District Court Interprets Geographic Scope of the Commodity Exchange Act
In a recent decision, CFTC v. WorldWideMarkets Ltd., the federal district court for the District of New Jersey (Judge Kevin McNulty) interpreted the geographic scope of the Commodity Exchange Act (CEA), holding that two of its provisions apply only when irrevocable liability for a transaction is incurred within the United States. The decision aligns the…
Continue ReadingSurveying Extraterritoriality
TLB advisor Hannah Buxbaum has posted to SSRN a piece entitled “The Practice(s) of Extraterritoriality.” It is an introductory chapter from the book Extraterritoriality/L’extraterritorialité, edited by Buxbaum and Thibaut Fleury Graff, which grew out of the 2019 Centre for Studies and Research at the Hague Academy of International Law. Buxbaum’s chapter is a masterful survey of extraterritoriality…
Continue ReadingThrowback Thursday: Timberlane Lumber Co. v. Bank of America
Although the relevant text of the Sherman Act remained unchanged for most of the twentieth century, courts’ interpretations of its extraterritorial reach fluctuated dramatically. In 1909, the U.S. Supreme Court adopted a territorial approach in American Banana, described in a recent post, holding that the Sherman Act applied only to anticompetitive conduct in the United…
Continue ReadingServing Chinese Defendants—Another Problematic Decision
An order last week in Teetex, LLC v. Zeetex, LLC illustrates some common and problematic approaches to serving process on defendants in China. When service under the Hague Service Convention had not been accomplished within six months, the district court authorized service by email on the defendant’s general manager in China and the general manager’s…
Continue ReadingMore Evidence that Helms-Burton is Backfiring
In 1996, Congress passed the Helms-Burton Act to strengthen sanctions against Cuba and to deter foreign companies from investing there. To discourage foreign investment, Title III created a civil remedy allowing U.S. nationals to sue any person who “traffics” in property confiscated by the Cuban government for damages in an amount three times the value…
Continue ReadingA Typical 1782 Case
28 U.S.C. § 1782 allows a federal court to order discovery for use in a foreign or international tribunal. After the Supreme Court’s first § 1782 decision in 2004, Intel Corp. v. Advanced Micro Devices, Inc., the number of § 1782 petitions increased dramatically, more than quadrupling between 2005 and 2017. In re Petition of…
Continue ReadingComparing Extraterritoriality in the EU
How a court decides whether a statute applies extraterritorially is a fundamental question in transnational litigation. TLB has lots of information about the U.S. approach. Our Primer on Extraterritoriality describes the federal and state approaches, as well as the customary international law rules on jurisdiction to prescribe. Recent posts have discussed the extraterritorial application of…
Continue ReadingIs MBS Entitled to Head of State Immunity?
Editor’s Note: This article also appears in Just Security. In 2018, Saudi security agents brutally murdered journalist Jamal Khashoggi at Saudi Arabia’s consulate in Istanbul, Turkey. U.S. intelligence agencies concluded that Crown Prince Muhammad bin Salman (MBS) approved the operation. In 2020, Khashoggi’s widow and a non-profit organization that he helped found sued MBS and…
Continue ReadingThe Political Question Doctrine in the Lower Courts
Curt Bradley and Eric Posner have posted to SSRN a fascinating new paper about the political question doctrine. In The Real Political Question Doctrine, they take an empirical look at cases applying the doctrine in the lower federal courts since the Supreme Court’s 1962 decision in Baker v. Carr. Among other things, they find that…
Continue ReadingSDNY Rejects Service by Email on Chinese Companies
In Smart Study Co. v. Acuteye-US, a federal court in the Southern District of New York (Judge Gregory Woods) rejected service by email on Chinese companies in a trademark and copyright infringement case. China and the United States are parties to the Hague Service Convention. The court reasoned that the Convention precludes service by email,…
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