Monthly Archives: September 2010

Failure To Have Jurisdictional Hearing in District Court Eases Burden on Plaintiff To Prove Jurisdiction. Nonetheless, Personal Jurisdiction in Massachusetts Absent For Polish Bank Even With Contacts in Massachusetts

As discussed in our International Practice:  Topics and Trends e-book, the question whether personal jurisdiction over a defendant exists in an international dispute is generally but not completely governed by the same principles as govern the exercise of personal jurisdiction in domestic disputes.  The recent decision in Lechoslaw v. Bank of America (“BoA”), et al., … Continue Reading

Another Circuit Court Confirms that Premature Assertion of Sovereign Immunity Leads to Denial; “Insubstantial” Defense Fails To Trigger Collateral Order Appellate Review

Our companion International Practice: Topics and Trends e-book discusses the recent swing by the Circuit Courts of Appeals in international litigation to deny a sovereign immunity defense in a variety of circumstances where, in the not-so-distant past, the courts were dismissing claims (see the discussion here).  The Fifth Circuit’s decision in Martin, et al. v. … Continue Reading

Fifth Circuit Rejects Special Rules Applicable to Nazi Looted Art Cases

International litigation in the U.S. is seeing an increasing number of cases alleging that Nazi persecution led to the confiscation or loss of paintings or other objects d’art that have appreciated significantly in value since World War II. Heirs of the persecuted, among others, are going to the courts seeking the return of the property notwithstanding … Continue Reading

Extraterritorial Application of Federal Act Both Congressionally Justified and Constitutional in the Case of the Torture Act (Eleventh Circuit) But Not in the Case of the Lanham Act, on the Facts (Ninth Circuit)

Prior posts discussed Morrison v. National Australia Bank (No. 08-1191), where the Court held that the federal securities laws did not apply to extraterritorial conduct in a so-called foreign cubed case (foreign plaintiffs sue foreign defendants for misconduct in connection with securities traded on foreign exchanges).  Notwithstanding the press generated by and the extensive judicial treatment of that … 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

Court of Appeals Unwilling To Permit District Court Oversight Of Claimed Attorney Misconduct in Arbitration, Even In an Arbitration Ordered By the Court

Positive Software Solutions, Inc. v. New Century Mortgage Corp., et al., No. 09-10355 (5th Cir. 9/13/10), exemplifies the very limited and grudging willingness of federal courts to interfere with an arbitral proceeding. This is an issue that arises frequently in international arbitrations, especially where parties bounce in between court and arbitration (e.g., where a party obtains … 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

Attorney-client Privilege At Risk in International Investigations Given European Court of Justice Ruling: Akzo Nobel decision

In a decision rendered yesterday in Akzo Nobel Chemicals, Ltd, et al v. The Commission, et al., C-550/07 P, the EU’s highest court has weighed in on one of the most significant issues in international practice:  the potentially different rules that might apply to whether privilege applies to communications with in-house counsel in different jurisdictions.  In … 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

Possible Common Law Immunity Available for Officials of Non-U.S. Governments, Even Where FSIA Immunity Unavailable; Dueling Anti-Suit Injunctions Not Reviewed

A ruling in an international litigation by the U.S. Court of Appeals for the Third Circuit, in Abi Jaoudi and Azar Trading Corp. v. CIGNA Worldwide Ins. Co., et al., 09-1297, 1298 (3d Cir. 8/20/10)(non-precedential), is the sixth ruling of a Court of Appeals this summer rejecting an FSIA defense, though this one, like one … Continue Reading

Second Circuit Again Rejects FSIA Defense and Upholds Attachment of Assets and Other Provisional Remedies, Applying New York Choice of Law and Substantive Law To Disregard “Trust”

The continuing saga to enforce judgments by U.S. creditors against the Republic of Argentina resulted in a recent unpublished opinion by the U.S. Court of Appeals for the Second Circuit in EM Ltd., et al. v The Republic of Argentina, et al., 09-3908-cv, etc (2d Cir. 8/3/10).  Under Second Circuit rules, the unpublished opinion does … Continue Reading

New York, like the U.S. Supreme Court, Confirms Strict Limitations on a Party’s Ability To Expand the Grounds To Appeal an International Arbitral Award and holds that this Issue Is Likely Left to the Arbitrators, Not a Court, To Decide.

The U.S. Supreme Court’s seminal decision in Hall Street Assocs, LLC v. Mattel, Inc., 552 U.S. 576 (2008), held that the “manifest disregard” of law standard cannot serve as a ground for overturning an arbitral award under the Federal Arbitration Act (FAA); that is, parties are limited to the narrower grounds set forth in the … 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

The Complex Interplay Between Choice of Law and Statutes of Limitations/Repose in International Litigation

The Ninth Circuit was just asked to review on appeal the recent decision in Deirmenjian, et al. v. Deutsche Bank (DB), A.G., et al., CV 06-00774 (C.D. Cal. 7/30/10)(Morrow, J.).  The district court’s decision being appealed exemplifies the careful and rigorous consideration that is required when choice of law issues meet statutes of limitations, statutes … Continue Reading