Monthly Archives: August 2010

Supreme Court’s Morrison’s Decision Spreading Extraterritoriality Concerns Beyond U.S. Securities Laws Into RICO – and Beyond?

An interesting collateral consequence of the U.S. Supreme Court’s decision in Morrison (discussed in our postings of 7/16/10 and 7/19/10) has just come to the fore.  Morrison held that the long-used “effects” test (to determine if federal jurisdiction was proper in international litigation) was not the proper one to employ to determine whether, in that case, … Continue Reading

RICO Held Not To Apply Extraterritorially, Following Morrison

In the first decision that we have seen (see our post of 7/16/10) since the U.S. Supreme Court’s decision in Morrison v. National Australia Bank (No. 08-1191) held that Section 10(b) of the Securities Exchange Act of 1934 did not provide a private cause of action in “foreign-cubed” cases—cases where foreign plaintiffs sue foreign defendants for misconduct … Continue Reading

An Unspoken Application of International Comity Lies at the Heart of Second Circuit’s Rejection of New York City’s Effort to Tax Non-U.S. Missions, Which the Court of Appeals Held Was Preempted by the Retroactive Federal Action Despite the Absence of Sovereign Immunity.

 In the recent decision by the Second Circuit, City of New York v. The Permanent Mission of India to the United Nations, 08-1805, 1806 (2d Cir. 8/17/10), the Court of Appeals continued the saga of New York City’s attempts to tax the missions in NYC of the governments of India and Mongolia. In earlier proceedings, … Continue Reading

Collateral Order Doctrine Available for Reviewing Some International Litigations But Not Others – But In Both Cases Federal Court Litigation Continues

Our posting of 20 August 2010, discussing OSS Nokalva, Inc. v. European Space Agency (ESS), Nos. 09-3602, 3640 (3d Cir. 8/16/10)(link to decision), observed that the Third Circuit has expressly felt the need to invoke – and did invoke — the Collateral Order Doctrine to support its jurisdiction to review a district court’s rejection of … Continue Reading

How To Fund International Litigation? Contrasting “Liberal” Europe with the “Conservative” U.S.?

International controversies, like domestic ones, need to be paid for.  One method of financing litigation is to obtain funds for either costs, or fees, or both, not from the client or from the law firm (e.g., in a contingency arrangement) but from independent sources altogether.  This is being referred to today as third-party financing.   It … Continue Reading

Another Circuit – this time the Ninth — Cuts Back on Sovereign Immunity Defense: Cassirer v. Kingdom of Spain, et al.

In an en banc decision in the transnational litigation context by the Ninth Circuit, in Cassirer v. Kingdom of Spain, et al., No. 06-56325, 06-56406 (9th Cir. 8/12/10) (link here), the Court of Appeals addressed several issues concerning the applicability of a sovereign immunity defense.  It ruled in favor of permitting suit against a non-U.S. sovereign … Continue Reading

Second Court of Appeals in Two Weeks Rejects Germany’s Invocation of Sovereign Immunity To Avoid Being Sued in the U.S. over pre-WWII Bonds

The fascinating story of Germany’s sales of bonds in the 1920s, the subsequent Russian confiscation, and Germany’s post-WWII efforts to stabilize the market for such bonds, is the subject, not of any summer-time suspense novels, but of two recent decisions by the Second and Eleventh Circuits.  Mortimer Off Shore Services, Ltd. v. Federal Republic of … Continue Reading

Yet Another Court Invalidates the Combination of Forum Selection and Choice of Law Clauses but Severs To Uphold International Arbitration Provision

Our post of 8/9/10 discussed Matthews v. Princess Cruise, Ltd., Case No. 10-60830-CIV-GOLD/MCALILEY (S.D. Fla. 7/7/10), including how the court there permitted a post-litigation stipulation to the application of U.S. law as a means of saving an international arbitration agreement.  In Dumitru v. Princess Cruise, Ltd., 09 Civ. 4792 (NRB) (S.D.N.Y 7/29/10), the district court … Continue Reading

Another Court Invalidates the Combination of Forum Selection and Choice of Law Clauses but Severs To Uphold International Arbitration Provision

A district court in Florida furthered international comity by permitting removal of a case from state to federal court, then ordering that international and even U.S. Statutory claims be arbitrated in accordance with arbitration provisions in a contract that the court saved from unenforceability by severing a specific, unenforceable provision.  In Matthews v. Princess Cruise, Ltd., Case … Continue Reading

New York’s Highest Court Reaffirms New York’s Commitment To Recognizing Non-U.S. Monetary Judgments Provided Basic Fairness Applied in Non-U.S. Proceeding

International litigation frequently includes efforts in one jurisdiction to enforce final determinations of disputes obtained in another jurisdiction.  When the final determination is of an arbitration meeting relatively few formal rules, the New York Convention – a treaty to which many countries are signatories – is the standard way of seeking international enforcement.  When the … Continue Reading

Morrison not the predicted death-knell after all? New decision respects “international comity” based on a forum non conveniens dismissal in favor of Ireland.

Our post of July 16 articulated a minority view that commentators and bloggers were too being too quick in declaring that Morrison v. National Australia Bank, 130 S.Ct. 2869 (2010), would create a sea change in international litigation in the U.S. for claims under the federal securities laws.  We also pointed out (in our July … Continue Reading

Principles of Determining Non-U.S. Law; The Use of Expert Testimony vs. Other “Sources” of Non-U.S. Law

In international litigation, the issue of choice of law should frequently be an early one to be determined and can be of crucial importance to the resolution of the matter.  For cases pending in federal court in the U.S., Fed. R. Civ. P. 44.1 provides that the determination of a non-U.S. country’s law is an … Continue Reading
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