21-1510-cv (L)

Aenergy, S.A. v. Republic of Angola

In the

United States Court of Appeals

for the Second Circuit

AUGUST TERM 2021

No. 21-1510-cv (L); 21-1752 (Con)

AENERGY, S.A., COMBINED CYCLE POWER PLANT SOYO, S.A.,

Plaintiffs-Appellants,

v.

REPUBLIC OF ANGOLA, MINISTRY OF ENERGY AND WATER OF THE 

REPUBLIC OF ANGOLA, MINISTRY OF FINANCE OF THE REPUBLIC OF 

ANGOLA, EMPRESA PÚBLICA DE PRODUÇÃO DE ELECTRICIDADE, EP,

EMPRESA NACIONAL DE DISTRIBUIÇÃO DE ELECTRICIDADE, GENERAL 

ELECTRIC COMPANY, GENERAL ELECTRIC INTERNATIONAL, INC., GE

CAPITAL EFS FINANCING, INC.,

Defendants-Appellees.

On Appeal from the United States District Court

for the Southern District of New York

ARGUED: FEBRUARY 1, 2022

DECIDED: APRIL 13, 2022
2

Before: CABRANES, LYNCH, and NARDINI, Circuit Judges.

Plaintiffs Aenergy, S.A., and Combined Cycle Power Plant Soyo, 

S.A. (together, “AE”), sue various Angolan Government entities

(together, “Angola”), plus General Electric Co. and related entities

(together, “GE”). AE alleges that Angola wrongfully cancelled AE’s 

Angolan power plant contracts and seized its related property in 

violation of state and international law. It further alleges that GE 

interfered with its contracts and prospective business relations in 

violation of state law. This case presents two questions. The first is 

whether standard principles of forum non conveniens apply to AE’s

lawsuit brought pursuant to exceptions to the Foreign Sovereign 

Immunities Act, 28 U.S.C. § 1605. We hold that they do. The second 

is whether the United States District Court for the Southern District of 

New York (John P. Cronan, Judge) abused its discretion in dismissing 

AE’s Complaint on forum non conveniens grounds. We hold that it did 

not. Accordingly, we AFFIRM the orders of the District Court.

VINCENT LEVY (Gregory Dubinsky, Brian T. 

Goldman, on the brief), Holwell Shuster & 

Goldberg LLP, New York, NY, for PlaintiffsAppellants.
3

MICHAEL D. EHRENSTEIN (Latasha Johnson, 

on the brief), Ehrenstein Sager, Coral Gables, 

FL (Marc R. Rosen, Robert M. Tuchman, 

Kleinberg, Kaplan, Wolff & Cohen, P.C., 

New York, NY, on the brief), for DefendantsAppellees Republic of Angola, Ministry of 

Energy and Water of the Republic of Angola, 

Ministry of Finance of the Republic of Angola, 

Empresa Pública De Produção De Electricidade, 

EP, and Empresa Nacional De Distribuição De 

Electricidade.

THOMAS H. DUPREE, JR. (Samuel Liversidge, 

Ilissa Samplin, Daniel Nowicki, on the brief), 

Gibson, Dunn & Crutcher LLP, Washington, 

DC, for General Electric Company, General 

Electric International, Inc., and GE Capital EFS 

Financing, Inc.

JOSÉ A. CABRANES, Circuit Judge:

Plaintiffs Aenergy, S.A., and Combined Cycle Power Plant Soyo, 

S.A. (together, “AE”), sue various Angolan Government entities

(together, “Angola”), plus General Electric Co. and related entities

(together, “GE”). AE alleges that Angola wrongfully cancelled AE’s 

Angolan power plant contracts and seized its related property in 

violation of state and international law. It further alleges that GE 
4

interfered with its contracts and prospective business relations in 

violation of state law. This case presents two questions. The first is 

whether standard principles of forum non conveniens apply to AE’s

lawsuit brought pursuant to exceptions to the Foreign Sovereign 

Immunities Act, 28 U.S.C. § 1605.1 We hold that they do. The second 

is whether the United States District Court for the Southern District of 

New York (John P. Cronan, Judge) abused its discretion in dismissing 

AE’s Complaint on forum non conveniens grounds. We hold that it did 

not. Accordingly, we AFFIRM the orders of the District Court.

I. BACKGROUND

“The factual recitation here, while primarily taken from the 

complaint, is supplemented with information from affidavits.”2 AE is 

an Angolan energy company owned by a Portuguese citizen, Ricardo 

Machado. Beginning in 2013, AE worked with GE to construct and 

service electricity-generating facilities in Angola. In August 2017, 

Angola3 awarded AE thirteen contracts totaling $1.1 billion. To pay, 

1 See infra note 8.

2 Aguas Lenders Recovery Grp. v. Suez, S.A., 585 F.3d 696, 697 n.1 (2d Cir. 2009).

3 Specifically its state-owned electricity companies Empresa Pública De 

Produção De Electricidade, EP (“PRODEL”) and Empresa Nacional De Distribuição 

De Electricidade (“ENDE”), both defendants in this action. 
5

Angola4 secured a $1.1 billion credit facility from GE’s affiliate,5 of 

which $644 million was disbursed in December 2017. The contracts 

required AE to provide power plant services and to sell Angola eight 

GE-manufactured turbines. Around the same time, AE entered into 

various service contracts with GE6 and bought 14 turbines from GE—

six more than the eight turbines called for in the contracts with Angola. 

GE mistakenly thought that 12 of these turbines would be 

promptly sold by AE to Angola. As a result, GE over-estimated the 

extent to which the $1.1 billion credit facility issued by its affiliate 

would be used to pay GE itself—an error with serious accounting 

consequences. While Angola considered AE’s proposal on behalf of 

GE to amend the contracts to include 12 rather than eight turbines, 

Wilson da Costa—CEO of GE’s Angola business—fabricated letters

indicating that Angola had already approved the change, which he 

and Leslie Nelson—the head of GE’s sub-Saharan Africa business—

distributed to other GE employees. Angola7 subsequently rejected 

AE’s proposed amendment to the contracts. 

4 Specifically its Ministry of Finance of the Republic of Angola (“MINFIN”), 

a defendant in this action. 

5 Specifically GE Capital EFS Financing, Inc. (“GE Capital”), a defendant in 

this action.

6 Including with GE International, Inc. (“GE International”), a defendant in 

this action. 

7 Specifically the Ministry of Energy and Water of the Republic of Angola

(“MINEA”), a defendant in this action. 
6

Several months later, da Costa presented the forged letters to 

Angolan officials, and GE subsequently maintained that the $644 

million disbursement had in fact paid for 12 turbines, not eight as 

reflected in Angola’s contracts with AE. As a result, on September 2, 

2019, Angola—pointing to purported irregularities related to the four 

disputed turbines—terminated its contracts with AE in favor of 

contracting with GE directly. AE appealed this decision, and the 

record indicates that the Supreme Court of Angola has received 

briefing. On October 4, 2019, Angola initiated a civil suit in Luanda 

Provincial Court to restrain the four turbines. After holding an ex parte 

injunction hearing, the Luanda Provincial Court preliminarily 

restrained the turbines. AE alleges that Angola’s state-owned 

electricity companies—not the court-designated custodian—now 

possess the turbines and have moved them to a power plant facility. 

AE filed its Complaint in the District Court on May 7, 2020. AE 

alleges that Angola—which AE sues under exceptions to the Foreign 

Sovereign Immunities Act (“FSIA”)8—breached its contract and took 

8 The FSIA provides in relevant part that:

A foreign state shall not be immune from the jurisdiction of courts 

of the United States or of the States in any case—

. . .

(2) in which the action is based upon a commercial activity carried 

on in the United States by the foreign state; or upon an act performed 

in the United States in connection with a commercial activity of the 

foreign state elsewhere; or upon an act outside the territory of the 

United States in connection with a commercial activity of the foreign 
7

AE’s turbines in violation of New York state and international law. AE 

further alleges that GE tortiously interfered with AE’s contracts and 

prospective business relations in violation of New York state law. 

After briefing, oral argument, and post-argument letter briefing, the 

District Court on May 19, 2021, conditionally dismissed AE’s

Complaint on forum non conveniens grounds, finding that the courts of 

Angola would be a more “convenient” forum.9 On June 24, 2021, the 

District Court removed the conditions, and dismissed the case. AE

timely appealed both orders.

II. DISCUSSION

AE argues as to Angola that forum non conveniens dismissal is 

unavailable—or, at least, the standard for dismissal must be higher—

state elsewhere and that act causes a direct effect in the United 

States;

(3) in which rights in property taken in violation of international law 

are in issue and that property or any property exchanged for such 

property is present in the United States in connection with a 

commercial activity carried on in the United States by the foreign 

state; or that property or any property exchanged for such property 

is owned or operated by an agency or instrumentality of the foreign 

state and that agency or instrumentality is engaged in a commercial 

activity in the United States . . . .

28 U.S.C. § 1605(a). We assume without deciding that AE’s jurisdictional claims are 

correct. See Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 432 (2007)

(“A district court . . . may dispose of an action by a forum non conveniens dismissal, 

bypassing questions of subject-matter . . . jurisdiction . . . .”). 

9 See Aenergy, S.A. v. Republic of Angola, No. 20-CV-3569, 2021 WL 1998725 

(S.D.N.Y. May 19, 2021). 
8

where a claim is brought against a foreign state under an exception to 

the FSIA. AE argues as to GE, and alternatively as to Angola, that the 

District Court erred or “abused its discretion” in dismissing the 

Complaint on forum non conveniens grounds. We consider and reject 

each of AE’s arguments. 

A. Standard Forum Non Conveniens Principles Apply to AE’s

Claims Under the FSIA

AE argues that “[t]he FSIA does not permit application of

standard [forum non conveniens] doctrine.”10 To support its position, 

AE points out that the FSIA is designed to give foreign states “some 

protection from the inconvenience of suit as a gesture of comity.”11 

Because Congress has already considered convenience to foreign 

states, and “the central focus of the forum non conveniens inquiry is 

convenience,”12 AE argues that applying forum non conveniens

principles here would upset the careful balance struck by Congress. 

10 Pls.’ Br. 20. It is arguable that AE waived this argument below by noting 

it only in a footnote and “solely for preservation purposes.” See Pls.’ Mem. of Law 

in Opp’n to Defs.’ Mots. to Dismiss at 51 n.50, Aenergy, S.A. v. Republic of Angola, 

No. 20-CV-3569, Dkt. No. 79 (S.D.N.Y. Nov. 2, 2020); cf. United States v. Svoboda, 347 

F.3d 471, 480 (2d Cir. 2003) (“[W]e do not consider an argument mentioned only in 

a footnote to be adequately raised or preserved for appellate review.” (citation 

omitted)). We assume without deciding that AE waived this argument, but exercise 

our discretion to address its merits. See In re Nortel Networks Corp. Sec. Litig., 539 

F.3d 129, 133 (2d Cir. 2008) (“[T]his court has discretion to consider arguments 

waived below because our waiver doctrine is entirely prudential.”). 

11 Dole Food Co. v. Patrickson, 538 U.S. 468, 479 (2003).

12 Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249 (1981).
9

We reject AE’s argument. Initially, it is inconsistent with the 

principle articulated by the Supreme Court that the FSIA “does not 

appear to affect the traditional doctrine of forum non conveniens.”13 

While we have not squarely decided the issue after briefing, our 

holdings have assumed that this principle is an accurate and valid

statement of the law. We cited it explicitly in affirming a conditional 

dismissal on forum non conveniens grounds and noted that “[t]he 

traditional doctrine of forum non conveniens is still applicable in cases 

arising under the FSIA.”14 And we implicitly assumed its validity in 

at least two other cases, where we found proper the forum non 

conveniens dismissal of complaints brought under an exception to the 

FSIA.15 

This approach is sensible, as the principles underlying the forum 

non conveniens doctrine apply with equal weight—indeed, in some 

cases perhaps with greater weight—to lawsuits against foreign states. 

For example, it may be inconvenient for a foreign state to retain 

competent counsel, submit to pre-trial discovery, and produce its 

13 Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 490 n.15 (1983).

14 Blanco v. Banco Indus. de Venez., S.A., 997 F.2d 974, 977 (2d Cir. 1993) (italics 

added) (brackets omitted) (quoting Proyecfin de Venez., S.A. v. Banco Indus. de Venez., 

S.A., 760 F.2d 390, 394 (2d Cir. 1985)).

15 See Figueiredo Ferraz E Engenharia de Projeto Ltda. v. Republic of Peru, 665 

F.3d 384, 393 (2d Cir. 2011); In re Arb. between Monegasque De Reassurances S.A.M. v. 

Nak Naftogaz of Ukr., 311 F.3d 488, 501 (2d Cir. 2002).
10

officials for trial in U.S. courts.16 While a United States jury may have 

little or no relation to disputes involving a foreign state,17 there may be 

a strong interest in resolving claims brought against a foreign state in 

that state’s courts, particularly when the allegations relate to the state’s

domestic conduct.18 And litigation involving foreign states may 

require applying foreign law.19 These general principles, while not 

applicable to every lawsuit involving a foreign sovereign, suggest that

the forum non conveniens doctrine remains useful in the FSIA context as 

a “tool that helps prevent this country’s judicial system from becoming 

the courthouse to the world, or an international court of claims.”20

None of AE’s arguments to the contrary are persuasive. Forum 

non conveniens does not require a case-by-case consideration of comity, 

and therefore is consistent with the FSIA’s purpose in establishing a 

16 Cf. Behrens v. Pelletier, 516 U.S. 299, 308 (1996) (indicating in the qualified 

immunity context that standing trial and participating in pretrial discovery “can be 

peculiarly disruptive of effective government” (citation omitted)). 

17 See Iragorri v. United Techs. Corp., 274 F.3d 65, 74 (2d Cir. 2001) (en banc).

18 Cf. Allstate Life Ins. Co. v. Linter Grp. Ltd., 994 F.2d 996, 1002 (2d Cir. 1993) 

(finding “a strong local interest in trying [a] case in Australia” because it involved 

“one of the largest [liquidations] in Australian history and the actions undertaken 

by the Banks in furtherance of the alleged fraud were carried out in Australia by 

Australian corporations”). 

19 Scot. Air Int’l, Inc. v. Brit. Caledonian Grp., PLC, 81 F.3d 1224, 1234 (2d Cir. 

1996) (“When deciding a forum non conveniens motion, a court may properly rely on 

the difficulties attending the resolution of questions of foreign law.”).

20 Monegasque de Reassurances S.A.M. v. Nak Naftogaz of Ukr., 158 F. Supp. 2d 

377, 382 (S.D.N.Y. 2001), aff’d, 311 F.3d 488 (2d Cir. 2002).
11

“comprehensive set of legal standards.”21 The fact that the FSIA gave

foreign states “some protection from the inconvenience of suit as a 

gesture of comity”22 does not suggest that Congress intended by 

statute to override the common law principles of forum non 

conveniens,23 as the doctrine counsels a broader inquiry into a venue’s 

convenience for all parties and the public.24 Nor does applying 

traditional forum non conveniens principles necessarily allow foreign 

sovereigns to “avoid accountability even where Congress dictated 

otherwise,”25 as the availability of an adequate alternative forum is

required for forum non conveniens dismissal.26 Finally, Wiwa v. Royal 

Dutch Petroleum Co.27 does not control here. In Wiwa, we held only that 

“suits should not be facilely dismissed . . . unless the defendant has 

fully met the burden of showing that the [factors identified in Gulf Oil 

Corp. v. Gilbert, 330 U.S. 501 (1947)] tilt strongly in favor of trial in the 

21 Republic of Arg. v. NML Cap., Ltd., 573 U.S. 134, 141 (2014) (citation 

omitted).

22 Dole Food, 538 U.S. at 469.

23 See Cap. Currency Exch., N.V. v. Nat'l Westminster Bank PLC, 155 F.3d 603, 

607 (2d Cir. 1998) (noting that forum non conveniens is a “common law doctrine” that

may be “supplanted” by statute). 

24 See Iragorri, 274 F.3d at 73–74 (discussing factors that indicate the 

convenience to the litigants and the public interest in the dispute). 

25 Beierwaltes v. L’Office Federale De La Culture De La Confederation Suisse, 999 

F.3d 808, 819 (2d Cir. 2021).

26 Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 74–75 (2d Cir. 

2003).

27 226 F.3d 88 (2d Cir. 2000).
12

foreign forum.”28 Wiwa thus does not suggest, much less support, 

AE’s thesis that forum non conveniens has no place or a lesser place in 

FSIA cases. 

B. The District Court Did Not Abuse Its Discretion in 

Dismissing AE’s Complaint on Forum Non Conveniens Grounds

AE argues that the District Court erred in applying the familiar 

three-step forum non conveniens analysis set forth in the unanimous en 

banc decision in Iragorri v. United Technologies Corp.29 The three steps 

are “(1) determine the degree of deference properly accorded the 

plaintiff’s choice of forum; (2) consider whether the alternative forum 

proposed by the defendants is adequate to adjudicate the parties’

dispute; and (3) balance the private and public interests implicated in 

the choice of forum.”30

We “begin with the assumption that [AE’s] choice of forum will 

stand unless the defendant[s] meet[] the burden of demonstrating” 

that the three-step analysis favors dismissal.31 At the same time, forum 

non conveniens dismissal “lies wholly within the broad discretion of the 

[D]istrict [C]ourt and may be overturned only when we believe that 

28 Id. at 106 (brackets, citation, and internal quotation marks omitted). 

29 See generally 274 F.3d 65. 

30 Celestin v. Caribbean Air Mail, Inc., --- F.4th ----, No. 20-1412, 2022 WL 

963959, at *9 (2d Cir. 2022) (brackets, citation, and internal quotation marks 

omitted).

31 Iragorri, 274 F.3d at 71. 
13

discretion has been clearly abused.”32 A district court has “abused its 

discretion if it based its ruling on an erroneous view of the law or on a 

clearly erroneous assessment of the evidence, or rendered a decision 

that cannot be located within the range of permissible decisions.”33 

1. Degree of Deference

In the circumstances presented here the District Court did not 

err in affording minimal deference to AE’s forum choice. 

First, the District Court reasonably afforded “less deference” to 

the United States forum choice of AE—an entity incorporated in 

Angola—because it is a “foreign plaintiff.”34

Second, the District Court did not err in finding that AE and its 

lawsuit lacked a “bona fide connection to the United States and to the 

forum of choice.”35 Apart from a December 2017 receipt of funds 

disbursed by GE’s affiliate—a transfer not at issue in the Complaint 

that occurred more than a year before Angola terminated AE’s 

contracts—AE has “offered no proof that [it has] connections to the 

United States and failed to demonstrate that New York is convenient 

32 Id. at 72 (citation and emphasis omitted). 

33 In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (brackets, citations, and internal 

quotation marks omitted). 

34 See Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 154 (2d Cir. 

2005).

35 Iragorri, 274 F.3d at 72 (footnote omitted). 
14

for [it].”36 The District Court thus properly concluded that it does not 

appear “that considerations of convenience favor the conduct of the 

lawsuit in the United States.”37

We find unpersuasive in this context AE’s lead argument on 

appeal: that the District Court erred by dismissing its complaint on 

forum non conveniens grounds after holding that New York “would be 

relatively convenient for [GE] since [it is] either at home here or in a 

nearby district.”38 We have declined to assign “a plaintiff’s choice of 

forum . . . presumptive deference simply because the chosen forum is 

[a] defendant’s home forum,” especially where the selection “suggests 

the possibility that [the] plaintiff’s choice was made for reasons of trial 

strategy.”39 Caution was particularly apt here, where many of the 

contracts at issue specify that disputes will be heard in an Angolan 

arbitral forum—a fact that “modifies” forum non conveniens doctrine so 

that the “usual tilt in favor of the plaintiff’s choice of forum gives way 

to a presumption in favor of the contractually selected forum.”40 

36 Pollux, 329 F.3d at 74 (affording minimal deference based on “only a faint 

connection to the United States” where the plaintiffs’ “interactions with [the 

defendant] were centered in [the alternate forum]”). 

37 Iragorri, 274 F.3d at 72. 

38 Aenergy, 2021 WL 1998725, at *9. 

39 Pollux, 329 F.3d at 74. 

40 Fasano v. Yu Yu, 921 F.3d 333, 335 (2d Cir. 2019) (brackets and citation 

omitted). 
15

Third, the District Court’s finding that AE’s decision to file suit

here while pursuing similar claims abroad “smacks of forum 

shopping”41 was not “a clearly erroneous finding of fact.”42 Plaintiffs 

are entitled to less deference “the more it appears that [their] choice of 

a U.S. forum was motivated by forum-shopping reasons.”43 We have

stated that one indication of forum shopping is “attempts to win a 

tactical advantage resulting from local laws that favor the plaintiff’s 

case.”44 Here, the District Court had ample basis to find that AE 

sought a tactical advantage in New York, as AE “first chose a different 

forum to litigate the termination of the AE-MINEA Contracts: 

Angola[,] . . . [and] thus far, AE has not found success in those Angolan 

proceedings.”45 

41 Aenergy, 2021 WL 1998725, at *10. 

42 Pollux, 329 F.3d at 70.

43 Iragorri, 274 F.3d at 72. 

44 Id.

45 Aenergy, 2021 WL 1998725, at *10. Two other Courts of Appeals have held 

that filing suit here while pursuing claims abroad may support a factual finding of

forum shopping. See Vivendi SA v. T-Mobile USA Inc., 586 F.3d 689, 695 (9th Cir. 

2009) (holding that “the district court did not abuse its discretion when it concluded 

that [the plaintiff] was engaging in forum shopping by filing suit in the United 

States” in light of “the actions [the plaintiff] ha[d] filed across Europe”); Interface 

Partners Int’l Ltd. v. Hananel, 575 F.3d 97, 102–03 (1st Cir. 2009) (same, where the 

plaintiff “engaged in nearly four years of discovery in an Israeli forum—a forum it 

initially chose—and . . . subsequently moved to dismiss its suit ‘on the verge of 

being ready for trial’” (footnote omitted)). 
16

Nor was the District Court’s decision “an error of law,”46 as 

courts in this Circuit are not required to discount parallel litigation in 

assessing whether a plaintiff is forum shopping. AE cites several cases 

that decline to consider parallel litigation while balancing the private 

interest factors identified by the Supreme Court in Gilbert.47 But the 

Gilbert factors relate to “the convenience of the litigants,”48 not a 

plaintiff’s “reasons” for selecting a particular forum, which is at the 

heart of the forum shopping inquiry.49 AE’s reliance on Bigio v. CocaCola Co.50 is likewise misplaced because there, unlike here, the district 

court did not find that the plaintiffs were forum shopping.51 

In sum, the District Court did not err in affording minimal 

deference to AE’s choice of a New York forum.

46 Pollux, 329 F.3d at 70.

47 See, e.g., DiRienzo v. Philip Servs. Corp., 294 F.3d 21, 31 (2d Cir. 2002) 

(holding that “related litigation” involving a different class of plaintiffs was due 

“little weight” in applying the Gilbert convenience factors); Peregrine Myan. Ltd. v. 

Segal, 89 F.3d 41, 47 (2d Cir. 1996) (holding that a parallel suit brought by the same 

plaintiff against different defendants in Hong Kong did not suggest that a United 

States venue was inconvenient). 

48 Iragorri, 274 F.3d at 73.

49 Id. at 72. 

50 448 F.3d 176 (2d Cir. 2006).

51 See generally Bigio v. Coca-Cola Co., No. 97-CV-2858, 2005 WL 287397, at *2 

(S.D.N.Y. Feb. 3, 2005).
17

2. Adequate Alternative Forum

“An alternative forum is adequate [1] if the defendants are 

amenable to service of process there, and [2] if it permits litigation of 

the subject matter of the dispute.”52 AE argues that Angola does not 

“permit[] litigation”53 because (1) AE’s contract damages claim is timebarred in Angola, (2) AE could not have its claims against Angola and 

GE tried in the same Angolan court, and (3) Angola provides 

inadequate due process.54 

AE first argues that it is jurisdictionally time-barred in Angola 

from seeking breach of contract damages from Angola. We assume 

without deciding that AE’s expert has correctly interpreted Angolan 

law. “In rare circumstances, . . . where the remedy offered by the other 

forum is clearly unsatisfactory, the other forum may not be an 

adequate alternative.”55 However, “the availability of an adequate 

alternative forum does not depend on the existence of the identical 

52 Pollux, 329 F.3d at 75. 

53 Pls.’ Br. 38.

54 AE also argues that Angola is inadequate because AE’s owner, Machado, 

cannot travel there to testify due to safety concerns. This argument is unrelated to 

whether Angola “permits litigation of the subject matter of the dispute.” Pollux, 

329 F.3d at 75. It suggests instead that Angola is an inconvenient forum, see Iragorri, 

274 F.3d at 75, and AE argued as much below. We thus consider this argument as 

part of the Gilbert analysis. 

55 Piper, 454 U.S. at 254 n.22. 
18

cause of action in the other forum, nor on identical remedies.”56 Nor 

does “the prospect of a lesser recovery . . . justify refusing to dismiss 

on the ground of forum non conveniens,”57 provided that “the essential 

subject matter of the dispute can be adequately addressed” by the 

foreign court.58 

Notwithstanding the asserted unavailability of breach of 

contract damages against Angola, the District Court did not err in 

holding that these are not examples of “rare circumstances” where the

remedies afforded by a foreign forum can be said to be inadequate. 

The District Court correctly noted that AE brings “eight [other] claims” 

against both Angola and GE.59 And even if AE cannot recover 

damages on its breach of contract claim against Angola, it has sought 

equitable contract remedies in Angola,60 allowing the Angolan court 

to address the essential subject matter of the dispute.

AE next argues that Angola and GE cannot be tried in the same 

Angolan court. While Angola and GE contest this position, we assume 

56 Norex, 416 F.3d at 158 (brackets, citation, and internal quotation marks 

omitted). 

57 Alcoa S. S. Co. v. M/V Nordic Regent, 654 F.2d 147, 159 (2d Cir. 1980) (en 

banc) (italics added) (affirming dismissal where the plaintiff in Trinidad could 

“recover only $570,000 rather than $8,000,000”).

58 Cap. Currency Exch., 155 F.3d at 610–11. 

59 Aenergy, 2021 WL 1998725, at *13.

60 See App’x 592 (quoting AE’s prayer in the Supreme Court of Angola that 

the contracts “should be considered in force”).
19

without deciding that AE’s claims against Angola would proceed in 

the Supreme Court of Angola, while its claims against GE would 

proceed in Luanda Provincial Court.

This does not suggest that Angola is an inadequate alternative 

to New York. This conclusion finds support in Olympic Corp. v. Societe 

Generale.61 There, a U.S. corporation filed a complaint against a French 

bank, which in turn filed a third-party complaint against a French 

company.62 We reversed the district court’s forum non conveniens 

dismissal as to the complaint, but affirmed as to the third-party 

complaint, holding in effect that courts in different countries were 

adequate to resolve related disputes.63 Our statement that “a court 

must satisfy itself that the litigation may be conducted elsewhere 

against all defendants”64 thus does not require a single foreign court.65

Finally, AE argues that Angola’s judiciary will not provide due 

process. It points specifically to the seizure of its turbines and 

61 462 F.2d 376 (2d Cir. 1972).

62 Id. at 377–78. 

63 Id. at 379–80.

64 PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 73 (2d Cir. 1998). 

65 The ability to try related claims in one courtroom may relate to the 

convenience of a foreign venue. See Piper, 454 U.S. at 259 (“It would be far more 

convenient . . . to resolve all claims in one trial.”). But AE does not raise, and has 

thus waived, any argument that the Gilbert factors favor joinder. See Frank v. United 

States, 78 F.3d 815, 833 (2d Cir. 1996) (“Issues not sufficiently argued are in general 

deemed waived and will not be considered on appeal.”), judgment vacated on other 

grounds, 521 U.S. 1114 (1997).
20

equipment pursuant to an order issued after an ex parte hearing, and 

subsequent transport of two of its turbines to a state-owned power 

facility.66 A finding of a “lack of due process in the foreign forum” 

may support a finding that that forum is not adequate.67 “[W]hile the 

plaintiff bears the initial burden” of production in this regard, “the 

defendant bears the ultimate burden of persuasion as to the adequacy 

of the forum.”68 To make such an initial showing, plaintiffs must 

demonstrate “inadequate procedural safeguards.”69 “[S]uch a 

[showing] is rare,”70 because “it is not the business of our courts to 

assume the responsibility for supervising the integrity of the judicial 

system of another sovereign nation.”71 

The District Court properly held that AE had failed to meet its 

initial burden of production, concluding that seizure pursuant to an ex 

parte hearing did not “render[] a judicial system inadequate”; indeed 

“courts in this country hold ex parte hearings in appropriate 

circumstances.”72 This holding reasonably characterized both our 

66 While AE before the District Court referred to State Department and other 

reports describing corruption in Angola, it does not raise these reports on appeal. 

Accordingly, we do not consider them. See Frank, 78 F.3d at 833. 

67 See Abdullahi v. Pfizer, Inc., 562 F.3d 163, 189 (2d Cir. 2009). 

68 Id. 

69 PT United, 138 F.3d at 73. 

70 Id.

71 Blanco, 997 F.2d at 982 (brackets and citation omitted).

72 Aenergy, 2021 WL 1998725, at *13.
21

judicial process73 and that of Angola, where AE does not dispute that

the court has ordered only preliminary relief, and where permanent 

relief requires an adversary process of the sort now underway.74 AE 

likewise does not dispute that the Angolan judiciary is independent 

from the executive branch. AE’s argument that the seized turbines 

“went . . . to state-owned power companies that have since deployed 

them,”75 suggests at most that the Angolan court’s trustee has failed to 

fulfill its obligations. AE has proffered no evidence that Angola’s 

courts cannot in appropriate circumstances address this asserted 

failure. Nor has it proffered evidence that the Angolan court “secretly 

gave [the turbines] to [Angola],”76 or committed any other 

impropriety. 

Relatedly, the District Court did not err in finding “relevant” 

AE’s “decision to do business in Angola.”77 We agree that it is

“anomalous” for AE—an Angolan corporation—to enter into multiple 

contracts worth more than a billion dollars with the Angolan 

73 See, e.g., Fed. R. Civ. P. 65(b) (authorizing ex parte temporary restraining 

orders in limited circumstances). 

74 See App’x 190 (Angola’s expert declaration stating that the property was 

seized as a “temporary ex-parte provisional remed[y],” and that “title to the

property remains with [AE] pending final adjudication of the [P]arties competing 

rights”), 588 (AE’s expert declaration stating that Angola and AE have filed papers 

related to a “plenary process,” which is required for Angola to obtain permanent 

relief). 

75 See Pls.’ Br. 44.

76 See Pls.’ Reply 27.

77 Aenergy, 2021 WL 1998725, at *15.
22

government, subject to Angolan law and adjudication in many cases 

in an Angolan forum, and “then [to] argue to an American court that 

the [Angolan] system of justice is so . . . corrupt as not to provide an 

adequate forum for the resolution of . . . contractual disputes.”78 

We conclude that the District Court did not err in finding that 

Angola is an adequate alternative forum.

3. Gilbert Factors

“[E]ven where the degree of deference [to a foreign plaintiff’s 

choice of forum] is reduced [at step one], the action should be 

dismissed only if the chosen forum is shown to be genuinely 

inconvenient and the selected forum significantly preferable.”79 To 

assess this issue, we consider private and public interest factors. With 

respect to the private interest factors, we assess “the relative ease of 

access to sources of proof; [the] availability of compulsory process for 

attendance of unwilling, and the cost of obtaining attendance of 

willing, witnesses; [the] possibility of view of premises, if view would 

be appropriate to the action; and all other practical problems that make 

trial of a case easy, expeditious and inexpensive.”80 With respect to 

public interest factors, we consider “administrative difficulties 

associated with court congestion; the unfairness of imposing jury duty 

78 Blanco, 997 F.2d at 981.

79 Bigio, 448 F.3d at 179 (brackets, citation, and internal quotation marks 

omitted).

80 Iragorri, 274 F.3d at 73–74 (quoting Gilbert, 330 U.S. at 508). 
23

on a community with no relation to the litigation; the interest in having 

localized controversies decided at home; and avoiding difficult 

problems in conflict of laws and the application of foreign law.”81

The District Court did not err by holding that the Gilbert factors 

suggest that New York is genuinely inconvenient and Angola is 

significantly preferable. 

Concerning the private interest factors, the District Court 

reasonably held that Angola offers greater “relative ease of access to 

sources of proof.”82 All of the key events occurred in Angola. This 

includes the fabrication of letters indicating Angola’s agreement to 

buy more turbines, GE’s insistence that the contracts had been 

amended, and the Angolan President’s termination of the contracts. 

By contrast, the disbursement of funds in New York by GE’s affiliate 

is not in dispute. And GE’s United States-based employees are 

unlikely to be crucial witnesses, as they are alleged only to have 

“rel[ied] on” and received “report[s]” and “update[s]” from GE’s 

employees in Angola.83

The District Court did not err in holding that “[t]he Angolan 

government is at the heart of this case” and giving priority to the 

availability of “Angolan state officials.”84 In light of their official roles, 

81 Aguinda v. Texaco, Inc., 303 F.3d 470, 480 (2d Cir. 2002).

82 Aenergy, 2021 WL 1998725, at *17. 

83 Compl. ¶¶ 109, 162, 164. 

84 Aenergy, 2021 WL 1998725, at *17.
24

it is “unlikely that many would be willing to travel to New York to 

testify; and the cost, in any event, would be prohibitively great.”85 We 

disagree with AE’s argument that the testimony of Angolan 

government witnesses does not meaningfully bear on “the precise 

issues that are likely to be actually tried.”86 To the contrary, these 

witnesses may offer testimony on important topics, including GE’s 

alleged efforts to convince Angola to allow it to take over AE’s 

contracts and the basis and good faith of Angola’s alleged claim of 

contractual irregularities. Moreover, AE’s initial disclosures list 36 

witnesses affiliated with the Angolan government, which is

inconsistent with its claim that such witnesses are irrelevant. 

The District Court likewise did not err in concluding that 

translating “testimony from non-English speaking witnesses (or those 

that . . . would prefer to testify in another language) . . . would be a 

costly, difficult endeavor.”87 Translation for Angolan state officials 

who prefer to testify in their country’s official language (Portuguese) 

“would result in significant cost to the parties and delay to the court,” 

which “militates strongly in favor of [Angola] as a more appropriate 

forum for this litigation.”88 The same is true of many “relevant 

documents”—including the contracts at issue and related written 

85 Fitzgerald v. Texaco, Inc., 521 F.2d 448, 451–52 (2d Cir. 1975).

86 Iragorri, 274 F.3d at 74. 

87 Aenergy, 2021 WL 1998725, at *18.

88 Blanco, 997 F.2d at 982.
25

communications that would require translation from Portuguese to 

English.”89

The District Court reasonably evaluated the potential testimony 

of specific witnesses. Regarding da Costa and Nelson—the former

CEO of GE’s Angola business and the former head of GE’s subSaharan Africa business, respectively, and “two witnesses that all 

parties seem to agree would be essential at trial”—the District Court 

found it “far from certain”90 that either would be subject to a subpoena 

as “a national or resident of the United States [who is in a foreign 

country].”91 This was not a clearly erroneous assessment of the 

evidence. Da Costa may not be a U.S. resident, as his green card 

appears to have expired in 2019. Indeed, the record suggests that he 

may be an Angolan citizen residing in Angola. In any case, it is unclear 

whether a U.S. subpoena could be served upon or enforced against 

either da Costa or Nelson. And even assuming that da Costa and 

Nelson could be made available in New York, the District Court did 

not abuse its discretion in giving priority to the testimony of “officials 

from the Angolan government,”92 as discussed. 

89 Aenergy, 2021 WL 1998725, at *18.

90 Id. at *17 n.7.

91 Id. (quoting 28 U.S.C. § 1783(a)). Under some circumstances “[a] court of 

the United States may order the issuance of a subpoena requiring the appearance 

as a witness before it, or before a person or body designated by it, of a national or 

resident of the United States who is in a foreign country.” 28 U.S.C. § 1783(a).

92 Aenergy, 2021 WL 1998725, at *17 n.7.
26

The same is true of AE’s owner, Machado—“an important 

witness in this action” who claims he cannot testify in Angola due to 

“grave security concerns.”93 It is of course true that a witness’s “fear 

for [his] safety” is “relevant to the balancing inquiry.”94 But the 

District Court reasonably discounted these concerns because 

Machado’s company, AE, continues to seek reinstatement of its 

Angolan contracts.95 Even “assum[ing] [that] Machado’s fears are 

legitimate,” the District Court did not abuse its discretion in holding 

that “because all other private interest factors weigh in favor of 

dismissal, . . . such fears [do not] tip the balance in a meaningful 

way.”96

Regarding the public interest factors, the District Court correctly 

held that “[t]his case has little to do with New York and a lot to do 

with Angola.”97 As discussed, AE has not put at issue the alleged 

transfer of funds in New York, and GE’s United States-based 

employees are alleged principally to have relied upon and received 

reports from GE’s employees in Angola. While the United States has 

an interest in regulating its corporate citizens in this case, that interest 

93 Id. at *19. 

94 Iragorri, 274 F.3d at 75. 

95 Aenergy, 2021 WL 1998725, at *19.

96 Id.

97 Id. 
27

is relatively limited, and Angola has a significantly stronger interest in 

addressing disputes related to its government contracts.98

Finally, the District Court reasonably concluded that this case 

would require it “to confront ‘difficult problems in conflict of laws and 

the application of foreign law.’”99 As discussed, the contracts at issue 

are subject to Angolan law. The District Court properly held that this 

suggests that Angola is a superior forum.100

In sum, the District Court reasonably found that AE’s forum 

choice was entitled to minimal deference; that Angola is an adequate 

alternative forum; and that the public and private Gilbert factors favor

Angola. The District Court thus did not err in dismissing AE’s 

complaint under the doctrine of forum non conveniens. 

CONCLUSION

To summarize, we hold as follows:

(1) Standard principles of forum non conveniens apply to AE’s 

lawsuit brought pursuant to an exception to the Foreign 

Sovereign Immunities Act, 28 U.S.C. § 1605; and

98 See Allstate, 994 F.2d at 1002 (Australia had a stronger interest to resolve 

“one of the largest [liquidations] in Australian history,” involving actions “carried 

out in Australia by Australian corporations,” despite U.S. securities laws.). 

99 Aenergy, 2021 WL 1998725, at *20 (citation omitted). 

100 See Scot. Air Int'l, 81 F.3d at 1234 (indicating that a need for the application 

of foreign law supports forum non conveniens dismissal). 
28

(2) the District Court did not err in dismissing AE’s Complaint 

on forum non conveniens grounds.

For the foregoing reasons, we AFFIRM the District Court’s May 

19, 2021, and June 24, 2021, orders.