Tag Archives: Trials & Evidence

Vivendi Securities Case Tried, and Lost.

We have posted before on the class action securities case against Vivendi (e.g., here).  The recent trial involving the case is a lesson for international litigation practice.  Since our last posting, the defendants in the case sought to stay the trial pending Second Circuit review.  Because there was no vehicle to access appellate review, permission … Continue Reading

Courts Continue To Show Resistance To Maintaining Under Seal or In Confidence Documents and Information Used in Court Proceedings

We have posted previously on the growing reluctance of certain courts to maintain under seal the rulings of arbitral panels in international disputes (see, for example, here).  That poses challenges to parties trying to decide whether to initiate confirmation, enforcement, or vacatur proceedings.  Once the case is in court, however, there is no assurance that … Continue Reading

Extraterritoriality Becomes Focus of Kiobel Supreme Court; Are We Headed for Morrison II?

 We have posted on the fascinating development of the law concerning the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350.   The issues raised there are important in their own right and are at the center of many issues faced by the international litigator.  It started with the Second Circuit’s decision in Kiobel, et al. v. Royal Dutch Petroleum Co., et al., 06-4800-cv, … Continue Reading

District Court in Vivendi Class Action Denies Plaintiffs’ Bid for Interlocuotry Appellate Review

In re Vivendi Universal, S.A., Securities Litigation, 02 Civ. 5571 (RJH) (S.D.N.Y. 2012),  involves claims by non-U.S. persons — specifically persons in France, England, and the Netherlands (in addition to the U.S.) who purchased ordinary shares of American Depositary Shares of Vivendi stock.  A jury found the defendants liable for securities law violations.  Then the … Continue Reading

Rare FCPA Criminal Conviction Affirmed on Appeal

In a rare criminal conviction under the Foreign Corrupt Practices Act, the Second Circuit Court of Appeals affirmed the conviction of Frederick Bourke, co-founder of the accessory company Dooney & Bourke, U.S. v. Viktor Kozeny, David Pinkerton, Frederic Bourke, Jr., Docket No. 09-4704-cr(L) (2d Cir. Dec. 2011).  The case has important implications for international business … Continue Reading

Post-Arbitral Award Proceeding To Pierce Corporate Veil Correct Procedure But Fails on the Merits

Ahcom, Ltd. v. Hendrik Smelding, et al., Case No. 07-1139 SC (N.D. Cal. Aug. 2011), presents two interesting issues for international litigation and dispute resolution.   Nuttery Farms, Inc., a U.S. corporation, defaulted in connection with a series of contracts for the sale of almonds to Ahcom, Ltd., a U.K. limited liability corporation in the business of … Continue Reading

Reversal of District Court Grant of Summary Judgment in Favor of the Palestinian Authority Prompts Four Separate Opinions in the D.C. Circuit

Estate of Mark Parsons, et al. v. Palestinian Authority, et al., No. 10-7085 (D.C. Cir. Aug. 2011), reverses the District Court’s grant of summary judgment and finds triable issues of fact.  The decision is relevant to general international litigation issues in its interpretation of a U.S. statute — a point made by the three concurring/dissenting … Continue Reading

Court Appoints Neutral Expert On Choice of Law Issues But Rejects Public International Law Concepts’ Applicability To Private Claims

A recent decision, Pallano v. AES Corp., C.A. No. 9C-11-021 JRJ (Del. Super. Ct. July 2011), addresses three issues that frequently face the litigation practicioner or corporate draftmen in internaional litigation:  choice of law; the use of experts for the determination of  non-U.S. law; and the growing use of public international law constructs in private litigation.  … Continue Reading

D.C. District Court Refuses To Grant Plaintiff Default Judgment Against Iran, Finding Israeli Law Governed Dispute

In Estate of Yael Botvin v. Islamic Republic of Iran, et al., Civil Action No. 05-0220 (D.D.C. March 2011), plaintiff is the estate of an Israeli domiciliary killed in a 1997 terrorist attack in Jerusalem, Israel. The District Court had earlier denied a motion for a default judgment and treated the current motion as one … Continue Reading

Fourth Circuit Affirms International Arbitration Award Despite Objections Congizable Under the New York Convention

AO Techsbabexport (Tenex) v. Globe Nuclear Services and Supply GNSS, Ltd., No. 09-2064 (4th Cir. 15 Dec. 2010)(unpublished), involved an appeal from a District Court’s judgment that in turn confirmed an arbitral award in an international controversy.  Tenex, a Russian company, was appointed by the Russian Federation to direct the management of Russian nuclear materials.  … Continue Reading

Proof of non-U.S. law: Differences Between Federal and State Courts?

A recent decision of a state trial court in New York’s Commercial Part addresses proof of non-U.S. law.   MediaXPOSURE Ltd. (Cayman) v. Omnireliant Holdings, Inc., et al., 603325/09 (N.Y. Sup. Ct. 25 Oct. 2010).  The decision contrasts with the trend of the practice in the federal court.  As addressed in the topic of proving non-U.S. law our … 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

Ninth Circuit Rules Warsaw Convention Immunity Available; Tokyo Convention Immunity Not

Eid, et al. v. Alaska Airlines Inc., No. 06-16457 (9th Cir. 30 July 2010), presents a recent Court of Appeals analysis of two international conventions that are being invoked with greater frequency in international litigation.  The treaties/conventions are the Warsaw Convention (Convention for the Unification of Certain Rules Relating to International Carriage by Air, Oct. … Continue Reading

Ninth Circuit En Banc Dismisses Entire Case At Pleading Stage Over Concern for Disclosure of State Secrets

Mohamed, et al. v. Jeppesen Dataplan, Inc., No. 08-15693 (9th Cir. 9/8/10), exhaustively treats the case where the “fundamental principles” of “liberty, including justice, transparency, and accountability” are pitted against “national security”. The Court of Appeals “reluctantly” invokes the “rare” doctrine of an irreconcilable conflict between these two sets of principles and concludes that the … Continue Reading

Alien Tort Statute Does Not Create Claim Against Corporation for Alleged Violations of Customary International Law

The U.S. Court of Appeals for the Second Circuit, in Kiobel, et al. v. Royal Dutch Petroleum Co., et al., 06-4800-cv, 06-4876-cv (2d Cir. 9/17/10), became the highest court in the land (so far) to decide the question whether the Alien Tort Statute, 28 U.S.C. § 1350, subjects a corporation (as opposed to natural persons) … Continue Reading

Montreal Convention Limits Carrier Liability Despite Party’s Claim of Stipulated Variance; District Court’s Reliance on Uncertified, Self-Translated Documents Upheld

Treaties and conventions are one of the backbones of our system of international cooperation and comity.  The Eleventh Circuit, in Eli Lilly and Co. v. Air Express Int’l USA, Inc., et al., No. 09-12725 (11th Cir. 8/23/10), addresses the evolution of one of those, applicable to limitations on liability for damage to air cargo.  The … Continue Reading

The Debate Continues Over the Use of Expert Witnesses To Prove Non-U.S. Law Under Fed. R. Civ. P. 44.1.

Sensing a possible trend away from the Second Circuit’s openness to the use of expert affidavits to prove non-U.S. law, even those filed for the first time on appeal, we have twice recently posted analyses of decisions of Southern District of New York judges commenting on the potentially less-than-useful phenomenon of using expert affidavits or … Continue Reading

Egyptian Nationalization of Jewish-Owned Property Fails To State Claim Against U.S. Lessee of the Property; Proving Non-U.S. Law Discussed

 Proceedings pending in the Southern District of New York since 1997 were dismissed by the district court on 8/23/10 in an instructive opinion concerning the application of choice of law and foreign law determinations in the context of an international dispute.  Bigio, et al. v. The Coca-Cola Company (C-C), et al., 97 Civ. 2858 (S.D.N.Y. … Continue Reading

Principles of Determining Non-U.S. Law; The Use of Expert Testimony vs. Other “Sources” of Non-U.S. Law

In international litigation, the issue of choice of law should frequently be an early one to be determined and can be of crucial importance to the resolution of the matter.  For cases pending in federal court in the U.S., Fed. R. Civ. P. 44.1 provides that the determination of a non-U.S. country’s law is an … Continue Reading