Monthly Archives: November 2010

Second Circuit Continues To Narrow the Scope of Quasi-in-Rem Jurisdiction in International Litigation

Our post on the Second Circuit’s decision in Sinoying Logistics Pte Ltd. v. The Hong Kong and Shainghai Banking Corp., No. 09-5368 (2d Cir., 31 Aug. 2010), addresses whether electronic funds transfers (EFTs) are attachable property for quasi-in-rem jurisdiction.  In another maritime decision with clear application to international litigation generally, the Second Circuit in Allied … Continue Reading

The Perils of Trying To Confirm an Arbitral Award in the Absence of a Forum-Selection Clause; Alter Ego Liability Unavailable in an Application To Confirm Arbitral Award

Our recent blog post examined the a District Court’s treatment of a motion to dismiss international litigation for lack of personal jurisdiction and forum non conveniens in the context of contracts with a choice of forum clause.  Here we examine the District Court’s treatment of a motion to dismiss for lack of personal and subject … Continue Reading

Enforceability of Forum Selection Clauses in International Litigation: A Brief Primer

A decision by the Southern District of New York in the area of international litigation, Export-Import Bank of the U.S. v. Hi-Films de C.V., et al., 09 Civ. 3573 (S.D.N.Y. 24 Sept. 2010)(PGG), addressed the enforceability of a forum selection clause and serves as a brief primer on the subject (see the discussion in Topic 2 … 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

Sovereign Immunity Available, But Individual Diplomatic Immunity Unavailable; Default Judgment under ATCA Requires Willfulness, Rules Second Circuit

Swarna v. Al-Awadi, State of Kuwait, et al., No. 09-2525, 09-3615 (2d Cir. 9/24/10), involves a review by the Second Circuit Court of Appeals of interlocutory and final judgments of default and related relief under the Alien Tort Claims Act, 28 U.S.C. § 1350. The claims relate to alleged trafficking, involuntary servitude, forced labor, assault, … Continue Reading

When Can Principles of International Law Be Read Into Federal Statutes? Often But Not Always, and Probably Not in the Context of Interpreting the War Powers of the Executive Branch

Practitioners and other interested parties have far more knowledgeable and insightful sources than this writer to consider the current state of play in the Guantanamo detention issues.  At the same time, the recent “decisions” to deny rehearing of the D.C. Circuit Court of Appeals in Ghaleb Nassar Al-Bihani v. Obama, No. 09-5051 (D.C. Cir. 8/31/10), following … Continue Reading

Ninth Circuit Rules that Congress’s Use of the Phrase “Right To Sue” Precluded Parties from Agreeing To Arbitrate Any Dispute

Our most recent post, on 11/12/10, analyzed the First Circuit’s efforts to uphold private parties’ freedom to contract with each other concerning the forum and law to govern their international dispute.  By way of contrast, a recent decision by the Ninth Circuit Court of Appeals, Greenwood, et al. v. CompuCredit Corp, et al., No. 09-15906 … Continue Reading

First Circuit Enforces Contractual Choice of Forum Provision Despite Claim that State Law Prohibited Same; Application of Contractual Choice of Law Provision Uncertain

We have long advised that private parties, by contract, should attempt to order their affairs before a dispute arises.  What happens when the legislature or other governmental body attempts to regulate what parties can contract about?  The recent decision in Rafael Rodriguez Barril, Inc. (RRB) v. Conbraco Industries, Inc., No. 09-2163 (1st Cir. 9/8/10), presents … Continue Reading

Second Circuit Affirms Sua Sponte Rejection of Personal Jurisdiction Over Defaulting Defendant Where EFT Clearing Is Only Basis for Attachment of Property and Resulting Personal Jurisdiction

As we have addressed in our e-book International Practice: Topics and Trends, courts adjudicating international cases often look for guidance to maritime cases for purposes of seeing how that developed body of law addresses issues such as securing personal jurisdiction in international litigation.  The teaching of the recent decision by the Second Circuit Court of … Continue Reading

Court of Appeals Sends International Litigation to Mediation Without First Determining Its Own Jurisdiction; Dissent Feels Morrison May Have Overruled Extraterritorial Application of the Alien Tort Statute

In Sarei v. Rio Tinto, No. 09-56381 (9th Cir. 10/26/10), the Ninth Circuit, en banc (meaning the full court of appeals (12 judges) rather than the typical panel of three judges), addressed for at least the third time claims arising out of events on the island of Bougainville in Papua New Guinea.  Plaintiffs, non-U.S. residents, … Continue Reading

Exception to FSIA Creates Affirmative Claims Under Federal Law Against Non-U.S. Sovereign for Crimes Flowing from State-Sponsored Terrorism

Murphy v. Islamic Republic of Iran, 06-cv-596 (RCL) (D.D.C. 9/24/10), decided by the Chief Judge of the District Court for the District of Columbia, is a painful (the claims arise out of the Beruit bombing of Oct. 23, 1983) and painstaking analysis of the affirmative use of the state sponsored terrorism exception to the Foreign … Continue Reading

Court of Appeals Finds Appeal Moot Based on Mid-Litigation Arbitral Ruling; Pendent Appellate Jurisdiction Also Found Lacking

In Invista S.A.R.L., et al. v. Rhodia, S.A., No. 09-2514 (3d Cir. 10/25/10), the Third Circuit reviewed an international arbitration to resolve the question of how is bound by an arbitration clause. The suit arose out of claims by Invista affiliates that the only way Rhodia SA would have been able to compete with Invista is by a … Continue Reading

Circuit Court Holds that FAA Trumps New York Convention’s Grounds for Vacatur of Arbitration Award in International Dispute

The interplay between the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), 6/10/58, 21 U.S.T. 2517, 330 UNTS 3, and the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., is not always a clear one. The Court of Appeals decision in Ario v. Underwriting Members of Syndicate … Continue Reading