Supreme Court Roundup (October Term 2022)
During its 2022 Term, which ended four weeks ago, the Supreme Court decided five cases with important implications for transnational litigation. The questions included whether the Foreign Sovereign Immunities Act (FSIA) applies to criminal proceedings; the standard for aiding and abetting under the Anti-Terrorism Act (ATA); whether states may exercise general personal jurisdiction over foreign…
Continue ReadingSupreme Court Approves Using Civil RICO to Help Enforce Arbitral Awards
Last week, the Supreme Court held in Yegiazaryan v. Smagin that civil RICO can be used to help enforce foreign arbitral awards. Specifically, the Court held that concealing assets to avoid paying a U.S. judgment that confirmed a foreign arbitral award could satisfy civil RICO’s “domestic injury” requirement, allowing the award-creditor to pursue a claim…
Continue ReadingSupreme Court Oral Argument in Extraterritorial RICO Case Marked by Confusion
The Supreme Court heard oral argument last week in Yegiazaryan v. Smagin and CMB Monaco v. Smagin, two cases testing when civil RICO can be used to help enforce a foreign arbitration award. Because I have described the facts in a previous post, I will be brief here. Smagin and Yegiazaryan are Russian citizens who…
Continue ReadingPreview of Supreme Court Argument in Civil RICO Extraterritoriality Case
On April 25, the U.S. Supreme Court will hear oral argument in Yegiazaryan v. Smagin and CMB Monaco v. Smagin, which ask how RICO’s private right of action applies to intangible property, in this case a California judgment confirming a foreign arbitral award. The cases have important implications not just for civil RICO but also for international arbitration….
Continue ReadingPaper Tiger, Hidden Dragon?: Some Thoughts on Smagin v. Yegiazaryan
This Term, the Supreme Court will hear a dispute between two wealthy Russians relating to an international arbitration award in London arising out of a failed real estate venture in Moscow. The case pits two competing tendencies of the Justices against one another: (a) their penchant for preventing such seemingly foreign litigation from proceeding in U.S….
Continue ReadingCourt Holds that Chinese Investor May Try to Enforce Arbitral Award Against Nigeria
Over the past two decades, China has invested heavily in Africa. A recent study found that between 2001 and 2018, China invested $41 billion in African countries and loaned an additional $126 billion. Some of these investments generated disputes, and some of those disputes are finding their way to U.S. courts. In a recent decision,…
Continue ReadingCert Petition Highlights Split on Extraterritorial Application of Civil RICO
In RJR Nabisco v. European Community (2016), the Supreme Court held that RICO’s civil cause of action requires a domestic injury to business or property. The Court noted, however, that “[t]he application of this rule in any given case will not always be self-evident, as disputes may arise as to whether a particular alleged injury…
Continue ReadingTransnational Litigation Anticipation: Previewing the Court’s Next Term
TLB recently recapped the Supreme Court’s transnational litigation cases from last Term. This post looks ahead to the upcoming Term, for which the Court has already granted certiorari in a personal jurisdiction case that may have implications for transnational litigation. TLB is also tracking several interesting petitions for certiorari in disputes involving the Foreign Sovereign…
Continue ReadingContractual Waivers of Foreign Sovereign Immunity
The Foreign Sovereign Immunities Act (FSIA) provides that foreign states are immune from suit in the United States unless an exception applies. An important and long-standing exception to immunity is consent (the more common term in international practice) or waiver (the term used in the United States). The FSIA provides that a foreign state shall…
Continue ReadingImmediate Appeals in Foreign Sovereign Litigation
Foreign governments have many advantages in litigation. Chief among them is sovereign immunity. Under the Foreign Sovereign Immunities Act, foreign states and their agencies and instrumentalities are immune from suit in United States courts unless the case falls within one of the statute’s specific exceptions to immunity. That substantive immunity also confers important procedural advantages. …
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