Devas v. Antrix: Headed back to the Ninth Circuit?
On Monday, the Supreme Court held oral argument in Devas v. Antrix to decide “whether plaintiffs must prove minimum contacts before federal courts may assert personal jurisdiction over foreign states sued under the Foreign Sovereign Immunities Act (FSIA).” Minimum contacts between the defendant and the United States might be required as a matter of statutory…
Continue ReadingDistrict Court Holds that Serving Chinese Defendants by Email is Prohibited
My posts on TLB often criticize judicial opinions. Today, for a change, I’d like to celebrate a district court decision addressing the thorny question of email service under the Hague Service Convention that gets the answer exactly right. In Flying Heliball, LLC v. Zero Zero Robotics, Inc., Judge Fred W. Slaughter (Central District of California)…
Continue ReadingSupreme Court Narrows the FSIA’s Expropriation Exception (Again)
(Editor’s Note: This article also appears in Just Security.) Last Friday, the U.S. Supreme Court decided Republic of Hungary v. Simon. Writing for a unanimous Court, Justice Sonia Sotomayor held that commingling the proceeds of expropriated property with other government funds, which are then used for commercial activity in the United States, is not enough…
Continue ReadingFirst Circuit Argument Weighs Constitutionality of TVPA
Last month, the First Circuit (Judge Lara Montecalvo, presiding, with retired Justice Stephen Breyer and Senior Judge Sandra Lynch) heard oral argument in Boniface v. Viliena. Viliena, a Haitian national who has been a legal permanent resident of the United States since 2008, is challenging a $15.5 million jury award under the Torture Victim Protection…
Continue ReadingHelms-Burton’s Statute of Repose
Helms-Burton plaintiffs just can’t seem to catch a break. They have struggled to establish personal jurisdiction over foreign defendants, run into issues of foreign sovereign immunity, and found that their property rights have expired. Now, the Second Circuit has held that the Helms-Burton Act’s statute of repose blocks claims more than two years old. Congress…
Continue ReadingForeign States are “Persons”: CC/Devas v. Antrix Amicus Brief
The Supreme Court may soon resolve an important constitutional question: whether foreign states are “persons” entitled to Fifth Amendment due process. For those who engage seriously with the text, history, and structure of the Constitution, there is a ready answer: yes, foreign states are “persons.” The scope of the “process” to which foreign states are…
Continue ReadingCisco’s Cert Petition
Last Friday, January 31, 2025, Cisco Systems filed a petition for certiorari asking the Supreme Court to review the Ninth Circuit’s decision in Doe v. Cisco Systems, Inc. (2023), a decision holding that claims of aiding and abetting may be brought under the Alien Tort Statute (ATS) and Torture Victim Protection Act (TVPA). As more…
Continue ReadingCC/Devas (Mauritius) Limited v. Antrix Corp.: International Arbitration and Constitutional Avoidance
I suspect that CC/Devas (Mauritius) Limited v. Antrix Corp. Ltd. caught the eye of the Supreme Court because of an interesting constitutional question: Does the Due Process Clause of the Fifth Amendment apply in civil suits brought against foreign states in U.S. courts? More than thirty years ago, Justice Scalia, writing for a unanimous Court…
Continue ReadingRule 19 and Continuing Litigation in Peterson v. Bank Markazi
Last November, the Second Circuit decided in Peterson v. Bank Markazi that Bank Markazi, Iran’s Central Bank, remained immune from suit under the Foreign Sovereign Immunity Act (FSIA) despite the enactment of 22 U.S.C. § 8772, which subjects certain Iranian assets to “execution or attachment” to satisfy judgments against Iran. The district court will now…
Continue ReadingSDNY Stays Action Based on International Comity
Lower federal courts have developed several forms of abstention based on international comity. Some courts have adopted a doctrine of prescriptive comity abstention to dismiss federal statutory claims when facing a “true conflict” with foreign law. Some have embraced doctrines of adjudicative comity abstention that permit dismissals or stays of federal proceedings in favor of…
Continue Reading