State Doctrines of Forum Non Conveniens: Beyond Gulf Oil
State courts have their own doctrines for addressing transnational litigation, including their own doctrines of forum non conveniens (FNC). While a majority of states today apply a version of FNC like that of the federal courts, we found that 17 states—fully one third—depart from the Gulf Oil framework in one or more ways.
Continue ReadingSecond Circuit Holds that Forum Non Conveniens Applies Under the FSIA
In Aenergy, S.A. v. Republic of Angola, the Second Circuit held that the standard doctrine of forum non conveniens applies to suits against foreign states under the Foreign Sovereign Immunities Act (FSIA). This holding is consistent with what the D.C. Circuit has said about forum non conveniens in FSIA cases. The Second Circuit’s decision would likely…
Continue ReadingWhat Should Happen Next in Cassirer?
Most of the procedural questions that arise in domestic litigation have a counterpart in transnational litigation. In Cassirer v. Thyssen-Bornemisza Collection Foundation, the Supreme Court confronted the transnational counterpart to Klaxon v. Stentor Electric Manufacturing Co., a much-debated choice-of-law case decided in 1941. As Justice Kagan noted in her opinion for a unanimous Court, “[a]lthough…
Continue ReadingCassirer and FSIA Choice of Law
Today the Supreme Court unanimously resolved an important case about choice of law under the Foreign Sovereign Immunities Act (FSIA). Cassirer v. Thyssen-Bornemisza Collection Foundation is a lawsuit about the ownership of a Camille Pissarro painting, surrendered by Lilly Cassirer to the Nazis and now held by a foundation created and controlled by the Government…
Continue ReadingSupreme Court decides Cassirer v. Thyssen-Bornemisza Collection Foundation
The Supreme Court today unanimously held in Cassirer v. Thyssen-Bornemisza Collection Foundation that state choice-of-law rules apply in cases brought against foreign sovereigns alleging non-federal claims.
Continue ReadingThrowback 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…
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