Monthly Archives: March 2011

Second Circuit Affirms “Direct Effect” Rule, Dismissing FSIA Claim

Gosain v. State Bank of India, 10-711-cv(L) (2d Cir. Jan. 2011)(unpublished), addressed whether the State Bank of India was entitled to Foreign Sovereign Immunities Act (FSIA) immunity.  The plaintiff relied on the exception found in the FSIA to immunity for a case “in which the action is based . . . upon an act outside … Continue Reading

Morrison and International Practice in Financial Services and Products: Scorecard Nine Months In

It’s time to take quick stock of Morrison v. National Australia Bank (No. 08-1191).  It will be recalled that in that case the Supreme Court held 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 … Continue Reading

Defendant in SEC Action Not Entitled to Ask for Order Directing the SEC To Seek Documents from non-U.S. Entity under Multilateral Securities Enforcement Understandings

SEC v. Tourre, 10 Civ. 3229 (S.D.N.Y. Feb. 2011), addressed an interesting attempt by a private party to obtain discovery help from non-U.S. governmental entities in the context of international litigation. Fabrice Tourre is a defendant in an SEC action pending in U.S. federal court.  He sought 1) issuance by the U.S. federal court of … Continue Reading

New York’s Highest Court Keeps A Crack in the Door: Overturns Arbitration Award on Grounds Suspiciously Akin To “Manifest Disregard”

We have followed the door closing by the federal courts in essentially shutting out the means of challenging arbitral decisions on the basis of “manifest disregard” of the law (see the discussion of the questionable vitality of the “manifest disregard” standard in our e-book, International Practice: Topics and Trends).  (See also our blog discussions of … Continue Reading

D.C. Circuit Affirms District Court Authority To Sanction Non-U.S. Sovereign For Failure To Make Ordered Discovery – Enforcement Dispute Deferred

FG Hemisphere Associates, LLC v. Democratic Republic of Congo (DRC), et al., No. 10-7040 (D.C. Cir. March 2011), addresses whether a District Court has authority to sanction a non-U.S. Sovereign for willful failures to comply with discovery orders made in connection with enforcement proceedings. Although the Court of Appeals states that it is the first court … Continue Reading

Court Determines Arbitrability; Voids Arbitration Clause Containing Choice-of-Law Clause Antithetical to Federal Claim

We have before discussed  the confluence of factors leading to a court’s acceptance of jurisdiction to resolve the question of enforceability of an arbitration provision and simultaneously finding that the arbitration clause is unenforceable (see our posts of 8/9/10 and 8/11/10; see generally the discussion of choice of law/choice of forum and their impact on … Continue Reading

The Risks that Technology Poses To Discovery in International Litigation

With the constant advance of technology affecting businesses worldwide, issues having particular impact to international practice deserve the attention of clients and their legal advisors.  Recent cases act as the springboard to consider two of those here: First, when businesses have multiple locations that require coordination and in fact achieve a degree of consolidation of the … Continue Reading

Non-U.S. Arbitral Award Recognized by U.S. Court – Argentina v. BG Group PLC

Republic of Argentina v. BG Group PLC, Civil Action No. 08-485 (D.D.C. Jan. 2011), involved an application to confirm an arbitral award in the amount of $185 million plus other costs against the Republic of Argentina. The proceeding was brought under the Federal Arbitration Act 9 U.S.C. § 207 (2000), and the New York Convention … Continue Reading

U.S. District Court Preliminarily Enjoins Non-U.S. Plaintiffs From Enforcing Non-U.S. Judgment Against U.S. Company – Chevron v. Donziger, Lago Agrio

Chevron Corp. v. Donziger, et al., 11 Civ. 0691 (S.D.N.Y. Feb. 2011), is a 127-page decision on a motion for preliminary injunction.  The decision preliminarily enjoins enforcement, anywhere in the world, of an Ecuadorian judgment totaling $8.646 billion obtained by Lago Agrio plaintiffs (indigenous peoples in the Amazonian rain forest) against Chevron Corp., which bought … Continue Reading

Second Circuit: It’s the Court, Not the Arbitrator, Who Determines Contract Formation Issue of Whether There Exists An Agreement To Arbitrate

In Dedon GmbH, et al. v. Janus et Cie, 10-4331-cv (2d Cir. Jan. 2011) (unpublished), the Second Circuit addressed the argument that it was the arbitral panel and not the court that was to address its own jurisdiction. The Court of Appeals issued a short but important reminder that, in the Second Circuit at least, … Continue Reading

District Court Rejects Res Judicata and International Comity, Refusing To Give Effect to Non-forum Judicial Decision Overturning Arbitral Award

International Trading and Industrial Investment Co. v. Dyncorp Aerospace Technology,  09-791 (D.D.C. Jan. 2011), provides a long and detailed decision touching on several important international practice principles. International Trading was a proceeding to confirm a non-U.S. arbitral award rendered in favor of International Trading and against DynCorp Aerospace Technology. The petitioner moved for confirmation under … Continue Reading

Circuit Court Reverses District Court’s Refusal To Grant Section 1782 Discovery — Third in Our Series

Our last two postings have analyzed recent decisions rejecting discovery requests made under 28 U.S.C. § 1782 (here and here).  We take up one last example in this series – where a Federal Circuit Court of Appeals took the rare step of reversing as an abuse of discretion the District Court’s the denial of a … Continue Reading

Why Another District Court Denied Section 1782 Discovery in Aid of International Litigation

Our recent posting (here) discussed a case where discretion was exercised to deny Section 1782 discovery in international litigation despite the applicant’s compliance with the statutory requisites.   Another route to denial can be seen in  Application of Inversionesy Gasolinera Petroleos Valenzuela, Applicants, and Exxon Mobil Corp., a Non-Party Witness, Respondent, Case No. 08-20378 (S.D. Fla. Jan. 2011). … Continue Reading