
USCA1 Opinion

	




          December 22, 1992                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________                                 ____________________        No. 92-1050        No. 92-1050                       GEORGE E. MERCIER AND SUSAN Y. MERCIER,                       GEORGE E. MERCIER AND SUSAN Y. MERCIER,                               Plaintiffs, Appellants,                               Plaintiffs, Appellants,                                          v.                                          v.                         SHERATON INTERNATIONAL, INC., a/k/a                         SHERATON INTERNATIONAL, INC., a/k/a                          ITT-SHERATON INTERNATIONAL, INC.,                          ITT-SHERATON INTERNATIONAL, INC.,                                 Defendant, Appellee.                                 Defendant, Appellee.                                 ____________________                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                 ____________________                                        Before                                        Before                                 Breyer, Chief Judge,                                 Breyer, Chief Judge,                                         ___________                             O'Scannlain,* Circuit Judge,                             O'Scannlain,* Circuit Judge,                                           _____________                               and Cyr, Circuit Judge.                               and Cyr, Circuit Judge.                                        _____________                                 ____________________                                 ____________________            James M.  Hartman with whom  Mary Ann Snyder  and Harris, Beach  &            James M.  Hartman with whom  Mary Ann Snyder  and Harris, Beach  &            _________________            _______________      ________________        Wilcox were on brief for appellants.        Wilcox were on brief for appellants.        ______            David S. Mortensen  with whom Lydia J.  Luz and Tedeschi, Grasso &            David S. Mortensen  with whom Lydia J.  Luz and Tedeschi, Grasso &            __________________            _____________     __________________        Mortensen were on brief for appellee.        Mortensen were on brief for appellee.        _________                                 ____________________                                 ____________________                                 ____________________                                 ____________________        *Of the Ninth Circuit, sitting by designation.        *Of the Ninth Circuit, sitting by designation.                    CYR,  Circuit Judge.    Susan and  George Mercier  sued                    CYR,  Circuit Judge.                          _____________          Sheraton International, Inc. ["Sheraton"]  for breach of contract          and  intentional  interference   with  contractual  relations  in          connection  with an alleged agreement  to establish and operate a          gambling casino at the Istanbul  Sheraton Hotel.  Sheraton  moved          for dismissal  on the ground  of forum non  conveniens, asserting          that  Turkey is the more  appropriate forum.   The district court          ordered dismissal.  Mercier v. Sheraton Int'l, Inc., 744 F. Supp.                              _______    ____________________          380 (1990) ["Mercier I"].   On appeal, we concluded  that several                       _________          factors  relevant  to  the   forum  selection  inquiry  had  been          misapplied.  Mercier v.  Sheraton Int'l, Inc., 935 F.2d  419 (1st                       _______     ____________________          Cir. 1991) ["Mercier II"].   On remand, the district  court again                       __________          ordered dismissal, imposing several conditions designed to ensure          the availability of an adequate forum in Turkey.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    In approximately 1982, George Bauer, general manager of          the  Istanbul  Sheraton  Hotel,  began  negotiations  with  Susan          Mercier for the establishment and  operation of a gambling casino          in the  hotel.   At the time,  Mercier, an American  citizen, was          operating  a cruise ship casino.  As foreigners doing business in          Turkey were  required to have Turkish  partners, Bauer introduced          Mercier  to  Fethi Deliveli,  a  Turkish  national.   Ultimately,          Mercier and her father, George Mercier, formed a partnership with          Deliveli  and  became  stockholders  in  Lidya  Turistik Tesisler          Isletmesi ["Lidya"], a Deliveli family corporation from which the          Merciers acquired the right to operate the proposed casino at the          Istanbul Sheraton.                    The casino negotiations  continued throughout 1982  and          1983,  eventually  resulting  in  the  execution  of  an  undated          Memorandum   of  Understanding  among  Bauer,  Deliveli  and  the          Merciers,  whereby the  Merciers and  Deliveli would  rent casino          space in the Istanbul  Sheraton.  The agreement was  made subject          to the  partners' procurement of  all necessary permits  from the          Turkish  government by  the  Merciers,  and  to the  approval  of          Sheraton  Corporation, Sheraton's Boston-based  parent.  Sheraton          asserts that the Turkish permits were never obtained and that the          approval of its  parent corporation was never given; the Merciers          disagree.                    In March 1984, Bauer  and Deliveli (representing Lidya)          signed a Protocol entitling Lidya to install slot machines in the          Sheraton casino  space.   The  Protocol  was conditioned  on  the          Merciers' participation in Lidya and  on the approval of gambling          by the Turkish "owning corporation" from which the hotel premises          were  leased  by Sheraton.    The  Protocol prescribed  that  its          interpretation  would   be  "governed   by  Turkish  laws,"   and          designated Istanbul  as the  proper forum  for the litigation  of          disputes  arising thereunder.    Sheraton now  contends that  the          Protocol  was intended  to  supersede the  earlier Memorandum  of          Understanding,  and  that the  Protocol  never  went into  effect          because   it  was   never   approved  by   the  Turkish   "owning                                          4          corporation."                      Sometime  during  the  summer of  1986,  following  the          collapse  of  the   Mercier-Deliveli  partnership,  the  Merciers          reconveyed  their Lidya shares to Deliveli in return for 101 slot          machines  and accession to the rights of Lidya and Deliveli under          their various  agreements with Sheraton.  The Merciers then began          negotiations with Leisure Investments, P.L.C. ["Leisure"], with a          view to  forming a  new partnership  to operate  the casino.   At          about this time, Susan Mercier left Turkey in the aftermath of an          altercation with  a Turkish national which eventually  led to the          issuance of a warrant for her arrest.  Leisure broke off negotia-          tions  with the Merciers and, in  October 1987, Leisure's wholly-          owned   subsidiary  made  a  separate  agreement  with  Sheraton,          pursuant to which the  Leisure subsidiary commenced casino opera-          tions at the Istanbul Sheraton in 1988.                                          II                                          II                                  PRIOR PROCEEDINGS                                  PRIOR PROCEEDINGS                                  _________________                    The Merciers filed the present action against  Sheraton          in the  United States Court  for the District  of Massachusetts.1          Sheraton answered and moved to dismiss on the ground of forum non          conveniens, contending that the Republic of Turkey was the proper                                        ____________________               1Their  earlier  lawsuit  against  Sheraton in  the  Western          District of  New York was  dismissed because it  mistakenly named          Sheraton  Corporation as  defendant.   Sheraton (a  subsidiary of                    ___________          Sheraton Corporation),  headquartered in Boston with  most of its          operations overseas, was  not subject to the jurisdiction  of the          New York court.                                          5          forum.  In Mercier I, the district court concluded, based on  the                     _________          affidavit  of  Dr. Yucel  Sayman,  a  Turkish law  professor  and          attorney, that the Merciers  would be able to raise  their claims          in the Turkish courts  and that    despite Susan  Mercier's legal          entanglements     Turkey  would  provide an  "adequate  available          forum."   744 F. Supp. at  384-85.  The court  further found that          various "public interest" factors militated in favor of a Turkish          forum,  including the  difficulty  of applying  Turkish law,  the          relative paucity  of ties  between the  parties' dispute  and the          Commonwealth of Massachusetts, and  the congestion in the federal          district court docket.  Id. at 386.                                  ___                    In Mercier  II, we concluded that  the Sayman affidavit                       ___________          was too incomplete  and conclusory to  meet Sheraton's burden  of          proving that  the Turkish  courts were an  available "alternative          forum"  for the  Mercier  claims, 935  F.2d  at 425-26  and  n.7.          Moreover, assuming Turkey's availability as an alternative forum,                                      ____________          we concluded that the adequacy of the Turkish forum  had not been                                ________          demonstrated,  in that  (1) the  Merciers' tort  claims might  be          time-barred under  Turkey's one-year statute  of limitations; and          (2)  Susan  Mercier's  testimony      which  the  district  court          considered "essential"     might not  be received.   Id. at  426.                                                               ___          Finally, we  noted several  deficiencies in the  district court's          forum  selection analysis.   We noted in  particular the apparent          failure  to compare  the  docket congestion  in  Turkey with  the                      _______          docket  congestion in the forum  and the failure  to consider the          potential interests of the United States, as well as the District                                          6          of Massachusetts, in affording  a forum for the litigation.   See                                                                        ___          generally id. at 427-430.          _________ ___                    We  did not  suggest that  dismissal was  foreclosed on          remand, see id. at  430, but rather that the  forum determination                  ___ ___          should  be made  only  after  further  findings  of  fact.    See                                                                        ___          generally Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1552 (5th          _________ _____    ____________________          Cir.), cert. denied, 112 S.Ct. 430 (1991) (citing In re Air Crash                 _____ ______                               _______________          Disaster  Near New Orleans,  Louisiana, 821 F.2d  1147, 1166 n.32          ______________________________________          (5th  Cir. 1987)  (en  banc)) (where  district  court sets  forth          insufficient  facts  in  support  of   its  forum  determination,          appellate  court should  not  address the  issue,  but remand  to          district  court  to  "begin  afresh"); accord,  Lacey  v.  Cessna                                                 ______   _____      ______          Aircraft Co., 862  F.2d 38,  43 (3d Cir.  1988); La Seguridad  v.          ____________                                     ____________          Transytur  Line, 707  F.2d 1304,  1308-10 (11th  Cir. 1983).   On          _______________          remand, the  district court received further  evidence, including          detailed supplemental  affidavits from Sayman as  well as several          experts hired  by  the  Merciers.    The  second  district  court          dismissal order was conditioned on (1) acceptance of jurisdiction          by  the  Turkish courts;  (2)  Sheraton's  submission to  Turkish          jurisdiction; (3) Sheraton's waiver of any statute of limitations          defense, and acceptance of  the waiver by the Turkish  court; and          (4) Sheraton's agreement to satisfy any Turkish court judgment.                                         III                                         III                                      DISCUSSION                                      DISCUSSION                                      __________                    The   doctrine   of   forum   non   conveniens  permits                                          7          discretionary dismissals on a  "case by case" basis, Royal  Bed &                                                               ____________          Spring  Co. v. Famossul Industria E Comercio de Moveis Ltda., 906          ___________    _____________________________________________          F.2d  45, 47  (1st  Cir. 1990),  where  an alternative  forum  is          available  in another  nation which  is fair  to the  parties and          substantially  more convenient for them  or the courts.   Howe v.                                                                    ____          Goldcorp  Invest., Ltd., 946 F.2d 944, 947 (1st Cir. 1991), cert.          _______________________                                     _____          denied, 112 S.Ct. 1172  (1992).  The application of  the doctrine          ______          of forum non conveniens  is committed to the sound  discretion of          the  trial court, Piper Aircraft, 454 U.S. at 257, whose decision                            ______________          will not be  reversed absent a "clear abuse of discretion."  Id.;                                                                       ___          see also Howe, 946 F.2d at 951; Royal Bed & Spring Co., 906  F.2d          ___ ____ ____                   ______________________          at 47-48.   But since there  is a strong presumption  in favor of          the plaintiff's forum choice, id. at 241, the defendant must bear                                        ___          the  burden  of  proving  both the  availability  of  an adequate                                    ____          alternative forum, see Tramp Oil & Marine, Ltd. v. M/V Mermaid I,                             ___ ________________________    _____________          743 F.2d  48, 50 (1st Cir.  1984), and the likelihood  of serious          unfairness to  the parties in  the absence of  a transfer  to the          alternative forum, Koster v. Lumbermen's  Mut. Cas. Co., 330 U.S.                             ______    __________________________          518,  524 (1947); Howe, 946  F.2d at 950  (citing Piper Aircraft,                            ____                            ______________          454 U.S. at 259).          A.  Forum Availability          A.  Forum Availability              __________________                    As  we  noted  in  Mercier  II,  an  alternative  forum                                       ___________          generally will be  considered "available" provided the  defendant          who  asserts forum non conveniens  is amenable to  process in the          alternative forum.  935 F.2d at 424 (citing Gulf Oil, 330 U.S. at                                                      ________                                          8          506-07); see also Piper  Aircraft, 454 U.S.  at 254 n.22.   There                   ___ ____ _______________          seems  to be no question that Sheraton  is amenable to process in          the  Republic  of  Turkey.    Not  only  does   Sheraton  conduct          substantial business  in Turkey (i.e., operation  of the Istanbul                                           ____          Sheraton Hotel), but any contracts at issue in the present action          were made  in Turkey and were  to be performed there.   See Turk.                                                                  ___          Code  Civ.  Proc.  Art.  10  (Turkish courts  competent  to  hear          disputes  over contracts made or to be performed in Turkey); Art.          21  (Turkish courts  exercise jurisdiction  over torts  committed          within Turkey).  Moreover, the 1984 Protocol expressly designates          Istanbul, Turkey, as a valid locus for the litigation of disputes          arising among these parties,  and forum selection provisions have          been  recognized as a valid  basis for jurisdiction under Turkish          law.   See generally T. Ansay,  American-Turkish Private Interna-                 ___ _________            _________________________________          tional Law  61 (Parker  School of  Foreign  and Comparative  Law,          __________          Columbia University, Bilateral  Studies in Private  International          Law, No. 16)  (1966) ["Columbia Study"].  Finally,  the dismissal                                 ______________          of the complaint was  expressly conditioned on Sheraton's submis-          sion to the jurisdiction of the Turkish courts and on the Turkish          courts'  exercise of  that jurisdiction.   We  therefore conclude          that  the Republic of Turkey is  an "available" alternative forum          for the present action.          B.  Forum Adequacy          B.  Forum Adequacy              ______________                    The  adequacy of  the alternative  forum is  a separate                         ________          inquiry.   See Piper  Aircraft, 454 U.S.  at 254 n.22;  In re Air                     ___ _______________                          _________                                          9          Crash Disaster, 821 F.2d  at 1165.   An alternative forum may  be          ______________          inadequate  even though  the  defendant is  amenable to  process,          Mercier II,  935  F.2d at  424, if  "the remedy  provided by  the          __________          alternative forum is so clearly inadequate or unsatisfactory that          it is no remedy at  all," Piper Aircraft, 454 U.S. at  254; Howe,                                    ______________                    ____          946 F.2d at 952.  For example, an alternative forum is inadequate          if it  "does not permit litigation  of the subject  matter of the          dispute," id. at 254 n.22; Industrial Dev. Corp. v. Mitsui & Co.,                    ___              _____________________    ____________          671 F.2d 876, 891 (5th Cir. 1982), vacated and remanded  on other                                             _______ ___ ________  __ _____          grounds,  460 U.S.  1007  (1983); or  the plaintiff  demonstrates          _______          significant  legal  or  political  obstacles  to  conducting  the          litigation in  the alternative  forum, see Menendez  Rodriguez v.                                                 ___ ___________________          Pan Am Life Ins. Co., 311 F.2d 429 (5th Cir. 1962) (Castro's Cuba          ____________________          unavailable to  Cuban political  refugees as alternative  forum),          vacated  on other  grounds, 376  U.S. 779 (1964);  Rasoulzadeh v.          _______  __ _____  _______                         ___________          Associated  Press, 574  F. Supp.  854 (S.D.N.Y.  1983) (plaintiff          _________________          would   be  executed   were  he   to   attempt  to   litigate  in          postrevolutionary Iran), aff'd without  opinion, 767 F.2d 908 (2d                                   ______________________          Cir. 1985).                    Sheraton was  required to  establish  that the  Turkish          courts  offer  an  adequate  alternative forum  for  the  present          action.  See Tramp  Oil & Marine, 743 F.2d at  50; see also Lacey                   ___ ___________________                   ___ ____ _____          v. Cessna Aircraft  Co., 932 F.2d 170, 180  (3d Cir. 1991); Cheng             ____________________                                     _____          v. Boeing Co., 708  F.2d 1406, 1411 (9th Cir.), cert. denied, 464             __________                                   ____  ______          U.S. 1017 (1983); Schertenleib  v. Traum, 589 F.2d  1156, 1159-60                            ____________     _____          (2d Cir.  1978); but see  Vaz Borralho v.  Keydril Co., 696  F.2d                           ___ ___  ____________     ___________                                          10          379,  393  (5th Cir.  1983)  (plaintiff bears  burden  of proving          inadequacy  of  defendant's  proposed alternative  forum).    The          primary  contention made by the  Merciers in Mercier  II was that                                                       ___________          Sheraton had not  shown that  the Turkish forum  was adequate  in          light  of the legal  difficulties (risk of  arrest) Susan Mercier          would encounter were she to return to Turkey to testify, 935 F.2d          at  427.   Although  we concluded  that these  legal difficulties          alone  were  not  sufficient   to  render  Turkey  an  inadequate          alternative forum, id., on remand the district court was directed                             ___          to consider  whether the Turkish courts would  decline to receive          essential affidavit or deposition testimony from Susan Mercier by          reason of her fugitive status.   Id.  As a Turkish criminal court                                           ___          has  exonerated Susan  Mercier, and  vacated the  arrest warrant,          Director of Public Prosecutions v. Mercier, No. 1986/103 (Turkish          _______________________________    _______          First Aggravated Felony Court [Kadikoy], July 7, 1988), currently          there  is no legal or  political obstacle to  the presentation of          Susan Mercier's testimony in the Turkish courts.2                    Similarly,  we reject the  contention that the Merciers          would  be  handicapped in  vindicating  their  rights before  the          Turkish courts  due to  a "profound  bias" against  Americans and                                        ____________________               2Although we are sensitive  to any personal trepidation with          which Mercier may view her return to Turkey, in light of the fact          that  her assailant apparently remains at large, we adhere to the          misgivings expressed in Mercier II:  "We . . . doubt[] that Susan                                  __________          Mercier's  personal difficulties  with the  Turkish system     as                     ________          opposed to  a showing of Turkish  justice's systematic inadequacy             can provide an appropriate basis  for a finding that Turkey is          an inadequate forum."   935 F.2d at 426-27 (emphasis  added); cf.                                                                        ___          Shields v. Mi Ryung Constr. Co., 508 F. Supp. 891,  895 (S.D.N.Y.          _______    ____________________          1981) (alternative (Saudi) forum adequate  notwithstanding plain-          tiff's asserted fears for personal safety).                                          11          foreign women.   We  noted in Mercier  II that  the Merciers  had                                        ___________          provided  no  record basis  "for us  to  suspect, much  less take          judicial  notice  of, an  American  woman's  patent inability  to          secure  basic justice in the  Turkish courts."   935 F.2d at 427.          As their offer  of proof  remained inadequate on  remand, it  was          rightly  disregarded by the district court.3  Moreover, it is not          unfair that  a plaintiff's conclusory claims  of social injustice          in the foreign nation where she deliberately chose to live, work,          and  transact the  business out  of which  the litigation  arises          should be accorded less than controlling weight in the  selection          of a judicial  forum for  the related litigation.   See  Mizokami                                                              ___  ________          Bros. of Arizona, Inc. v. Bay-Chem Corp., 556 F.2d 975, 978  (9th          ______________________    ______________          Cir. 1977), cert. denied,  434 U.S. 1035 (1978); Shields,  508 F.                      _____ ______                         _______          Supp. at 894 n.4;  cf. Cuba R. Co.  v. Crosby, 222 U.S. 473,  480                             ___ ___________     ______          (1912)  (Holmes, J.)  (upholding  application of  foreign law  to          plaintiff's tort claim; "it should be  remembered that parties do                                        ____________________               3On  remand,  the Merciers  presented  the  affidavit of  an          American professor, relating her impressions of the Turkish legal          system and  recounting her  personal teaching experiences  in the          Republic of  Turkey during  the periods 1965-1966  and 1980-1982.          The district court  did not  abuse its discretion  in ruling  the          affidavit  irrelevant to  the issues  in the  present case.   The          affiant described  her experiences  with the Turkish  educational          system, not its legal  system.  The experiences occurred  as many          as 25 years ago, and most recently a decade ago  while Turkey was          governed by a  military regime.  Most  importantly, the affidavit          addresses the social, not  the legal, status of women  in Turkey.                                         _____          With  respect to  the  latter point,  we  would note  that  Susan          Mercier's vindication in absentia  by the Turkish criminal court,                                __ ________          following her dispute with a Turkish male assailant, see Director                                                               ___ ________          of  Public Prosecutions v. Mercier, supra, would at least tend to          _______________________    _______  _____          undercut her conclusory assertion  that "injustice [is] prevalent          in the Turkish legal system when a foreigner (especially a woman)          opposes a Turkish man."  Mercier II, 935 F.2d at 427.                                   __________                                          12          not  enter  into  civil  relations in  foreign  jurisdictions  in          reliance upon our courts.   They could not complain if our courts          refused to meddle in their affairs and remitted them to the place          that established and would enforce their rights.").                    In  a more substantive  vein, our remand  in Mercier II                                                                 __________          required  the district  court to  reconsider whether  the Mercier          claims  for breach  of  contract and  tortious interference  with          contractual  relations would  be cognizable  under Turkish  law.4          On remand,  Dr. Sayman submitted a  more comprehensive affidavit,          setting  forth  Turkish law.   We  have  reviewed the  new Sayman          affidavit, and the  Turkish Code  of Obligations on  which it  is          based.  Insofar as we have been able to determine, the  affidavit          appears  to  relate an  accurate  and complete  statement  of the          relevant  governing law.5   The district court  did not "clearly"                                        ____________________               4The initial Sayman affidavit was found inadequate to estab-          lish Turkey as an adequate alternative forum.  935 F.2d at 425-26          (citing Lacey, 862 F.2d at 43-44).  The initial affidavit stated:                  _____               The courts of Istanbul are competent to hear the claims               stated in  the complaint filed  by the Merciers  in the               above-captioned proceeding.  In such a civil proceeding               before our courts the litigants are guaranteed the same               sort of  procedural safeguards I understand  they enjoy               in the United States.   They are entitled to  be heard,               to  present  evidence,   and  to  cross-examine   their               opponents' witnesses.  The  judgment of the trial court               is subject  to review  by an appellate  tribunal. . . .               Our  constitution grants standing to foreign nationals,               such  as the  Merciers,  to prosecute  such  commercial               claims in our courts.               5Sayman's affidavit represents that  an action for breach of          contract would be recognized under Articles 96-108 of the Turkish          Code of Obligations, and that an action for tortious interference          with contractual  relations could be recognized  under the Code's          Article  41 (requiring  indemnity  by "one  who knowingly  causes          damage to another,  as a result of  an immoral action").   Sayman                                          13          abuse  its  discretion in  accepting  the Sayman  affidavit  as a          correct statement of Turkish law.   See, e.g., Lockman Foundation                                              ___  ____  __________________          v.  Evangelical Alliance  Mission,  930 F.2d  764, 768  (9th Cir.              _____________________________          1991)  (citing  Cheng, 708  F.2d  at 1410-11)  (moving  party may                          _____          demonstrate  adequacy   of   alternative  forum's   law   through          affidavits  and  declarations  of  experts);  accord,  Zipfel  v.                                                        ______   ______          Halliburton Co., 832 F.2d 1477 (9th Cir. 1987), cert. denied, 486          _______________                                 _____ ______          U.S. 1054 (1988).                    For  the most  part,  the remaining  objections to  the          adequacy of  the Turkish  forum were satisfactorily  addressed by                                        ____________________          also  indicated  that  the  statute of  limitations  in  contract          actions  is ten  years, and  that Turkish  courts would  accept a          waiver of the one-year statute of limitations for tort actions.               The Merciers  responded with a lengthy  affidavit from their          own  expert,   A.   Nusret  Haker,   apparently   admitting   the          availability of  an action for  breach of contract  under Turkish          law, but challenging Sayman's  assertion that the Merciers' claim          for  tortious interference  with contractual  relations could  be          heard under Article 41.  According to Haker, Article 41 defines a          "catch-all type  of tort provision" which  applies principally to          non-contractual obligations, and does  not "perfect[ly] fit"  the          claim  for  tortious  interference  with  contractual  relations.          Haker Affidavit at   6(b).   Haker conceded that a  Turkish court          might utilize Article 41 to facilitate a tort claim under Article          98/II (stating  that "liability  provisions of tortious  acts are          also applicable, by reference,  to actions constituting breach of          contract"), but considered this  "highly unlikely."  Id.   Sayman                                                               ___          submitted a detailed affidavit  in response, criticizing  Haker's          challenge to Sayman's analysis of Article 41.               The  district court  concluded  that  "the Sayman  affidavit          [was] more  comprehensive, more  reliable, based on  more current          information  and based  on more  familiarity and  more experience          with  the system than Mr. Haker's."   We agree.  However, even if          Haker's  affidavit were to be  fully credited, we  think it would          not  amount to  a  showing  that  "the  remedy  provided  by  the          alternative  forum   [Turkey]   is  so   clearly  inadequate   or                                              __   _______  __________   __          unsatisfactory that it is no remedy at all."  Piper Aircraft, 454          ______________ ____ __ __ __ ______ __ ___    ______________          U.S.  at  254 (emphasis  added);  see  also Evangelical  Alliance                                            ___  ____ _____________________          Mission, 930 F.2d at 768-69.          _______                                          14          the conditions imposed  in the  order of dismissal.6   Cf.  Piper                                                                 ___  _____          Aircraft, 454 U.S.  at 257  n.25; Ahmed v.  Boeing Co., 720  F.2d          ________                          _____     __________          224,  225 (1st  Cir. 1983)  (conditional dismissal  sufficient to          cure   alleged  inadequacies  in  alternative  available  forum).          Although the Merciers contend that the district court should have          conditioned  dismissal   on  Sheraton's  provision   of  document          translations,  see Dahl  v. United  Technologies Corp.,  632 F.2d                         ___ ____     __________________________          1027, 1031 (3d Cir. 1980), we do not agree.  Unlike the situation          in Dahl, where  the injured  plaintiffs had no  control over  the             ____          place where the  instrument of their  injury was manufactured  or          designed, in  the present  case the Merciers  intentionally bound          themselves to a contract requiring performance in Turkey, thereby          plainly  assuming  the obvious  risk  that document  translations          might be necessary in any future contract dispute.                    We are  unable to accept two  additional proposals made          by  the  Merciers, which  contemplate,  in  effect, that  Turkish          procedure be brought more in line with the procedures utilized in          American courts, as a condition of dismissal.  The first proposal             an amorphous request that Sheraton be required to  "facilitate                                        ____________________               6For example,  the district  court conditioned dismissal  on          Sheraton's  affirmative  waiver  of  all  statute of  limitations          defenses:               The defendant  shall not assert any  defense based upon               any  statute of  limitations  but  shall  affirmatively               waive any  such defense . . . provided  that the Courts               of the  Republic of  Turkey shall  give full  force and               effect to such waiver.          Sheraton  asserts  no  claim   that  the  waiver  requirement  is          overbroad.                                          15          discovery" in the foreign  forum    was not raised  below, either          before or after remand, and  must be rejected here.  See  Kale v.                                                               ___  ____          Combined  Ins. Co.,  861 F.2d  746, 755  (1st Cir.  1987); J  & S          __________________                                         ______          Constr. Co. v.  Traveler's Indemn.  Co., 520 F.2d  809, 809  (1st          ___________     _______________________          Cir. 1975).  Turkish courts have their own procedures for compel-          ling discovery.  See, e.g., Article 258/I of the  Turkish Code of                           ___  ____          Obligations (compulsory process  available to enforce  attendance          of witnesses).   The case law is clear that  an alternative forum          ordinarily  is not  considered  "inadequate"  merely because  its          courts  afford  different or  less generous  discovery procedures          than  are  available  under  American  rules.    See  Evangelical                                                           ___  ___________          Alliance  Mission, 930 F.2d at 768  (Japanese forum held adequate          _________________          although discovery procedures were "not identical to those in the          United States"); Zipfel, 820 F.2d  at 1484 (Singapore forum  held                           ______          adequate available  forum although depositions were  allowed only          in  certain  circumstances);  In   re  Union  Carbide  Gas  Plant                                        ___________________________________          Disaster, 809 F.2d 195, 205 (2d Cir.), cert. denied, 484 U.S. 871          ________                               ____  ______          (1987) (Indian  forum  held adequate  although  Indian  discovery          rules were  more limited than United States  rules; Indian courts          could  voluntarily  accept American  rules,  but  this would  not          determine  propriety  of  dismissal   by  American  court);   see                                                                        ___          generally Howe, 946  F.2d at 946 ("small differences in standards          _________ ____          and procedural difficulties . . . are beside the point").                    The  second proposed  condition, requiring  Sheraton to          waive the "cost  bond" commonly imposed  on foreign litigants  in          Turkish courts, presents a somewhat closer question.  It has been                                          16          noted that an action  should not be  dismissed on forum non  con-          veniens grounds  without first considering "the  realities of the          plaintiff's  position, financial  or  otherwise, and  his or  her          ability  as a practical matter  to bring suit  in the alternative          forum."  Lehman v. Humphrey Cayman,  Ltd., 713 F.2d 339 (8th Cir.                   ______    ______________________          1983), cert. denied, 464  U.S. 1064 (vacating transfer to  Cayman                 ____  ______          Islands, based in part on indigent  plaintiff's inability to post          "cost bond"); see  also Macedo v. Boeing Co., 693  F.2d 683, 688,                        ___  ____ ______    __________          690  (7th Cir. 1982) ("cost bond" requirement may be given weight          in  forum balancing process); but see Nai-Chao v. Boeing Co., 555                                        ___ ___ ________    __________          F. Supp. 9, 16 (N.D. Cal. 1982), aff'd, 708 F.2d 1406 (9th Cir.),                                           _____          cert.  denied, 464 U.S. 1017 (1983) ("filing fee" amounting to 1%          ____   ______          of  recovery  sought held  not  relevant to  adequacy  of foreign          forum).  On the other hand, we perceive no abuse of discretion in          the  district court ruling that the burden presented by the "cost          bond" requirement did not rise to  a level which would render the          Turkish forum  "so clearly inadequate or  unsatisfactory that [it          effectively offered] no remedy at all."  Piper Aircraft, 454 U.S.                                                   ______________          at 254.                    The Merciers are not indigent, nor can the Turkish bond          requirement, though substantial, be  considered excessive in  the          circumstances.7   Its  function is  to cover  court costs  and to                                        ____________________               7According   to   the   parties'  experts,   typically   the          plaintiff's  bond is  set by  the Turkish  courts at  15% of  the          recovery  sought,  and is  a recoverable  cost  in the  event the          plaintiff prevails.  Sheraton's expert, Dr. Sayman, suggests that          a Turkish court might waive the bond requirement, or reduce it to          as little as 3% of the monetary recovery sought.                                          17          ensure the  eventual recovery of any damages  awarded against the          plaintiff.   It therefore safeguards the  harmonious operation of          Turkish  procedural  rules,  such  as  the  "cost-shifting"  rule          requiring  a losing litigant to  pay the legal  fees and costs of          the winner.  Although such broad-scale "cost-shifting"  is not in          tune  with  the  "American   rule,"  the  disparity  provides  an          insufficient basis for finding that the district court abused its          discretion.   Cf. id.  (holding that unfavorable  change in forum                        ___ ___          law is insufficient to preclude forum non conveniens dismissal).                    By the  same token,  the Merciers reasonably  sought to          condition  the dismissal  order  on assurances  by Sheraton  that          witnesses  and evidence be made available  in Turkey.  Sheraton's          corporate  headquarters  is in  Massachusetts.   It  seems  to us          reasonable that  the Merciers' choice of  the Massachusetts forum          was prompted at  least in  part by their  interest in  compelling          production   of   Sheraton  records   and   subpoenaing  Sheraton          witnesses.   In these circumstances, we believe it appropriate to          condition  the order  of dismissal  on the  availability, in  the          Turkish  forum,  of  witnesses  and  evidence  within  Sheraton's          control  in Massachusetts.  See  Piper Aircraft, 454  U.S. at 257                                      ___  ______________          n.25;  Vaz Borralho, 696 F.2d at 394 (remanding with direction to                 ____________          impose  further  condition  on  dismissal  requiring  defendants'          agreement to make all necessary witnesses and documents available          in alternative  forum); see also  DeMelo v. Lederle  Labs., Inc.,                                  ___ ____  ______    ____________________          801  F.2d  1058,  1063  (8th Cir.  1986)  (upholding  conditional          dismissal  from original  forum     where  corporate  defendant's                                          18          principal  place  of  business  was  located      on  defendant's          agreement   to  make   documents  and   witnesses  available   in          alternative available forum); Watson v.  Merrell Dow Pharmaceuti-                                        ______     ________________________          cals, Inc., 769 F.2d 354, 356 (6th Cir. 1985) (same).          __________          C.  Forum Convenience          C.  Forum Convenience              _________________                    The availability  of an  adequate alternative forum  is          but the  first step in  the forum  non conveniens analysis.   The          more  complicated inquiry  is  whether the  alternative forum  is          sufficiently more convenient for the parties as to make  transfer          necessary to avoid  serious unfairness.   Howe, 946  F.2d at  950                                                    ____          (citing Piper Aircraft, 454 U.S. at 259).                  ______________                    Well-established   "public   interest"   and   "private          interest" criteria guide the trial court determination  as to the          relative  convenience of an alternative  forum.  See  Gulf Oil v.                                                           ___  ________          Gilbert, 330 U.S.  at 508-09.   The  "private interest"  criteria          _______          include  the comparative  convenience of  the parties'  access to          sources of proof; the availability  of compulsory process and the          cost of securing the attendance of witnesses; the possibility  of          a view  of the premises, if  a view would be  appropriate; and an          evaluation  of "all other practical problems that make trial of a          case  easy, expeditious  and  inexpensive."   Id.  at 508.    The                                                        ___          "public   interest"   criteria    include   the    administrative          difficulties resulting from  court congestion in the  plaintiff's          chosen  forum;   the   "local  interest   in   having   localized          controversies  decided at home"; the interest in having the trial                                          19          of a case conducted in a forum that is at home with the governing          law; the avoidance  of unnecessary problems in  conflict of laws,          or  in  the application  of foreign  law;  and the  unfairness of          imposing  jury duty  on citizens  in an  unrelated forum.   Piper                                                                      _____          Aircraft, 454 U.S. at 241 n.6.          ________                    In  weighing these considerations, the trial court must          favor  the plaintiff's choice of  forum:  "unless  the balance is          strongly in  favor of  the defendant, the  plaintiff's choice  of          forum should rarely  be disturbed."   Gulf Oil, 330 U.S.  at 509.                                                ________          The  deference  accorded  the  plaintiff's  choice  of  forum  is          enhanced  when  the plaintiff  has chosen  a  forum in  which the          defendant maintains a substantial presence, see Schertenleib, 589                                                      ___ ____________          F.2d at 1164; see also Lony v. E.I. Du Pont de Nemours & Co., 935                        ___ ____ ____    _____________________________          F.2d  604, 608 (3d  Cir. 1991);   Mutual Export  Corp. v. Westpac                                            ____________________    _______          Banking  Corp., 742 F. Supp.  161, 163 (S.D.N.Y.  1990), and when          ______________          the  plaintiff  is  an  American  citizen  who  has  selected  an          available American forum,  Piper Aircraft, 454 U.S. at  256 n.23;                                     ______________          see also  Hoffman v. Goberman, 420 F.2d 423 (3d Cir. 1970); Mobil          ___ ____  _______    ________                               _____          Tankers Co.  v. Mene Grande Oil  Co., 363 F.2d 611,  614 (3d Cir.          ___________     ____________________          1965), cert. denied, 385 U.S. 945 (1966).                 ____  ______                    Yet   no  absolute   deference  is   due   an  American          plaintiff's selection of an available American forum in an action          against an American defendant.   See Piper  Air, 454 U.S. at  255                                           ___ __________          n.23.   Forum non conveniens is a "flexible, practical" doctrine,          Howe, 946 F.2d  at 950, not  subject to ritualistic  application;          ____          and  "[a]lthough  'a defendant  must  meet  an almost  impossible                                          20          burden in  order to deny a  citizen access to the  courts of this          country,' the  cases demonstrate that defendants  frequently rise          to  the challenge."   Contact Lumber Co. v.   P.T. Moges Shipping                                __________________     ____________________          Co.,  918 F.2d 1446, 1449 (9th Cir. 1990) (quoting Mizokami Bros.          ___                                                ______________          of Arizona, Inc.  v. Bay-Chem Corp., 556 F.2d 975,  977 (9th Cir.          ________________     ______________          1977)); Evangelical  Alliance Mission, 930 F.2d at 767; Alcoa S/S                  _____________________________                   _________          Co. v. M/V Nordic Regent, 654 F.2d 147, 152 (2d  Cir.) (en banc),          ___    _________________          cert. denied, 449 U.S. 890 (1980).  Moreover, as we have noted, a          _____ ______          trial court's  determination to transfer  a case to  an available          foreign  forum  is  reviewable only  for  a  clear  abuse of  its          discretion.                    The Merciers assert that  the district court abused its          discretion by  (1) improperly minimizing the  importance of their          interest  in  an  American  forum; (2)  continuing  to  treat the          insubstantial   connections   between    the   Commonwealth    of          Massachusetts and the present dispute as a relevant factor in its          forum inquiry; (3) assigning excessive weight to its inability to          compel  the  testimony  of  Deliveli,  a  Turkish  national;  (4)          assigning insufficient weight to the litigation activity  already          conducted on the  merits in the American  forum; (5) exaggerating          the difficulties  in applying Turkish law;  (6) overstressing the          docket congestion in the forum court; and (7) overemphasizing the          importance of the forum selection clause in the 1984 Protocol.          1.   American Plaintiffs' Interest in American Forum          1.   American Plaintiffs' Interest in American Forum               _______________________________________________                    The district  court expressly noted  that the  Merciers                                          21          are  American citizens,  and acknowledged  that the  court "would          like  to  resolve  [this] matter  between  America[n]  citizens."          Thus, the district court was cognizant of the  strong presumption          favoring the  American  forum selected  by  American  plaintiffs.          Moreover, the district court's extended discussion of the factors          militating in favor  of a  transfer indicate that  the court  was          fully aware of the  considerable quantum of evidence  required to          overcome the presumption.  See, e.g.,  Gulf Oil, 330 U.S. at 509.                                     ___  ____   ________          We  are  satisfied that  the  district  court neither  failed  to          consider the Merciers'  American citizenship  nor assigned  their          choice  of an American forum perfunctory weight.  See Mercier II,                                                            ___ __________          935 F.2d at 423.          2.   Connection Between the Dispute and the Massachusetts Forum          2.   Connection Between the Dispute and the Massachusetts Forum               __________________________________________________________                    After noting  the presumption  of forum  adequacy which          arises  as a result of  the American citizenship  of the parties,          the  district  court  intimated  that the  attenuated  connection          between   the  parties'  dispute   and  the  Massachusetts  forum          militated in favor of  dismissal.  See District Court  Opinion at                                             ___          24  ("Except for the fact  that Susan Mercier  and George Mercier          are American citizens, . . . this is not a  local controversy.").          The  Merciers  argue  that  the district  court  disregarded  our          admonition  in  Mercier II,  that  "the  Merciers' United  States                          __________                         ______  ______          citizenship  and  residence       plus  Sheraton  International's          similar  citizenship   and  residence       . . .  make   this  a          controversy local  to the  United States, if  not necessarily  to                                          22          Massachusetts."   935  F.2d at  429 (emphasis  in original).   We          think that the Merciers misapprehend Mercier II.                                               __________                    Contrary  to  their understanding,  Mercier II  did not                                                        __________          state that a district  court could not recognize, as  a factor to          be  considered   in  its  forum  non   conveniens  analysis,  the          attenuated connection  between the  matter in litigation  and the          particular forum selected within  the United States.   Rather, we          pointed  out that the connection between the matter in litigation          and  the particular forum within the United States may not wholly                   __________ _____          supplant  the  dominant transnational  comparison  required where          ________          "the  choice   facing  the   district  court  [is]   between  two          countries."   Id.  at  429-30 (emphasis  in original).   Provided          _________     ___          adequate recognition is accorded "the substantial public interest          in  providing a convenient United  States forum for  an action in          which all  parties are United States citizens and residents," id.                                                                        ___          at 430, the trial court may weigh, as a subsidiary consideration,          any attenuated connection  between the  particular United  States          forum and the matter in litigation.  See, e.g., De Melo, 801 F.2d                                               ___  ____  _______          at 1063; Gates Learjet Corp. v.  Jensen, 743 F.2d 1325, 1336 (9th                   ___________________     ______          Cir. 1984),  cert. denied,  471 U.S.  1066 (1985);  see generally                       ____  ______                           ___ _________          Pain v. United Technologies  Corp., 637 F.2d 775, 792  (D.C. Cir.          ____    __________________________          1980), cert. denied,  454 U.S. 1128  (1981) ("courts may  validly                 ____  ______          protect  their  dockets  from  cases  which  arise  within  their          jurisdiction, but which lack  significant connection to it; [and]          may   legitimately  encourage  trial   of  controversies  in  the                                                                        ___          localities in which they arise") (emphasis added).          __________                                          23          3.   Witness Availability          3.   Witness Availability               ____________________                    In the district court's view, a very important "private          interest factor" pointing  to dismissal was the inability  of any          American court  to compel  the testimony  of Fethi  Deliveli, the          Merciers'  Turkish  partner, who  played  a  significant role  in          negotiating the two  written agreements underlying the  Merciers'          claims.8   See  Dist. Ct.  Opin.  at 22-23.   In  Mercier II,  we                     ___                                    __________          explicitly  recognized the importance of Deliveli's availability:          "While the  Merciers  have provided  a  long list  of  [American]          witnesses who appear to have been party to one or two negotiating          sessions,  none  appears   to  have  been   as  central  to   the          negotiations as  Deliveli."  935 F.2d at 428.  Moreover, it seems          most likely that  Deliveli's credibility would be  pivotal to any          judicial  resolution of  the factual  issues at  the root  of the          parties'  dispute.    Thus,  the  fact-finder's  opportunity   to          evaluate   Deliveli's  credibility  on  the  basis  of  in-person          testimony  could be  crucial to  a reliable  resolution  of these          factual disputes.   In these circumstances,  deposition testimony          and letters  rogatory, even if  available to the  American court,          would  be  less  than  satisfactory   substitutes  for  in-person                                        ____________________               8Deliveli was a principal  stockholder in Lidya, the Turkish          corporation through  which the Merciers initially  hoped to lease          space and operate  the casino.   On Lidya's  (and the  Merciers')          behalf, Deliveli  signed the 1984 Protocol  defining the parties'          prospective roles in the operation of  the casino.  He was also a          party  to  the  negotiations  and  a  signatory  to  the  earlier          Memorandum  of Understanding, which  outlined the  steps required          for bringing the casino into existence.  It seems likely  that he          may have  been a necessary  party to any  attempts to obtain  the          required permits from the Turkish government.                                          24          testimony.   See Howe, 946 F.2d at 952 ("compulsory process would                       ___ ____          seem to be especially important where . . . subjective intent [is          an] element[] of the claim.").                    In its initial ruling the district court considered the          unavailability of Deliveli and other  Turkish witnesses to be  "a          problem in theory only,"  as "there [was] no evidence  . . . that          [Sheraton] ha[d] ever asked  these witnesses to provide evidence,          let alone  that they ha[d] . . .  refused to do so."   Mercier I,                                                                 _________          744  F. Supp.  at 385.   On remand,  however, the  district court          concluded that Deliveli's unavailability as  a witness threatened          "serious  unfairness" at any American trial.  See Mercier II, 935                                                        ___ __________          F.2d at 950.  The significance of Deliveli's role, inter alia, in                                                             _____ ____          negotiating  and drafting  the agreements confutes  the Merciers'          contention that Sheraton was  required to demonstrate the content          of Deliveli's  testimony or his unavailability  absent compulsory          process.  As other  courts have recognized, there is  no "blanket          rule" that a  defendant affirmatively demonstrate, by  affidavit,          the unavailability of  a foreign witness and  the significance of          the witness's testimony.  See Empresa Lineas Maritimas Argentinas                                    ___ ___________________________________          v. Schichau-Unterweser, A.G.,  955 F.2d 368, 372  (5th Cir. 1992)             _________________________          (citing Baris, 932 F.2d at 1550);  a blanket rule "would tend  to                  _____          inflict  an  impossible  burden  on defendants  who  are  seeking          dismissal for the very reason  that they cannot compel  evidence,          including  the  evidence  necessary  to   argue  for  dismissal."          Empresa  Lineas, 955 F.2d at 372 (citing Piper Aircraft, 454 U.S.          _______________                          ______________          at 258).  Under the terms of  the remand order in Mercier II, 935                                                            __________                                          25          F.2d  at 430     requiring  that the  factors militating  for and          against  dismissal be rebalanced     there was no  clear abuse of          discretion  in the  district  court's finding  that the  unavail-          ability   of  Deliveli's  testimony   would  result  in  "serious          injustice" in  the event the case  were tried in the  District of          Massachusetts.          4.   Litigation Activity in Chosen Forum          4.   Litigation Activity in Chosen Forum               ___________________________________                    As a  basis for their contention  that "the presumption          against  dismissal on  the grounds of  forum non  conveniens [has          been] greatly increase[d],"  Lony, 935 F.2d at  614, the Merciers                                       ____          point to litigation  activity relating  to the merits,  id.   See                                                                  ___   ___          also  Gates  Learjet, 743  F.2d at  1335  (citing, as  a relevant          ____  ______________          "private  interest factor,"  that "parties  were ready  for trial                                                           _____  ___ _____          when  [the   court]  dismissed   the  complaint  for   forum  non          conveniens") (emphasis added);  but see  Empresa Lineas, 955 F.2d                                          ___ ___  ______________          at 372 (rejecting argument that district court acted unreasonably          in dismissing case filed eight years before, in which third-party          claim by moving plaintiff was filed two years earlier).  However,          the  only "substantial merits discovery" identified by appellants          (except  for  that  incident  to  the  dismissal  motion  itself)          consisted of the  Susan and George  Mercier depositions taken  by          Sheraton in April and May 1990.                    For present purposes, we  would observe that the merits          activity in this case simply never approached the level which was          held  to preclude dismissal in Lony or to weigh against dismissal                                         ____                                          26          in Gates.   The forum  non conveniens dismissals  in those  cases             _____          were not  sought until several  years after the  defendants filed          their answers and the dismissal motions were based  on "allegedly          new  facts uncovered in discovery."  935 F.2d at 614.9  Moreover,          we think the "merits activity" in Lony substantially affected the                                            ____          very factors  of relative convenience, such as "access to sources          of proof" and "attendance of witnesses,"  which the Supreme Court          has  identified as crucial  to the forum  non conveniens inquiry.          Gilbert, 330 U.S.  at 508.  In our view,  these factors alter the          _______          balance in favor of dismissal in the present case.           5.  Difficulties with Turkish Law          5.  Difficulties with Turkish Law              _____________________________                    The district  court also adverted to  the difficulty of          applying Turkish law.10   As appellants note, this factor  is not                                        ____________________               9The  activity which had taken  place to that  point in Lony                                                                       ____          included  not only  limited  discovery on  a prior,  unsuccessful          forum non  conveniens motion, but  also six months  of continuous          discovery on the merits; document production amounting to several          thousand  pages; substantial exchanges of interrogatories; trans-          lation of documents from German into English; and the depositions          of at least five  witnesses, including one from overseas.   Lony,                                                                      ____          935  F.2d at  613.   Furthermore,  the trial  court  in Lony  had                                                                  ____          achieved a high degree of familiarity with the litigation.               10Although applicable Turkish  law is patterned on  familiar          European  models, notably the Swiss Code  of Obligations, and has          been  translated   into  English,  see  Swiss   Federal  Code  of                                             ___  _________________________          Obligations with Turkish Alterations  (G. Wettstein ed. 1928), it          ____________________________________          is still subject  to Western judges' general  lack of familiarity          with civil law principles.   Moreover, practical difficulties are          likely to  be encountered in applying Turkish law to a dispute in          American  courts by  reason of  the fact  that many  treatises on          Turkish  law are  unavailable  in English  translation,   see  O.                                                                    ___          Oehring,   Bibliographie   zum    turkischen   Recht   and    den                     ______________________________________________________          internationalen  Beziehungen der  Turkischen Republik  (1982), T.          _____________________________________________________          Ansay,  "Law of Obligations," in Introduction to Turkish Law, (T.                                        __ ___________________________          Ansay & D. Wallace eds.; 3d ed. 1987), and that almost no Turkish                                          27          "dispositive."    See  Piper  Aircraft,  454  U.S.  at  260 n.29.                            ___  _______________          Rather,  "the task of deciding  foreign law [is]  a chore federal          courts must  often perform," Manu  Int'l, S.A. v.  Avon Products,                                       _________________     ______________          Inc.,  641 F.2d  62,  68 (2d  Cir.  1981), and  the  difficulties          ____          associated with  the  application of  foreign law  should not  be          ascribed  "undue importance."  We do not think the district court          assigned dispositive  weight to  the problem of  applying foreign          law,   but  cited  it  as  one  of  several  factors  "counseling          dismissal."    Mercier II,  935  F.2d at  428.    See also  Piper                         __________                         ___ ____  _____          Aircraft, 454 U.S. at 260; cf. Traveler's Indem. Co. v. S/S Alca,          ________                   ___ _____________________    ________          710 F. Supp.  497, 501-02 (S.D.N.Y.), aff'd  without opinion, 895                                                _____  _______ _______          F.2d  1410 (2d  Cir.  1989) (difficulty  of applying  Turkish law          cited as partial basis for dismissal).          6.   Docket Congestion          6.   Docket Congestion               _________________                    The district court found  that Turkish civil courts are          significantly  less congested than the civil docket of the United          States District Court for the District of Massachusetts, and that          the  public and  private  interests in  obtaining an  expeditious          resolution of  the parties'  dispute therefore favored  a Turkish                                        ____________________          court  decisions  are  available  in   English  translation,  id.                                                                        ___          Although  Turkish court  decisions are  not binding  to the  same          extent as American  court decisions, "much  attention is paid  to          them   by  Turkish   writers,"   and  "the   lower  courts   give          consideration  to the  previous  decisions of  the Supreme  Court          [Yargitay]."  Columbia Study, at 12.                        ______________                                          28          forum.    The  district  court  relied  on  caseload  statistical          reports11  and on  the  Sayman affidavit,  which  attests that  a          lawsuit  of this nature  could be heard  by the  Turkish Court of          Commerce   in  approximately   eighteen  months,   excluding  any          appeal.12   We  conclude  that the  district court's  comparative          analysis on  remand met the  mandate in Mercier  II, 935  F.2d at                                                  ___________          428-29, directing "a comparative  determination of where the case                               ___________          can most quickly be resolved, rather than simply rely[ing] on the          state of [the district court's] own docket" (emphasis added); see                                                                        ___          also Gates Learjet,  743 F.2d at 1337 ("real issue is not whether          ____ _____________          a  dismissal will reduce a court's congestion but whether a trial          may  be speedier  in another  court because  of its  less crowded          docket").          7.   Forum Selection Clause          7.   Forum Selection Clause               ______________________                    The Protocol  signed in  1984 by Sheraton  and Deliveli          (on  behalf of  Lidya, in  which the  Merciers held  an important          interest) contained a forum selection clause, providing that "the                                        ____________________               11The  Federal  Court  Management  Statistics  submitted  by          Sheraton showed that as of June 30, 1990, 30.8% of civil cases in          the  District  of Massachusetts  had been  pending for  more than          three  years,  by  far the  highest  in  the  First Circuit,  and          approximately  300%  higher  than  the  national  district  court          average  of 10.4%.  Moreover, the district court pointed out that          diversity  cases  typically  are  placed on  the  slowest  track.          Priority  is given to criminal  cases under the  Speedy Trial Act          and to civil cases invoking federal question jurisdiction.               12The Merciers' expert challenged  Sayman's representations,          asserting that this case would take  approximately three years to          be "fully  tried" in  Turkey.   Haker  Affidavit, at  A-230.   As          noted, however, the district court supportably declined to credit          Haker's affidavit.  See supra note 5 and accompanying text.                              ___ _____                                          29          agreement will  be governed by Turkish laws  and the jurisdiction          will  [sic]  Istanbul,  Turkey."13    A  mutual  forum  selection          clause is a factor to  be considered in the forum non  conveniens          analysis.  Royal Bed & Spring, 906 F.2d at 51, 52.                     __________________                    The Merciers  protest that the  district court assigned          excessive  weight to  the forum  selection clause.   We disagree.          Although  their  signatures do  not appear  on the  document, the          Protocol  was signed  in  behalf of  the  Merciers and  Lidya  by          Deliveli, and pertained to the same business transaction which is          at  issue in  the present action.   Notwithstanding  its apparent          typographical  omission, the  clause  is most  naturally read  to          indicate the  parties' choice of  Istanbul, Turkey, as  the forum          for  litigating  whatever  disputes  might  arise  out  of  their          business  relationship.    Indeed,   the  Merciers'  lawsuit   is          predicated in part on the validity of the Protocol containing the          forum selection clause.  Moreover, the fact that Sheraton asserts          that  the Merciers breached the substantive terms of the Protocol          does  not  alter the  appropriateness  of  honoring the  parties'          choice  of an  adequate and available  forum for  resolving their          substantive dispute.                                        ____________________               13Forum selection clauses have long been utilized in commer-          cial  transactions  between citizens  of  the  United States  and          Turkey.  See, e.g., S/S  Alca, 713 F. Supp. at  131-132 (S.D.N.Y.                   ___  ____  _________          1989); Falcoal,  Inc. v. Turkiye Komur Isletmeleri Kurumu, 660 F.                 ______________    ________________________________          Supp.  1538  (S.D.  Tex.  1987) (forum  selection  clause  naming          Turkey);  Konstantinidis  v. S/S  Tarsus, 248  F. Supp.  280, 281                    ______________     ___________          (S.D.N.Y.),  aff'd,  354 F.2d  240  (2d  Cir. 1965)  (arbitration                       _____          clause designating  Turkish forum and  prescribing application of          Turkish law).                                          30                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    For the foregoing reasons,  the district court order of          dismissal is modified to include the following condition:                    Sheraton,  its  subsidiaries and  affiliates,                    shall  make  available  in  the  Republic  of                    Turkey  all  evidence  within their  control,                    including  testimony  of  their officers  and                    employees, at least  to the extent  that such                    evidence   would   have  been   available  to                    plaintiffs in the district  court proceedings                    in the District of Massachusetts.                    The order of  dismissal, as modified, is  affirmed.  So                    __________________________________________________   __          ordered.          _______                                          31
