CC/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 ReadingSupreme Court CVSGs in Terrorism Case
On January 13, 2025, the Supreme Court called for the views of the Solicitor General in Borochov v. Islamic Republic of Iran. (This is commonly known as a “CVSG.”) The question presented is whether the Foreign Sovereign Immunities Act’s (FSIA) exception for state sponsors of terrorism, 28 U.S.C. § 1605A, extends to cases in which…
Continue ReadingAll I Want for Christmas (from the Supreme Court)
Following up on John Coyle’s post yesterday, I’ve prepared my own list of things I wish courts in the United States would do differently in transnational litigation. 1. Abandon the U.S.-Conduct Requirement for the Presumption Against Extraterritoriality The Supreme Court uses a presumption against extraterritoriality to determine the geographic scope of federal statutes. There have…
Continue ReadingCassirer Plaintiffs Ask Supreme Court to GVR
On Friday, the plaintiffs in Cassirer v. Thyssen-Bornemisza Collection Foundation filed a cert petition asking the Supreme Court to grant, vacate, and remand (GVR) the Ninth Circuit’s decision in light of new California legislation mandating the application of California law to the merits of the case. It would be standard practice for the Court to…
Continue ReadingHungary v. Simon Offers Supreme Court Stark Choice
(Editor’s Note: This article also appears in Just Security.) On Tuesday, the U.S. Supreme Court heard oral argument in Hungary v. Simon, a case brought by Holocaust survivors under the expropriation exception of the Foreign Sovereign Immunities Act (FSIA). In 1944, Hungary rounded up Jews and transported them by train to death camps, expropriating their property…
Continue ReadingDOJ Argues Against Turnover of Argentina’s Assets
On November 6, 2024, the U.S. Attorney for the Southern District of New York sent a letter to Judge Loretta A. Preska arguing against turnover of Argentina’s interests in YPF S.A., a state-owned energy company, to satisfy a breach of contract judgment. The $16.1 billion judgment in Petersen Energia Inversora, S.A.U. v. Argentine Republic arose…
Continue ReadingWhat Deference to the Executive in Halkbank Should Have Looked Like
As previously reported, the Second Circuit issued its opinion in United States v. Turkiye Halk Bankasi (Halkbank) on October 22, 2024, addressing the deference owed to the executive branch’s determination that Halkbank, a Turkish state-owned bank, is not immune from criminal prosecution for violating U.S. sanctions on Iran. Similar questions of deference to the executive…
Continue ReadingHalkbank and the “Unitary” Executive
Last week, the Second Circuit issued its decision on common law immunity in United States v. Turkiye Halk Bankasi A.S., on remand from the Supreme Court. Ingrid thoroughly summarized the Second Circuit’s ruling earlier this week. This post follows up to flag one further aspect of the decision. As readers know, a central question on…
Continue ReadingSecond Circuit Holds for the Government in Halkbank Remand
The U.S. Court of Appeals for the Second Circuit has issued its opinion in U.S. v. Turkiye Halk Bankasi (Halkbank) following the Supreme Court’s decision to remand the case for further consideration of common law immunity issues. The same panel of Second Circuit judges held for the government the first time it heard the case…
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