Monthly Archives: December 2011

Declaratory Nature of Suit Does Not Create Sovereign Immunity Waiver; Case Can Proceed Against Individuals Only If They Acted Outside Their Statutory Powers

In our recent posting we discussed the fact that a declaratory judgment action does not confer independent federal jurisdiction on an international controversy.   What effect does the federal Declaratory Judgment Act have on another important issue in international litigation:  the existence of sovereign immunity?  The District Court in Pollack v. Duff, Civil Action No. 10-cv-0866 (ABJ) … Continue Reading

Federal Court Seized of Admiralty Jurisdiction Nonetheless Dismisses In Favor of Canadian Litigation

Sikorsky Aircraft Corp., et al. v. Lloyds TSB General Leasing (No. 20) Limited, et al., Civil Action No. 3:10-CV-00954 (CSH) (D. Conn. Apr. 2011), demonstrates how two insightful courts are managing international litigation pending in two different countries.  The case involves a forum battle arising from the crash of a helicopter into international high seas … Continue Reading

Petition To Vacate Arbitral Award Untimely, But Same Defenses Can Be Raised In Opposition Confirmation

Ornela Cere v. Subway International B.V., Index No. 111998/2010 (N.Y. Sup.Ct.  Aug. 2011), is a brief and lucid discussion by a New York state court of first instance of an important issue in international litigation practice.  Cere and Subway had a dispute involving a Subway restaurant in Athens, Greece.  Their agreement called for New York City arbitration under … Continue Reading

Rare FCPA Criminal Conviction Affirmed on Appeal

In a rare criminal conviction under the Foreign Corrupt Practices Act, the Second Circuit Court of Appeals affirmed the conviction of Frederick Bourke, co-founder of the accessory company Dooney & Bourke, U.S. v. Viktor Kozeny, David Pinkerton, Frederic Bourke, Jr., Docket No. 09-4704-cr(L) (2d Cir. Dec. 2011).  The case has important implications for international business … Continue Reading

Section 1782 Discovery Ordered Against Chevron’s Environmental Expert for Use in UNCITRAL Arbitration Relating to Ecuador

A decision from a Magistrate Judge in Colorado includes some useful learning on international practice under 28 U.S.C. Section 1782.  Republic of Ecuador, et al. v. Bjorkam (Chevron), Civil Action No. 11-cv-01470-WYD-MEH (D. Colo. Aug. 2011). The underlying international litigation is related to the Chevron litigation we have posted on many times.  This proceeding relates … Continue Reading

The Arduous Journey of Collecting on a Judgment Against A Non-U.S. Sovereign

Estate of Michael Heiser v. Islamic Republic of Iran, 00-cv-2329 (D.D.C. Aug. 2011)(RCL), addresses claims arising from the 1996 bombing of the residential facility house U.S. Air Force personnel in Saudi Arabia, which, as the District Court chillingly reminds us, was at the time the largest non-nuclear explosion ever recorded on Earth.  The international practice … Continue Reading

Non-U.S. Arbitral Award Confirmed Against Non-U.S. Sovereign Under FSIA Exception

Thai-Lao Lignite (Thailand) Co., et al v. Government of the Lao People’s Democratic Republic, 10 Civ. 5256 (S.D.N.Y Aug. 2011), presents a recent analysis of cross-motions to vacate and confirm arbitral awards, a mainstay in the international dispute resolution play book.  The decision provides learning on several timely topics that we address more fully in … Continue Reading

Claim Alleging Derivative Possession of Good Allegedly “Taken” in Violation of International Law Still Precluded by FSIA

We discuss briefly the final installment (in the District Court) of the attempt to recover possession of a Van Gogh drawing allegedly sold away from the plaintiff’s great-grandmother “under duress during the Nazi era in Germany for fraction of its fair value”, Orkin v. The Swiss Confederation, 09 Civ. 10013 (S.D.N.Y. Mar. 2011) (LAK).  An … Continue Reading

Seventh Circuit Agrees with D.C. Circuit Dissent that U.S. Citizens Must Be Able to Sue U.S. Officials for Alleged Torture Overseas

Vance, et al. v. Donald Rumsfeld and the United States of America, Nos. 10-1687, 10-2442 (7th Cir. Aug. 2011), alleges that Secretary of Defense Rumsfeld bears personal involvement and responsibility for alleges torture of U.S. citizens in Iraq.  The District Court denied the motion to dismiss, and the Seventh Circuit affirmed, finding that under the … Continue Reading

Court of Appeals Affirms Forum Non Conveniens Dismissal of Cases to Argentina and Mexico; Chides Counsel for Ostrich-like Ignoring of Controlling Precedent

The cause celebre of the moment, a decision written by Judge Posner of the Seventh Circuit, Monica Del Carmen Gonzolez-Servin, et al. v. Ford Motor Company, No. 11 Civ. 1665 (7th Cir. Nov. 2011), literally shows pictures of a ostrich and of a man with his head in the sand.  The decision contains a ruling … Continue Reading

Claims Against Bank Dismissed On Grounds of FSIA Based On Post-Contract Takeover of Bank by Non-U.S. Sovereign, Even Though Contract Contained Express Consent To Suit Clause in New York

The recent decision in Fir Tree Capital Opportunity Master Fund, L.P., et al. v. Anglo Irish Bank Corp., 11 Civ. 0955 (PGG) (S.D.N.Y. Nov. 2011), describes both the obstacles to a successful suit against an entity cloaked with immunity under the Foreign Soveign Immunities Act (FSIA) but, perhaps, shows a path to a succcessful suit against … Continue Reading

Choice of Law Considerations Lead To False Conflict — Veil Piercing Unavailable Under New York, Panamanian, or Dominican Law

Panam Management Group, Inc. v. Pena, et al., No. 08-CV-2258(JFB)(ARL) (E.D.N.Y. Aug. 2011), addresses a common issue faced in interntional litigation:  which law to apply to the resolution of an international dispute.  The District Court found that the central issues to be adjudicated against the individual defendants — being sued in their official capacity as … Continue Reading

Court of Appeals’s Short But Definitive Ruling: Successive Removal Petitions Fail Notwithstanding Silent Statute

In a short and unpublished opinion, the Eleventh Circuit, per curiam, decided Watson v. Carnival Corp., No. 10-15411 (Aug. 2011).  The important international practice lesson to be learned from the decision relates to a federal common law limitation placed on the otherwise clear statutory right to remove cases from state to federal court granted by … Continue Reading