Serving Foreign Defendants’ U.S. Counsel to Avoid the Hague Service Convention
Plaintiffs are sometimes frustrated trying to serve process on foreign defendants through the Hague Service Convention. Sometimes, they ask federal district courts to authorize service by email as an alternative means. The problem with this, as Maggie Gardner and I have explained in detail, is that that the means of service provided in the Convention…
Continue ReadingA Primer on Service-of-Process Clauses
A service-of-process clause is a contract provision that specifies how a summons and a complaint shall be served upon a person named as a defendant in a U.S. court. This post surveys the issues presented by such provisions. It first discusses the three most common varieties: (1) those that specify a method by which process…
Continue ReadingAll I Want for Christmas (Forum Selection Clause Edition)
As the holidays approach, TLB editors have prepared lists of things that they wish courts in the United States would do differently on the subject of transnational litigation. In this post, I revisit one of my favorite subjects—forum selection clauses—to identify some reforms that would make my Christmas exceptionally merry. 1. Stop Asserting Personal Jurisdiction…
Continue ReadingComity and Kleptocrats
To succeed in their trade, thieves need a place to stash their ill-gotten gains. Should the United States become a safe haven for international financial wrongdoing, shielding the proceeds of misdeeds whenever the thief brings corrupt government officials into the plot? Zhakiyanov v. Ogai, a recent decision of the Supreme Court of New York, indicates…
Continue ReadingA Troubling Decision in the EDNY
In the annals of troubling decisions relating to the enforcement of foreign forum selection clauses, a recent opinion, Gurung v. MetaQuotes, Ltd., by the U.S. District Court for the Eastern District of New York (Judge Orelia E. Merchant) warrants special mention. It raises the question whether any forum selection clause will ever be deemed unreasonable…
Continue ReadingThe Small Potatoes Problem with New York Forum Selection Clauses
New York has long sought to attract cases to its courts—and to generate business for New York lawyers—by enforcing New York forum selection clauses when they appear in commercial contracts worth at least $1 million that are governed by New York law. This policy is codified in New York General Obligations Law 5-1402. What happens,…
Continue ReadingGreat Lakes in Action
On February 21, 2024, the U.S. Supreme Court decided Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC. Loyal readers will remember (see here and here and here and here) that this case presented the question of what test to apply to determine the enforceability of a choice-of-law clause governed by federal maritime law….
Continue ReadingAnti-Comity and N.Y. General Obligations Law 5-1401
Not many statutes can fairly be described as bruisers. Section 5-1401 of New York General Obligations Law is an exception. In the immortal words of The Bachelor: “Section 5-1401 didn’t come here to make friends.” The purpose of Section 5-1401 is to generate business for New York lawyers and maintain New York’s status as a…
Continue ReadingSuccessor Jurisdiction and Anti-Terrorism Litigation
Transnational litigation often presents tricky questions of personal jurisdiction. Ongoing litigation in New York arising out of rocket attacks by Hizbollah does so in spades. This post reviews the recent New York Court of Appeals decision in Lelchook v. Société Générale de Banque au Liban SAL, answering a certified question posed by the Second Circuit…
Continue ReadingRethinking the Internal Affairs Rule
The internal affairs rule posits that a court should generally apply the law of the state in which an entity is incorporated to resolve questions relating to that entity’s internal affairs. These affairs encompass such matters as the election of directors, the rights of shareholders, and the fiduciary duties owed to shareholders. In a trio…
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