Tag Archives: Sequencing Dispute Resolution

Norex Decision, Long in Federal Court, Now Dismissed By State Court Using Borrowing Statute To Shorten Applicable Limitations Period

We have posted on the meanderings of the Norex case in federal court (e.g., here).  After dismissal from federal court, Norex sued in state court.  Norex Petroleum Ltd. v. Leonard Blavatnik, et al., Index No. 650591/11 (Sup. Ct. N.Y. County 2012). In a decision that addresses several international litigation issues, the trial court dismissed at least … Continue Reading

Petition To Confirm Arbitral Award Coupled with Relief For Indemnification and Attorney’s Fees

Related actions recently commenced in connection with an offshoot of the Madoff claims bears note for those interested in international dispute resolution practice.  We know of these issues because of the public nature of the filings made to confirm arbitral awards and for other relief. An investor commenced an arbitration against J. Ezra Merkin in … Continue Reading

New York’s Highest Court Affirms Dismissal of Suit In Deference to Philippines Sovereign Immunity

Osqugama Swezey v. Merrill Lynch, et al., No. 88 (NY 2012), is a decision of New York’s highest court on the issue of how to balance the claims of deserving litigants before the court and those of the absent non-U.S. sovereign.  The issue is one we have posted on previously (e.g., here) Merrilly Lynch brought an … Continue Reading

Bankruptcy Court Refuses To Stay International Litigation Against Non-Debtor Subsidiaries Despite Express Statutory Language Giving It the Power, but Not the Obligation, To Do So

In re Vitro, S.A.B de C.V v. ACP Master, Ltd., et al., Case No. 11-33335-HDH-15 (N.D. Tex. 2011), is a decision by a bankruptcy court but contains discussion of the issue often arising in contentious international litigation:  attempts to enjoin proceedings in other countries in favor of proceedings in the U.S., or attempts to enjoin … Continue Reading

U.S. Court Orders Extradition of Alleged War Criminal After According Due Process

In the Matter of the Extradition of Rasema Handanovic, 3:11-mc-9097-ST (D. Ore. 2011), presents several noteworthy aspects of the international practice issues that arise in an international extradition proceeding.  In particular, the extent to which a U.S. court will protect the due process rights of a potential criminal defendant in an international war crimes case is … Continue Reading

International Arbitral Panel Enjoins Ecuador in the Chevron Matter

In the ongoing battles between Chevron and Ecuadorian plaintiffs and, relatedly, with Ecuador itself, an international arbitration tribunal has issued a Second Interim Award on Interim Measures.  The matter is captioned, In the matter of arbitration  before a tribunal consistituted in accordance with the Treaty Between the United States of America and the Republic of … Continue Reading

Reversing the Ninth Circuit, Supreme Court upholds right to arbitrate

We have discussed various decisions by the Supreme Court, the federal Courts of Appeals, and an array of District Courts seeking to uphold private parties’ freedom to contract with each other concerning the forum and law to govern their disputes, typically in the cases discussed here, their international.  See for example our posting of 11/12/10, which … Continue Reading

New York’s Highest Court Finds Public Policy Exception Applicable Before Even Deciding the Issue of Arbitrability, Barring Arbitration of Job Security Clauses

We have previously posted on the limits that courts inevitably find to the arbitrability of disputes, such as with “manifest disregard” oversight or grounds of public policy (see for example here).  In a recent decision by New York’ highest court, In the matter of the arbitration between Johnson City Prof. Firefighters Local 921, et al. v. Village … 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

Second Circuit Explains Its Decision Reversing the Grant of Injunction To Enforce $18 Billion Award Against Chevron

Chevron Corp. v. Hugo Gerardo Camacho Naranjo, et al., No. 11-1150-cv(L), is the Second Circuit’s decision explaining its ruling ealier in 2011 to reverse the District Court’s grant of a preliminary injunction precluding any enforcement activities of an $18 billion judgment against Chevron by native Ecuadorians for environmental liability entered by a court (and now … Continue Reading

New York State Court Applies Rules To Sequence Simultaneous Litigation and Arbitration

Boz Export & Import, Inc. v. Karakus, Dkt. No. 8738/11 (N.Y. Sup. Ct. Kings Cty. 2011), expounds on several current and timely topics in international practice but from the perspective of a state court jurist (called a Justice in New York courts).  The decision was filed by a New York State judge sitting in a … 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

Panama Convention and New York Convention Interpreted Consistently; Action To Enforce Arbitral Award Stayed Pending Litigation in Honduras

DRC, Inc. v. Republic of Honduras, Civil Action No. 10-0003 (PLF) (D.D.C. Mar. 2011), involves efforts by DRC to confirm and enforce a $51 million arbitral award against the Republic of Honduras.  The arbitrations and litigations arose out of a construction contract.   DRC attempted to confirm its Award in a proceeding before the Honduran Supreme … 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

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

Arbitration Compelled for Industry-wide Antitrust Claim Made Against A Single Defendant Despite Active Participation in Multidistrict Litigation for Over A Year

Nokia Corp., et al. v. AU Optronics Corp. (AUO), et al., MDL No. 1827 (N.D. Cal. July 2011), orders arbitration on the basis of reasoning that is noteworthy for the litigation of international disputes.  Nokia’s complaint alleges a price-fixing conspiracy by suppliers of liquid crystal display (LCD) panels.  AUO asserted, as its fifty-second affirmative defense:  To the extent Nokia … Continue Reading

S.D.N.Y. Upholds Discovery of Non-U.S. Bank Branches, but Only after Hague Convention Procedures Are Utilized

Tiffany (NJ) LLC, et al. v. QI Andrew, et al., 10 Civ. 9471 (S.D.N.Y. July 2011)(Mag. J. Peck), addresses international discovery issues and can serve as a refresher of several of the areas that arise frequently in international litigation. Plaintiffs moved for an order compelling document production from three Chinese banks (the Bank of China, … Continue Reading

Even a Year’s Delay Does Not Waive Right To Compel Arbitration Provided No Substantial Invocation of Court Assistance

In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, MDL No. 2179 (E.D. LA. July 2011) (Rec. Doc. 2169), decides a motion to stay litigation between Anadarko and BP on the basis of the international agreement titled “Macondo Well Joint Operating Agreement” (JOA). The Court … 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

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

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

Fifth Circuit Grants and Then Withdraws Mandamus, But New York Convention Removal By Non-Defendant Still Improper

The Fifth Circuit’s decisions in In re Chrystal Power Co. Ltd, No. 11-40115 (5th Cir. 21 March 2011), on rehearing (16 May 2011), address whether mandamus lies for a District Court order erroneously permitting removal of a case to federal court under the New York Convention, as codified in 9 U.S.C. secs. 201, et seq. Crystal … Continue Reading

New York’s First Department Makes New Law In New York By Permitting Pre-Arbitration Award Attachment Despite No Subject Matter or Personal Jurisdiction

Sojitz Corp. v. Prithvi Info Solutions Ltd., 602511/09, 3841 (First Dep’t 3/10/11), is a decision from New York’s intermediate appellate court.  It addresses a matter of first impression in New York, which is one of importance to the development of the law and practice in international litigation:  Whether a creditor may lawfully and constitutionally attach assets … Continue Reading

Strict Application of FSIA Requirements and “Separate Entity” Rule for Banks Determine Priority in Disputed International Litigation Over Blocked Iranian Assets

Levin, et al. v. Bank of New York, et al., 09 CV 5900 (RPP) (S.D.N.Y. Jan. 2011), involves claims of priority to assets blocked by the U.S. Office of Foreign Assets Control of the U.S. Treasury held by various banks to satisfy judgments obtained by various persons injured by Republic of Iran.  The Levin plaintiffs … Continue Reading