscores that U.S. corporations conducting significant overseas operations cannot shield themselves indefinitely in domestic courts. Going forward, litigants and courts in international tort and maritime disputes will look to this case when questions of foreign sovereign default and the adequacy of multi‐tribunal forums arise.