Despite suggestions that federal law should govern all relations with other countries, state law and state courts play a prominent role in transnational litigation. State law governs the enforcement of foreign judgments and the choice of law for state-created causes of action. State courts apply their own doctrines of forum non conveniens. And the Federal Rules of Civil Procedure incorporate state law on questions from personal jurisdiction to service of process.
A Primer on State Law in Transnational Litigation
The procedural and substantive rules that U.S. courts apply in transnational litigation come from many sources, including the U.S. Constitution, international treaties, customary international law, federal statutes, federal rules, and federal common law (both preemptive and non-preemptive)—but also, state statutes, state rules, and state common law. This primer focuses on the underappreciated role of state…
Continue ReadingExtraterritorial Application of State RICO Statutes
Over the past decade, the U.S. Supreme Court has twice addressed the extraterritorial application of the federal RICO statute. In RJR Nabisco, Inc. v. European Community (2016), the Court held that RICO’s criminal provisions apply extraterritorially to the same extent as the predicate acts on which RICO charges are based, whereas RICO’s civil cause of…
Continue ReadingChoice of Law in Shareholder Derivative Litigation
U.S.-based investors hold trillions of dollars in equity of foreign companies. In the event of corporate wrongdoing, those investors may want to initiate shareholder derivative litigation in the United States against the managers of those corporations. This form of litigation is brought on behalf of the corporation itself rather than as a direct action. Derivative…
Continue ReadingMore on Serving Foreign Defendants’ U.S. Counsel to Avoid the Hague Service Convention
In April, one of us wrote a post describing a case in which Judge Carol Bagley Amon (Eastern District of New York) relied on New York rules to order service on foreign defendants through their U.S. counsel. Because the service was completed in the United States, there was no occasion to transmit documents for service…
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