Supreme Court Decides Fuld v. PLO
The Supreme Court today unanimously reversed the Second Circuit in Fuld v. Palestine Liberation Organization, holding that the personal jurisdiction provisions of the Promoting Security and Justice for Victims of Terrorism Act (PSJVTA) do not violate the Fifth Amendment’s Due Process Clause. Chief Justice Roberts wrote the opinion, which was joined by Justices Alito, Sotomayor,…
Continue ReadingThree Questions for the Ninth Circuit in Antrix
The Supreme Court’s recent decision in CC/Devas (Mauritius) Ltd. v. Antrix Corp. Ltd. represents a minimalist response to a narrow question embedded in a procedural labyrinth. As Ingrid Brunk noted on TLB, the Court resolved no significant issue, but rather corrected an obvious mistake by the Ninth Circuit. However, the case bristles with potential. Depending…
Continue ReadingFederal Circuit Revives Afghanistan Lease Dispute
In a recent decision, Lessors of Abchakan Village v. Secretary of Defense, the Federal Circuit reversed the Armed Services Board of Contract Appeals (the “Board”) and revived a claim by Afghan villagers for $28 million in unpaid rent on a lease for a U.S. military base. Whether the villagers or the Government of Afghanistan owned…
Continue ReadingForeign Law in State Courts
The Yale Journal of International Law recently published my article, Foreign Law on the Ground. The article is a comprehensive study of the treatment of foreign law in U.S. courts. Most the prior scholarship on foreign law in U.S. courts has focused on federal courts and Federal Rule 44.1. My article discusses federal courts, but…
Continue ReadingMicrosoft Contract Day 2025!
Two years ago today, I authored a post titled “Microsoft’s Dispute Resolution Provisions Are a Mess.” I argued that the “Jurisdiction and Governing Law” language in the form purchase order used by Microsoft and its subsidiaries in 109 countries around the world was “incoherent.” My goal in writing the post was to inspire/shame Microsoft –…
Continue ReadingDoes the Securities Exchange Act Apply to Short-Swing Profits Abroad?
Section 16(b) of the Securities Exchange Act requires statutory “insiders” of companies that are registered with the Securities Exchange Commission (SEC)—such as officers, directors, and certain beneficial owners—to disgorge profits from “short-swing” trading within a six-month period. It is a strict liability provision that does not depend on the insiders’ intent. On May 23, 2025,…
Continue ReadingForeign Law on the Ground
The Yale Journal of International Law recently published my article, Foreign Law on the Ground. This post gives a flavor of the article with an excerpt from the introduction (cleaned up). I will follow up with a second post reviewing findings about foreign law in state courts. Traditionally, U.S. courts labeled foreign law as fact….
Continue ReadingSupreme Court Remands CC/Devas v. Antrix
To the surprise of no one, today the Supreme Court reversed and remanded CC/Devas v. Antrix. The Ninth Circuit had held that the Foreign Sovereign Immunities Act (FSIA) always requires minimum contacts between the defendant and the United States, an argument so weak that the respondents did not defend it before the Court. The Court…
Continue ReadingThrowback Thursday: Hilton v. Guyot
One hundred and thirty years ago this week, on June 3, 1895, the Supreme Court decided Hilton v. Guyot. Hilton is the seminal decision on recognizing and enforcing foreign judgments in U.S. courts. Although the federal common law rule that Hilton announced has been superseded by state law, Hilton continues to influence state rules in…
Continue ReadingWho Has the Authority to Waive Sovereign Immunity Via Contract?
In a prior post, Ingrid Brunk and I wrote about the ways that foreign nations can waive their sovereign immunity via various types of contractual provisions. There are, however, additional requirements that must be satisfied for a contractual waiver of sovereign immunity to be valid. Among other things, a party seeking to enforce such a…
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