New 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.
Continue ReadingWhy Transnational Litigation?
The justiciability of Holocaust expropriation claims; treaty interpretation in international custody disputes; the adequacy of pleading the enslavement of children; accessing U.S. discovery for international arbitration; the availability of punitive damages for international terrorism; the immunity of international organizations before U.S. courts; how to serve process on a foreign state: The U.S. Supreme Court has…
Continue ReadingA Primer on the Act of State Doctrine
The act of state doctrine is a federal common law doctrine providing that courts in the United States will not question the validity of an official act of a recognized foreign government fully performed within its own territory. The doctrine is often applied in cases like Banco Nacional de Cuba v. Sabbatino (1964) to require…
Continue ReadingA Primer on Foreign Judgments
In the United States, the recognition and enforcement of foreign-country judgments is generally governed by state law. Nevertheless, the law on foreign judgments is fairly uniform throughout the United States because most states have adopted one of two Uniform Acts. These Acts establish a presumption that final, conclusive, and enforceable foreign judgments are entitled to…
Continue ReadingA Primer on Extraterritoriality
Extraterritoriality refers to the application of a state’s law beyond the state’s borders. Although the word “extraterritorial” often has negative connotations, international law permits a great deal of extraterritorial regulation. In a world where trade, information, crime, and lots of other things regularly cross borders, states often have an interest in regulating beyond the strict…
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