Justia International Law Opinion Summaries

The incorporation of the rules of the International Chamber of Commerce (ICC) into an arbitration agreement constitutes clear and unmistakable evidence of a delegation of gateway issues to the arbitrator. The Ninth Circuit vacated the district court's judgment entering a preliminary injunction prohibiting sureties from pursuing claims against PGE in arbitration and denying a mandatory stay of the judicial proceedings under section 3 of the Federal Arbitration Act (FAA), 9 U.S.C. 3. The panel held that the district court erred in enjoining the sureties from participating in the ICC arbitration and denying at least a temporary stay of the litigation under the FAA, preventing the arbitral tribunal from addressing the scope of the arbitration. View "Portland General Electric Co. v. Liberty Mutual Insurance Co." on Justia Law

The Ninth Circuit affirmed the dismissal of Ayco Farm's complaint for breach of an exclusivity agreement under the doctrine of forum non conveniens. The panel held that in performing a forum non conveniens analysis, a district court does not abuse its discretion by comparing the proposed foreign forum with the forum that the plaintiff actually chose, rather than with the United States as a whole. In this case, the district court did not err in affording less deference to Ayco Farm's choice to file a lawsuit in California. Furthermore, the district court properly balanced the private and public interest factors and decided that they strongly favor trial in Mexico. View "Ayco Farms, Inc. v. Rodriguez Ochoa" on Justia Law

The Ninth Circuit reversed the grant of summary judgment, on remand, in favor of TBC in an action under the Foreign Sovereign Immunities Act concerning a Camille Pissarro painting. The painting was forcibly taken from plaintiffs' great-grandmother by the Nazi government. The panel held that plaintiffs' claims were timely within the statute of limitations recently enacted by Congress to govern claims involving art expropriated during the Holocaust in the Holocaust Expropriated Art Recovery Act of 2016 (HEAR). The panel applied the Second Restatement of the Conflict of Laws to determine which state's substantive law applies in deciding the merits of this case, and held that the Second Restatement directed the panel to apply Spain's substantive law. The district court erred in deciding that, as matter of law, TBC had acquired title to the painting through Article 1955 of the Spanish Civil Code because there was a triable issue of fact whether TBC was an encubridor (an "accessory") within the meaning of Civil Code Article 1956. Finally, TBC was not entitled to summary judgment based on its laches defense; the great-grandmother's acceptance of the 1958 Settlement Agreement did not foreclose plaintiffs' claims; Spain's Historical Heritage Law does not prevent TBC from acquiring prescriptive title to the painting; and the district court correctly found that the application of Article 1955 to vest TBC with title to the painting would not violate the European Convention on Human Rights. View "Cassirer v. Thyssen-Bornemisza Collection Foundation" on Justia Law

In this contract dispute between Getma and the Republic of Guinea, the Common Court of Justice and Arbitration of the Organization for the Harmonization of Business Law in Africa (CCJA), a court of supranational jurisdiction for Western and Central African States, set aside an award in favor of Getma. Getma sought to enforce the annulled award in the United States. The D.C. Circuit held that the CCJA is "a competent authority" for purposes of article V(1)(e) of the New York Convention, and for reasons of international comity, the court declined to second-guess a competent authority's annulment of an arbitral award absent extraordinary circumstances. Because Getma's arguments failed under this stringent standard, the court affirmed the judgment of the district court refusing to enforce the award. View "Getma International v. Republic of Guinea" on Justia Law

Plaintiffs sought a declaratory judgment stating that their family members were killed in the course of a U.S. drone attack in violation of international law governing the use of force, the Torture Victim Protection Act (TVPA), and the Alien Tort Statute (ATS). The district court dismissed the claims primarily based on political question grounds. The DC Circuit affirmed and held that it was not the role of the Judiciary to second-guess the determination of the Executive, in coordination with the Legislature, that the interests of the U.S. called for a particular military action in the ongoing War on Terror. In this case, El-Shifa Pharmaceutical Industries Co. v. United States, 607 F.3d 836 (D.C. Cir. 2010), controlled the court's analysis and compelled dismissal of plaintiffs' claims. View "Bin Ali Jaber v. United States" on Justia Law

Plaintiffs filed suit against BNTK and BUSA for their alleged roles in plaintiffs' 2008 abduction from London and their prolonged detention in Belarus by authorities of that country. The Second Circuit held that it has jurisdiction to review this appeal pursuant to the collateral order doctrine; the district court acted within its discretion in ordering limited jurisdictional discovery and in sanctioning defendants for failing to comply with that order; but to the extent the challenged October 20, 2015 order not only required defendants to pay an earlier accrued monetary sanction but also struck their sovereign immunity claim in its entirety, it exceeded the district court's discretion. Accordingly, the court affirmed the challenged order generally, vacating only that part striking defendants' foreign sovereign immunity claim, and remanded for further proceedings. View "Funk v. Belneftekhim" on Justia Law

In January 2017, President Trump signed executive order EO-1, "Protecting the Nation From Foreign Terrorist Entry," suspending, for 90 days, entry of foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, and suspending the United States Refugee Admissions Program (USRAP) for 120 days. The Ninth Circuit upheld a nationwide temporary restraining order. The government revoked EO-1. EO-2 issued on March 6, describing conditions in six countries that “demonstrate ... heightened risks to [U.S.] security.” EO–2 section 2(a) directs Homeland Security to determine whether foreign governments provide adequate information about nationals applying for U.S visas and to report those findings to the President within 20 days; nations identified as deficient will have 50 days to alter their practices (2(b)). EO–2 2(c) directs that entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, be suspended for 90 days; section 3(c) provides for case-by-case waivers. Section 6(a) suspends decisions on applications for refugee status and travel of refugees under the USRAP for 120 days; 6(b) suspends refugee entries in excess of 50,000 for this year. The order’s stated effective date is March 16, 2017. The Ninth Circuit again declined to stay a temporary injunction. The Supreme Court stayed the order in part, with respect to sections 2(c), 6(a), and 6(b). An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country can legitimately claim concrete hardship if that person is excluded, even if the 50,000-person cap has been reached. As to these individuals and entities, the Court did not disturb the injunction; as to those lacking any such connection, the balance tips in favor of the government’s compelling interest in security. The Court noted a June 12 Ninth Circuit decision vacating the injunction as to 2(a) and stated that the Executive should conclude its work and provide adequate notice to foreign governments within the 90-day life of 2(c). View "Trump. v. International Refugee Assistance Project" on Justia Law

In 2010, a U.S. Border Patrol agent standing on U.S. soil shot and killed Hernandez, an unarmed 15-year-old Mexican national, standing on Mexican soil. Hernandez had been playing a game that involved running up the embankment on the U.S. side of the border. After the Justice Department closed an investigation, declining to file charges, Hernandez’s parents filed suit, including a “Bivens” claims for damages against the agent. The Fifth Circuit affirmed dismissal. The Supreme Court vacated and remanded. A “Bivens” implied right of action for damages against federal officers alleged to have violated a citizen’s constitutional rights is not available where there are special factors counselling hesitation in the absence of affirmative action by Congress. In light of recent Supreme Court precedent (Abbasi), the Fifth Circuit must consider “whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” The Court noted that the Fourth Amendment question is sensitive and may have far-reaching consequences. Qualified immunity shields officials from civil liability if their conduct does not violate clearly established constitutional rights of which a reasonable person would have known. The lower court concluded that the prohibition on excessive force did not apply to Hernandez, as a foreign national on foreign soil, but the Court noted that Hernández’s nationality and the extent of his ties to the U.S. were unknown to the agent at the time of the shooting. View "Hernandez v. Mesa" on Justia Law

A group of Indian nationals filed suit against the IFC, alleging that a power plant financed by the IFC caused damage to surrounding communities in Gujarat, India. The DC Circuit affirmed the district court's dismissal of the complaint, holding that the IFC was immune to this suit under the International Organizations Immunities Act, 22 U.S.C. 288, and did not waive immunity for this suit in its Articles of Agreement. View "Jam v. International Finance Corp." on Justia Law

The Convention on Supplementary Compensation for Nuclear Damage's (CSC) text, structure, and ratification history dictate that Article XIII’s jurisdiction-stripping provision applies only to claims arising out of nuclear incidents occurring after the CSC’s entry into force. Plaintiffs, members of the United States Navy, filed a putative class action against TEPCO, alleging that they were exposed to radiation when deployed near the Fukushima Daiichi Nuclear Power Plant (FNPP) as part of Operation Tomodachi. The Ninth Circuit affirmed the denial of TEPCO's motion to dismiss and held that the CSC did not strip it of jurisdiction over plaintiffs' claims; the district court did not err by dismissing plaintiffs' claims on comity grounds and did not abuse its discretion in deciding to maintain jurisdiction; the district court did not abuse its discretion in declining to dismiss this case on forum non conveniens grounds; the panel was unable to undertake the "discriminating inquiry" necessary to determine if this case presented a political question; and the panel provided no opinion as to whether the firefighter's rule applies to military servicemembers and, if so, whether it barred plaintiffs' claims. View "Cooper v. Tokyo Electric Power Co." on Justia Law