Throwback Thursday: The Ottoman Empire, the Capitulations, and War
Yes, the “capitulations” are often the stuff of very old books, the kind of books frequently discarded, the ones that you see heaped up sadly on the sidewalk in the rain next to libraries making space for people to surf the internet. Books, that is, like Nasim Sousa’s, The Capitulatory Regime of Turkey: Its History,…
Continue ReadingHavlish Plaintiffs File a Potentially Misleading Brief Claiming Entitlement to Afghan Central Bank Assets
The 2021 return of the Taliban to power in Afghanistan has led to litigation in the United States over the assets of the Afghan Central Bank (“DAB”). As I explained in an earlier post, an executive order by President Biden froze about $7.0 billion in DAB assets held in New York. A license from the…
Continue ReadingA Theory-Less Restatement for Conflict of Laws
For the first time in over half a century, the American Law Institute (“ALI”) is drafting a new Restatement of Conflict of Laws. The world has changed a great deal since 1971 when the Restatement (Second) was published, growing far more interconnected—so the idea of a new Restatement, taking into account the last few decades…
Continue ReadingSubstituted Service and the Hague Service Convention
Can state law be used to avoid a federal treaty, even though the Supremacy Clause of the U.S. Constitution makes treaties supreme over state law? The somewhat surprising answer is yes—at least when it comes to the Hague Service Convention and state rules on substituted service. The Hague Service Convention governs transnational service of process…
Continue ReadingThe Comparative Value of Choice of Law and Forum Selection Clauses
Choice-of-law clauses and forum selection clauses routinely come before courts hearing transnational cases. A choice-of-law clause selects a law to govern the contract. A forum selection clause chooses a court in which to resolve disputes. These differences notwithstanding, the two clauses are often discussed in the same breath. Leading casebooks on conflict of laws examine…
Continue ReadingThe Role of the FCPA in Transnational Litigation
Professor Maggie Gardner’s thought-provoking post on the role of the UN Convention Against Corruption (UNCAC) in forum non conveniens analysis in IMSS v. Stryker and IMSS v. Zimmer Biomet Holdings led me to consider how the Foreign Corrupt Practices Act (FCPA) factors into these cases. Interestingly, both defendant corporations, Stryker Corporation and Zimmer Biomet Holdings,…
Continue ReadingSecond Circuit Rejects Act of State Doctrine in Antitrust Case
In a recent decision, Celestin v. Caribbean Air Mail, Inc., the Second Circuit held that the act of state doctrine does not bar U.S. antitrust claims based on the acts of a foreign government. Although the Second Circuit is right, its decision diverges from the decisions of other circuits that have applied the doctrine as…
Continue ReadingCVSG in Usoyan v. Turkey: Can Turkey Use Force in the United States to Protect Its President?
A violent clash in Washington, D.C. between Turkish security forces and protestors has led to civil litigation with interesting questions about the authority of foreign security details and the immunity to which foreign governments are entitled. Turkey has petitioned for certiorari, and the Supreme Court has shown an interest in the case by calling for…
Continue ReadingNew Bill Would Amend the Alien Tort Statute to Apply Extraterritorially
Last week, Senators Dick Durbin and Sherrod Brown introduced a new bill, the Alien Tort Statute Clarification Act (ATSCA), that would amend the Alien Tort Statute (ATS) to apply extraterritorially. Since 1980, plaintiffs have relied on the ATS to bring international human rights claims in federal court against individuals and corporations. But since 2013, the…
Continue ReadingMultistate Defamation, Cross-Border Torts, and Choice of Law
Multistate defamation cases have always presented difficult choice-of-law problems, but the advent of the internet has exacerbated them. Nunes v. Cable News Network, Inc is a good example on point, besides being a very interesting case on other grounds. This post presents this case, but also examines how other countries resolve conflicts in cases of…
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