ZF Automotive: A Practitioner’s Perspective
As a practitioner in commercial litigation with an emphasis on China-related cross-border disputes, I have been eagerly anticipating the Supreme Court’s decision in ZF Automotive US Inc. v. Luxshare, Ltd., resolving a circuit split on the applicability of Section 1782 discovery to private international arbitration. In this post, I share the practitioner’s perspective on what…
Continue ReadingNonperforming States and the Hague Service Convention: What to Do About Russia
The Hague Service Convention is supposed to provide a reliable means of serving process abroad. But what can the United States do about countries like Russia that refuse to execute U.S. requests for service? In an earlier post, I suggested that the Convention could be interpreted, or reinterpreted, to permit service by email in states…
Continue ReadingThe Dogs that Didn’t Bark in ZF Automotive
I confess I’m not big on blogs. They often do more mischief than good, and posts can distract folks from their day jobs (whether research or deaning). Then again, who can say no to a friendly request from good people like Maggie, Ingrid, Bill and John? Plus, several of us appeared in the case (George…
Continue ReadingZF Automotive: Predictable Outcome, Lackluster Reasoning
Whatever one may think of it, the Court’s decision in ZF Automotive US, Inc. v. Luxshare, Ltd. is not a surprise. It reflects the forceful intervention of the U.S. Government and aligns well with the drift of the Court’s conduct of oral argument in the case. Even the constituency most apt to want to use…
Continue ReadingSupreme Court Holds in ZF Automotive That Section 1782 Does Not Apply to International Arbitration
The Supreme Court held today that Section 1782 does not apply to international arbitration—neither international commercial arbitration nor investor-state arbitration. Writing for a unanimous Court, Justice Barrett held that only governmental or intergovernmental adjudicative bodies fall within the scope of the provision. Section 1782 authorizes federal district courts to order persons residing or found within…
Continue ReadingRewarding Ignorance of the CISG: A Response to John Coyle
In a recent post, Professor John Coyle considers the interpretation of the following choice of law (“COL”) clause in an international contract for sale of goods where both parties are located in Contracting States to the U.N. Convention on Contracts for the International Sale of Goods (CISG): “This Agreement shall be governed by the laws…
Continue ReadingSide-Stepping the Dismal Swamp: A Reply to Roosevelt
In a recent post, we sought to call attention to what we see as two issues with the way the draft Restatement (Third) of Conflict of Laws embraces a specific theory of choice of law called the “two-step” approach. First, we suggested that there is a disconnect between the “two-step” approach and the Restatement’s black…
Continue ReadingDistrict Court Holds that Magnuson-Moss Warranty Act Does Not Apply Extraterritorially
In a recent decision, Eichhorn-Burkhard v. Hill’s Pet Nutrition, Inc., a district court in Kansas (Judge Julie Robinson) held that the Magnuson-Moss Warranty Act (MMWA) does not apply extraterritorially to a U.S. company’s sales of dog food in Europe. The case provides a nice illustration of how U.S. courts apply the presumption against extraterritoriality to…
Continue ReadingHow Do Federal Courts Treat Foreign Parallel Litigation?
The Supreme Court has not explained how federal judges should evaluate parallel litigation in foreign courts. If the same parties are litigating the same issues before a foreign tribunal, should the federal court stay its hand? Or should it proceed until one or the other of the cases results in a judgment? The traditional European…
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