Justia International Law Opinion Summaries

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The Second Circuit affirmed the district court's July 8, 2020 Order granting an application for discovery assistance pursuant to 28 U.S.C. 1782 and the August 25, 2020 Order denying reconsideration of the same. The Fund, a Russian corporation, sought assistance from the district court to order discovery from AlixPartners for use in an arbitration proceeding brought by the Fund against Lithuania before an arbitral panel established pursuant to a bilateral investment treaty between Lithuania and Russia.The court concluded that an arbitration between a foreign state and an investor, which takes place before an arbitral panel established pursuant to a bilateral investment treaty to which the foreign State is a party, constitutes a "proceeding in a foreign or international tribunal" under 28 U.S.C. 1782; the Fund, as a party to the arbitration for which it seeks discovery assistance, is an "interested person" who may seek discovery assistance for such an arbitration under section 1782; and the district court did not abuse its discretion in finding that the Intel factors weigh in favor of granting the Fund's discovery application under section 1782. View "The Application of the Fund v. AlixPartners" on Justia Law

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In 1994, Farrell, a U.S. citizen, moved to Switzerland. He married a Swiss citizen; they had a child. In 2004, he naturalized as a Swiss citizen, allegedly with the intent of relinquishing his U.S. nationality; 8 U.S.C. 1481(a)(1) refers to “voluntarily … with the intention of relinquishing United States nationality … obtaining naturalization in a foreign state.” He subsequently made no use of his U.S. citizenship and did not enter the U.S. In 2013, Farrell was arrested in Spain and extradited to the U.S. He pled guilty to interstate travel with intent to engage in sex with a minor and possession of child pornography, which he committed 10 years earlier in the U.S., and was sentenced to imprisonment in the U.S.Farrell corresponded with the State Department, requesting a certificate of loss of nationality (CLN). He was told he would have to sign forms in person in front of a consular officer. Farrell argued that he had already committed the expatriating act when he naturalized in Switzerland and was now attesting that he did so voluntarily with the intent to lose his nationality. The Embassy responded that Farrell could not lose his citizenship while he was imprisoned in the U.S. Farrell sued, claiming that the in-person requirement was contrary to statute and arbitrary. The D.C. Circuit reversed the district court. While the Department has statutory authority to impose an in-person requirement, it acted arbitrarily in denying Farrell a CLN by offering conflicting and ever-evolving reasons for denying the CLN. View "Farrell v. Blinken" on Justia Law

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In a prior opinion, the Ninth CIrcuit held that SS Mumbai could not equitably estop SS Bangalore from avoiding arbitration. Mumbai, a non-signatory to a partnership deed that contained an arbitration provision, argued that, based on the arbitration provision, Indian law applied to the question of whether it could compel Bangalore to arbitrate.The Supreme Court vacated and remanded based on its holding that the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not conflict with the enforcement of arbitration agreements by non-signatories under domestic law equitable estoppel doctrines.On remand, the Ninth Circuit affirmed the district court’s order denying Mumbai’s motion to compel arbitration. While a nonsignatory can compel arbitration in a Convention case, the allegations, in this case, do not implicate the arbitration clause—a prerequisite for compelling arbitration under the equitable estoppel framework. The court declined to apply Indian law because whether Mumbai could enforce the partnership deed as a non-signatory was a threshold issue for which it did not look to the agreement itself. The deed’s arbitration provision applied to disputes “arising between the partners” and not also to third parties such as Mumbai. View "Setty v.. Shrinivas Sugandhallayah, LLP" on Justia Law

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The plaintiffs are residents of Gujarat, India, an Indian governmental entity, and a nonprofit focused on fish workers' rights. IFC is an international organization of 185 member countries. The plaintiffs allege that they have been injured by operations of India's coal-fired Tata Mundra Power Plant, owned and operated by CGPL. IFC loaned funds for the project and conditioned disbursement of those funds on CGPL’s compliance with certain environmental standards. The plaintiffs allege that IFC negligently failed to ensure that the Plant’s design and operation complied with these environmental standards but nonetheless disbursed funds to CGPL. These supervisory omissions and disbursement decisions allegedly took place at IFC’s Washington, D.C. headquarters.On remand from the Supreme Court, which held that organizations such as IFC possess more limited immunity equivalent to that enjoyed by foreign governments, the district court again ruled that IFC was immune from the claims. The D.C. Circuit affirmed. United States courts lack subject-matter jurisdiction. The Foreign Sovereign Immunities Act provides that foreign states are immune from the jurisdiction of United States’ courts, 28 U.S.C. 1604; the commercial activity exception does not apply because the gravamen of the complaint is injurious activities that occurred in India. View "Jam v. International Finance Corp." on Justia Law

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Gater sought to renew a default judgment, which the district court entered in 2000, that enforced a Russian arbitration award in favor of Lloyd's Underwriters against appellants. Lloyd's assigned its default judgment to Gater in 2012. The district court entered a renewal judgment in Gater's favor after concluding that it had personal jurisdiction over appellants as well as subject-matter jurisdiction over the renewal claims.The Second Circuit vacated the district court's judgment in Gater's renewal action, concluding that the district court lacked personal jurisdiction over Moldovagaz. The court explained that the Due Process Clause prohibits federal courts from exercising personal jurisdiction over Moldovagaz because Moldovagaz has no contacts with the United States. Furthermore, Moldovagaz is not an alter ego of the Republic of Moldova.The court also concluded that the district court lacked subject-matter jurisdiction over Gater's claim for renewal against the Republic of Moldova. The court explained that the Foreign Sovereign Immunities Act (FSIA) provides that federal courts lack subject matter jurisdiction over claims brought against foreign states unless one of the FSIA's immunity exceptions applies. In this case, the Republic of Moldova is a foreign state and no immunity exception applies to Gater's claims against it. Furthermore, the Republic of Moldova was not a party to the underlying arbitration agreement and no equitable theory, even assuming such theories apply under 28 U.S.C. 1605(a)(6), supports abrogating the Republic's sovereign immunity here. Accordingly, the court remanded with instructions to dismiss the renewal action for lack of jurisdiction. The court nevertheless affirmed the district court's refusal to vacate its original default judgment because appellants have failed to demonstrate that the district court had no arguable basis to exercise jurisdiction to enter that judgment. View "Gater Assets Ltd. v. AO Moldovagaz" on Justia Law

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Khochinsky, a Russian national living in the U.S., contacted the Republic of Poland seeking restitution for the loss of his family’s land during the Nazi invasion. In exchange, Khochinsky offered a painting in his possession that he believed resembled one reported missing by Poland. Poland did not respond to the offer but unsuccessfully sought Khochinsky’s extradition from the U.S. on the ground that he was knowingly in possession of a stolen painting. Khochinsky spent a week in jail, followed by home monitoring before the government determined that there was no evidence that the painting had been stolen. He then sued Poland, alleging that the effort to extradite him was tortious and infringed his rights.The D.C. Circuit affirmed the suit's dismissal. The Foreign Sovereign Immunities Act, 28 U.S.C. 1602, which affords the exclusive basis for a U.S. court to obtain jurisdiction over claims against a foreign state, gives Poland immunity from Khochinsky’s action. Poland did not implicitly waive its sovereign immunity by seeking Khochinsky’s extradition. Khochinsky’s claims for quiet-title related to the painting and for aiding-and-abetting-trespass related to his family land do not fall within the FSIA’s counterclaim exception. His claims for First Amendment retaliation and for tortious interference with business relations do not fall within the FSIA’s noncommercial tort exception. View "Khochinsky v. Republic of Poland" on Justia Law

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After the district court entered judgment against defendant on plaintiff's claim of torture under the Torture Victim Protection Act of 1991 (TVPA), defendant challenged the district court's grant of partial summary judgment in favor of plaintiff on defendant's statute of limitations defense.The Fourth Circuit affirmed the district court's judgment, concluding that the district court did not err in granting partial summary judgment against defendant on his statute of limitations defense where equitable tolling applied to plaintiff's claims. In this case, the district court did not err in determining that plaintiff's unrebutted evidence demonstrated extraordinary circumstances justifying equitable tolling where plaintiff presented credible evidence that he lacked realistic access to a legal remedy during and after the Barre regime in Somalia given the absence of a functioning government, widespread chaos and violence, and the risk of reprisal. Therefore, plaintiff satisfied his burden of showing the appropriateness of equitably tolling the limitations period until at least 1997. View "Warfaa v. Ali" on Justia Law

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Six individuals from Mali alleged that they were trafficked into Ivory Coast as child slaves to produce cocoa; they sued U.S.-based companies, Nestlé and Cargill, citing the Alien Tort Statute (ATS), which provides federal courts jurisdiction to hear claims brought “by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States,” 28 U.S.C. 1350. The companies do not own or operate cocoa farms in Ivory Coast, but they buy cocoa from farms located there and provide those farms with technical and financial resources. The Ninth Circuit reversed the dismissal of the suit.The Supreme Court reversed and remanded. The plaintiffs improperly sought extraterritorial application of the ATS. Where a statute, like the ATS, does not apply extraterritorially, plaintiffs must establish that “the conduct relevant to the statute’s focus occurred in the United States . . . even if other conduct occurred abroad.” Nearly all the conduct that allegedly aided and abetted forced labor—providing training, equipment, and cash to overseas farmers—occurred in Ivory Coast. Pleading general corporate activity, like “mere corporate presence,” does not draw a sufficient connection between the cause of action and domestic conduct. To plead facts sufficient to support a domestic application of the ATS, plaintiffs must allege more domestic conduct than general corporate activity common to most corporations. View "Nestlé USA, Inc. v. Doe" on Justia Law

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Internet services and social media providers may not be held secondarily liable under the Anti-Terrorism Act (ATA) for aiding and abetting a foreign terrorist organization—here, Hamas—based only on acts committed by a sole individual entirely within the United States.In July 2016, plaintiff and thirteen other police officers were shot and either injured or killed during a tragic mass-shooting committed by Micah Johnson in Dallas, Texas. Plaintiff and his husband filed suit against Twitter, Google, and Facebook, alleging that defendants are liable because they provided material support to Hamas, a foreign terrorist organization that used Internet services and social media platforms to radicalize Johnson to carry out the Dallas shooting.The Fifth Circuit held, based on plaintiffs' allegations, that the Dallas shooting was committed solely by Johnson, not by Hamas's use of defendants' Internet services and social media platforms to radicalize Johnson. Therefore, it was not an act of international terrorism committed, planned, or authorized by a foreign terrorist organization. The court also held that defendants did not knowingly and substantially assist Hamas in the Dallas shooting, again because the shooting was committed by Johnson alone and not by Hamas either alone or in conjunction with Johnson. Therefore, the district court was correct in concluding that defendants are not secondarily liable under the ATA. The court affirmed the district court's judgment. View "Retana v. Twitter, Inc." on Justia Law

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Plaintiffs filed a second amended complaint (SAC), seeking (A) to hold the bank liable as a principal under the Antiterrorism Act of 1990 (ATA) for providing banking services to Hizbollah, a designated Foreign Terrorist Organization alleged to have injured plaintiffs in a series of terroristic rocket attacks in Israel in July and August 2006; and (B) to hold the bank liable as a coconspirator or aider and abettor of Hizbollah under the Justice Against Sponsors of Terrorism Act (JASTA). The district court granted defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).The Second Circuit concluded that plaintiffs having abandoned their ATA terrorism and JASTA conspiracy claims, and thus the court addressed only their JASTA aiding-and-abetting claims. In regard to the JASTA aiding-and-abetting claims, the court found merit in plaintiffs' contentions that the district court did not correctly apply the analytical framework set out in Halberstam v. Welch, 705 F.2d 472 6 (D.C. Cir. 1983), specified by Congress as the proper legal framework for assessing such claims. The Halberstam requirements for a claim of aiding and abetting are (1) that the person whom the defendant aided must have performed a wrongful act that caused injury, (2) that the defendant must have been "generally aware of his role as part of an overall illegal or tortious activity at the time that he provide[d] the assistance," and (3) "the defendant must [have] knowingly and substantially assist[ed] the principal violation."The court concluded that the district court erred in its findings as to the plausibility of, and the permissible inferences that could be drawn from, SAC allegations of the bank's knowledge that the customers it was assisting were affiliated with Hizbollah and that it was aiding Hizbollah's terrorist activities. The court explained that the plausibility of the allegations as to LCB's knowledge of Hizbollah's terrorist activities and of the customers' affiliation with Hizbollah is sufficient to permit the inference that LCB was at least generally aware that through its money-laundering banking services to the customers, LCB was playing a role in Hizbollah's terrorist activities. Furthermore, the SAC adequately pleaded that LCB knowingly gave the customers assistance that both aided Hizbollah and was qualitatively and quantitatively substantial. Accordingly, the court vacated the district court's dismissal of the JASTA aiding-and-abetting claims and remanded for further proceedings. View "Kaplan v. Lebanese Canadian Bank" on Justia Law