Oral Argument in Doe v. Apple
Last week, the D.C. Circuit heard oral argument in Doe v. Apple, a case brought by victims of forced labor and human trafficking against five U.S. technology companies. The plaintiffs are children or family members of children who were injured or killed mining cobalt in the Democratic Republic of the Congo. The defendants—Apple, Alphabet, Microsoft,…
Continue ReadingNew Paper on Bias in Choice of Law
Dan Klerman has a new paper, Bias in Choice of Law: New Empirical and Experimental Evidence, that seeks to determine the extent to which U.S. courts exhibit bias when applying modern choice-of-law rules. The paper draws upon a dataset of choice-of-law cases involving automobile accidents decided between 1963 and 2018 and relies on regression analysis…
Continue ReadingThe Fate of the Afghan Central Bank Assets – State of Play
Afghanistan is experiencing a humanitarian and economic crisis following the Taliban’s return to power in the wake of the U.S. withdrawal of forces in August 2021. As previously covered on TLB (and on Lawfare), the U.S. government has frozen roughly $7 billion in assets held by Afghanistan’s central bank, Da Afghanistan Bank (DAB), that were…
Continue ReadingDistrict Court Dismisses Killing Claims Against MBS
Yesterday, the District Court for the District of Columbia (Judge John Bates) dismissed a lawsuit brought by Democracy in the Arab World Now (DAWN) and the widow of journalist Jamal Khashoggi, who was brutally murdered by security agents at the Saudi embassy in Istanbul. The plaintiffs sued Saudi Crown Prince Mohammed bin Salman (MBS) and…
Continue ReadingThe FSIA “Two Step”—Venue in Enforcement Actions Against Foreign States
When a party holding a foreign judgment or arbitral award wants to enforce the judgment or award against assets in the United States, it normally brings an enforcement action in the jurisdiction where the assets are located. But when the judgment debtor is a foreign state, the venue provision of the Foreign Sovereign Immunities Act…
Continue ReadingThe Executive Does Not Control Common Law Immunity
A previously reported on TLB, the Supreme Court granted certiorari in Türkiye Halk Bankasi, A.S. v. United States, to decide whether a bank owned by Turkey is entitled to foreign state immunity from federal criminal prosecution. Halkbank was indicted for evading sanctions against Iran. Both lower courts denied immunity to Halkbank, reasoning in part that…
Continue ReadingSolicitor General Recommends Denial of Cert in NSO v. WhatsApp
On November 21, the Solicitor General (SG) filed a brief recommending that the Supreme Court deny cert in NSO Group Technologies Ltd. v. WhatsApp Inc. NSO, an Israeli company that makes surveillance technology, claims that it is entitled to immunity from suit under federal common law because it acted as the agent of foreign states….
Continue ReadingBifurcated Forum Selection Clauses
When I was younger, I loved the Choose Your Own Adventure books. The reader was constantly asked to make decisions. Did you want to explore the basement of the haunted house? If so, turn to page 10. Or did you want to investigate the spooky noise coming from the kitchen? If so, turn to page…
Continue ReadingA Century of Changes in Extraterritoriality
This post is a lightly edited version of a talk given virtually on November 26, 2022, at the “International Symposium on Accelerating Changes Unseen in a Century and the Development of International Law” organized by the Chinese Academy of Social Sciences, Institute of International Law. I am pleased to be with you today to discuss…
Continue ReadingNew Paper on Forum Selection Clauses
Over the past three years, I have spent a lot of time trying to get a sense for when U.S. courts will and will not enforce forum selection clauses. Working with Katie Richardson — first as a law student, then as an associate at McGuire Woods, and finally as a clerk on the D.C. Circuit…
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