United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 19, 2019 Decided June 19, 2020

No. 18-7140

D&S CONSULTING, INC., (DSCI), A NEW JERSEY 

CORPORATION,

APPELLANT

v.

KINGDOM OF SAUDI ARABIA, HIS EXCELLENCY ADEL BIN 

AHMED AL-JUBEIR, MINISTER OF FOREIGN AFFAIRS,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cv-00787)

Richard S. Sternberg argued the cause for appellant. With 

him on the brief was D. Cory Bilton.

Alexandra E. Chopin argued the cause for appellee. With 

her on the brief was Mitchell R. Berger.

Before: SRINIVASAN, Chief Judge, TATEL, Circuit Judge, 

and GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge SRINIVASAN.
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SRINIVASAN, Chief Judge: D&S Consulting, Inc., (DSCI) 

entered into an agreement to perform services for the Kingdom 

of Saudi Arabia. The contract provided that the Board of 

Grievances, a Saudi Arabian administrative court, “shall be 

assigned for settlement of any disputes” arising out of the 

contract. DSCI later filed an action against the Kingdom in 

D.C. Superior Court. The Kingdom removed the case to 

federal district court and filed a motion to dismiss the 

complaint on the grounds of forum non conveniens, pointing to 

the forum-selection clause in the parties’ contract. 

The district court granted the Kingdom’s motion, holding 

that the contract’s forum-selection clause is mandatory and that 

the dispute thus belonged before the Board of Grievances. We

agree and affirm. 

I.

In February 2013, DSCI, a New Jersey corporation, 

submitted a bid to the Kingdom of Saudi Arabia to perform as 

the prime contractor on certain wireless communication 

projects for the Saudi Ministry of the Interior. DSCI won the 

government contract, and the parties executed their agreement 

in Riyadh. The parties agreed that performance would occur in 

Saudi Arabia, the contract would be governed by Saudi law, all 

books and records would be kept in Arabic in Saudi Arabia, 

and payment would be made in Saudi riyals. 

This case concerns the contract’s forum-selection clause, 

which states in relevant part: 

“The grievance council shall be assigned for settlement 

of any disputes or claims arising from the execution of 

this cont[r]act, or related to this contract, or resulting 

from its dissolution.” 
3

D&S Consulting, Inc. v. Kingdom of Saudi Arabia, 322 F.

Supp. 3d 45, 48 (D.D.C. 2018). The “grievance council” is the 

Board of Grievances, an administrative court in Saudi Arabia. 

The Board has jurisdiction over government contract claims 

brought against the Kingdom.

Notwithstanding the contract’s forum-selection clause,

DSCI now seeks to bring contract-related claims against the 

Kingdom in the United States. In 2015, during the contract’s 

performance period, DSCI became insolvent and surrendered 

control of its assets to its secured creditor. According to DSCI, 

in the process of resolving its outstanding debts and 

receivables, it identified two uncollected invoices totaling 

$2,108,404.69 for work completed under the contract and

submitted them to the Kingdom for payment. After the

Kingdom refused to pay, DSCI filed a complaint in the 

Superior Court of the District of Columbia alleging breach of 

contract and unjust enrichment. 

The Kingdom removed the case to the United States 

District Court for the District of Columbia. The Kingdom then

filed a motion to dismiss the complaint on grounds of forum 

non conveniens, arguing that the forum-selection clause 

required the parties to bring any contract-related claims before

the Board of Grievances in Saudi Arabia. The district court 

granted the Kingdom’s motion to dismiss the complaint, see id.

at 52, and DSCI now appeals. 

II.

As the Supreme Court has instructed, “the appropriate way 

to enforce a forum-selection clause pointing to a state or 

foreign forum is through the doctrine of forum non 

conveniens.” Atl. Marine Constr. Co. v. U.S. Dist. Court for 
4

W. Dist. of Texas, 571 U.S. 49, 60 (2013). In particular, “if the 

plaintiff has entered into a contract to litigate his claims in a 

specific forum, the defendant may enforce that agreement by 

moving to dismiss for forum non conveniens.” Azima v. RAK 

Inv. Auth., 926 F.3d 870, 874 (D.C. Cir. 2019).

A “valid forum-selection clause” is “given controlling 

weight in all but the most exceptional cases.” Atl. Marine, 571 

U.S. at 63 (internal citation omitted). Accordingly, if a “forumselection clause is applicable, mandatory, valid, and 

enforceable, the court must almost always grant [a] motion to 

dismiss” on forum non conveniens grounds. Azima, 926 F.3d 

at 874.

In this case, there is no dispute that the forum-selection 

clause is applicable, valid, and enforceable. With regard to 

applicability, the clause covers “any disputes or claims . . . 

related to this contract, or resulting from its dissolution,” D&S 

Cons., Inc., 322 F. Supp. 3d at 48, and the claims brought by 

DSCI fall squarely within that language: the claims are for 

breach of contract and unjust enrichment concerning unpaid 

invoices for work performed under the contract. DSCI thus 

makes no argument that the matter in dispute lies outside the 

forum-selection clause’s substantive reach. Nor has DSCI

disputed the clause’s validity or enforceability. See id. at 50

(“In opposing the motion to dismiss, DSCI does not contend 

that the forum-selection clause is invalid or unenforceable.”).

Rather, the sole issue is whether the forum-selection clause 

is “mandatory.” Azima, 926 F.3d at 874. In the case of a 

mandatory clause, a court will enforce the clause except in the 

“most unusual or rare” instance in which the public interest 

requires “disrupting the parties’ settled expectations as 

reflected in the forum-selection clause.” Id. at 875–76 

(formatting modified and internal citation omitted); see Atl.
5

Marine, 571 U.S. at 63–64. But if a forum-selection clause is 

“permissive” rather than mandatory, a district court performs 

the standard forum non conveniens analysis, under which “the 

defendant must show that the case can and should proceed” in 

a jurisdiction other than where the plaintiff brought it. Azima, 

926 F.3d at 874–75. We review de novo whether a forumselection clause is mandatory and then review for abuse of 

discretion a district court’s ultimate decision to grant or deny a 

motion to dismiss for forum non conveniens. See id. at 876.

A forum-selection clause is “mandatory” if it “requires 

that litigation proceed in a specific forum,” and is “permissive” 

if it “permits litigation to occur in a specified forum but does 

not bar litigation elsewhere.” Id. at 874. With a permissive 

forum-selection clause, the parties waive their right to contest 

jurisdiction in the specified forum should any covered disputes 

be brought there, establishing at least one agreed-upon place to 

bring a claim. If a clause is mandatory, by contrast, the 

specified forum marks the only place to bring a covered claim. 

Whether a clause is mandatory or permissive is a matter of 

basic contract interpretation. See Phillips v. Audio Active Ltd.,

494 F.3d 378, 386 (2d Cir. 2007).

Here, the forum-selection clause states in pertinent part: 

“The grievance council shall be assigned for settlement of any 

disputes or claims arising from the execution of this cont[r]act, 

or related to this contract, or resulting from its dissolution.” 

D&S Cons., Inc., 322 F. Supp. 3d at 48. That clause is 

mandatory, requiring that any dispute be brought before the 

“grievance council,” i.e., the Board of Grievances in Saudi 

Arabia. The clause does more than merely give the Board

jurisdiction if a party were to opt to bring a dispute there for 

resolution. Rather, it says that either party must bring any 

covered claim before the Board. 
6

We have interpreted closely similar language to establish 

a mandatory forum rather than merely a permissible one. In

Marra v. Papandreou, we determined that a forum-selection

clause stating that “any dispute[s] . . . shall be settled by the 

Greek courts” was mandatory rather than permissive. 216 F.3d 

1119, 1120–21, 1124 (D.C. Cir. 2000) (emphasis added). Here, 

we similarly construe similar operative language: “shall be 

assigned for settlement.” By agreeing that they “shall” assign 

the “settlement” of any covered claim to the Board of 

Grievances, the parties agreed to resolve any covered claims 

before the Board, to the exclusion of any other forum.

In resisting that conclusion, DSCI notes that the forumselection clause does not contain language expressly excluding 

other fora. No magic words, though, are required to establish 

a mandatory clause. To be sure, one way to make a clause 

mandatory is to specifically refer to the designated forum as 

“exclusive” of other fora. E.g., Azima, 926 F.3d at 876 (“the 

Parties submit to the exclusive jurisdiction of the courts of 

England and Wales”). But the parties can also make clear in 

other ways that the specified forum is exclusive. For instance, 

the forum-selection clause we considered in Marra simply 

stated that any disputes “shall be settled by the Greek courts.” 

216 F.3d at 1121. 

DSCI raises a number of concerns about the adequacy of 

the Board of Grievances as a forum for resolution of its claims 

against the Kingdom. DSCI contends, for instance, that Saudi 

Arabia is an unsafe place to travel, that the judicial system there 

is neither transparent nor independent, and that the system 

discriminates against foreign parties and follows deficient 

substantive and procedural rules. But in the case of mandatory 

forum-selection clause, “we need not ask whether the location 

it identifies is available, adequate, or best for the parties’ 

private interests.” Azima, 926 F.3d at 875. Rather, the parties 
7

“have already told us that it meets these criteria” by “agreeing 

to litigate there,” and “we can assume that they selected” a 

forum “adequate to litigate their claims and to protect their 

private interests.” Id.; see Atl. Marine, 571 U.S. at 64. Indeed, 

while DSCI assertssafety and fairness concerns about litigating 

its dispute in Saudi Arabia, DSCI traveled there to execute a 

contract with the Kingdom under which it would perform work 

there over a period of several years. 

Because “private-interest factors weigh entirely in favor of 

the preselected forum” in the case of a mandatory forumselection clause, a court “may consider arguments about 

public-interest factors only.” Atl. Marine, 571 U.S. at 64.; see 

Azima, 926 F.3d at 875. Those public-interest factors include 

considerations like administrative convenience, judicial 

economy, a forum’s familiarity with applicable law, and its 

interest in hearing the case. See Atl. Marine, 571 U.S. at 63 

n.6; Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981); 

Azima, 926 F.3d at 875. And the public-interest factors will 

suffice to overcome the parties’ agreement to bring their claims 

in the designated forum only in “unusual cases.” Atl. Marine, 

571 U.S. at 64; Azima, 926 F.3d at 875. 

This is not such a case. DSCI bore “the burden of showing 

that public-interest factors overwhelmingly disfavor a transfer” 

to the agreed-upon forum. Atl. Marine, 571 U.S. at 67. DSCI, 

though, has made no effort to carry that burden, failing to put 

forward any argument that public-interest considerations

weigh against enforcing the forum-selection clause in its 

contract with the Kingdom. That is unsurprising, as the Board 

of Grievances seemingly would have a significant interest in 

hearing a dispute about a contract performed in Saudi Arabia, 

and the Board presumably is better equipped than a United 

States court to apply Saudi law, as is required by the contract’s 

choice-of-law provision. The district court thus acted well 
8

within its discretion in enforcing the parties’ agreement to 

settle their dispute before the Board.

* * * * *

For the foregoing reasons, we affirm the judgment of the 

district court dismissing DSCI’s complaint on the grounds of 

forum non conveniens. 

So ordered.