Tag Archives: Forum Selection & Challenges

Eleventh Circuit Reiterates Its Rejection of Public Policy Defenses To the Compelled Arbitration of Federal Claims in Non-U.S. Arbitrations Applying Non-U.S. Law

Fernandes v. Carnival Corp., No. 09-15675 (11th Cir. 2012), provides a concentrated refresher of several international practice principles that the courts, especially in the Eleventh Circuit, have applied in increased rigor and consistency.  In a short decision, the Eleventh Circuit addressed claims by an injured fitter mechanic complaining of the alleged failure by Carnival to … Continue Reading

Fourth Circuit Weighs in on Circuit Split Concerning Whether State Insurance Statutes “Reverse Preempt” Arbitration Provisions in International Agreements

ESAB Group, Inc. v. Zurich Ins. PLC, et al., No. 11-1243 (4th Cir. 2012), recently weighed in on a matter that has split the Circuits and has given pause to international contract draftsmen and international dispute resolution practitioners:  to what extent to international contracts containing mandatory arbitration provisions supercede contrary state (or even federal) law.  … Continue Reading

Third Circuit Severs Invalid Forum Clause For Arbitration, Permits Arbitration To Proceed Only In District of Challenge

Control Screening LLC v. Technology Application and Production Company, No. 11-2896 (3d Cir. 2012), involved a review of the District Court’s direction that arbitration occur in the District of New Jersey.  The parties to the contract were U.S. and Vietnamese citizens.  The international practice aspects of the decision include: First, on the strict matter 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

Ninth Circuit Finds Carmack Amendment Precludes Arbitration Provisions

The Ninth Circuit’s decision in Smallwood v. Allied Van Lines, et al., No. 09-56714 (9th Cir. 2011), discusses the important interplay between federal law and private contracts containing arbitration clauses.  The topic arises frequently in international litigation. The plaintiff hired Allied to move some of his household goods from southern California to the United Arab … Continue Reading

State Law Claims Do Not “Necessarily” Raise Federal Question — Case Ramanded To State Court

The distribution of matters between federal and state court is a key consideration in the international practice sphere.  In re Lehman Bros. Securities and ERISA Litigation, 09 MD 2017 (S.D.N.Y. 2012) (LAK), deserves study on this issue.  The case remanded to state court claims asserted against Lehman by the People of the State of New … 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

Federal Arbitration Act Preempts State Law; Action Stayed Pending Arbitration In Canada Under Canadian Law

Audio Visual Concepts, Inc. v. Smart Technologies, ULC, et al., Civil No. 11-1551 (JAG-CVR) (D. P. R. 2011), addresses the issue of the staging or sequencing the resolution of disputes pending in an international arbitration on the one hand and in courts of law on the other.   Paintiff sought a preliminary injunction to stop its … 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

Claims Against Bank Dismissed On Grounds of FSIA Based On Post-Contract Takeover of Bank by Non-U.S. Sovereign, Even Though Contract Contained Express Consent To Suit Clause in New York

The recent decision in Fir Tree Capital Opportunity Master Fund, L.P., et al. v. Anglo Irish Bank Corp., 11 Civ. 0955 (PGG) (S.D.N.Y. Nov. 2011), describes both the obstacles to a successful suit against an entity cloaked with immunity under the Foreign Soveign Immunities Act (FSIA) but, perhaps, shows a path to a succcessful suit against … 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

International Banking and Finance Provide Grounds for Removal of State Court Action to Federal Court

American Int’l Group, Inc., et al. v. Bank of America Corp., et al., 11 Civ. 6212 (BSJ) (S.D.N.Y. Oct. 2011),  highlights one of the common ways to order, sequence, rationalize a complex international litigation (see generally the discussion of ordering or sequencing international litigation in our e-book, International Practice: Topics and Trends). Residential mortgage backed securities … Continue Reading

Second Circuit Affirms Direction To Arbitrate But Holds the Arbitration Panel Determines Scope of Contractual Forum Clause

UBS Financial Services, Inc., et al. v. West Virginia University Hospitals (WVUH), et al., Dkt. No. 11-235-cv (2d Cir. Sept. 2011),  involves three issues of relevance to the development of international dispute resolution and international litigation.  UBS acted as an underwriter and broker of auction rate securities and was a member of the Financial Industry Regulatory Authority … Continue Reading

Personal Jurisdiction Exists Only Where Venue Proper; Claim Against Bank of China Severed and Transfered To S.D.N.Y.

Wultz v. Islamic Republic of Iran, 08-cv-1460 (RCL) (D.D.C. Jan. 2011), is the opinion on reconsideration of an earlier decision, which we posted on because of its rulings on the pleading of causation in a claim to overcome a sovereign immunity defense. The case arises out of the suicide bombing in 2006 or a restaurant … Continue Reading

Reliance on Forum Selection Clause Waived Despite The Absence of Any Specific Federal Rule For Asserting a Forum Clause Pre-Answer

American International Group Europe S.A. (Italy) (AIGE) v. Franco Vago International, Inc., 09 Civ. 6525 (S.D.N.Y. Nov. 2010),  succinctly addresses several issues of international litigation practice, specifically the enforceability of jurisdictional provisions in bills of lading and waiver.  AIGE is the subrogee of Sixty USA, Inc. The case is a maritime case (138 cartons of … Continue Reading

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

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

New York Federal Court Enforces Forum-Selection-Clause Requiring Enforcement of Arbitral Award in Bulgaria; Specifically Targeted Evidence of Corruption Required and Not Proferred

Zeevi Holdings Ltd. v. Republic of Bulgaria, No. 09 Civ. 8856 (S.D.N.Y. Apr. 2011), decides whether a party with a valid arbitral award may invoke the provisions of the New York Convention to enforce the award in the U.S. or rather must comply with the forum-selection clause of the underlying agreement, which the Court here … Continue Reading

Applying Federal Common Law, Court Finds Matter Should Be Arbitrated; Simultaneously Upholds Forum Selection Clause

Farrell v. Subway Int’l, 11 Civ. 08 (S.D.N.Y. Mar. 2011), is a decision on a motion to stay arbitration and simultaneous invalidation of a negotiated forum selection clause. Farrell is a citizen of Ireland and operates three Subway franchises in Dublin. Subway filed a demand for arbitration with the American Dispute Resolution Center and requested … Continue Reading

Ninth Circuit Holds that Defense Based on Prior Arbitration Creates “Relates To” Jurisdiction To Support Removal of Litigation To Federal Court Under New York Convention

Infuturia Global Ltd. v. Sequus Pharmaceuticals, Inc., et al., No. 09-16378 (9th Cir. Feb. 7, 2011), addressed what the Court of Appeals described as the “novel question” whether, under the U.S.’s statutory embodiment of the New York Convention in 9 U.S.C., “removal” jurisdiction exists over a case where the defendant raises an affirmative defense related to … Continue Reading

International Contracts Held To A Different Standard: Forum-Selection and Choice-of-Law Clauses Upheld

In Liles, et al. v. Ginn-La West End, Ltd., No. 10-11943 (11th Cir.  1/28/11), Ginn-La developed and sold lots of property in a subdivision in the Bahamas.  Plaintiffs in the suit reside in various states within the U.S. and sued in Florida.  The sales contracts contained identical choice-of-forum clauses:  the Bahamas was the exclusive venue for … Continue Reading