Throwback Thursday: Foreign Sovereign Immunity in 1970
A fascinating and obscure book from 1970 discusses the relationship between domestic and foreign state immunity, the power of the executive branch over immunity, reciprocity, and – of course – the legislative reforms that would several years later become the Foreign Sovereign Immunities Act. The American Law of Sovereign Immunity, published in 1970 by Theodore…
Continue ReadingWhere is the U.S. International Commercial Court?
Many countries have been setting up domestic courts devoted to international commercial disputes. Why hasn’t the United States? Perhaps because New York courts are already doing that work.
Continue ReadingAfghan Central Bank Assets Should Be Immune in Cases against the Taliban
Victims of terrorist attacks who obtained default judgments against the Taliban have requested the turnover of Afghan central bank assets frozen by U.S. sanctions. Because these assets are protected by foreign sovereign immunity and because no exception to immunity is applicable, courts should not order the assets turned over to the judgement-creditor plaintiffs, despite the terrible injuries that they and their families have suffered.
Continue ReadingChoice-of-Law Methodologies: Updating the List
This is an update of the list of choice-of-law methodologies followed in the United States. The changes are: (1) the abandonment of the lex loci contractus rule by the Supreme Court of Rhode Island in 2022, and (2) the enactment of a new choice-of-law codification by Puerto Rico in 2020.
Continue ReadingExclusive Forum Selection Clauses in the First Circuit
Forum selection clauses are complicated. Under the framework laid down by the U.S. Supreme Court in Atlantic Marine (2013), a clause selecting the courts of another jurisdiction should only be given effect in federal court when it is “contractually valid.” As part of the inquiry into contractual validity, a court must first interpret the clause…
Continue ReadingThrowback Thursday: Mason v. The Blaireau
Admiralty has always been a site of transnational litigation in the United States. From the earliest years of the Republic, the admiralty courts heard disputes brought by foreigners against foreigners over incidents that occurred outside the United States—cases that today might be derided as “foreign-cubed.” These “foreign-cubed” admiralty decisions are worth a fresh look because…
Continue ReadingCriminal Proceedings and the Foreign Sovereign Immunities Act
Congress enacted the Foreign Sovereign Immunities Act of 1976 (FSIA) to address the inconsistent application of doctrines of state immunity to civil suits against foreign states and state-owned enterprises. The statute confers jurisdictional immunity on these entities, subject to enumerated exceptions. Most litigation under the FSIA involves whether a particular defendant qualifies as a foreign…
Continue ReadingClimate Change Litigation and the “Foreign Affairs” Trump Card
Having found the federal courts unfriendly to climate-related claims, a series of plaintiffs—mostly state and municipal governments—have sued fossil fuel companies under state law often in state court. Oil company defendants resisting these claims have argued that federal law, not state law, should govern. For cases filed in state court, defendants also have sought to remove the cases to federal court, asserting federal jurisdiction on various theories.
Continue ReadingRecent Scholarship on Antisuit Injunctions
Giuseppe Colangelo and Valerio Torti have posted an interesting paper on antisuit injunctions in patent litigation. The paper helpfully surveys recent clusters of litigation in China, Europe, the United Kingdom, the United States and elsewhere. Especially notable is the growth both in antisuit injunctions against Chinese companies and in antisuit injunctions issued by Chinese courts…
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