Monthly Archives: September 2011

Another Court Permits “Indirect” Takings Claim To Proceed Against Non-U.S. Sovereign Despite Foreign Sovereign Immunities Act

Victims of the Hungarian Holocaust v. Hungarian State Railways (HSR), No. 10 C 868 (N.D. Ill. July 2011), address claims against an instrumentality of the Government of Hungary that allegedly “played a role in the looting and plundering of Jewish possessions and the expropriation of Jewish funds  during the Holocaust”.  The District Court denied a motion … Continue Reading

Non-U.S. Liquidation Proceeding Recognized by U.S. Court; Public Policy Bar Rejected

In re: Fairfield Sentry Limited, et al., 10 Civ. 7311 (S.D.N.Y. Sept. 2011), is an appeal to the District Court of a ruling by the Bankruptcy Court that recognized the liquidation proceeding of Fairfield pending in the British Virgin Islands (BVI) as a “foreign main proceeding” under the U.S. Bankruptcy statute and stayed appellants derivative as well as … Continue Reading

Another Court Compelling Arbitration Based On AT&T Mobility; Extending the Supreme Court’s Analysis Yet Further?

Kaltwasser v. AT&T Mobility LLC, Case No. C 07-00411 (N.D. Cal. Sept. 2011), involves claims similar to those that the Supreme Court addressed in its significant decision of earlier this year, AT&T MobilityLLC (ATTM) v. Conception, 131 S.Ct. 1740 (2011), which we discussed in the context of our frequent discussion, crucial in the international litigation context, … Continue Reading

Second Circuit Vacates Preliminary Injunction Entered In Favor Of Chevron Against Ecuador Judgment, Staying Portion of District Court Case

We have written on District Judge Kaplan’s decision earlier this year — a 127-page decision preliminary enjoining enforcement, anywhere in the world, of an Ecuadorian judgment totaling $8.646 billion obtained by Lago Agrio plaintiffs (indigenous peoples in the Amazonian rain forest) against Chevron Corp., which bought the assets directly or indirectly from Texaco, Inc. in 2001 and was treated … Continue Reading

Ninth Circuit Vacates Class Certification Based in Part on Wal-Mart

Shirley “Rae” Ellis, et al v. Costco Wholesale Corp., No. 07-15838 (9th Cir. Sept. 2011), presents one of the first Court of Appeals’ efforts to apply the Supreme Court’s class action decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).  The international litigation practice rulings in the decision arise from the increased … Continue Reading

Court Dismisses Both “Foreign Cubed” as Well as “Foreign Squared” Securities Claims Based on Morrison

In the absence of appellate guidance, District Courts continue to apply or expand the ruling of Morrison v. National Australia Bank Ltd., No. 08-1191 (June 24, 2010), the first “foreign-cubed” securities action to appear before the Supreme Court—in which (i) non-U.S. plaintiffs, (ii) sued a non-U.S. issuer, (iii) based on securities transactions outside of the United … Continue Reading

New York Will Exercise Extraterritorial Jurisdiction Over Assets Abroad To Satisfy U.S. Judgment Assuming Requisite Personal Jurisdiction; Enforcement of Judgment Procedure Discussed

JW Oilfield Equipment, LLC v. Commerzbank AG, No. 18 MS 0302 (PKC)(S.D.N.Y. Jan. 2011), makes a series of useful international litigation rulings relating to enforcement and collection of money judgments.  In this regard, see generally the discussion of issues relating to enforcement of judgments in our e-book, International Practice: Topics and Trends.  Based on a judgment … Continue Reading

International Arbitral Tribunal (ICSID) Approves “Mass” — Class Action-Like — Claims Approach by Creditors Against Argentina

We have posted on the role of class or other collective actions in international litigation, both in the U.S. and elsewhere.   The issue is also pertinent to the question we have also discussed in various contexts:  whether class or collective actions are available in the arbitration context.  Comes now an arbitral panel in the International Centre for … Continue Reading

UK High Court Upholds Freedom of Contract Over Public Policy Inavlidation of “Anti-deprivation” Clauses in Standard Credit Default Swap Contract

Belmont Park Investments PTY Limited (Respondent) v. BNY Corporate Trustee Services Limited and Lehman Brothers Special Financing Inc (Appellant), 2011 UKSC 38 (Trinity Term July 2011), is a decision by the UK’s Supreme Court of England and Wales that involves two important principles of international litigation practice.  The decision dismisses an appeal in the case … Continue Reading

Florida District Court Adheres To Holding that No-Class-Action Provisions in Five Agreements’ Arbitration Provisions Are Unenforceable as Unconscionable Despite U.S. Supreme Court and Eleventh Circuit Precedent

In re Checking Account Overdraft Litigation, MDL No. 2036 (S. D. Fla. Sept. 2011), decides renewed motions to compel arbitration of nationwide class-action litigation consolidated for multidistrict litigation purposes in South Florida.  The Court denies again the motions to compel arbitration.  The international litigation issues in the case are similar to those in Cruz, et al. v. … Continue Reading

Eleventh Circuit Follows Supreme Court Decision in ATT Mobility To Preempt Florida Law Purporting To Limit Party’s Right To Preclude Assertion of Class Claims in Consumer Arbitration

Cruz, et al. v. Cingular Wireless, LLC, No. 08-16080 (11th Cir. Aug. 2011), is among the first Court of Appeals decisions since the U.S. Supreme Court’s decision in AT&T MobilityLLC (ATTM) v. Conception, 131 S.Ct. 1740 (2011), to address the issue whether a state law imposing limits on a contracting party’s ability to prevent class … Continue Reading

Clause Requiring Arbitration of “Any Controvesry” Broad Enough To Encompass Claims Pre-dating the Agreement or Having Nothing To Do the Agreement Containing the Arbitration Provision

Nanosolutions, LLC, et al. (Nano) v. Prajza, et al., Civil Action No. 10-1741 (EGS) (D.D.C. June 2011), grants a motion to stay litigation in favor of pending arbitration.  The rationale bears on international litigation disputes generally in the several respects. Nano is a biotech company that develops “technology involving tissue-like nano-encapsulation delivery sytems, providing instant … Continue Reading

Court Permits Non-Sovereign To Invoke Sovereign Immunity Defense of Absent, Defaulting Non-U.S. Sovereign

First Investment Corp of the Marshall Islands v. Fujian Mawei Shipbuilding, Ltd. et al., Civil Action No. 09-3663 (E.D. La. June 2011), addresses the interesting international practice question under what circumstances may a non-sovereign assert a sovereign immunity defense. In this case, the international litigation issues are even more deserving of consideration, since the sovereign … Continue Reading