Monthly Archives: November 2010

Second Circuit Continues To Narrow the Scope of Quasi-in-Rem Jurisdiction in International Litigation

Our post on the Second Circuit’s decision in Sinoying Logistics Pte Ltd. v. The Hong Kong and Shainghai Banking Corp., No. 09-5368 (2d Cir., 31 Aug. 2010), addresses whether electronic funds transfers (EFTs) are attachable property for quasi-in-rem jurisdiction.  In … Continue reading

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The Perils of Trying To Confirm an Arbitral Award in the Absence of a Forum-Selection Clause; Alter Ego Liability Unavailable in an Application To Confirm Arbitral Award

Our recent blog post examined the a District Court’s treatment of a motion to dismiss international litigation for lack of personal jurisdiction and forum non conveniens in the context of contracts with a choice of forum clause.  Here we examine … Continue reading

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Enforceability of Forum Selection Clauses in International Litigation: A Brief Primer

A decision by the Southern District of New York in the area of international litigation, Export-Import Bank of the U.S. v. Hi-Films de C.V., et al., 09 Civ. 3573 (S.D.N.Y. 24 Sept. 2010)(PGG), addressed the enforceability of a forum selection … Continue reading

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Another Sovereign Immunity Defense Rejected on the Basis of the Commercial Activity Exception Based on Direct U.S. Effects – from Open-Ended Place of Payment Clauses that Did Not Appoint But Did Not Foreclose Payment in the U.S.

In another recent rejection of a sovereign immunity defense, this time by the District Court in the Southern District of New York, Rogers, et al v. Petroleo Brasileiro, S.A. (Petrobras), 09 Civ. 08227 (S.D.N.Y. 27 Sept. 2010)(PGG), the sovereign, Petrobras, … Continue reading

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Sovereign Immunity Available, But Individual Diplomatic Immunity Unavailable; Default Judgment under ATCA Requires Willfulness, Rules Second Circuit

Swarna v. Al-Awadi, State of Kuwait, et al., No. 09-2525, 09-3615 (2d Cir. 9/24/10), involves a review by the Second Circuit Court of Appeals of interlocutory and final judgments of default and related relief under the Alien Tort Claims Act, … Continue reading

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When Can Principles of International Law Be Read Into Federal Statutes? Often But Not Always, and Probably Not in the Context of Interpreting the War Powers of the Executive Branch

Practitioners and other interested parties have far more knowledgeable and insightful sources than this writer to consider the current state of play in the Guantanamo detention issues.  At the same time, the recent “decisions” to deny rehearing of the D.C. Circuit … Continue reading

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Ninth Circuit Rules that Congress’s Use of the Phrase “Right To Sue” Precluded Parties from Agreeing To Arbitrate Any Dispute

Our most recent post, on 11/12/10, analyzed the First Circuit’s efforts to uphold private parties’ freedom to contract with each other concerning the forum and law to govern their international dispute.  By way of contrast, a recent decision by the … Continue reading

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First Circuit Enforces Contractual Choice of Forum Provision Despite Claim that State Law Prohibited Same; Application of Contractual Choice of Law Provision Uncertain

We have long advised that private parties, by contract, should attempt to order their affairs before a dispute arises.  What happens when the legislature or other governmental body attempts to regulate what parties can contract about?  The recent decision in … Continue reading

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Second Circuit Affirms Sua Sponte Rejection of Personal Jurisdiction Over Defaulting Defendant Where EFT Clearing Is Only Basis for Attachment of Property and Resulting Personal Jurisdiction

As we have addressed in our e-book International Practice: Topics and Trends, courts adjudicating international cases often look for guidance to maritime cases for purposes of seeing how that developed body of law addresses issues such as securing personal jurisdiction … Continue reading

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Court of Appeals Sends International Litigation to Mediation Without First Determining Its Own Jurisdiction; Dissent Feels Morrison May Have Overruled Extraterritorial Application of the Alien Tort Statute

In Sarei v. Rio Tinto, No. 09-56381 (9th Cir. 10/26/10), the Ninth Circuit, en banc (meaning the full court of appeals (12 judges) rather than the typical panel of three judges), addressed for at least the third time claims arising … Continue reading

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