Monthly Archives: January 2011

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AO Techsbabexport (Tenex) v. Globe Nuclear Services and Supply GNSS, Ltd., No. 09-2064 (4th Cir. 15 Dec. 2010)(unpublished), involved an appeal from a District Court’s judgment that in turn confirmed an arbitral award in an international controversy.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

Second Circuit: First-Filed Rule Applies in Forum Battles — Except When It Doesn’t

Determination of venue or forum is one of the earliest and most frequent battlegrounds in international litigation (see our discussion of choice of forum considerations and strategies in our e-book, International Practice: Topics and Trends).  What happens when the law applied to such disputes is a shifting articulation of rules? We reported in an earlier posting … Continue Reading

Foreign Sovereign Immunity Act Permits Default Judgment Against a Non-U.S. Sovereign Under Special Circumstances

Calderon-Cardona v. Democratic People’s Republic of [North] Korea, et al., 723 F. Supp. 2d 441, Civil No. 08-1367 (D.P.R. 2010), deserves brief mention given the importance to the development of international litigation generally of a court imposing liability and punitive damages against an absent defendant, in this case an absent non-U.S.  sovereign. The case involved … Continue Reading

In International Litigation, A Closed U.S. Court House May Just Mean U.S. Claimants Suing U.S. Entities in Non-U.S. Courts

We have written elsewhere (European Lawyer (2008) and Journal of International Banking and Financial Law (2010)),  about the promise and potential of collective action claims in non-U.S. jurisdictions, especially in the EU.  We have also questioned whether one consequence of the U.S. Supreme Court’s decisions concerning whether to permit international controversies to proceed in U.S. courts is that, … Continue Reading

District Court Extends Morrison Again, Dismissing Not-So-“Foreign-Cubed” Claims — ’33 Act Claims by U.S. Plaintiffs

Twice recently (here and here) we posted summaries of decisions extending the Supreme Court’s decision in Morrison v. National Australia Bank (No. 08-1191)(24 June 2010), holding 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” defendants for misconduct in connection … Continue Reading

Sanctions Granted Against Non-U.S. Sovereign (Grenada) for Conduct in Post-Judgment Discovery

Export-Import Bank of the Republic of China v. Grenada, 06 Civ. 2469 (S.D.N.Y. 29 Dec. 2010), addresses the relatively rare circumstance in international litigation — a successful attempt to locate assets in the U.S. to satisfy a judgment against a non-U.S. sovereign.  Export-Import Bank of China sought to satisfy a $25 million judgment against Grenada.  … Continue Reading

Ninth Circuit Enforces U.S. Grand Jury Subpeona on Non-U.S. Documents Held by U.S. Law Firms

International litigation typically entails at least some discovery, often the production of documents.  See our discussion of the Topic 7 relating to discovery in international litigation in our e-book, International Practice: Topics and Trends.  In international antitrust litigation, civil suits consolidated in the Northern District of California resulted in the production of documents in the U.S.  The … Continue Reading

With Implications for International Litigation, Ninth Circuit’s Distinction Between U.S. and Non-U.S. Sales of Goods Left Standing by Supreme Court’s Affirmance by Equally Divided Court

The Supreme Court’s decision in Quality King Distributors, Inc. v. L’anza Research International, Inc., 523 U.S. 135 (1998), involved a “round trip” scheme of importation of goods into the U.S.:  a product with a U.S.-copyrighted label was manufactured inside the United States, exported to an authorized foreign distributor, sold to unidentified third parties overseas, shipped … Continue Reading

Morrison Extended Yet Further — To Dismiss U.S. PIPE Transactions Involving U.S. Corporations and Nationals

Our posting of 10 January 2011 discussed a case where a District Court in the Second Circuit relied on Morrison to dismiss a U.S.-based swap transaction keyed to a non-U.S. security.  What about Morrison’s applicability to an alleged  “pump and dump” scheme (first touting the stock of a company through false and misleading statements and then … Continue Reading

Supreme Court Morrison Decision Expanded To Dismiss Claims Where U.S. Swap Agreement Is Pegged to Non-U.S. Stock

In the area of international litigation, the District Court decision in Elliott Associates, et al. v. Porsche Automobil Holding SE, et al., 10 Civ. 0532 (HB) (S.D.N.Y. 30 Dec. 2010), represents a noteworthy extension of the holding of Morrison v. Australia National Bank, 130 S.Ct. 2869 (2010), which we have written about here and here.  … 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 Permits FSIA Defense To Judgment Enforcement Action, Even by Absent Sovereign; State Law Governs Issue of Whether Property is in U.S.

Peterson v. Islamic Republic of Iran (CMA CGM), 08-17756 (9th Cir. 3 Dec. 2010), considers an important but rarely seen application of the Foreign Sovereign Immunities Act (FSIA), not as it relates to defenses of a non-U.S. Sovereign to being sued in the U.S. but of having judgments enforced against it in the U.S.  Based … Continue Reading

Fourth Circuit Rules that Parties’ Agreement, Which Under U.S. Law Would Be Read To Include a Permissive Grant of Jurisdiction in South Carolina, Requires an Exclusively UK Forum Despite South Carolina Statute Prohibiting Exclusive Forum Clauses

Albermarle Corp., et al. v. AstraZeneca UK Ltd., No. 10-100 (4th Cir. 8 Dec. 2010), addressed the role of drafting in the interpretation of choice of law and choice of forum clauses, which we discuss in our e-book International Practice: Topics and Trends.  Albermarle involved an international agreement containing an English choice of law clause … Continue Reading