Can Forum Non Conveniens Block Enforcement of a Foreign Award? The U.S. Circuits Don't Agree

The U.S. Court of Appeals for the Ninth Circuit's recent decision in Devas Multimedia v. Antrix Corp. (August 12, 2026) adds a significant chapter to one of international arbitration's most debated procedural questions: can forum non conveniens be invoked to resist enforcement of a foreign arbitral award under the New York Convention?

The Ninth Circuit's answer is no. But the conversation is far from over.

The case: Devas won a $562.5M ICC award against Antrix, India's state-owned space commerce entity. Antrix argued that U.S. courts should defer to Indian courts on forum non conveniens grounds. The Ninth Circuit, addressing the question for the first time in the circuit, rejected the argument.

The court held that: First, the New York Convention's Articles III and V mandate recognition and enforcement, permitting refusal only on an exhaustive enumerated list. That list does not include forum inconvenience: applying forum non conveniens would effectively add a defense the treaty drafters chose not to include. Second, forum non conveniens requires an adequate alternative forum but, in enforcement actions against foreign sovereigns, only U.S. courts can attach commercial assets located on U.S. soil.

In fact, the Second Circuit came out differently in Figueiredo Ferraz v. Republic of Peru (2d Cir. 2011) where the majority reasoned that the Panama Convention's procedural clause, substantively close to Article III of the NY Convention, leaves space for forum non conveniens as a domestic procedural rule. The underlying logic is that treaties regulate whether states must enforce awards, but procedural clauses leave states room to determine how and where that happens within their own systems.

The Ninth Circuit instead draws a line between rules governing the manner of enforcement and rules that would allow enforcement to be refused altogether. The Ninth aligns with the D.C. Circuit (Tatneft v. Ukraine, 2021; Stileks v. Moldova, 2021).

So the split is: Second Circuit on one side, Ninth and D.C. on the other. The doctrine's availability varies by circuit, and the doctrinal split is substantial enough that Supreme Court review feels increasingly likely.

For practitioners, forum selection within the U.S. courts in NY Convention enforcement proceedings is now a genuinely strategic decision, and one worth thinking through before filing.