Monthly Archives: January 2012

Class Certification Granted in International Cartel Antitrust Litigation in Which China Itself Has Intervened To Support the Claimed Price-Fixing

We have previously posted on this interesting example of international litigation (here).  The case is captioned In re Vitamin C Antitrust Litigation, 05-CV-0453 (E.D.N.Y), and is pending in the United States District Court for the Eastern District of New York.  In the most recent decision, the court granted motions for class certification (Vit C class action … Continue Reading

Second Circuit Exercises “Hypothetical Jurisdiction” To Dismiss Claim Rather than Address Subject Matter Jurisdiction Over Corporation in Alien Tort Statute Claim

Liu Bo Shan v. China Construction Bank Corp., No. 10-2992-cv (2d Cir. 2011)(summary order), reviewed on appeal claims alleging torture against China Construction Bank in alleged violation of the Torture Victim Protection Act, 28 U.S.C. Sec. 1350 note,  as well as claims of torture, cruel, inhuman, and degrading treatment and arbitrary detention in China in … Continue Reading

Court Refuses To Permit Plaintiffs To Pursue the “New” Cause of Action under Section 1605A of the FSIA

Avinesh Kumar v. Republic of Sudan, Civil Action no. 2:10cv171 (E.D. Vir. 2011), presents an interesting case of judicial resistance to the resurrection of prior claims in the context of an international litigation, even where Congress has sought to enlarge plaintiffs’ rights arguably to embrace such resuscitation. In earlier litigation, the Court addressed the terrorist … Continue Reading

Ecuador Granted Section 1782 Discovery Over Chevron’s Objection

In re Republic of Ecuador and Dr. Diego Garcia Carrion’s Application Under 28 U.S.C. Sec. 1782, 2:11-mc-00052 (GSA) (E.D. Cal. 2011), is an application the Ecuador among others to take the testimony in the U.S. of one Douglas M. Mackay.  Chevron moved to stay the discovery application.   The use to be made of the discovery … Continue Reading

Ecuador Appellate Court Affirms Judgment Against Chevron

We have posted several times on the U.S. aspects of the international dispute between Chevron and the plaintiffs from Ecuador suing for environmental contamination.  We have followed the Southern District’s decision granting an injunction as well as the Second Circuit’s reversal of that decision.  We predicted U.S. reaction to the District Court’s negative statements about … Continue Reading

New York State Court Applies Rules To Sequence Simultaneous Litigation and Arbitration

Boz Export & Import, Inc. v. Karakus, Dkt. No. 8738/11 (N.Y. Sup. Ct. Kings Cty. 2011), expounds on several current and timely topics in international practice but from the perspective of a state court jurist (called a Justice in New York courts).  The decision was filed by a New York State judge sitting in a … Continue Reading

Federal Arbitration Act Preempts State Law; Action Stayed Pending Arbitration In Canada Under Canadian Law

Audio Visual Concepts, Inc. v. Smart Technologies, ULC, et al., Civil No. 11-1551 (JAG-CVR) (D. P. R. 2011), addresses the issue of the staging or sequencing the resolution of disputes pending in an international arbitration on the one hand and in courts of law on the other.   Paintiff sought a preliminary injunction to stop its … Continue Reading

Insurers Entitled To Judgment On Default Against Syria for International Act of Terrorism Under New U.S. Statute

Certain Underwriters at Lloyd’s, London, et al. v. Great Socialist People’s Libian Arab Jamahiriya, et al., Civil Action No. 06-cv-731 (JMF) (D.D.C. 2011), are two actions.  The primary remaining defendants include Syria and seek damages for acts of state-sponsored terrorism that resulted in the hijacking of EgyptAir Flight 648 on Nov. 23, 1985.  The aircraft … Continue Reading

Eleventh Circuit Reverses Prior View and Holds That Forum and Choice of Law Clauses Cannot Be Invalidated Pre-Arbitration Despite the Loss of the Right To Pursue a Federal Claim: New Interpretion of Challenge Mechanism in the New York Convention Offered

An important area within international dispute resolution is the extent to which courts will override parties’ choice of law and forum in the name of public policy.  See generally the discussion of choice of law/choice of forum and their impact on enforceability in our e-book, International Practice: Topics and Trends).  The Eleventh Circuit has now weighed … Continue Reading

Petitioner Seeking To Vacate International Arbitral Award Has Choices Concerning How To Serve Respondent

Mafidis v. Subway International, B.V., Case No. 3:10-CV-119 (PCD)(D. Conn. 2011),  involves an attempt by a Subway franchisee under an international franchise agreement to vacate an international arbitral award against Subway.  The Franchise Agreement contained a dispute resolution clause requirement arbitration and that proceedings would follow the United Nations Commission on International Trade Regulations and … Continue Reading

Sovereign Immunity Not Waived for Non-Extreme, Even Highly Unfair Results, Absent Express and Unambiguous Waivers by Statute or Regulation

In prior postings we have tried to identify cases where courts have drawn distinctions between U.S. and non-U.S. citizens in terms of according them rights and entitlements in connection with international disputes.  In the area of application of the Foreign Sovereign Immunities Act in particular there has been a growing debate concerning whether U.S. citizens … Continue Reading

Panama Convention and New York Convention Interpreted Consistently; Action To Enforce Arbitral Award Stayed Pending Litigation in Honduras

DRC, Inc. v. Republic of Honduras, Civil Action No. 10-0003 (PLF) (D.D.C. Mar. 2011), involves efforts by DRC to confirm and enforce a $51 million arbitral award against the Republic of Honduras.  The arbitrations and litigations arose out of a construction contract.   DRC attempted to confirm its Award in a proceeding before the Honduran Supreme … Continue Reading

Non-U.S. Corporation, “Independent” But Wholly Owned By Non-U.S. Sovereign, Entitled to Avoid U.S. Jurisdiction To Enforce Non-U.S. Arbitral Award Under the New York Convention When Its Parent Could Not

GSS Group v. National Port Authority (NPA), Civil Action No. 09-1322 (PLF) (D.D.C. Mar. 2011), presents another example of how the corporate lawyer or draftsman might have avoided a conundrum that prevented a non-U.S. arbitral award from getting the significant benefits of the New York Convention’s provisions permitting enforcement in the U.S. of international arbitral … Continue Reading