Justia International Law Opinion Summaries

Parties involved in arbitration proceedings abroad sought discovery in the U.S. under 28 U.S.C. 1782(a), which authorizes a district court to order the production of evidence “for use in a proceeding in a foreign or international tribunal.” One case, a contract dispute between private parties, was proceeding under the Arbitration Rules of the German Institution of Arbitration and involves a private dispute-resolution organization. The second case is proceeding against Lithuania before an ad hoc arbitration panel, in accordance with the Arbitration Rules of the U.N. Commission on International Trade Law.The Supreme Court held that the parties are not entitled to discovery. Only a governmental or intergovernmental adjudicative body constitutes a “foreign or international tribunal” under 28 U.S.C. 1782; the bodies at issue do not qualify. While a “tribunal” need not be a formal “court,” attached to the modifiers “foreign or international,” the phrase is best understood to refer to an adjudicative body that exercises governmental authority. The animating purpose of section 1782 is comity: Permitting federal courts to assist foreign and international governmental bodies promotes respect for foreign governments and encourages reciprocal assistance. Extending section 1782 to include private bodies would be in significant tension with the Federal Arbitration Act, which governs domestic arbitration; section 1782 permits much broader discovery than the FAA.The Court acknowledged that the arbitration panel involving Lithuania presents a harder question. The option to arbitrate is contained in an international treaty rather than a private contract but the two nations involved did not intend that an ad hoc panel exercise governmental authority. View "ZF Automotive U. S., Inc. v. Luxshare, Ltd." on Justia Law

Global Marine Exploration, Inc. (“GME”), conducts marine salvage activities and discovers historic shipwreck sites in Florida’s coastal waters. GME entered into authorization agreements with the Florida Department of State (“FDOS”), to conduct salvage activities in Florida coastal wates. GME learned that FDOS was in contact with the Republic of France to recover the shipwreck sites. GME sued France, alleging claims for an in personam lien award, unjust enrichment, misappropriation of trade secret information, and interference with its rights and relations. France moved to dismiss GME’s amended complaint under Federal Rule of Civil Procedure 12(b)(1), arguing that the district court lacked subject matter jurisdiction under the Foreign Sovereign Immunities Act (“FSIA”). The district court agreed with France, finding that the FSIA’s commercial activity exception did not apply, and dismissed GME’s claims.   The Eleventh Circuit reversed the district court’s Rule 12(b)(1) dismissal and concluded that that the FSIA’s commercial activity exception applies and therefore the district court had subject matter jurisdiction over GME’s suit against France. The court reasoned that the nature of France’s activities here are commercial under the FSIA. France performed actions and entered into agreements with FDOS and others in connection with the shipwreck recovery project. These actions—fundraising, contracting with organizations and businesses to carry out excavations of shipwreck sites, and overseeing the logistics of the project—are commercial in nature and of the type negotiable among private parties. Further, FSIA’s commercial activity exception to foreign sovereign immunity applies because GME’s action is “based upon” France’s commercial activity in the United States. View "Global Marine Exploration, Inc., v. Republic of France" on Justia Law

Cassirer inherited a Pissaro Impressionist painting. After the Nazis came to power in Germany, she surrendered the painting to obtain an exit visa. She and her grandson, Claude, eventually settled in the United States. The family’s post-war search for the painting was unsuccessful. In the 1990s, the painting was purchased by the Foundation, an entity created and controlled by the Kingdom of Spain.Claude sued the Foundation, invoking the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1602, to establish jurisdiction. FSIA provides foreign states and their instrumentalities with immunity from suit unless the claim falls within a specified exception. The court held that the Nazi confiscation of the painting brought Claude’s suit within the FSIA exception for expropriated property. To determine what property law governed the dispute, the court had to apply a choice-of-law rule. The plaintiffs urged the use of California’s choice-of-law rule; the Foundation advocated federal common law. The Ninth Circuit affirmed the choice of the federal option, which commanded the use of the law of Spain, under which the Foundation was the rightful owner.The Supreme Court vacated. In an FSIA suit raising non-federal claims against a foreign state or instrumentality, a court should determine the substantive law by using the same choice-of-law rule applicable in a similar suit against a private party. When a foreign state is not immune from suit under FSIA, it is subject to the same rules of liability as a private party. Only the same choice-of-law rule can guarantee the use of the same substantive law and guarantee the same liability. Judicial creation of federal common law to displace state-created rules must be “necessary to protect uniquely federal interests.” Even the federal government disclaims any necessity for a federal choice-of-law rule in FSIA suits raising non-federal claims. View "Cassirer v. Thyssen-Bornemisza Collection Foundation" on Justia Law

Plaintiffs Aenergy, S.A., and Combined Cycle Power Plant Soyo, S.A. (together, “AE”), sued various Angolan Government entities (together, “Angola”), plus General Electric Co. and related entities (together, “GE”). AE alleges that Angola wrongfully cancelled AE’s Angolan power plant contracts and seized its related property in violation of state and international law and that GE interfered with its contracts and prospective business relations.The court found that the standard principles of forum non conveniens applies to AE’s lawsuit brought pursuant to exceptions to the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. Sec. 1605. The court reasoned that forum non conveniens does not require a case-by-case consideration of comity, and therefore is consistent with the FSIA’s purpose in establishing a “comprehensive set of legal standards.”The court concluded that the district court did not abuse its discretion in dismissing AE’s complaint on forum non conveniens grounds. AE argues that the district court erred in applying the three-step forum non conveniens analysis. The court held that the district court reasonably found that AE’s forum choice was entitled to minimal deference; that Angola is an adequate alternative forum; and that the public and private Gilbert factors favor Angola. Thus the court affirmed the district court’s orders. View "Aenergy, S.A. v. Republic of Angola" on Justia Law

In 2008-2013, IMSS, the agency of the Mexican government tasked with purchasing medical products for Mexican citizens, purchased medical products from Zimmer, a medical device company, headquartered in Indiana and incorporated in Delaware. Zimmer distributes its products in Mexico through an indirectly wholly-owned subsidiary. IMSS claims Zimmer orchestrated an international bribery scheme from its Indiana headquarters to facilitate the sale of unregistered medical products and paid around $1 million in bribes to its “Mexican agents” who passed bribes to Mexican government officials.IMSS sued in the Northern District of Indiana, alleging two causes of action under Mexican law (breach of contract and violating the Law of Acquisitions, Leases and Services of the Public Sector) and fraud. for which the relief is the same under U.S. or Mexican law. The district court disagreed with IMSS’s interpretation of the United Nations Convention Against Corruption (UNCAC) and dismissed based on forum non conveniens. The Seventh Circuit affirmed. Two of IMSS’s claims arise under Mexican law and the remedy for the third is identical in either country. There is no risk IMSS will be deprived of a remedy by litigating in Mexican courts. The court noted the hardship of transporting witnesses from Mexico to the U.S. and that UNCAC is expressly non-self-executing. View "Instituto Mexicano del Seguro v. Zimmer Biomet Holdings, Inc." on Justia Law

IMSS is the main social-service agency of the Mexican government, responsible for government-run medical care for most Mexican citizens. It purchases medical products from private companies. Stryker manufactures and sells medical devices. Stryker’s parent company is based in Kalamazoo, Michigan. It has subsidiaries around the world. IMSS sued Stryker, alleging that in 2003-2015 Stryker bribed government officials and that the U.S. government has established the existence of that bribery. These bribes allegedly totaled tens of thousands of dollars and were handled by a non-party Mexican law firm. Stryker moved to dismiss on the ground of forum non conveniens, arguing that the Mexican judicial system was better suited to hear the case. IMSS argued that the United Nations Convention against Corruption forecloses the application of forum non conveniens and, alternatively, that the relevant factors favored hearing the case in the U.S. courts.The Sixth Circuit affirmed the dismissal of the case. Requiring that American courts be open to foreign states in cases that implicate the Convention does not require the alteration of established domestic legal frameworks, such as forum non conveniens, that predate the Convention. IMSS’s choice of forum receives little deference, Mexican courts are available to hear this case, and the public and private interest factors support Stryker. View "Instituto Mexicano del Seguro v. Stryker Corp." on Justia Law

Sacks is a law firm with a 20-year history of working with the International Monetary Fund (IMF). In 2011, IMF hired Sacks to negotiate disputed claims of various contractors that worked on the renovation of its headquarters. The parties’ contract asserts IMF’s immunity from suit and provides that any disputes not settled by mutual agreement shall be resolved by arbitration. In a subsequent fee dispute between Sacks and IMF, Sacks filed a demand for arbitration with the AAA. The arbitration panel awarded Sacks $39,918.82 plus interest but denied Sacks’ claim of underpayment in connection with earlier work.Sacks sued the Fund, claiming that the award should be vacated pursuant to the D.C. Code as “the result of misconduct by the arbitrators.” IMF removed the case to federal court and moved to dismiss it on immunity grounds pursuant to its Articles of Agreement, given effect in the U.S. by the Bretton Woods Act, 22 U.S.C. 286h. Sacks asserted the contract waived immunity by expressly providing for arbitration pursuant to the AAA Rules, which contemplate courts’ entry of judgment on arbitral awards. The D.C. Circuit affirmed the dismissal of the suit. The AAA Rules and D.C. law contemplate judicial involvement in the enforcement of arbitral awards, so arguably the contract also does so but an international organization's waiver of the immunity must be explicit. The parties' contract expressly retains the IMF’s immunity, reiterating it even within the arbitration clause. View "Leonard A. Sacks & Associates P.C. v. International Monetary Fund" on Justia Law

Ali sought to pursue 42 U.S.C. 1983 proceedings challenging as unconstitutional an executive order of Maryland’s Governor that prohibits boycotts of Israel by business entities that bid on the state’s procurement contracts. According to the Initial Complaint, “Ali is a computer software engineer who wishes to submit bids for government software project contracts but is barred from doing so due to the presence of mandatory ‘No Boycott of Israel’ clauses.”The district court dismissed with prejudice Ali’s lawsuit for want of Article III standing to sue. The Fourth Circuit affirmed but modified the judgment to provide that the dismissal is without prejudice. The court first disagreed with Ali’s interpretation of the Order. The Order indicates that if a business entity has engaged in anti-Israel national origin discrimination in the process of preparing a bid for a state procurement contract, the entity is barred from being awarded the contract; if the entity has engaged in a boycott of Israel entirely unrelated to the bid formation process, the Order is of no relevance. The court rejected Ali’s argument that the certification requirement constitutes an unconstitutionally vague loyalty oath. The Order does not require the entity to pledge any loyalty to Israel or profess any other beliefs. View "Ali v. Hogan" on Justia Law

Wye sued Iraq. The district court denied Iraq’s motion to dismiss on sovereign immunity grounds and entered judgment in Wye’s favor years later. An intervening Fourth Circuit ruling rejected Iraq’s contention that none of the exceptions in the Foreign Sovereign Immunities Act, 28 U.S.C. 1602, applied to Wye’s breach of contract claims; because Wye alleged that it had engaged in acts inside the U.S. under the contract, the lawsuit could proceed under the second clause of the FSIA’s commercial activities exception, which abrogates foreign sovereign immunity with respect to claims that are “based upon . . . an act performed in the United States in connection with commercial activity of the foreign state elsewhere.”The D.C. Circuit vacated. Iraq’s participation in the trial did not implicitly waive its sovereign immunity. The law of the case doctrine does not require adherence to the Fourth Circuit’s conclusions. The D.C. Circuit concluded that section 1605(a)(2) does not apply to this case. A plausible basis for sustaining the district court’s jurisdictional ruling can be found in the commercial activity exception’s third clause, abrogating immunity if the action is “based upon . . . an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.” The district court is best positioned to determine whether Iraq’s breach of contract caused “direct effects” in the U.S. View "Wye Oak Technology, Inc. v. Republic of Iraq" on Justia Law

Berg, a resident of South Carolina, sought recovery of art taken by the Nazis following the German invasion of the Netherlands. Berg’s grandfather was a partner in Firma D. Katz, which owned art galleries specializing in the sale of paintings by Dutch Old Masters. Following World War II, much of the stolen art was returned to the Netherlands by the U.S. military under Collection Point Agreements; the Netherlands agreed to hold the art as “custodians pending the determination of the lawful owners thereof.” Firma D. Katz was liquidated in 1974. The artworks have not been returned to the heirs of its partners. In the District of South Carolina, Berg sued the Kingdom of the Netherlands; its Ministry of Education, Culture & Science, its Cultural Heritage Agency (RCE), and municipal museums in the Netherlands holding the artworks.The Fourth Circuit affirmed that the Ministry and RCE, are political subdivisions of the Netherlands and do not lose Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1602 immunity for artworks located outside of the U.S. which were expropriated in violation of international law. As to the museums, venue was improper in South Carolina under U.S.C. 1391(f). View "Berg v. Kingdom of the Netherlands" on Justia Law