The parties agree that Argentine law recognizes Hidrovia’s cause of action and that the
Argentine courts have the power to depose the parties, order the production of documents and
subpoena witnesses for trial. (Compare Great Lakes’ Reply, Ex. C, Rolon Aff. ff] 17-22 with
Hidrovia’s Surreply, Ex. A, Oriolo Supplemental Aff. § 13.) The fact that Argentine evidence-
gathering tools may be different in timing and scope from those available here does not make
Argentina an inadequate forum. Borden, Inc. v. Meiji Milk Prods, Co., Ltd., 919 I'.2d 822, 829 (2d
Cir, 1990) (“The unavailability of beneficial litigation procedures similar to those available in the
federal district courts docs not render an alternative forum inadequate.”); see Satz v. McDonnell
Douglas Corp., 244 F.3d 1279, 1283 (11" Cir. 2001) (“The plaintiffs’ concerns about Argentine
filing fecs, the lack of discovery in Argentine courts, and their fear of delays in the Argentine courts
do not render Argentina an inadequate forum.”).

The next step in the analysis is to balance the private and public interests in the case, Kamel,
108 F.3d at 803. The private interests include: plaintiff's choice of forum, the ease of access to
sources of proof, the availability of process to compel the attendance of unwilling witnesses and the
cost of obtaining their attendance and any other “practical problems that make trial of a case, easy,
efficient and economical.” Id. The public interests include:

the administrative difficulties stemming from court congestion; the local interest in

having localized disputes decided at home; the intcrest in having the trial of a

diversity case in a forum that is at home with the law that must govern the action; the

avoidance of unnecessary problems in conflicts of law or in the application of foreign
law; and the unfairness of burdening citizcns in an unrelated forum with jury duty.



at 5-10.) In fact, the connection between Argentina and this dispute is so close, that Argentine law
governs it. (See 11/5/02 Mem. Opinion & Order at 3-5.)

Though Illinois has an interest in regulating the actions of its corporate citizens, this is hardly
the kind of Jocalized dispute that demands a local trial. Moreover, given the state of this Court's
docket, it would be unreasonable for us to devote the kind of time and resources that would be
necessary to translate, learn and apply Argentinc law to this dispute, when the courts of Argentina
are available to resolve it. Given Argentina’s intimate involvement with this case, the courts of that
country should be given both the benefit and the burden of resolving it.

‘The Court recognizes that dismissing this suit thwarts Hidrovia’s forum choice and may
increase the length of the litigation. (See Hidrovia’s Opp’n, Ex. G, Oriolo Aff. 4| 14 (stating that
average case resolution time for Argentine courts is three to four ycars).) But those arc the only
forum non conveniens factors that favor keeping the case here. Dismissing the case for refiling in
Argentina, on the other hand, ensures that it will be tried by a court familiar with the applicable law,
that critical third-party witnesses will be available to testify, that most of the documents will be close
at hand and in the native language of the forum, and that the foram most closely related to this

dispute will resolve it. For all of these reasons, Great Lakes’ motion to dismiss on the grounds of

forum non conveniens is granted.



Mr. Oriolo does say, however, that “there are no pre-trial oral depositions, or provisions for
answers to written interrogatories or document requests” under the Argentine National Code of Civil
and Commercial Procedure (“the Code”). (Hidrovia’s Opp’n, Ex. G, Oriolo Aff. $5.) Rather, he
says that the parties must present the evidence on which they will rely at the time they [ile their
pleadings. (Id. 47.) Rarely, an Argentine court will order a defendant to produce documents before
trial, Mr. Oriolo says, but it will do so only if the plaintiff specifically identifies the documents
sought and has a demonstrably reasonable fear that the evidence will be unavailable later. (Id. ff 5-
6.)

Mr. Rolon, Great Lakes’ expert on Argentine law, paints quite a different picture of the
process. Ile says that the Code enables “a prospective plaintiff [to] ask the court to order the
prospective defendant to produce an affidavit identifying certain personal information, exhibits, or
documents.” (Great Lakes’ Reply, Ex. C, Rolon Aff. J 10.) Moreover, Mr. Rolon says that the
Code cmpowers the judge to order the production of documents, permits parties to serve
interrogatories on public and private entitics and allows the parties to request depositions of their
opponents. (Id. {[{| 17-19.)

Undoubtedly, the truth about the Argentine litigation process lies somewhere between the
all or nothing extremes described by the parties. But, because neither party saw fit to provide the
Court with an English translation of the relevant Code sections, the precise contours of the process
remain a mystery, In the end, however, it does not matter. A forum is inadequate only if the remedy
it provides “is so clearly inadequate or unsatisfactory,” as when “the alternative forum docs not
permit litigation of the subject matter of the dispute,” that “itis no remedy at all.” Piper Aireraft Co.

vy, Reyno, 454 U.S. 235, 254 & n,22 (1981).



a e rY

Obviously, Hidrovia has chosen this Court as its forum. Asa foreign citizen, however, that
choice is entitled to littic deference. Piper Aircrafi, 454 U.S. at 266. Thus, Hidrovia’s forum choice
tips the balance only slightly in its favor.

The access to proof factor, however, weighs heavily in favor of dismissal. ‘he gravamen of
Hidrovia’s claim is that Great Lakes pressured the Argentine government directly, and through
others, to breach various terms of the concession contract. ‘hus, four sets of witnesses will be
necessary to prosecute and defend the case: (1) the Great Lakes employees who contacted the
Argentine government; (2) the Argentine officials who were on the receiving of Great Lakes’ elforts
and made the decisions about the concession contract; (3) the media members, shippers and U.S.
government officials through whom Great Lakes acted; and (4) the Ilidrovia employees with
knowledge about the allegations of its complaint.

Great Lakes says there are three witnesses in the first category, Kyle Johnson, Richard Lowry
and Gavin Lough. (See generally Hidrovia's Opp’n, Ex. A, Greai Lakes’ Interrog. Answers.)
Messrs. Johnson and Lowry arc in Oakbrook, Illinois, (Id.) Mr. Lough is in Argentina. (Id.) There
are eight current or former Argentine officials in the second category, a]l of whom are in Argentina.
(Id.) The witnesses in the third category include Michelle Brockmann, editor of a dredging industry
trade publication, who is in Miami, Florida, and four representatives of Argentine shipping interests
and three representatives of the United States government, all of whom are in Argentina. (Id.; id.,
Ex. D, GL 5, 8-10; Great Lakes Reply, Ex. 1, Johnson Dep. at 108.) Finally, the five Hidrovia

employees most knowledgeable about its claim are also in Argentina. (Great Lakes’ Reply, Ex. A,

Heiremans Dep. at 10, 27-28, 37, 40-41, 44, 51-32, 63-81.)



Conclusion
For the reasons set forth above, Great Lakes’ motion to dismiss this case on the grounds of
forum non conveniens is granted. ‘his is a final and appealable order.

ENTER:

UNITED STATES DISTRICT JUDGE

DATED: Y-2 $-03



Mitre Order Porm Qi/7)

x : United sta district Court, Northern vistrice Muninois
| ene of Assigned Judge Paul E. Plunkett Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 5408 DATE 4/25/2003
CASE Hidrovia, S.A. vs, Great Lakes Dredge
TITLE

[ln the following hox (a) indicate the patty filing the motion, v.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the mation being presented.

MOTION:

DOCKET ENTRY:

qd) Oo Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due _

QB) Oo Answer bricf to motion due___. Reply to answer briefdue__

(4) qa Ruling/learingon___—sct for__ at

(5) oO Status hearing{held/continued to] [sct for/re-set for]on___——sct fort.
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) oO Trial[set for/re-sct forlon at

(8) im [Bench/Jury trial] [Hearing] held/continued toa

(9) QO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) OLocal Rule 41.1 OC FRCP41(a(1) OO PRCP41(a)(2),

ao [Other docket entry] . ENTER MEMORANDUM OPINION AND ORDER: Great Lakes’ motion
to dismiss this case on the grounds of forum non conveniens is granted. This is a final and appealable
order.

(1) @f [For further detail see order attached to the original minute order.)

No notices required, advised in open court,

No notices required.
a number of notions

Notices mailed by judge's staff, APR 22 003

Notified counsel by telephone.

date dacketed

Docketing to mail notices.

Risen 7

Mail AO 450 form.
Copy to judge/nasfitstrate a)

“Dt berg “nm

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dive nate notise
courtroom —

TBK deputy’s

initials -

Date/time received in
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° @

Though all of those witnesses are important, the most critical are the Argentine officials. It
is their testimony about why they suspended the subsidies to Hidrovia that will make or break
Hidrovia’s tortious interference claim. Unlike this Court, which has no power to sccure their
testimony, or that of any other Argentine witness, there is no dispute that an Argentine court can do
so. (See Great Lakes’ Reply, Ex. C, Rolon Aff. ff] 20-21; Iidrovia’s Surreply, Ex. A, Oriolo
Supplemental Aff. 7 13.) Given the importance of this testimony to both the prosecution and the
defense, this Court’s inability to subpoena the Argentine government officials militates in favor of
dismissing the suit.

The majority of the documents rclevant to the case are also in Argentina. Though some of
Great Lakes’ documents are at its olfices in Illinois, some are in Argentina, as are Hidrovia’s
documents, the documents of the Argentine shippers and the documents of the Argentine
government. [his Court cannot compel the Argentine entities 10 produce documents [or the case.
Moreover, even if all of the Argentine entities would agree to do so, and there is no indication that
they would, those documents would have to be translated into English, a costly and time-consuming
process. In short, it would be difficult, if not impossible, for the partics to secure relevant
documentary evidence if the case were tried here.

It is not surprising that most of the evidence required for this case is in Argentina because
that is where the dispute is centered. The casc revolves around a concession contract between an
Argentine company and the Argentine government to operate a waterway in Argentina. As Hidrovia
describes it, Great Lakes’ alleged “campaign” to replace Hidrovia as concessionaire was directed at
the Argentine government and was carried out by Great Lakes’ Argentine agent, with the help of

Argentine shippers and representatives of the U.S. government in Argentina. (See Hidrovia’s Opp’n

-6-



oo
t

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
f°8 28 2003
HIDROVIA, S.A., )
)
Plaintiff, )
)
v. ) No. 02 C 5408

) Paul E. Plunkett, Senior Judge
GREAT LAKES DREDGE )
& DOCK CORPORATION, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

‘The case is before the Court on Great Lakes Dredge & Dock Corporation’s (“Great Lakes”)
entered and continued motion to dismiss the amended complaint on the grounds of forum non

conveniens. Tor the reasons set forth below, the motion is granted.

Discussion'
Under the doctrine of forum non conveniens, “a trial court may dismiss a suit over which it
would normally have jurisdiction if it best serves the convenience of the parties and the ends of

justice.” Kamel v, Hill-Rom Co., 108 F.3d 799, 802 (7th Cir. 1997).

'The facts are fully set forth in the Court’s November 5, 2002 Memorandum Opinion and
Order granting Great Lakes’ motion to dismiss Hidrovia’s original complaint and will not be
repeated here.

-l-

KO



When an alternative forum has jurisdiction to hear a case, and when a trial in the
chosen forum would result in vexation and oppression to the defendant which would
Jar outweigh the plaintiff's convenience or when the chosen forum would generate
administrative and legal entanglements for the trial court, the court may dismiss the
case.

The first step in the forwm non conveniens analysis is to determine whether an adequate
alternative forum is available to hear the dispute, Jd. “An alternative forum is available if al! partics
are amenable to process and are within the forum's jurisdiction.” Id. at 803. ‘The forum is adequate
if “the parties will not be deprived of all remedies or treated unfairly.” Id,

The parties agree that Argentina is an available alternative forum, (See Great Lakes’ Mem.
Supp. Mot. Dismiss at 7-8; Hidrovia’s Opp’n. at 12.) Hidrovia contends, however, that Argentina
is not an adequate forum to resolve the dispute because: (1) Hidrovia would not be able to enforce
an Argentine judgment or receive American dollars in satisfaction of any judgment; (2) [Tidrovia
would not be able to compel the testimony of witnesses; and (3) Ilidrovia’s ability to prove its case
would be hampered by the lack of pre-trial discovery in Argentine courts. (Hidrovia’s Opp’n at 12.)

Hidrovia has offered no evidence to substantiate these concerns, Hernan Martin Oriolo,
Hidrovia’s expert on Argentine law, says nothing at all about the feasibility of enforcing an
Argentine judgment or Hidrovia’s ability to have an Argentine judgment satisficd in American
dollars. (See generally Ilidrovia’s Opp’n, Ex. G, Oriolo Aff.) Moreover, he admits that Argentine
courts have the power to compel the testimony of witnesses al trial, (Compare Great Lakes’ Reply,

Ex, C, Rolon Aff, § 20 with Hidrovia’s Surreply, Ex, A, Oriolo Supplemental Aff. | 13.) Because

these purported concems are speculative at best, they do not make Argentina an inadequate forum.