Monthly Archives: November 2011

Second Circuit Affirms District of Columbia Refusal To Dismiss Case Against Afghanistan Under Noncommercial Tort Exception To FSIA; Case Remanded to S.D.N.Y. for Jurisdictional Discovery

Doe v. Bin Laden, Islamic Emirate of Afganistan, et al., No. 09-4958-cv (2d Cir. Nov. 2011) (per curiam), affirmed a District Court in the District of Columbia’s decision to permit a case to proceed against Afghanistan, rejecting the argument that Afganistan was immune from suit under the Foreign Sovereign Immunities Act.   The claims arose out … Continue Reading

FSIA Immunity Found In Suit Against Germany; Neither Commericial Activity Nor Takings Exceptions Applies To Real Property Located in Germany.

Hammerstein v. The Federal Republic of Germany, 09-CV-443 (ARR)(RLM) (E.D.N.Y. Aug. 2011), dismisses for want of subject matter jurisdiction claims asserted against Germany.   Plaintiff fought over the right to own the property located in Germany, ultimately won that fight against claims of ownership by both the government of Schwerin, Germany and the Conference on Jewish … Continue Reading

Courts Continue To Resist Confidentiality in Filing Arbitral Vacatur/Confirmation Proceedings; Other Rulings Lead To Confirmation of Award

Harper Ins. Ltd. v. Century Indemnity Co., 10 Civ. 7866 (S.D.N.Y. July 2011)(NRB), addersses cross-petitions to vacate and confirm an arbitral award.  The case addresses several typical issues arising in such proceedings but also others of note to topics we have posted about recently and that are important to international litigation and dispute resolution. The … Continue Reading

Post-Arbitral Award Proceeding To Pierce Corporate Veil Correct Procedure But Fails on the Merits

Ahcom, Ltd. v. Hendrik Smelding, et al., Case No. 07-1139 SC (N.D. Cal. Aug. 2011), presents two interesting issues for international litigation and dispute resolution.   Nuttery Farms, Inc., a U.S. corporation, defaulted in connection with a series of contracts for the sale of almonds to Ahcom, Ltd., a U.K. limited liability corporation in the business of … Continue Reading

Waiver of Privilege and Crime Fraud Exception At Play in International Litigation over Ecuadorian Judgment Against Chevron

The most recent installment in the U.S. proceedings in which Chevron is trying to avoid the $8 billion judgment entered against it in an Ecuadorian court (which we have posted on many times) takes the form of a decision by a Magistrate Judge in the Southern District of New York on Chevrons claims of waiver … Continue Reading

Ninth Circuit Denies Rehearing in Bauman v. DaimlerChrysler, Finding Personal Jurisdiction by Imputation and Watering Down “Agency” Test for Finding Jurisdiction, Say Eight Circuit Judges Who Would Grant Rehearing En Banc

Bauman, et al. v. DaimlerChrysler, et al., No. 07-15386 (9th Cir. 18 May 2011), involves claims by 22 Argentinian residents against DaimlerChrysler Aktiengesellschaft (DCAG) and its Argentinian subsidiary alleging that Mercedes Benz (owned by DaimlerChrysler) collaborated with Argentine state security forces to kidnap, detain, torture, and kill plaintiffs and/or their family members during Argentina’s “Dirty … Continue Reading

Reversal of District Court Grant of Summary Judgment in Favor of the Palestinian Authority Prompts Four Separate Opinions in the D.C. Circuit

Estate of Mark Parsons, et al. v. Palestinian Authority, et al., No. 10-7085 (D.C. Cir. Aug. 2011), reverses the District Court’s grant of summary judgment and finds triable issues of fact.  The decision is relevant to general international litigation issues in its interpretation of a U.S. statute — a point made by the three concurring/dissenting … Continue Reading

As More “Confidential” International Arbitral Awards Made Public, the Pracitioner’s Need To Consider Alternatives Increases

We recently posted on the peril to the intended confidentiality accorded the arbitration of international disputes by the necessity of having to file in open court arbitral awards in order to enforce or challenge them.  The issue can be addressed in a number of ways, two of which we suggested being: Enlisting the judicial system … Continue Reading

Court Appoints Neutral Expert On Choice of Law Issues But Rejects Public International Law Concepts’ Applicability To Private Claims

A recent decision, Pallano v. AES Corp., C.A. No. 9C-11-021 JRJ (Del. Super. Ct. July 2011), addresses three issues that frequently face the litigation practicioner or corporate draftmen in internaional litigation:  choice of law; the use of experts for the determination of  non-U.S. law; and the growing use of public international law constructs in private litigation.  … Continue Reading

Supreme Court Agrees To Resolve Deep Circuit Split and Decide If Alient Tort Statute Permits Actions Against Corporations

We have followed the development of federal Circuit law on whether the Alien Tort Statute, 28 U.S.C. § 1350, and specifically the Torture Victim Protection Act, 28 U.S.C. § 1350 note § 2(a), create rights of action against corporations.   The Supreme Court has agreed to decide the issue.  The issue presents a growing and important part of … Continue Reading

Combination of Arbitration and Non-U.S. Choice of Law Provisions Contrary To Public Policy; Defendant Permitted To Stipulate to U.S. Law To Compel Arbitration

Alcalde v. Carnival Cruise Lines, Case No. 10-24457-Civ-Moore/Torres (S.D. Fla. July 2011), is another in the line of recent cases struggling with the interplay between the public policy favoring arbitration of international disputes and the freedom of contract permitting parties to select non-U.S. law to govern their dispute even where a U.S. statutory claim is … Continue Reading

Non-U.S. Judgment Enforced in U.S.; Challenges Even Based on Fraud Need To Be Asserted in the Country Issuing the Original Judgment; U.S. Court Declines “Interjudicial Conference” of Having the Judges From the Two Countries Talk

Tettamanti, et al. v. Opcion Sociedad Anonima, No. 3D11-333 (3d Dist. Ct App. Fla. July 2011), is a state-court appellate ruling that bears on several international litigation topics of timely interest relating to the enforcement in the U.S. of a money judgment issued in a non-U.S. country.  Florida, like most other states, enacted what this … Continue Reading

Choice of Law Determines Arbitrability; “Clear and Unmistakable” Standard Adopted; “Arising Under” Deemed a Narrow Arbitration Clause.

The recent decision by the Ninth Circuit in Cape Flattery Limited (Cape) v. Titan Maritime, LLC, et al. (Titan), No. 09-15682 (9th Cir. July 2011), discusses several important issues in international litigation practice.  The suit involves claims by Cape against Titan for gross negligence in connection with the salvage operation done on Cape’s vessel, the M/V … Continue Reading