A Few Lingering Thoughts On Sinochem International (argued Jan. 9)

For my Supreme Court Seminar, I assign four merits cases for the class to review, argue and decide. This semester, one of those cases is Sinochem International v. Malaysia International Shipping, which was argued on Tuesday, January 9. As you may recall, Sinochem involves the question of whether a district court can dismiss a case on forum non conveniens grounds before making a final decision on personal and subject matter jurisdiction. In this case, the district court found subject matter jurisdiction, but ordered further discovery on whether the court possessed personal jurisdiction over petitioner. Instead of ordering such discovery, however, the court dismissed on forum non conveniens grounds, finding essentially that the Chinese court was a more convenient and competent forum.

As someone who teaches federal courts, this case has garnered my interest. The arguments of both parties were rightly focused on the question of whether forum non conveniens is a merits or non-merits basis for dismissal. The Solicitor General filed a brief in support of petitioner, highlighting that the Court in the past has held that issues such as venue and abstention can be decided in advance of formal jurisdictional questions. In reading the respondent’s brief, I found it very odd that it did not try to argue by analogy, instead repeatedly asserting that jurisdiction is a threshold issue that must be decided before anything else. Indeed, the respondents even seemed to concede at one point that the doctrine of forum non conveniens, while tied up with the merits, is a non-merits basis for decision.

One analogy that immediately sprung to mind was Saucier v. Katz, in which the Court held that courts must first decide whether a constitutional violation has occurred before moving on to the second question of whether qualified immunity is available. In many cases, proceeding to the second question would be far more efficient, and would permit the lower courts to avoid direct confrontation with difficult constitutional questions. Yet the Court held that qualified immunity is a two-step sequential inquiry. While the policies are no doubt different, the petitioner in Sinochem argued that courts should be able to dismiss on forum non conveniens grounds because it is quicker and often more efficient, and would permit courts to avoid the difficult constitutional questions tied up with personal jurisdiction. The respondents could have, but did not, argue in response that Saucier demonstrates that the more efficient route for dismissal of a case is not always the correct doctrinal one. It seems to me that the rationale is especially strong in the case of jurisdiction, where the Court has repeatedly held that jurisdiction is a threshold inquiry. I am by no means arguing that it would have been a winning argument, but it sure seems to me that it would have made the respondent’s claim much stronger. However, maybe I am missing something here because I read little beyond the briefs and the lower court opinion.