Tag Archives: Sequencing Dispute Resolution

Should the “Exceptional Circumstances” Standard Be Employed For Granting a Temporary Stay of an Arbitral Award, When the Right To Seek Judicial Review Might Be Frustrated As a Result?

A short decision by the District Court in Chinmax Medical Systems Inc. v. Alere San Diego, Inc., 10cv2467 (S.D. Cal. 8 Dec. 2010), deserves brief mention.  Chinmax, a Chinese company, was involved in an arbitration with Alere San Diego.  Chinmax sued to vacate an arbitration award and filed a motion to stay an interim final … 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

Forum Non Conveniens Dismissal in Favor of Guatemala Raises Issues To Be Reviewed by the Second Circuit

A recent decision granting a motion to dismiss on forum non conveniens grounds serves to highlight issues that may arise in the application of forum non conveniens jurisprudence to an international dispute. Palacios, et al. v. The Coca-Cola Company, et al., No. 10 Civ. 3120 (S.D.N.Y. 19 Nov. 2010)(RJS), involved claims by a long-time worker … 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

Second Circuit Affirms Sua Sponte Rejection of Personal Jurisdiction Over Defaulting Defendant Where EFT Clearing Is Only Basis for Attachment of Property and Resulting Personal Jurisdiction

As we have addressed in our e-book International Practice: Topics and Trends, courts adjudicating international cases often look for guidance to maritime cases for purposes of seeing how that developed body of law addresses issues such as securing personal jurisdiction in international litigation.  The teaching of the recent decision by the Second Circuit Court of … Continue Reading

Court of Appeals Sends International Litigation to Mediation Without First Determining Its Own Jurisdiction; Dissent Feels Morrison May Have Overruled Extraterritorial Application of the Alien Tort Statute

In Sarei v. Rio Tinto, No. 09-56381 (9th Cir. 10/26/10), the Ninth Circuit, en banc (meaning the full court of appeals (12 judges) rather than the typical panel of three judges), addressed for at least the third time claims arising out of events on the island of Bougainville in Papua New Guinea.  Plaintiffs, non-U.S. residents, … Continue Reading

The Rare But Potent Antisuit Injunction

As our International Practice: Topics and Trends e-book discusses, rarely is a U.S. court seriously asked to enjoin proceedings in another country. Even more rarely does a U.S. court actually enter such an “antisuit” injunction, especially given the solicitude that U.S. courts have to principles of international comity. The seminal case in this area is … Continue Reading

Post-Judgment Attachment of Assets Blocked

Our International Practice:  Topics and Trends e-book treats the subject of attachment of assets.  The typical difficulty in obtaining them occurs when attempted before a judgment of liability and damages are entered.  Bennett v. Islamic Republic of Iran, et al., No. 09-5147 (D.C. Cir. 9/10/10), addresses a circumstance where the Court denied attachment of a non-U.S. … Continue Reading

Court Stays International Litigation Pending Results of WTO Proceeding

Faced with Supreme Court precedent, e.g., Colorado River Water Conservation District v. United States, 424 U.S. 800, 817 (1976), articulating the “virtually unflagging obligation of the federal courts to exercise the jurisdiction given them”, federal courts generally test dismissals or stays of actions in favor of non-U.S. proceedings under fairly demanding standards (see the discussion of stays … 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

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

Collateral Order Doctrine Available for Reviewing Some International Litigations But Not Others – But In Both Cases Federal Court Litigation Continues

Our posting of 20 August 2010, discussing OSS Nokalva, Inc. v. European Space Agency (ESS), Nos. 09-3602, 3640 (3d Cir. 8/16/10)(link to decision), observed that the Third Circuit has expressly felt the need to invoke – and did invoke — the Collateral Order Doctrine to support its jurisdiction to review a district court’s rejection of … Continue Reading

Another Circuit – this time the Ninth — Cuts Back on Sovereign Immunity Defense: Cassirer v. Kingdom of Spain, et al.

In an en banc decision in the transnational litigation context by the Ninth Circuit, in Cassirer v. Kingdom of Spain, et al., No. 06-56325, 06-56406 (9th Cir. 8/12/10) (link here), the Court of Appeals addressed several issues concerning the applicability of a sovereign immunity defense.  It ruled in favor of permitting suit against a non-U.S. sovereign … Continue Reading