Transnational Litigation at the Supreme Court, October Term 2025
October 6, 2025
Today is the first day of the Supreme Court’s October Term. This post briefly discusses transnational litigation cases in which the Court has already granted cert, as well as others that are in the pipeline and could be decided this Term.
Cases in which the Court Has Granted Cert
So far, the Supreme Court has granted cert in six cases involving transnational litigation.
The Tariff Cases
Two of the most important cases before the Supreme Court this Term are those challenging the President’s authority to impose tariffs under the International Emergency Economic Powers Act (IEEPA), Learning Resources, Inc. v. Trump and Trump v. V.O.S. Selections, Inc. In a TLB post last June, Robin Effron considered which court would decide these challenges. In the end, of course, the answer always was always going to be the Supreme Court.
Upon a declaration of national emergency, IEEPA allows the President to:
investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States.
Although there is no express mention of tariffs, one can argue that IEEPA grants such authority with the words “regulate … importation.” These two cases are bound to turn in part on the so-called “major questions doctrine,” the notion that broad assertions of executive power must be clearly authorized by Congress. Jack Goldsmith and Bob Bauer have discussed many of the relevant issues at Executive Functions, and their thoughts are worth reading.
The Court granted cert on September 9 and has fast-tracked the cases, with oral argument set for November 5.
The Helms-Burton Act Cases
On Friday, the Court granted cert in two new cases involving the Helms-Burton Act, which creates a cause of action for treble damages against persons who traffic in property expropriated by Cuba. In Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., the Eleventh Circuit held that the plaintiff could not bring claims against cruise ship companies for using expropriated piers in Havana harbor after 2004, because plaintiff’s 99-year concession would have expired by then. In Exxon Mobil Corp. v. Corporación Cimex, S.A., the D.C. Circuit held that Helms-Burton did not override the Foreign Sovereign Immunities Act (FSIA) with respect to claims against agencies or instrumentalities of the Cuban government. The Supreme Court called for the views of the Solicitor General (CVSG’d) in both cases, and the SG recommended grants in both.
Hencely v. Fluor Corp.
In Hencely v. Fluor Corp., the question presented involves the scope of the combatant-activities exception to the Federal Tort Claims Act (FTCA). The defendant Fluor is a private military contractor. One of its employees at Bagram Airfield in Afghanistan carried out a suicide bombing at the base that killed five and injured others, including the plaintiff. Although the FTCA does not by its terms cover private military contractors, the Supreme Court extended immunity to such contractors as a matter of federal common law in Boyle v. United Technologies Corp. (1988). The Fourth Circuit held that such immunity barred the plaintiff’s state law claims against Fluor, and the circuits are split on what the test should be for the immunity of private military contractors.
Enbridge Energy LP v. Nessel
The question presented in Enbridge Energy LP v. Nessel—whether district courts have authority to excuse the 30-day procedural time limit for removal in 28 U.S.C. § 1446—has nothing to do with transnational litigation. But the underlying case involves efforts by Michigan to shut down Enbridge’s pipeline from Canada, which Canada asserts would violate the Transit Pipelines Treaty. Last week, I wrote about the U.S. government’s statement of interest in a parallel federal court case, which (wrongly) asserts that Michigan’s action is preempted under the doctrine of foreign affairs preemption. Separate litigation in Wisconsin also threatens to close the pipeline, as I have discussed here and here.
Other Cases of Note
Cert petitions are pending in four other transnational litigation cases of note. The Court has CVSG’d in three of these cases, and the United States is a party in the fourth.
The case in which the United States is a party is Türkiye Halk Bankasi A.Ş. v. United States (Halkbank). The petitioner, a Turkish state-owned bank accused of violating U.S. sanctions on Iran, asserts that it is entitled to sovereign immunity from prosecution in U.S. courts. In 2023, the Supreme Court held that the FSIA does not apply to criminal proceedings and remanded to the Second Circuit to reconsider Halkbank’s separate claim of immunity under federal common law. On remand, the Second Circuit deferred to the executive branch’s determination that Halkbank is not immune from prosecution, although the court also independently found that Halkbank lacked common law immunity. The petition in Halkbank was scheduled for conference last Monday, along with the Helms-Burton cases. Although it is possible that the Court has decided to relist the case (deferring it to a future conference), the more likely reason Halkbank did not appear among the cases granted on Friday is that the Court has decided to deny review. We will find out later this morning when the rest of the orders from last Monday’s conference are released.
In Wye Oak Technologies, Inc. v. Republic of Iraq, a Pennsylvania based contractor sued Iraq for failing to pay $24 million under a contract to refurbish military equipment. The D.C. Circuit held that the FSIA’s commercial activities exception did not apply because Iraq’s non-payment had no direct effect in the United States and the claims were not based on an act by Iraq in the United States. Wye Oak argues that there is a circuit split on both issues. But the SG’s brief, filed on September 15, disagrees. He recommends that the Court deny cert because the D.C. Circuit’s decision is correct.
In Chabad v. Russian Federation, a religious organization wants to reclaim religious property expropriated by the Soviet Unition in the early twentieth century and now held by the Russian government in Russia. The question presented is whether, in a suit against a foreign state itself, the U.S.-nexus requirement of the FSIA’s expropriation exception, 28 U.S.C. § 1605(a)(3), requires that the expropriated property is present in the United States or whether it is sufficient that the property is owned or operated by an agency or instrumentality of the foreign state that is engaged in commercial activity in the United States. Ingrid Brunk suggests that the SG’s views may have a significant impact on the Court’s decision whether to grant review. The SG has not yet responded.
Last but not least, the Supreme Court has asked the SG to weigh in on whether to grant review in Cisco Systems Inc. v. Doe. Plaintiffs sued Cisco and its former CEO for aiding and abetting the Chinese government’s violations of human rights by designing and building a surveillance system used to detain practitioners of Falun Gong. The Ninth Circuit held that the Alien Tort Statute (ATS) allows claims for aiding and abetting, that the mens rea standard for such claims is knowledge rather than purpose, and that aiding and abetting claims are also available against natural persons under the Torture Victim Protection Act. Cisco has asked the Supreme Court to review and reverse all three of these holdings. I expect the SG to argue that aiding and abetting claims are not cognizable under the ATS, as he has before, and probably that such claims are not cognizable under the TVPA either. If the Supreme Court were to take this case and reject the possibility of aiding and abetting claims, it would be the final blow to human rights litigation under the ATS.