Tag Archives: Forum Non Conveniens

New York State Court, Reviewing Securities Case Dismissed from Federal Court on Exterritoriality Grounds, Rules that New York is a Proper Forum and Rejects Motions To Dismiss Fraud and Unjustment Claims.

Viking Global Equities and Glenhill Capital LP, et al. v. Porsche Automobil Holding SE, Index Nos. 650435/11, 650678/11 (Sup. Ct. N.Y. Cty. 2012), are related actions by global hedge funds who allegedly lost money in short positions when Porsche allegedly made misstatements involving its intention to attempt a takeover of Volkswagon.  The case is of … Continue Reading

Second Circuit Grants Forum Non Conveniens Dismissal in the Face of Non-U.S. Statute Limiting Recovery

Figueiredo Ferraz E Engenharia De Projecto Ltda v. Republic of Peru, et al., Dkt. Nos. 09-3925-cv, 10-1612-cv (2d Cir. 2011), addresses a key issue in international practice, especially attempts to enforce international arbitral awards in the context of motions to dismiss on forum non conveniens grounds.  (For a general discussion of the forum non conveniens … Continue Reading

New York Court Enforces Non-U.S. Judgment Under Uniform Money Judgment Act Without Analysis of Personal Jurisdiction Over the Defendant; Rejects Forum Non Conveniens Dismissal

Abu Dhabi Commercial Bank PJSC v. Saad Trading, Contracting & Financial Services Co., 652191/11 (Sup. Ct. N. Y. Cty. 2012), granted summary judgment in lieu of complaint — a streamlined and expeditious remedy — to domesticate and enforce a judgment from the U.K.  In the U.K. proceedings, the defendant initially appeared, did not contest jurisdiction, … Continue Reading

Eleventh Circuit Reiterates and Applies Strict Rules for the Exercise of District Court Discretion in Deciding Forum Non Conveniens Motions

Steven Prophet v. International Lifestyles, Inc., No. 11-12046 (11th Cir. 2011), is a Court of Appeals articulation of an important issue in international litigation.  The issue arises in many contexts where district courts are given discretion.  In this case the underlying issue relates to the application of the doctrine of forum non conveniens.  District Courts are … Continue Reading

Case Against IBM Japan Proceeds To Jurisdictional Discovery For Plaintiff To Attempt To Establish “Reverse” Piercing By Showing that the Absent Subsidiary Is the Agent or Instrumentality of the Present Parent; Court Also Denies Forum Non Conveniens Dismissal

Frederick W. Gundlach v. Int’l Business Machines Corp., et al., No. 11-CV-846 (S.D.N.Y. 2012), presents a pro se plaintiff’s claims against IBM and several non-U.S. affiliates for breach of contract and various employment related claims, including claims under Japan’s Labor Law.    For international practice purposes, the Court’s decision should be considered on the following issues: … Continue Reading

Case Conditionally Dismissed on Forum Non Conveniens Grounds Even In the Face of Blocking Statute in Chosen Non-U.S. Jurisdiction

Del Istmo Assurance Corp. v. Meletios Platon and Italkitchen Int’l, Case No. 11-61599-CIV-COHN/SELTZER (S.D. Fla. 2011), addresses the interesting and important issue in international practice of the choice of forum considerations applicable when one sovereign nation passes statutes attempting to block or regulate what disputes can be resolved in its courts based on what other … Continue Reading

Court Denies Forum Non Conveniens Dismissal Despite Suggestion of Non-Enforceability in Non-U.S. Forum

Airflow Catalyst Systems, Inc. v. Huss Technologies GmbH, Case no. 11-CV-6012 (W.D.N.Y. 2011), presents an interesting application of the judge-made rulesof forum non conveniens.  The topic is an ever-present one in international litigation (see our discussion of forum non conveniens in our e-book, International Practice: Topics and Trends). Airflow is a U.S. entity; Huss is German.  … Continue Reading

Post-Morrison, State Law Rather Than Federal Supports Claims By Non-U.S. Investors for Alleged Securities Fraud

We have been following the law’s development since the U.S. Supreme Court’s decision in the U.S. Supreme Court’s decision in Morrison v. National Australia Bank (No. 08-1191).  Morrison 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 … Continue Reading

Eleventh Circuit Reverses Prior View and Holds That Forum and Choice of Law Clauses Cannot Be Invalidated Pre-Arbitration Despite the Loss of the Right To Pursue a Federal Claim: New Interpretion of Challenge Mechanism in the New York Convention Offered

An important area within international dispute resolution is the extent to which courts will override parties’ choice of law and forum in the name of public policy.  See generally the discussion of choice of law/choice of forum and their impact on enforceability in our e-book, International Practice: Topics and Trends).  The Eleventh Circuit has now weighed … Continue Reading

Federal Court Seized of Admiralty Jurisdiction Nonetheless Dismisses In Favor of Canadian Litigation

Sikorsky Aircraft Corp., et al. v. Lloyds TSB General Leasing (No. 20) Limited, et al., Civil Action No. 3:10-CV-00954 (CSH) (D. Conn. Apr. 2011), demonstrates how two insightful courts are managing international litigation pending in two different countries.  The case involves a forum battle arising from the crash of a helicopter into international high seas … Continue Reading

Court of Appeals Affirms Forum Non Conveniens Dismissal of Cases to Argentina and Mexico; Chides Counsel for Ostrich-like Ignoring of Controlling Precedent

The cause celebre of the moment, a decision written by Judge Posner of the Seventh Circuit, Monica Del Carmen Gonzolez-Servin, et al. v. Ford Motor Company, No. 11 Civ. 1665 (7th Cir. Nov. 2011), literally shows pictures of a ostrich and of a man with his head in the sand.  The decision contains a ruling … Continue Reading

Combination of Arbitration and Non-U.S. Choice of Law Provisions Contrary To Public Policy; Defendant Permitted To Stipulate to U.S. Law To Compel Arbitration

Alcalde v. Carnival Cruise Lines, Case No. 10-24457-Civ-Moore/Torres (S.D. Fla. July 2011), is another in the line of recent cases struggling with the interplay between the public policy favoring arbitration of international disputes and the freedom of contract permitting parties to select non-U.S. law to govern their dispute even where a U.S. statutory claim is … Continue Reading

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

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

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

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

Canada Rebuffed In Effort To Dismiss Claims Against It on Forum Non Conveniens Grounds

Cruise Connections v. Attorney General of Canada, Civil Action No. 08-2054 (D.D.C.  15 Feb. 2011), is the decision on remand from the D.C. Circuit Court of Appeals, 600 F.3d 661 (D.C. Cir. 2010). The D.C. Circuit opinion had ruled the District Court had jurisdiction over Canada by reason of the commercial activity exception to the … Continue Reading

Eleventh Circuit Affirms Dismissal of Even U.S. Plaintiff on Forum Non Conveniens Grounds, Treating All Plaintiffs Alike

Tazoe, et al. v. Airbus SAS, et al., Dkt. No. 09, 14860 (11th Cir. 1 Feb. 2011), presents the often-raised issue of how multiple plaintiffs in the same or related cases should be treated in the context of forum non conveniens analyses.  At issue in the suit are claims arising from the TAM Linhas Aereas Flight … Continue Reading

Second Circuit Permits the Assertion of But Rejects on the Merits a New York Convention Challenge To Chevron’s Commencement of International Arbitration

The Second Circuit Court of Appeals decision in Republic of Ecuador, et al. v. Chevron Corp., Docket Nos. 10-1020-cv(L), 10-1026 (Con) (2d Cir. Mar. 2011), is not an appeal from the celebrated litigation now going on in the Southern District of New York and the Second Circuit involving Chevron and an Ecuadorian judgment of environmental liability … Continue Reading

How Another State Court Has Approached the Forum Non Conveniens Comity Issues

Our prior blog posting discussed a New York state court decision dismissing an international litigation dispute on forum non conveniens grounds.  The effort to achieve comity in that case principally took the a negative form:  New York courts, already overburdened, were not the best place to resolve an essentially non-U.S. dispute. Let’s look at how … Continue Reading

Forum Non Conveniens in International Litigation — Does State Court Application Differ from Federal Precedent?

To contrast the practice in state and federal courts, our blog earlier this week discussed a New York state appellate court decision dealing with an aspect of international dispute resolution:  which tribunal (the court of the arbitration panel) decides if a binding agreement to arbitrate was made (link here).  In another example of a New … Continue Reading

Ninth Circuit Reverses Forum Non Conveniens Dismissal of Case by Peruvian Achuar

In Carijano, et al. v. Occidental Petroleum Corp., No. 08-56187 (9th Cir. 6 Dec. 2010), the Ninth Circuit reversed as an abuse of discretion the District Court’s grant of a motion to dismiss on forum non conveniens grounds.  The plaintiffs are members (or supporters) of the Achuar, an indigenous people “who have long resided along … Continue Reading

Forum Non Conveniens Dismissal in Favor of Guatemala Raises Issues To Be Reviewed by the Second Circuit

A recent decision granting a motion to dismiss on forum non conveniens grounds serves to highlight issues that may arise in the application of forum non conveniens jurisprudence to an international dispute. Palacios, et al. v. The Coca-Cola Company, et al., No. 10 Civ. 3120 (S.D.N.Y. 19 Nov. 2010)(RJS), involved claims by a long-time worker … Continue Reading

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, was found to be an “organ of Brazil” despite the plaintiffs argument that Brazil did … Continue Reading
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