Tag Archives: Federal Common Law

Ninth Circuit Affirms Arbitral Award Over Public Policy Ojection; Affirms Jurisdiction To Award Post-Award, Prejudgment Interest and Attorneys’ Fees

The Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Cubic Defense Systems, Inc., No. 99-56380, 56444 (9th Cir. 2011), decided two issues of note in the context of international practice and dispute resolution:  confirmation of an arbitral award in the face of a public policy objection, and the … Continue Reading

Arbitration Award Upheld by Second Circuit — Manifest Disregard Challenge Available — Sort Of

Goldman Sachs Execution & Clearing, L.P., et al. v. The Official Unsecured Creditors’ Committee of Bayou Group, L.P., et al., 10-5049-cv (lead) (2d Cir. 2012) (summary order), provides a summary of several important legal principles governing international dispute resolution. Goldman Sachs began serving as the sole clearing broker for the hedge fund Bayou Fund in 1999 … Continue Reading

Federal Court of Appeals Affirms Dismissal of State Law Claim of Fraud By Combination of State Substantive Law Requirements and Federal Procedural Pleading Requirements

Stephenson v. PricewaterhouseCoopers (PWC), 11-1204-cv (2d Cir. 2012) (Summary Order), addresses the viability of claims against Canadian-organized PWC for fraud and negligence arising from PWC’s unqualified audit reports attensting to the accuracy of one of the “feeder funds” into Bernard Madoff Investment Securities, LLC, which, as the Second Circuit says, “was later revealed to be a … Continue Reading

Court Refuses Challenge to FINRA Rule Barring Waivers of Class Actions, Ruling that Plaintiffs Must Exhaust Administrative Remedies

Charles Schwab & Co. v. Financial Industry Regulatory Authority, Inc., No. C-12-518 EDL (N.D. Cal. 2012), provides a new analysis in the growing body of law addressing the circumstances under which waivers of class action in arbitration provisions are valid.   As we have posted on, the Supreme Court has addressed the question whether such state … Continue Reading

Court Upholds Counterclaim Against the U.S. on Political Question Grounds — Only To Dismiss It for Failure to Exhaust Administrative Procedures and for Failure To State A Claim

U.S. v. Kellogg Brown & Root Services, Inc., 10-cv-530 (RCL) (D.D.C. 2012), presents the interesting case whether a defendant in an international litigation can or should counterclaim litigation, in this case against the U.S. government.  The U.S. sued KBR for over $100 million in allegedly false claims arising from the war in Iraq.  The government is … 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

D.C. Circuit Majority Holds That, There Being No New Cause of Action Created by Alient Tort Statue, No Claim Exists Against U.S. Officials Individually, Whereas, Says the Dissent, a Cause of Action in the U.S. Would Exist Against Non-U.S. Officials for the Same Conduct

Akran Mohammed Ali, et al. v. Rumsfeld, et al., No. 07-5178 (D.C.Cir. June 2011) (consol), is the appeal of an action by non-U.S. residents or citizens captured, held, and allegedly tortured by U.S. milatary personnel.  This decision affirms the District Court’s grant of a motion to dismiss Alient Tort Statute (ATS), 28 U.S.C. sec 1350, and … Continue Reading

D.C. Circuit Upholds Dismissal of Claims Against Iran Precluded by the Algiers Accords; Circuit Now Silently Divided on Whether Section 1605A Does or Does Not Create Private Right of Action

Roeder, et al. v. Islamic Republic of Iran and the U.S., No. 10-5355 (D.C. Cir. July 2011), affirms the conclusion of the District Court.  We earlier posted on the District Court decision in this case.  It held that even the 2008 amendments to the Foreign Sovereign Immunities Act, 28 U.S.C. sec. 1605A, did not permit the … 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

On Remand from Supreme Court, Second Circuit Adheres To View that Waiver of Class Action Treatment in Antitrust Arbitration Is Invalid

Last year, in the antitrust litigation brought by merchants against American Express (Amex), the Second Circuit Court of Appeals decided that (1) the question of the enforceability of the class action waiver provision was properly decided by the court rather than the arbitrators, and (2) the class action waiver provision was unenforceable under the Federal … 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

First Circuit Rejects Claims Under International Law for Puerto Rico Representation in U.S. Electoral Process

Igartua v. U.S., No. 09-2186 (1st Cir. 24 Nov. 2010),  represents the most recent attempt – there have been three earlier trips to the First Circuit – by Iguartua, joined in most respects by the Commonwealth of Puerto Rico, to obtain judicial orders permitting them to participate in the apportionment of Representatives in the U.S. … 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

When Can Principles of International Law Be Read Into Federal Statutes? Often But Not Always, and Probably Not in the Context of Interpreting the War Powers of the Executive Branch

Practitioners and other interested parties have far more knowledgeable and insightful sources than this writer to consider the current state of play in the Guantanamo detention issues.  At the same time, the recent “decisions” to deny rehearing of the D.C. Circuit Court of Appeals in Ghaleb Nassar Al-Bihani v. Obama, No. 09-5051 (D.C. Cir. 8/31/10), following … Continue Reading

Exception to FSIA Creates Affirmative Claims Under Federal Law Against Non-U.S. Sovereign for Crimes Flowing from State-Sponsored Terrorism

Murphy v. Islamic Republic of Iran, 06-cv-596 (RCL) (D.D.C. 9/24/10), decided by the Chief Judge of the District Court for the District of Columbia, is a painful (the claims arise out of the Beruit bombing of Oct. 23, 1983) and painstaking analysis of the affirmative use of the state sponsored terrorism exception to the Foreign … Continue Reading

U.S. Prosecution of Same Crime Prosecuted and Punished Overseas Upheld

Our International Practice: Topics and Trends e-book discusses simultaneous or parallel proceedings in multiple sovereign jurisdictions. The recent decision in U.S. v. Gi-Hwan Jeong, 09-11127 (5th Cir. 10/22/10), demonstrates how U.S. courts deal with these types of proceedings – this one in the context of bribery prosecutions. The case demonstrates the keen need for counsel … Continue Reading

Fifth Circuit Rejects Special Rules Applicable to Nazi Looted Art Cases

International litigation in the U.S. is seeing an increasing number of cases alleging that Nazi persecution led to the confiscation or loss of paintings or other objects d’art that have appreciated significantly in value since World War II. Heirs of the persecuted, among others, are going to the courts seeking the return of the property notwithstanding … Continue Reading

Possible Common Law Immunity Available for Officials of Non-U.S. Governments, Even Where FSIA Immunity Unavailable; Dueling Anti-Suit Injunctions Not Reviewed

A ruling in an international litigation by the U.S. Court of Appeals for the Third Circuit, in Abi Jaoudi and Azar Trading Corp. v. CIGNA Worldwide Ins. Co., et al., 09-1297, 1298 (3d Cir. 8/20/10)(non-precedential), is the sixth ruling of a Court of Appeals this summer rejecting an FSIA defense, though this one, like one … Continue Reading