Monthly Archives: September 2010

Failure To Have Jurisdictional Hearing in District Court Eases Burden on Plaintiff To Prove Jurisdiction. Nonetheless, Personal Jurisdiction in Massachusetts Absent For Polish Bank Even With Contacts in Massachusetts

As discussed in our International Practice:  Topics and Trends e-book, the question whether personal jurisdiction over a defendant exists in an international dispute is generally but not completely governed by the same principles as govern the exercise of personal jurisdiction … Continue reading

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Another Circuit Court Confirms that Premature Assertion of Sovereign Immunity Leads to Denial; “Insubstantial” Defense Fails To Trigger Collateral Order Appellate Review

Our companion International Practice: Topics and Trends e-book discusses the recent swing by the Circuit Courts of Appeals in international litigation to deny a sovereign immunity defense in a variety of circumstances where, in the not-so-distant past, the courts were … Continue reading

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Fifth Circuit Rejects Special Rules Applicable to Nazi Looted Art Cases

International litigation in the U.S. is seeing an increasing number of cases alleging that Nazi persecution led to the confiscation or loss of paintings or other objects d’art that have appreciated significantly in value since World War II. Heirs of … Continue reading

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Extraterritorial Application of Federal Act Both Congressionally Justified and Constitutional in the Case of the Torture Act (Eleventh Circuit) But Not in the Case of the Lanham Act, on the Facts (Ninth Circuit)

Prior posts discussed Morrison v. National Australia Bank (No. 08-1191), where the Court held that the federal securities laws did not apply to extraterritorial conduct in a so-called foreign cubed case (foreign plaintiffs sue foreign defendants for misconduct in connection … Continue reading

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Alien Tort Statute Does Not Create Claim Against Corporation for Alleged Violations of Customary International Law

The U.S. Court of Appeals for the Second Circuit, in Kiobel, et al. v. Royal Dutch Petroleum Co., et al., 06-4800-cv, 06-4876-cv (2d Cir. 9/17/10), became the highest court in the land (so far) to decide the question whether the … Continue reading

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Court of Appeals Unwilling To Permit District Court Oversight Of Claimed Attorney Misconduct in Arbitration, Even In an Arbitration Ordered By the Court

Positive Software Solutions, Inc. v. New Century Mortgage Corp., et al., No. 09-10355 (5th Cir. 9/13/10), exemplifies the very limited and grudging willingness of federal courts to interfere with an arbitral proceeding. This is an issue that arises frequently in international … Continue reading

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Montreal Convention Limits Carrier Liability Despite Party’s Claim of Stipulated Variance; District Court’s Reliance on Uncertified, Self-Translated Documents Upheld

Treaties and conventions are one of the backbones of our system of international cooperation and comity.  The Eleventh Circuit, in Eli Lilly and Co. v. Air Express Int’l USA, Inc., et al., No. 09-12725 (11th Cir. 8/23/10), addresses the evolution … Continue reading

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Attorney-client Privilege At Risk in International Investigations Given European Court of Justice Ruling: Akzo Nobel decision

In a decision rendered yesterday in Akzo Nobel Chemicals, Ltd, et al v. The Commission, et al., C-550/07 P, the EU’s highest court has weighed in on one of the most significant issues in international practice:  the potentially different rules that … Continue reading

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The Debate Continues Over the Use of Expert Witnesses To Prove Non-U.S. Law Under Fed. R. Civ. P. 44.1.

Sensing a possible trend away from the Second Circuit’s openness to the use of expert affidavits to prove non-U.S. law, even those filed for the first time on appeal, we have twice recently posted analyses of decisions of Southern District … Continue reading

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Possible Common Law Immunity Available for Officials of Non-U.S. Governments, Even Where FSIA Immunity Unavailable; Dueling Anti-Suit Injunctions Not Reviewed

A ruling in an international litigation by the U.S. Court of Appeals for the Third Circuit, in Abi Jaoudi and Azar Trading Corp. v. CIGNA Worldwide Ins. Co., et al., 09-1297, 1298 (3d Cir. 8/20/10)(non-precedential), is the sixth ruling of … Continue reading

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