Tag Archives: Choice of Law

Norex Decision, Long in Federal Court, Now Dismissed By State Court Using Borrowing Statute To Shorten Applicable Limitations Period

We have posted on the meanderings of the Norex case in federal court (e.g., here).  After dismissal from federal court, Norex sued in state court.  Norex Petroleum Ltd. v. Leonard Blavatnik, et al., Index No. 650591/11 (Sup. Ct. N.Y. County 2012). In a decision that addresses several international litigation issues, the trial court dismissed at least … Continue Reading

Seventh Circuit Applies Non-U.S. Law, Finds Not Conflict, And Awards Full Damages on Breach of Fiduciary Duty Claim; Non-U.S. Law Proven Without Apparent Use of Experts

In re Griffin Trading Co. (Appeal of Leroy G. Inskeep), No. 10-3607 (7th Cir. 2012), reviewed a District Court application of Illinois law in a breach of fiduciary duty claim in which those in control of Griffin Trading were alleged to have breached their fiduciary duties by allowing segregated customer funds to be used to … Continue Reading

New York’s Highest Court Dismisses Complaint By French Asset Management Firm Alleging Breach of Fiduciary Duty and Unlawful Interference with Contract

Oddo Asset Mgt. v. Barclays Bank PLC, et al., No. 126 (NY 2012), involves the application of state common law principles to an international transaction gone bad.   Two investment vehicles, SIV-Lites and Oddo Asset Management, were French asset management companies with over 350 institutional clients and investment of 16.6 billion Euros.  They purchased mezzanine notes … Continue Reading

Seventh Circuit Addresses International Custody Dispute Under International Convention

Norinder v. Fuentes, No. 10-2753 (7th Cir. 2011), is the rare case in federal court, and even rarer in the federal appellate system, to address custody issues.  The Hague Convention on the Civil Aspects of International Child Abduction, T.I.A.S. No. 11,670 (Oct. 25, 1980), entitles a person whose child has been wrongfully removed to the U.S. in violation … Continue Reading

Post-Morrison, State Law Rather Than Federal Supports Claims By Non-U.S. Investors for Alleged Securities Fraud

We have been following the law’s development since the U.S. Supreme Court’s decision in the U.S. Supreme Court’s decision in Morrison v. National Australia Bank (No. 08-1191).  Morrison 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 … 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

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

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

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

Choice of Non-U.S. Law Informs Damages Models and Amounts in FSIA Case Against Iran

Oveissi v. Islamic Republic of Iran, et al., 03-cv-1197 (RCL) (D.D.C. Mar. 2011), provides a recent example of how choice of law can inform and in some respects determine not just the categories but the actual quantum of damages available in a suit under the Foreign Sovereign Immunities Act.  The application of choice of law in this … Continue Reading

Deciding Russian Law After Trial, Court Recognizes Corruption and Bribery in Russia as “Ordinary Course of Business and/or Customary Practice in Russia”

Creditanstalt Investment Bank AG, et al. v. Holme Roberts & Owen, LLP, et al., Case No. 01-CV-1677 (Denver Colo. District Court June 2011), is an example of international litigation in a U.S. court making its way through trial and decision.  The decision should be read in conjunction with the discussion we just had in the … Continue Reading

Rejecting Claim of Unconscionability To Avoid Arbitration, District Court Reaffirms New York as a Center for International Commerce and Standardized Contracting

Where would an international practitioner or law firm or even a purely domestic corporate lawyer or go for a recent, succinct, lucid articulation of New York law on the subject of the circumstances under which a party can invoke the ground of unconscionability to avoid a dispute resolution provision in a contract calling for arbitration? … Continue Reading

Applying Federal Common Law, Court Finds Matter Should Be Arbitrated; Simultaneously Upholds Forum Selection Clause

Farrell v. Subway Int’l, 11 Civ. 08 (S.D.N.Y. Mar. 2011), is a decision on a motion to stay arbitration and simultaneous invalidation of a negotiated forum selection clause. Farrell is a citizen of Ireland and operates three Subway franchises in Dublin. Subway filed a demand for arbitration with the American Dispute Resolution Center and requested … Continue Reading

D.C. District Court Refuses To Grant Plaintiff Default Judgment Against Iran, Finding Israeli Law Governed Dispute

In Estate of Yael Botvin v. Islamic Republic of Iran, et al., Civil Action No. 05-0220 (D.D.C. March 2011), plaintiff is the estate of an Israeli domiciliary killed in a 1997 terrorist attack in Jerusalem, Israel. The District Court had earlier denied a motion for a default judgment and treated the current motion as one … Continue Reading

Strict Application of FSIA Requirements and “Separate Entity” Rule for Banks Determine Priority in Disputed International Litigation Over Blocked Iranian Assets

Levin, et al. v. Bank of New York, et al., 09 CV 5900 (RPP) (S.D.N.Y. Jan. 2011), involves claims of priority to assets blocked by the U.S. Office of Foreign Assets Control of the U.S. Treasury held by various banks to satisfy judgments obtained by various persons injured by Republic of Iran.  The Levin plaintiffs … 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

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

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

Independent Federal Claim Exists To Compel Arbitration Against Nonsignatory; Underlying Agreement’s Choice of Law Clause, Not Federal Common Law, Governs.

 FR 8 Singapore Pte, Ltd. (FR8) v. Albacore Maritime Inc. (Albacore), et al., 10 Civ. 1862 (S.D.N.Y. 14 Dec. 2010), decided several important and recurring issues in international litigation, specifically regarding the enforcement of arbitration clauses (see the discussion of the general topic of securing jurisdiction to enforce arbitration clauses in our e-book, International Practice: Topics … Continue Reading

Seventh Circuit Rejects Argument that Breach of Forum-Selection Clause Entitles Party To Recover Attorney’s Fees, Citing “American Rule” Against Recovery of Fees Absent An Exception

In Fednav Int’l Ltd. v. Continental Ins. Co., No. 08-2650 (7th Cir. 1 Nov. 2010), the Seventh Circuit addressed the question whether a party could turn a forum battle into a breach of the governing contract’s forum selection clause so as to be entitled to recover the attorney’s fees expended to fight the forum battle.  … Continue Reading

Enforceability of Forum Selection Clauses in International Litigation: A Brief Primer

A decision by the Southern District of New York in the area of international litigation, Export-Import Bank of the U.S. v. Hi-Films de C.V., et al., 09 Civ. 3573 (S.D.N.Y. 24 Sept. 2010)(PGG), addressed the enforceability of a forum selection clause and serves as a brief primer on the subject (see the discussion in Topic 2 … Continue Reading

Circuit Court Holds that FAA Trumps New York Convention’s Grounds for Vacatur of Arbitration Award in International Dispute

The interplay between the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), 6/10/58, 21 U.S.T. 2517, 330 UNTS 3, and the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., is not always a clear one. The Court of Appeals decision in Ario v. Underwriting Members of Syndicate … Continue Reading

Post-Judgment Procedures for Enforcing Judgment In U.S. In International Litigation

In the most recent episode in the litigation variously referred to and here involving specifically claims by Motorola Credit Corp. against Kemal Uzan and an entity he controls, Libananco, styled Motorola Credit Corp. v. Uzan, 02 Civ. 0666 (S.D.N.Y. 9/27/10), Judge Rakoff addressed the issue whether judgments entered against the defendants could be enforced against … Continue Reading

Choice of Law Determines Outcome in International Litigation Under the Convention on Contracts for the International Sale of Goods (CISG)

The Third Circuit, in Forestal Guarani S.A. v. Daros Int’l, Inc., No. 08-4488 (3d Cir. 7/21/10), addresses the question under the CISG as it applies to a dispute between two entities, one based in the U.S. and one based in Argentina.  The CISG gives sovereign states the right to opt out of the provision of the Convention … Continue Reading