Monthly Archives: December 2010

Should the “Exceptional Circumstances” Standard Be Employed For Granting a Temporary Stay of an Arbitral Award, When the Right To Seek Judicial Review Might Be Frustrated As a Result?

A short decision by the District Court in Chinmax Medical Systems Inc. v. Alere San Diego, Inc., 10cv2467 (S.D. Cal. 8 Dec. 2010), deserves brief mention.  Chinmax, a Chinese company, was involved in an arbitration with Alere San Diego.  Chinmax sued to vacate an arbitration award and filed a motion to stay an interim final … 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

Independent Federal Claim Exists To Compel Arbitration Against Nonsignatory; Underlying Agreement’s Choice of Law Clause, Not Federal Common Law, Governs.

 FR 8 Singapore Pte, Ltd. (FR8) v. Albacore Maritime Inc. (Albacore), et al., 10 Civ. 1862 (S.D.N.Y. 14 Dec. 2010), decided several important and recurring issues in international litigation, specifically regarding the enforcement of arbitration clauses (see the discussion of the general topic of securing jurisdiction to enforce arbitration clauses in our e-book, International Practice: Topics … Continue Reading

Namibia Neither Able To Avoid Service of Process or To Invoke Sovereign Immunity in Suit Alleging Tortious Conduct

A decision by the District Court in USAA Casualty Ins. Co, as subrogee of Robert Adelman v. Permanent Mission of the Republic of Namibia, et al., 10 Civ. 4262 (S.D.N.Y. 17 Nov. 2010)(LTS), addresses several issues that arise in international litigation.  The case arose out of the collapse of a shared wall between the plaintiff’s … Continue Reading

Second Circuit Affirms (in Summary Order) District Court Enforcement of Section 1782 Discovery– This Time Against Lawyer for Plaintiffs in the Non-U.S. Proceedings

In another example on the subject of our posting of 20 December 2010 – the effective use of 28 U.S.C. § 1782 to obtain discovery in the U.S. for use in non-U.S. proceedings – let’s briefly examine another of the recent Chevron decisions, this one by Judge Kaplan in the Southern District of New York.  … Continue Reading

Section 1782 Relief Permitted For Discovery in International Arbitration and Litigation: Intel Factors Applied to Chevron’s U.S. Discovery Efforts

A decision by the federal District Court in Maryland, In re Chevron Corp., To Issue Subpeonas for the Taking of Depositions and the Production of Documents, 10 CV-2989, 2990–AW (D. Md. 24 Nov. 2010), serves as a reminder of the potency of obtaining discovery under 28 U.S.C. § 1782 in the context of litigating international … Continue Reading

Ninth Circuit Interprets Forum Clause To Compel Reversal of Enforcement of Arbitral Award: A Lesson in Drafting Arbitration Clauses

Polimaster Ltd., et al. v. RAE Systems, Inc., No. 08-15708 (9th Cir.  28 Sept. 2010), invoked the Convention on the Recognition and Enforcement of Foreign Arbitral Awards , June 10, 1958, 21 U.S.T. 2517 (the New York Convention), to reverse a District Court’s confirmation of a JAMS arbitral award.  Polimaster, a Belarus company, and Na&Se … 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

Seventh Circuit Rejects Argument that Breach of Forum-Selection Clause Entitles Party To Recover Attorney’s Fees, Citing “American Rule” Against Recovery of Fees Absent An Exception

In Fednav Int’l Ltd. v. Continental Ins. Co., No. 08-2650 (7th Cir. 1 Nov. 2010), the Seventh Circuit addressed the question whether a party could turn a forum battle into a breach of the governing contract’s forum selection clause so as to be entitled to recover the attorney’s fees expended to fight the forum battle.  … 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

Second Circuit Finds Abuse of Discretion in District Court’s Failure To Follow “Basic Proposition” of First-Filed Priority, Requiring Decade-Old Litigation To Continue – Is More Going On?

In international litigation, the race to the court house often gives a tactical advantage  — see the discussion of the ordering of international controversies in our e-book, International Practice: Topics and Trends.  At the same time, the courts have also resisted an overemphasis on a first-filed mentality where justice, material convenience, or other considerations warranted.  The … Continue Reading

How Are Appellate Tribunals Outside the U.S. Treating Enforcement of Resolutions of International Disputes: Eastern Caribbean Supreme Court Rules that Enforcement Court May Not Analyze Merits of Arbitral Award in Deciding Whether or Not To Wind Up Company Based on the Award — Last in Our Trilogy

Our two most recent posts have addressed non-U.S. decisions treating the grounds for challenging and enforcing either arbitral awards or court judgments. The comparison between this jurisprudence and U.S. jurisprudence on these topics is instructive (see our International Practice: Topics and Trends e-book on enforcing in the U.S. either arbitral awards under the New York … Continue Reading

How Are Appellate Tribunals in Countries Outside the U.S. Treating Enforcement or Recognition of Resolutions of International Disputes – A Second Sighting Concerning Judicial Judgments

Our recent blog discussing the role of the New York Convention in the recognition of “foreign” arbitral awards addressed the UK’s highest court’s treatment of the issues. In another recent decision, a court in the UAE addressed the issue of recognition and enforcement of “foreign” judicial judgments (rather than arbitral awards). We can’t find an English … Continue Reading

How Are Appellate Tribunals Outside the U.S. Treating Enforcement of Resolutions of International Disputes – A Sighting Concerning Arbitral Awards

As discussed in Topic 9 (International Arbitrations) of our e-book, International Practice: Topics and Trends, the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), June 10, 1958, 21 U.S.T. 2517 (enacted in the U.S. as chapter two of the Federal Arbitration Act), is a seminal multinational instrument used much the world … Continue Reading