Monthly Archives: July 2011

First Circuit Finds Fraudulent Inducement Claims Arbitrable by Virtue of the “Ambiguity” of “Arising Under” Language — Despite Granite Rock

Dialysis Access Center, LLC, et al. (DAC) v. RMS Lifeline, Inc. (RMS), No. 10-1872 (1st Cir. Mar. 2011), includes a step-by-step refresher of the current state of the law on when in international litigation an arbitration clause can force a party to present validity and enforceability issues to the arbitrator rather than to a court.  The … Continue Reading

Ninth Circuit Refuses To Permit Case Involving Peppercorns and Trochus Buttons To Proceed Against the Sovereign State of Pohnpei

AHPW, Inc., et al. v. State of Pohnpei, et al., No. 09-17871 (9th Cir. Jun. 2011) (unpublished), addresses several common issues that arise in the context of international litigation practice involving non-U.S. sovereigns but in an uncommon geographical and factual setting. In this case the non-U.S. sovereign is Pohnpei, the name of one of the four … Continue Reading

District Court Finds FSIA Terrorist Exception Met by Generalized Allegations of Proximite, Rather than But-for, Causation

Sheryl Wultz, et al. v. Islamic Republic of Iran, 08-cv-1460 (D.D.C. 2010),  bears mention because of more recent attempts by non-U.S. sovereigns to avoid jurisdiction in the U.S. under 29 U.S.C. § 1605A (see our discussion of the application of the new terrorist exception to overcome claims of sovereign immunity). The ruling concerning causation also … Continue Reading

Ninth Circuit Reaffirms on Rehearing Its Rejection of District Court Dismissal on Forum Non Conveniens Grounds

Carijano, et al. v. Occidental Petroleum Corp., et al., No. 08-56187 (9th Cir. June 1, 2011), is a decision on rehearing of an earlier decision on forum non conveniens.   In the earlier decision, the Court of Appeals reversed as an abuse of discretion the District Court’s grant of a motion to dismiss on forum non … Continue Reading

Courts “Of”, Rather than “In”, a Jurisdiction Do Not Include Federal Courts Within that Jurisdiction, says Third Circuit

New Jersey, et al. v. Merrill Lynch & Co., et al.  involves what the Court of Appeals called the “narrow” issue of the interpretation of forum selection clauses. In fact, in our experience, the issue is an important one for the development of international practice, both for the international litigator and for the corporate lawyer … Continue Reading

Rejecting Claim of Unconscionability To Avoid Arbitration, District Court Reaffirms New York as a Center for International Commerce and Standardized Contracting

Where would an international practitioner or law firm or even a purely domestic corporate lawyer or go for a recent, succinct, lucid articulation of New York law on the subject of the circumstances under which a party can invoke the ground of unconscionability to avoid a dispute resolution provision in a contract calling for arbitration? … Continue Reading

Class Action Raising Predominantly Non-U.S. Law Claims Dismissed on the Basis of Comity

Toyota Motor Corp. Securities Litigation, cv 10-922 DSF (AJWx) (C.D. Cal. July 2011), addressed claims asserted both under the Private Securities Litigation Reform Act and under Japanese law arising out of Toyota’s recall of Toyota and Lexus brand cars, which cost roughly $4 billion and caused stock value loss of 11%.   The Distirct Court addressed … Continue Reading

D.C. Circuit Holds that the Alien Tort Statute Applies to Corporations, Confirming Circuit Split with Second Circuit’s Kiobel Decision

John Doe VIII, et al. v. Exxon Mobil Corp., et al., No. 09-7125 (consolidated) (D.C. Cir. July 2011),  is a 112 page 2-1 majority decision analyzing the scope of claims under the Alien Tort Statute, 28 U.S.C. sec. 1350.  The decision confirms the Circuit split over whether the ATS applies to corporations, siding with the … Continue Reading

U.S. Supreme Court Reaffirms Basic Personal Jurisdiction Principles; Finds No Specific or General Jurisdiction Over Non-U.S. Affiliates of Goodyear

Last year’s end-of-Term Supreme Court international practice case, Morrison v. National Australia Bank, No. 08-1191 (S. Ct. June 2010),  has ushered in a year’s worth of jurisdiction shifting cases attempting to be faithful to the Supreme Court’s dictate that Section 10(b) of the Securities Exchange Act of 1934 did not provide a private cause of … Continue Reading

Second Circuit, Sharing District Court’s “Irritation” at Argentina’s Refusal To Pay Its Creditors, Nonetheless Finds Central Banking Assets Immune from Attachment

NML Capital, Ltd., et al. v. Banco Central de la Republica Argentina (BCRA), et al., Dkt. Nos. 10-1487-cv-L, et al. (2d Cir. July 2011) addresses what the Court of Appeals describes as matters of first impression in the Circuit:  1) whether funds held at the Federal Reserve Bank of New York in an account of … Continue Reading

Second Circuit Requires Arbitrator To Detemine Statute of Limitations Despite Specific Reference in Contracts Invoking New York Law and Procedure and Despite New York Law That the Issue Is For the Court, Not the Arbitrator; Conflict with New York’s Highest Court Apparent

Bechtel Do Brasil Constucoes LTDA., et al. v. UEG Araucaria LTDA, 10-0341-cv (2d Cir. Mar. 2011), decides whether, under federal arbitration law of the FAA as well as specific New York law principles, the court or arbitrator decides a statute of limitations defense. The decision holds that the arbitrator decides the issue given the language … Continue Reading

Illinois Federal District Court Upholds ATS Claims Against Banks for Aiding and Abetting Genocide by Looting

Holocaust Victims of Bank Theft v. Magyar Nemzeti Bank, et al., No. 10 C 1884 (N.D. Ill. May 2011), addresses motions to dismiss filed by international banking institutions that allegedly “played a role in a wealth expropriation scheme involving the theft and withholding of assets and funds from Hungarian Jews who were victims of the … Continue Reading

D.C. Circuit Finds 3-Month Period To Move To Vacate Arbitral Award Statutory and Thus Incapable of Being Extended Under Fed. R. Civ. P. 6.

Argentine Republic v. National Grid PLC, No. 10-7093 (D.C. Cir. Mar. 2011), is a per curiam decision of the D.C. Circuit addressing an important issue that affects international practice particularly:  can a federal court extend time deadlines imposed by statute when dealing with the exercise of a right under international convention or treaty, here the … Continue Reading
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