Cert Petition Highlights Circuit Split on Sovereign Immunity for Military Purchases
The Foreign Sovereign Immunities Act (FSIA) immunizes foreign states from suit in federal and state court. But it makes an exception for actions based on a foreign state’s commercial activities. The Supreme Court’s leading decision interpreting this exception is Republic of Argentina v. Weltover (1992), where the Court unanimously held “that when a foreign government…
Continue ReadingSupreme Court Focuses on Consumer Confusion in Extraterritorial Trademark Case
Yesterday, the Supreme Court heard oral argument in Abitron Austria GmbH v. Hetronic International, Inc. The question before the Court is when the federal trademark statute, known as the Lanham Act, applies to the use of trademarks outside the United States. The respondent, a U.S. company that makes radio remote controls for heavy construction equipment,…
Continue ReadingPreview of Supreme Court Argument in Extraterritorial Trademark Case
On March 21, the U.S. Supreme Court will hear oral argument in Abitron Austria GmbH v. Hetronic International, Inc. to decide when the federal trademark statute, known as the Lanham Act, applies to the use of trademarks outside the United States. The stakes are high—not just for the parties arguing over a $90 million damages…
Continue ReadingThe Impossibility of Serving Russian Defendants
The Hague Service Convention is a blessing and a curse. By obligating each country that has joined to designate a Central Authority for effectuating service of process on defendants within its territory, the Convention provides a means of service that respects foreign sovereignty, complies with federal rules, and helps ensure the enforceability of resulting judgments….
Continue ReadingAnother Court Rejects Chinese Data Privacy Law as a Bar to U.S. Discovery
A second U.S. decision has held that China’s Personal Information Protection Law (PIPL) did not bar a U.S. discovery request because of an exception in the law for statutory obligations. As previously reported on TLB, a federal court in California held last year that the PIPL’s exception for transfers “necessary to fulfill statutory duties and responsibilities or…
Continue ReadingA Primer on Transnational Discovery
Discovery is a formal process in which each party gathers information relevant to its case. Transnational discovery may be necessary to obtain information located abroad for use in U.S. courts or to obtain information located in the United States for use in foreign courts. As a general matter, courts may order parties subject to their…
Continue ReadingChoice of Law in the American Courts in 2022
The thirty-sixth annual survey on choice of law in the American courts is now available on SSRN. The survey covers significant cases decided in 2022 on choice of law, party autonomy, extraterritoriality, international human rights, foreign sovereign immunity, foreign official immunity, the act of state doctrine, adjudicative jurisdiction, and the recognition and enforcement of foreign…
Continue ReadingCourt Holds that Chinese Investor May Try to Enforce Arbitral Award Against Nigeria
Over the past two decades, China has invested heavily in Africa. A recent study found that between 2001 and 2018, China invested $41 billion in African countries and loaned an additional $126 billion. Some of these investments generated disputes, and some of those disputes are finding their way to U.S. courts. In a recent decision,…
Continue ReadingD.C. Circuit Holds that Whistleblower Provision Does Not Apply Extraterritorially
In Garvey v. Administrative Review Board, the D.C. Circuit held that a whistleblower provision in the Sarbanes-Oxley Act did not apply to alleged retaliation against an employee in Hong Kong by a subsidiary of a U.S. investment bank. The opinion carefully applies the Supreme Court’s two-step framework for the presumption against extraterritoriality to the whistleblower…
Continue ReadingA Primer on Service of Process
Serving process on a defendant does two things: (1) it asserts the court’s authority over the defendant; and (2) it provides the defendant with notice of the lawsuit. In the United States, process can be served by private parties. But many foreign states regard service as a public act that can be done only by…
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