Second 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 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 ReadingThrowback Thursday: Joseph Story and the Comity of Nations
One of the most influential books on transnational litigation was written nearly two centuries ago by a sitting Justice of the U.S. Supreme Court. Joseph Story’s Commentaries on the Conflict of Laws, first published in 1834, synthesized foreign and domestic cases regarding conflict of laws and the enforcement of foreign judgments. Story endorsed international comity…
Continue ReadingCan Corporations Claim Foreign Official Immunity?
In a recent cert petition, the Israeli company NSO Group asks the Supreme Court to consider whether corporations are entitled to conduct-based immunity when they act as agents of foreign governments. The Ninth Circuit answered no to that question, reasoning that the Foreign Sovereign Immunities Act (FSIA) comprehensively covers the immunity of corporations like NSO….
Continue ReadingNew Article Argues that the Helms-Burton Act Has Backfired
In an article recently posted on SSRN, Gergana Sivrieva surveys cases filed under Title III of the Helms-Burton Act for trafficking in expropriated property. She shows that, surprisingly, the principal defendants have not been foreign companies investing in Cuba but rather U.S. companies with only attenuated connections to such property. Congress passed the Helm-Burton Act…
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 ReadingCert Petition Challenges Second Circuit’s Comity Abstention Doctrine
A cert petition filed with the Supreme Court on March 21, 2022 challenges the doctrine of prescriptive comity abstention. The Second Circuit used this doctrine to reverse a $147 million antitrust judgment against Chinese companies for fixing the price of vitamin C sold into the United States. The Second Circuit’s decision relies on the kind…
Continue ReadingD.C. Circuit Addresses FSIA in Hungarian Art Case
Last month, the D.C. Circuit addressed several important questions under the Foreign Sovereign Immunities Act (FSIA) in its latest decision in De Csepel v. Republic of Hungary, a long-running suit to recover art expropriated during the Second World War. The court held that the defendant Hungarian National Asset Management Inc. (MNV) was subject to jurisdiction…
Continue ReadingThrowback Thursday: Revisiting Bradley and Goldsmith’s “Critique of the Modern Position”
Twenty-five years ago, Professors Curtis Bradley and Jack Goldsmith shook the fields of transnational litigation, federal courts, and foreign relations law by questioning the conventional wisdom that customary international law has the status of federal common law. Their article Customary International Law as Federal Common Law: A Critique of the Modern Position, published in the…
Continue ReadingWhytock Challenges the Conventional Wisdom that Transnational Forum Shopping Is Increasing in U.S. Courts
In a recent article, Professor Chris Whytock challenges the claim that transnational forum shopping by foreign plaintiffs is increasing. Using data on approximately 8 million civil actions filed in federal court, Whytock shows that transnational diversity cases represent a small and decreasing percentage of overall litigation.
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