Forum Non Conveniens in Transnational Litigation: Winning Jurisdictional Battles Between New York and Brazil

By: Norka M. Schell, Esq. | Oct. 27, 2026

When significant business assets, investment holdings, and corporate operations span New York and South America, the primary challenge is rarely the merits of the case. The decisive question is where the case will be heard.

For multinational executives, international business owners, and expatriates, selecting the wrong legal venue can jeopardize multi-million-dollar estates. As a multi-jurisdictional divorce lawyer NYC clients rely on for cross-border strategy, our firm routinely navigates high-stakes venue disputes under the doctrine of forum non conveniens (FNC).

What Is Forum Non Conveniens in Cross-Border Litigation?

Forum non conveniens—Latin for an “inconvenient forum”—is a procedural doctrine. Under New York Civil Practice Law and Rules (CPLR § 327) and federal doctrine, a court holds the authority to dismiss a lawsuit even when personal jurisdiction and venue are technically proper.

A judge may dismiss the action if they find that justice requires the dispute to be heard in an alternative foreign court, such as Brazil.

When courts evaluate an FNC motion in New York, they weigh two sets of balancing factors:

1. Private Interest Factors

• Location of Evidence and Records: Whether corporate ledgers, bank transactions, and partnership records reside in Manhattan or São Paulo.
• Witness Access and Subpoena Power: The cost of securing depositions, as well as the need to issue letters rogatory (cartas rogatórias) under multinational treaties.
• Linguistic and Translation Costs: The expense of translating complex Portuguese financial records into English.
• Enforceability of Foreign Judgments: Whether a New York court decree can successfully obtain homologation (homologação de decisão estrangeira) before the Superior Court of Justice (STJ) or Federal Supreme Court (STF) in Brazil.

2. Public Interest Factors

• Administrative Burden on New York Courts: Preventing local dockets from being congested by foreign controversies.
• Local Interest in the Dispute: Whether the state of New York has a distinct public interest in regulating the contract or marital estate.
• Application of Foreign Law: Avoiding the need for New York judges to interpret complex civil codes, such as the Brazilian Civil Code or foreign marital property regimes.

The Strategic Battle: Common Law vs. Civil Law

A New York court will only dismiss a lawsuit under forum non conveniens if an adequate alternative forum exists. This creates significant friction between U.S. common law and Brazilian civil law systems.

Discovery Tactics: Litigants often file in New York to take advantage of expansive financial disclosure mechanisms. This is critical for uncovering hidden overseas accounts, real estate holdings, and corporate shell entities.

Defensive Venue Motions: Defendants frequently invoke forum non conveniens to shift the case to Brazil, where pre-trial document production and depositions are strictly limited.

Flawed Forum Clauses: International commercial agreements and prenuptial contracts drafted without dual-system insight often lead to expensive, multi-year venue fights in Manhattan courts.

The Advantage of Dual-Licensed Counsel with an LL.M. in International Legal Studies

Succeeding on an FNC motion requires direct comparative legal expertise. Your counsel must present clear legal argument proving whether a foreign court offers an adequate remedy and whether overseas assets can be legally reached.

Working with separate, uncoordinated legal teams in the U.S. and Latin America often leads to strategic errors. A New York attorney rarely grasps Brazilian civil procedure, while foreign counsel is seldom admitted to argue before New York state or federal courts.

Founding attorney Norka M. Schell bridges this jurisdictional divide:

• Dual Licensure: Fully admitted to practice before New York State, New York Federal Courts, and the Republic of Brazil (OAB/MG).
• Advanced International Education: Holds a Master of Laws (LL.M.) in International Legal Studies from Golden Gate University School of Law, alongside her civil law degree from Brazil.
• Over 30 Years of Litigation Experience: Deep practical experience resolving complex cross-border divorce, business disputes, and foreign asset distribution.
• Direct Trilingual Representation: Direct client communication and document analysis in English, Portuguese, and Spanish, eliminating third-party translation delays.

Protect Your Cross-Border Business and Family Assets

Whether you need to anchor your multi-jurisdictional divorce in New York or petition to dismiss a lawsuit under forum non conveniens, unified legal strategy is vital.

Contact our Lower Manhattan office today to schedule a confidential legal consultation.

• Firm: Law Offices of Norka M. Schell, LLC
• Address: 11 Broadway, Suite 615, New York, NY 10004 (Financial District)
• Phone: (212) 258-0713
• Website: thelawschell.com