Tag Archives: Subject-Matter Jurisdiction

District Court Allows the Commodity Futures Exchange Commission to Bring a Lawsuit Involving Non-U.S. Investors and Non-U.S. Electronic Trading Platforms

United States Commodity Futures Exch. Comm’n v. Vision Fin. Partners, LLC, No. 16-60297 (S.D. Fla. 2016), addresses the international practice question of whether federal courts have subject matter jurisdiction to hear lawsuits brought by the Commodity Futures Exchange Commission (the Commission) on behalf of non-U.S. investors trading through non-U.S. electronic platforms. In this case, the … Continue Reading

Second Circuit Grants Forum Non Conveniens Dismissal in the Face of Non-U.S. Statute Limiting Recovery

Figueiredo Ferraz E Engenharia De Projecto Ltda v. Republic of Peru, et al., Dkt. Nos. 09-3925-cv, 10-1612-cv (2d Cir. 2011), addresses a key issue in international practice, especially attempts to enforce international arbitral awards in the context of motions to dismiss on forum non conveniens grounds.  (For a general discussion of the forum non conveniens … Continue Reading

Eight Circuit Court of Appeals Affirms Dismissal under the Foreign Sovereign Immunities Act

Community Finance Group, Inc., et al. v. Republic of Kenya, et al., No. 11-1816 (8th Cir. 2011), decided an FSIA case with practical implications for international dispute resolution practitioners.  The transaction involved the purchase and release of gold from Kenya.  CFG paid, but there was no delivery, allegedly on the basis that there was more … Continue Reading

Tenth Circuit Addresses But then Dismisses Appeal Addressing International Child Abuction Statute

Max Joseph Leser v. Alena Berridge, No. 11-1094 (10th Cir. 2011), involved an analysis of the Hague Convention on the Civil Aspects of International Child Abduction.  In the decision below, the district court granted a petition for the return of children from the U.S. to the Czech Republic based on the stipulation of the parents … 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

Fourth Circuit Upholds “Derivative” Sovereign Immunity, following the D.C. Circuit

Suhail Najim Abdullah Al Shimari, et al. v. CACI Int’l, No. 09-1335 (4th Cir. 2011), addresses the issue of “derivative sovereign immunity”, which deserves another look.  According to the allegations, four Iraqi citizens were seized by the U.S. military in the Iraq war zone and detained by the military in Iraq.   They allege that, while detained, … Continue Reading

State Law Claims Do Not “Necessarily” Raise Federal Question — Case Ramanded To State Court

The distribution of matters between federal and state court is a key consideration in the international practice sphere.  In re Lehman Bros. Securities and ERISA Litigation, 09 MD 2017 (S.D.N.Y. 2012) (LAK), deserves study on this issue.  The case remanded to state court claims asserted against Lehman by the People of the State of New … Continue Reading

Extraterritoriality Becomes Focus of Kiobel Supreme Court; Are We Headed for Morrison II?

 We have posted on the fascinating development of the law concerning the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350.   The issues raised there are important in their own right and are at the center of many issues faced by the international litigator.  It started with the Second Circuit’s decision in Kiobel, et al. v. Royal Dutch Petroleum Co., et al., 06-4800-cv, … Continue Reading

Second Circuit Clarifies Morrison’s Holding Concerning What Is a U.S. Transaction, Overturning a District Court’s Approach Followed by Many Lower Courts

Absolute Activist Value Master Fund Ltd. v. Ficeto, et al., Dkt. No. 11-0221-cv (2d Cir. 2012), presents one of the few Court of Appeals’ analyzes of the reach of the Supreme Court’s extraterritorial decision in Morrison v. National Australia Bank (No. 08-1191). We have posted many times on the rulings by the District Court’s following Morrison, … Continue Reading

U.S. Court Orders Extradition of Alleged War Criminal After According Due Process

In the Matter of the Extradition of Rasema Handanovic, 3:11-mc-9097-ST (D. Ore. 2011), presents several noteworthy aspects of the international practice issues that arise in an international extradition proceeding.  In particular, the extent to which a U.S. court will protect the due process rights of a potential criminal defendant in an international war crimes case is … Continue Reading

Second Circuit Remands CAFA-Removed Class Action to State Court

In another recent Court of Appeals decision addressing important issues in class or collective actions, Blackrock Financial Management Inc. et al. v. The Segregated Account of Ambac Assurance Corp., Dkt Nos. 11-5309-cv(L) (2d Cir. 2012), the Court addressed the issue of the removal of a case from state to federal court under the Class Action … Continue Reading

Claims Against Kenya Disimssed on Foreign Sovereign Immunity Grounds

Community Finance Group, Inc., et al. (CFG) v. Republic of Kenya, et al., Civil No. 10-838 (DSD/JJG) (D. Minn. 2011), presents an issue in international litigation that arises when a U.S. person or entity does business with a non-U.S. sovereign.  CFG sought to purchase gold from Kenya.  Funds were wired for the gold, the funds … Continue Reading

Securities Claim in Canada Under Canadian Securities, Mirror Image To Morrison Claims Under U.S. Securities Laws, Permitted To Proceed

As a matter of international litigation practice, the changes wrought by the U.S. Supreme Court’s decision in Morrison have been fundamental.  In the Supreme Court decision in Morrison v. National Australia Bank (No. 08-1191), the Court held that Section 10(b) of the Securities Exchange Act of 1934 did not provide a private cause of action in … Continue Reading

District Court in BP Securities Class Action Dismisses Non-U.S. Securities Claims on the Basis of Morrison and Effective Preemption

In re BP p.l.c. Securities Litigation, MDL No. 10-md-2185 (S.D. Tex. Feb. 2012), is a 129-page decision comprehensively addressing the allegations underlying and the securities claims arising from the BP oil spill of April 20, 2010.  The portion of the decision relating to international practice and dispute resolution addresses the Court’s jurisdiction and retention of jurisdiction over … Continue Reading

District Court in Vivendi Class Action Denies Plaintiffs’ Bid for Interlocuotry Appellate Review

In re Vivendi Universal, S.A., Securities Litigation, 02 Civ. 5571 (RJH) (S.D.N.Y. 2012),  involves claims by non-U.S. persons — specifically persons in France, England, and the Netherlands (in addition to the U.S.) who purchased ordinary shares of American Depositary Shares of Vivendi stock.  A jury found the defendants liable for securities law violations.  Then the … 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

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

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

Declaratory Nature of Suit Does Not Create Sovereign Immunity Waiver; Case Can Proceed Against Individuals Only If They Acted Outside Their Statutory Powers

In our recent posting we discussed the fact that a declaratory judgment action does not confer independent federal jurisdiction on an international controversy.   What effect does the federal Declaratory Judgment Act have on another important issue in international litigation:  the existence of sovereign immunity?  The District Court in Pollack v. Duff, Civil Action No. 10-cv-0866 (ABJ) … Continue Reading

Federal Court Seized of Admiralty Jurisdiction Nonetheless Dismisses In Favor of Canadian Litigation

Sikorsky Aircraft Corp., et al. v. Lloyds TSB General Leasing (No. 20) Limited, et al., Civil Action No. 3:10-CV-00954 (CSH) (D. Conn. Apr. 2011), demonstrates how two insightful courts are managing international litigation pending in two different countries.  The case involves a forum battle arising from the crash of a helicopter into international high seas … Continue Reading

Claim Alleging Derivative Possession of Good Allegedly “Taken” in Violation of International Law Still Precluded by FSIA

We discuss briefly the final installment (in the District Court) of the attempt to recover possession of a Van Gogh drawing allegedly sold away from the plaintiff’s great-grandmother “under duress during the Nazi era in Germany for fraction of its fair value”, Orkin v. The Swiss Confederation, 09 Civ. 10013 (S.D.N.Y. Mar. 2011) (LAK).  An … Continue Reading

Seventh Circuit Agrees with D.C. Circuit Dissent that U.S. Citizens Must Be Able to Sue U.S. Officials for Alleged Torture Overseas

Vance, et al. v. Donald Rumsfeld and the United States of America, Nos. 10-1687, 10-2442 (7th Cir. Aug. 2011), alleges that Secretary of Defense Rumsfeld bears personal involvement and responsibility for alleges torture of U.S. citizens in Iraq.  The District Court denied the motion to dismiss, and the Seventh Circuit affirmed, finding that under the … Continue Reading

Claims Against Bank Dismissed On Grounds of FSIA Based On Post-Contract Takeover of Bank by Non-U.S. Sovereign, Even Though Contract Contained Express Consent To Suit Clause in New York

The recent decision in Fir Tree Capital Opportunity Master Fund, L.P., et al. v. Anglo Irish Bank Corp., 11 Civ. 0955 (PGG) (S.D.N.Y. Nov. 2011), describes both the obstacles to a successful suit against an entity cloaked with immunity under the Foreign Soveign Immunities Act (FSIA) but, perhaps, shows a path to a succcessful suit against … Continue Reading