Fifth Circuit Applies Act of State Doctrine in Holocaust Art Case
Does the act of state doctrine apply to mistakes? On May 29, 2024, the Fifth Circuit held in Emden v. Museum of Fine Arts, Houston that the doctrine bars a claim for return of a painting that the Dutch government gave to the wrong person after World War II. There were several copies of this…
Continue ReadingSupreme Court Denies Cert in Fighter Jets Case
This morning, the U.S. Supreme Court denied review in Blenheim Capital Holdings Ltd. v. Lockheed Martin Corp., a case asking whether the purchase of fighter jets and other military equipment is a commercial activity under the Foreign Sovereign Immunities Act. Despite a circuit split on the question, the Solicitor General recommended that the Supreme Court…
Continue ReadingRoundtable in International Business Law
The Dennis J. Block Center for the Study of International Business Law at Brooklyn Law School is organizing a Roundtable in International Business Law. The Roundtable will take place on September 27, and proposals are due by June 28. The call is here.
Continue ReadingThrowback Thursday: Empagran’s Complicated Legacy
Twenty years ago tomorrow, on June 14, 2004, the Supreme Court handed down its decision in F. Hoffman-La Roche Ltd. v. Empagran S.A. The majority opinion, authored by Justice Stephen Breyer, interpreted the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) to preclude the application of U.S. antitrust law to injuries in other countries. Empagran…
Continue ReadingGanpat’s Saga Continues
Regular TLB readers may recall the tragic story of Kholkar Vishveshwar Ganpat, an Indian citizen and merchant seaman who lost his toes to malaria, allegedly because his ship failed to stock sufficient antimalarial medicine when it docked at Savannah, Georgia. In 2018, Ganpat sued the ship’s operator, Singapore-based Eastern Pacific Shipping (EPS), in federal district…
Continue ReadingSolicitor General Recommends Denial of Cert in FSIA Case
Is a foreign government’s purchase of military equipment a “commercial activity” for purposes of the Foreign Sovereign Immunities Act’s (FSIA) commercial activity exception? In a brief filed on May 14, 2024, at the Supreme Court’s invitation, the Solicitor General (SG) answered “it depends.” This answer is surprising. It is in considerable tension—if not outright conflict—with…
Continue ReadingSecond Circuit Allows Securities Claims Against Crypto-Asset Exchange
In Morrison v. National Australia Bank (2010), the U.S. Supreme Court applied the presumption against extraterritoriality to § 10(b) of the Securities Exchange Act, holding that this provision applies only to transactions in the United States. Morrison’s transactional test has proven difficult to apply to unlisted securities that do not trade on an exchange. In…
Continue ReadingChinese Judgments and Due Process: Another New York Decision
In the United States, the recognition and enforcement of foreign judgments are generally governed by state law. Thirty-eight states and the District of Columbia have adopted either the 1962 Uniform Foreign Money Judgments Recognition Act or the updated 2005 Uniform Foreign Country Money Judgments Recognition Act. (In the remaining twelve states, common law governs.) Both…
Continue ReadingAbitron on Remand
Last year, in Abitron Austria GmbH v. Hetronic International, Inc., the Supreme Court held that the federal trademark statute—known as the Lanham Act—applies only to domestic conduct infringing U.S. trademarks. A group of Austrian and German companies collectively known as “Abitron” placed U.S.-protected trademarks owned by a U.S. company, Hetronic, on products made in Europe. Some of…
Continue ReadingDistrict Court Permits Clean Air Act Action Against Canadian Company
The presumption against extraterritoriality is the principal tool that U.S. courts use to determine the reach of federal statutes. Last year, in Abitron Austria GmbH v. Hetronic International, Inc. (2023), the U.S. Supreme modified the presumption by requiring conduct relevant to a provision’s focus to occur in the United States in order for the application…
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