Courts developed the forum non conveniens doctrine to protect defendants from being sued in an inconvenient location. When the doctrine was established, companies were subject to personal jurisdiction wherever they conducted substantial business, and plaintiffs could “forum shop” to bring suit in a U.S. court that might have little to do with the matters at issue in the litigation. Recent U.S. Supreme Court decisions, however, have sharply restricted the locations where a defendant is subject to personal jurisdiction. Plaintiffs must now sue in the defendant's place of incorporation or headquarters; where the injury occurred; or where the defendant engaged in activities relevant to the claim. Although these new developments restricting personal jurisdiction render forum non conveniens largely redundant, courts continue to apply the doctrine to dismiss cases. This can be seen in the large number of forum non conveniens dismissals involving foreign plaintiffs injured or killed in aviation disasters.

Foreign plaintiffs often choose to file suit in the United States because our civil justice system offers substantial rights to victims compared to the courts of most other countries. These include the potential for greater compensation, a fair and non-corrupt court system with liberal discovery rules and the right to a jury trial in most cases. Defendants often move for forum non conveniens dismissal, arguing that the relevant private and public interest factors make the U.S. an inconvenient forum to defend their products and conduct. Defendants sometimes even secure dismissals even though the plaintiff could not have originally filed suit in the alternative foreign court because that court lacked personal jurisdiction. Defendants commonly agree to waive any personal jurisdiction defense to make the alternative forum available for the litigation.

In recent aviation accident litigation, courts have applied the forum non conveniens doctrine to dismiss the vast majority of lawsuits filed by foreign plaintiffs involving accidents outside the United States. Yet, in its landmark 1947 decision, Gulf Oil v. Gilbert, 330 U.S. 501 (1947), the Supreme Court emphasized that the doctrine should be employed only in “exceptional circumstances” and that “unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.” Id. at 508. The court justified the need for the doctrine because plaintiffs may choose a jurisdiction not to simply pursue justice, but to seek “perhaps justice blended with some harassment.” Id. at 507. The court was concerned that plaintiffs may “resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to [themselves.]” On the countervailing side, the court believed that defendants would not misuse the doctrine as “experience has not shown a judicial tendency to renounce one's own jurisdiction so strong as to result in many abuses.” Id. at 508.