Tag Archives: Forum Selection & Challenges

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

Second Circuit Remands For Reconsideration of District Court Refusal To Abstain in Favor of State Court Proceedings

The Parmalat Securities Litigation raises many significant issues for international litigation and international practice generally. In this phase of In re Parmalat Securities Litigation, Nos. 09-4302-cv, 09-4306-cv, and 09-4373-cv (2d Cir. 18 Jan. 2011; amended opinion 4/12/11), the Second Circuit addressed a decision of the Southern District of New York in refusing to abstain from … Continue Reading

Second Circuit: First-Filed Rule Applies in Forum Battles — Except When It Doesn’t

Determination of venue or forum is one of the earliest and most frequent battlegrounds in international litigation (see our discussion of choice of forum considerations and strategies in our e-book, International Practice: Topics and Trends).  What happens when the law applied to such disputes is a shifting articulation of rules? We reported in an earlier posting … Continue Reading

In International Litigation, A Closed U.S. Court House May Just Mean U.S. Claimants Suing U.S. Entities in Non-U.S. Courts

We have written elsewhere (European Lawyer (2008) and Journal of International Banking and Financial Law (2010)),  about the promise and potential of collective action claims in non-U.S. jurisdictions, especially in the EU.  We have also questioned whether one consequence of the U.S. Supreme Court’s decisions concerning whether to permit international controversies to proceed in U.S. courts is that, … Continue Reading

Sanctions Granted Against Non-U.S. Sovereign (Grenada) for Conduct in Post-Judgment Discovery

Export-Import Bank of the Republic of China v. Grenada, 06 Civ. 2469 (S.D.N.Y. 29 Dec. 2010), addresses the relatively rare circumstance in international litigation — a successful attempt to locate assets in the U.S. to satisfy a judgment against a non-U.S. sovereign.  Export-Import Bank of China sought to satisfy a $25 million judgment against Grenada.  … Continue Reading

With Implications for International Litigation, Ninth Circuit’s Distinction Between U.S. and Non-U.S. Sales of Goods Left Standing by Supreme Court’s Affirmance by Equally Divided Court

The Supreme Court’s decision in Quality King Distributors, Inc. v. L’anza Research International, Inc., 523 U.S. 135 (1998), involved a “round trip” scheme of importation of goods into the U.S.:  a product with a U.S.-copyrighted label was manufactured inside the United States, exported to an authorized foreign distributor, sold to unidentified third parties overseas, shipped … 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

Ninth Circuit Interprets Forum Clause To Compel Reversal of Enforcement of Arbitral Award: A Lesson in Drafting Arbitration Clauses

Polimaster Ltd., et al. v. RAE Systems, Inc., No. 08-15708 (9th Cir.  28 Sept. 2010), invoked the Convention on the Recognition and Enforcement of Foreign Arbitral Awards , June 10, 1958, 21 U.S.T. 2517 (the New York Convention), to reverse a District Court’s confirmation of a JAMS arbitral award.  Polimaster, a Belarus company, and Na&Se … 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

Second Circuit Finds Abuse of Discretion in District Court’s Failure To Follow “Basic Proposition” of First-Filed Priority, Requiring Decade-Old Litigation To Continue – Is More Going On?

In international litigation, the race to the court house often gives a tactical advantage  — see the discussion of the ordering of international controversies in our e-book, International Practice: Topics and Trends.  At the same time, the courts have also resisted an overemphasis on a first-filed mentality where justice, material convenience, or other considerations warranted.  The … Continue Reading

The Perils of Trying To Confirm an Arbitral Award in the Absence of a Forum-Selection Clause; Alter Ego Liability Unavailable in an Application To Confirm Arbitral Award

Our recent blog post examined the a District Court’s treatment of a motion to dismiss international litigation for lack of personal jurisdiction and forum non conveniens in the context of contracts with a choice of forum clause.  Here we examine the District Court’s treatment of a motion to dismiss for lack of personal and subject … 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

First Circuit Enforces Contractual Choice of Forum Provision Despite Claim that State Law Prohibited Same; Application of Contractual Choice of Law Provision Uncertain

We have long advised that private parties, by contract, should attempt to order their affairs before a dispute arises.  What happens when the legislature or other governmental body attempts to regulate what parties can contract about?  The recent decision in Rafael Rodriguez Barril, Inc. (RRB) v. Conbraco Industries, Inc., No. 09-2163 (1st Cir. 9/8/10), presents … 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

Second Circuit Again Rejects FSIA Defense and Upholds Attachment of Assets and Other Provisional Remedies, Applying New York Choice of Law and Substantive Law To Disregard “Trust”

The continuing saga to enforce judgments by U.S. creditors against the Republic of Argentina resulted in a recent unpublished opinion by the U.S. Court of Appeals for the Second Circuit in EM Ltd., et al. v The Republic of Argentina, et al., 09-3908-cv, etc (2d Cir. 8/3/10).  Under Second Circuit rules, the unpublished opinion does … Continue Reading

Yet Another Court Invalidates the Combination of Forum Selection and Choice of Law Clauses but Severs To Uphold International Arbitration Provision

Our post of 8/9/10 discussed Matthews v. Princess Cruise, Ltd., Case No. 10-60830-CIV-GOLD/MCALILEY (S.D. Fla. 7/7/10), including how the court there permitted a post-litigation stipulation to the application of U.S. law as a means of saving an international arbitration agreement.  In Dumitru v. Princess Cruise, Ltd., 09 Civ. 4792 (NRB) (S.D.N.Y 7/29/10), the district court … Continue Reading

Another Court Invalidates the Combination of Forum Selection and Choice of Law Clauses but Severs To Uphold International Arbitration Provision

A district court in Florida furthered international comity by permitting removal of a case from state to federal court, then ordering that international and even U.S. Statutory claims be arbitrated in accordance with arbitration provisions in a contract that the court saved from unenforceability by severing a specific, unenforceable provision.  In Matthews v. Princess Cruise, Ltd., Case … Continue Reading