AlGosaibi v Maan AlSanea - Forum Non Conveniens?

Conveniens or Non?

Supreme Court of New York State 60 Center Street Manhattan New York City

Copyright Djmutex 

GNU Free Documentation License

 

The National has a report today that Judge Lowe seems to be leaning towards accepting Mr. AlSanea's argument that New York is a forum non conveniens.

One of the key arguments for that is that the principals in the case don't speak English well enough to participate in a US Court Case.  One wonders how they managed to conduct their global businesses,  though SMS is known to strike in the most unlikely places.

But could not a counterargument against forum non conveniens be made on similar grounds, arguing from the technical nature of the  matters before the Court.  This case involves rather complicated financial transactions that are relatively rare in occurrence.  Matters that are very likely not to be self evident.  Lots of complicated transactions to boot.

That has two major consequences.

First, with respect to the analysis of and  presentation of evidence.

1. A variety of experts are going to be required to testify on the data and give their analyses.   Many, if not most,  of these documents appear to be in the English language.  Not Arabic. Deal tickets for FX transactions, confirmations of those deals, records of conversations over the Reuters Dealing System.  Applications for letters of credit.  And note the application forms supplied by a Kuwaiti bank to its client in Saudi Arabia are in English!  And the correspondence between The International Banking Corporation (a bank in Bahrain) with the applicant on that letter of credit are again in English!   Copies of documents presented under those letters of credit.    Copies of instructions to transfer funds.  By the look of it The International Banking Corporation ("TIBC") had a high volume treasury.  US$ 6 billion or so  just in April 2009. More than 100 loan and customer files at TIBC.  No doubt multiple loan requests, interest payments, and other correspondence for each client and each loan.   Borrowings by TIBC or other entities with major international banks.  Complicated loan agreements subject to NY or English law.  Billions of dollars worth.   One might argue all highly technical documents.  And lots and lots of them.  Reams of pages.  Few in Arabic.
2. As well there are allegations that  signatures and documents were forged.  That transactions were fraudulent in the inception.  That what appear to be foreign exchange deals are in effect disguised loans.  That letters of credit were really not for trade transactions.  All matters requiring expert testimony to help determine if the allegations have merit.  Matters requiring the utmost precision in analysis. And clarity in testimony.
3. The experts with the greatest ability to speak to these issues are likely to be from the USA or Europe.  Why?  Sadly, these events occur more frequently here.  And thus US or European experts have more experience with these cases.  As a result, they have had more chances to develop their analytical techniques and skills.  And refine them including in the crucible of a courtroom setting.  One thing is for sure.  These witnesses do not speak fluent Arabic.   I'm willing to bet their Arabic is much worse than the purported unfamiliarity with English of some of the witnesses.  If the evidence is not properly presented, what chance is there of a fair trial?  And that applies of course to both parties - defendant and plaintiff.  And it's very likely the questions directed at them and their answers going to be at a much more technical than the questions posed to other witnesses.
4. One might also wonder about the translation of  these highly technical reports and testimony into Arabic.  Is the technical vocabulary as advanced as in English?  Is there an exact word in Arabic for the English term?  Will something be "lost in translation"? A subtle nuance glossed over? A technical explanation as to why a particular finding is justified made incomplete?  Will the translations reflect the specific limits of  the expert's analysis?

Second on the familiarity of the Courts with this sort of evidence.

1. I'd bet that more cases of this nature are held in New York State (USA#1!) than in the Saudi Courts.
2. As a result, NY Judges sitting in the Supreme Court of New York are going to be more familiar with the concepts, with the testimony and the ability to evaluate it.  As are the counsel of both parties and so better able to defend their clients' interests.   All officers of the court well versed and equipped to evaluate the case.  Experienced hands and minds.
3. Will a judge in Saudi Arabia or one of the parties' Saudi counsel have that same knowledge.? I think that's highly unlikely.  In the interests of justice would a judge in New York with  good old Midwestern common sense want to take that chance? 
4. In fact, it's a pretty well known that King Abdullah is engaged in an effort to bring the Saudi Court system out of the Middle Ages.  The Saudi Consultative Council just spent the early part of this year reviewing a comprehensive plan for such reform.  And here I'm talking about competence, training,  systems and equipment, etc.  Not the law to be applied.  But the ability to apply the law.  Judges are being sent abroad for training because they are not felt by the King to be up to the level he believes appropriate.  Additional resources are being provided to ease the burden of judges.  More and trained assistants.  Modernization of facilities, equipment and systems. 
5. Of course, neither of the two parties wants to disparage the Saudi Courts, though I suppose counsel have reviewed closely the comments on Saudi Law and enforcement in the Offering Circular for Golden Belt Sukuk #1 a US$650 million offering undertaken  for the benefit of Mr. AlSanea's company.  They are  after all good Saudi citizens.  Perhaps, one day they might well wind up in Saudi Courts on this or another matter and don't want any excess baggage in the courtroom with them.  Major law firms no doubt don't want to needlessly burn any bridges with negative comments.  But who could argue with the concept of greater familiarity with technical matters?  Familiarity which will give the NY judges an advantage in sifting through the evidence.   If a Saudi has a heart problem and needs mitral valve surgery, his decision to go to Cleveland for an operation would probably be considered a wise one.   The Cleveland Clinic has a world renowned reputation in that field.   Not a condemnation of Saudi medicine.  Just a choice of of the surgeon and hospital with greater experience.  More successful operations performed.
6. What might give pause to the forum non conveniens argument is the famous case in a neighboring Kingdom where when confronted with a forward FX transaction the learned judge asked "Who buys fish in the sea?"   A country whose judicial system is considered more advanced than that in Saudi.