On April 18, 2023, the First Department issued a decision in Travelers Cas. & Sur. Co. v. Vale Can. Ltd., 2023 NY Slip Op. 01976, holding that New York was not an inconvenient forum even though most events relevant to an action took place outside the US, explaining:
[T]he record establishes that when addressing Vale Canada and RSA’s forum non conveniens arguments, the motion court considered and weighed the relevant factors in making its determination, even if it did not explicitly delineate and address all of the factors in its written order. The court considered and weighed the fact that many of the underlying events in this coverage dispute took place in New York, as the bulk of the policies were issued, brokered, or negotiated here. It also considered whether Ontario would be an adequate alternative forum in light of the fact that Ontario had been found not to have jurisdiction over one insurer, which had issued 15 policies, and that another insurer had excluded Canadian risks. It weighed the potential burden on the courts and hardship or prejudice to Vale Canada and RSA in having to litigate the coverage dispute here rather than in Ontario. The court exercised its discretion in weighing the relevant factors, and its determination will not be disturbed unless it improvidently exercised its discretion.
We find that the court providently exercised its discretion, and that neither Vale Canada nor RSA have satisfied their heavy burden of establishing that plaintiff’s selection of New York is not in the interest of substantial justice. While no single factor is controlling, the court properly determined that there is a substantial nexus between this litigation and New York, as the bulk of the policies were either issued, brokered, or negotiated here. Indeed, Vale Canada and RSA failed to establish that the transactions giving rise to the causes of action arose primarily in Ontario, as this coverage dispute involves many different policies issued in the United States, and concerns potential liability related to mines located throughout Canada and in Wales, Japan, Indonesia, and New Jersey. The witnesses and documents relevant to the causes of action are likely to be located in various different locations, not just Ontario. Vale Canada and RSA also have not established significant hardship by having to litigate this dispute in New York rather than Ontario. There has been no showing of a conflict of law between the two jurisdictions, but even assuming Canadian law might apply, the court properly determined that that would not pose a significant burden on the New York courts, which are fully capable of applying Canadian law. Finally, the court properly considered and weighed the availability of Ontario as an alternative forum, including whether the Ontario court would have jurisdiction over all the defendant insurers that filed cross-claims against Vale Canada.
Vale Canada’s argument that the court considered irrelevant factors is unavailing. The factors listed in Islamic Republic are not exhaustive, and forum non conveniens is a flexible doctrine that depends on the unique facts and circumstances of each case.
(Internal quotations and citations omitted).