Justia International Law Opinion SummariesArticles Posted in U.S. 2nd Circuit Court of Appeals
Schneider v. Kingdom of Thailand
Germany and Thailand signed a treaty, providing that disputes concerning investments between Germany or Thailand and an investor of the other party may be resolved by arbitration at the request of either party. The treaty applies to “approved investments” made before the treaty by investors of either country in the territory of the other. Bau initiated arbitration, claiming that Thailand had interfered with investments made, 1989-1997, in a Thai tollway project. An arbitration tribunal convened under agreed terms, which empowered the tribunal to consider objections to jurisdiction and provided that U.N. Commission on International Trade Law Arbitration Rules would apply. Thailand objected to jurisdiction on the ground that Bau’s were not “approved investments” because Bau never obtained a “Certificate of Admission” from Thailand’s Ministry of Foreign Affairs. Bau responded that the project was comprised of “approved investments” because Bau was invited to make the investments by the Thai Council of Ministers, which approved the project at various stages, and because the Thai Board of Investment issued certificates of investment for the project. The tribunal held that it had jurisdiction and made an award in favor of Bau. The district court confirmed. The Second Circuit affirmed, rejecting an argument that the court should have independently adjudicated jurisdiction instead of performing deferential review.View "Schneider v. Kingdom of Thailand" on Justia Law
USAA Casualty Ins. Co. v. Permanent Mission Of The Republic of Namibia
The Mission brought this interlocutory appeal from the district court's denial of immunity under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1602-1611. At issue was whether the Mission could be sued for the damage to an adjoining property caused by its alleged failure to comply with the New York City Building Code, N.Y. City Admin. Code tit. 28, ch.1. The court rejected the Mission's argument that the immunity accorded to its decision to base its operations in a townhouse and to renovate the building for such use extended to the tort allegedly committed during its implementation of that decision. Although the Mission was not under an obligation to construct the chancery at any particular location, once it decided to do so it could not disregard the nondelegable duty of care imposed upon it by the city's Building Code. Accordingly, the court held that the obligation to protect the party wall was not discretionary and that the Mission could not avail itself of the protection of the FSIA's discretionary function exception. View "USAA Casualty Ins. Co. v. Permanent Mission Of The Republic of Namibia" on Justia Law
NML Capital, Ltd. v. Republic of Argentina
This case arose when plaintiffs acquired on the secondary market hundreds of millions of dollars of non-performing bonds issued by the Republic of Argentina. In due course, plaintiffs began to bring suit in the United States courts to collect the debt. In these eleven consolidated appeals, they moved to attach a New York bank account owned by ANPCT. The court held that the district court correctly held that the funds in the ANPCT account were subject to attachment pursuant to 28 U.S.C. 1610 because they were "used for a commercial activity in the United States." View "NML Capital, Ltd. v. Republic of Argentina" on Justia Law
Bigio v. The Coca-Cola Co.
Plaintiffs appealed from a judgment of the district court granting defendants' motion to dismiss and denying as moot plaintiffs' motion for summary judgment on liability. The District Court held that plaintiffs failed to state a claim, under a variety of theories, based on defendants' purchase and possession of an interest in the Coca-Cola Bottling Company of Egypt. The court concluded that the facts alleged in plaintiffs' Amended Complaint, if true, told a tragic story of religious discrimination in Egypt in the 1960s and the court understood the desire for compensation. However, that wrong, if it did indeed occur, was inflicted by the Egyptian government, not by defendants. Because the district court correctly determined that the Amended Complaint failed to state a claim against defendants and also therefore correctly denied plaintiffs' motion for partial summary judgment as moot, the judgment of the district court was affirmed. View "Bigio v. The Coca-Cola Co." on Justia Law
Rogers v. Petroleo Brasileiro, S.A.
Defendant appealed from an order of the district court denying his motion to dismiss, for lack of subject matter jurisdiction, plaintiffs' separate actions to recover for breach of contract. The district court based its subject matter jurisdiction determination on the commercial activities exception to foreign sovereign immunity as set forth in the Foreign Sovereign Immunities Act, 28 U.S.C. 1330, 1332, 1391(f), 1441(d), 1602-11. The district court also denied defendant's motions to dismiss, made pursuant to Rule 12(b)(6). At issue was, as regards to "clause two" of the commercial activities exception, whether plaintiffs' claims were sufficiently "based upon" any act that defendant performed in the United States that was "in connection with [defendant's] commercial activity" in Brazil. Also at issue was, with respect to "clause three," whether defendant's extraterritorial commercial acts caused a "direct effect" in the United States. In both cases, defendant contended that the district court erred in finding the requirements of the exception to be satisfied and thus argued that the district court lacked jurisdiction over the cases. The court held that defendant was immune under the Act and therefore reversed the district court's order. View "Rogers v. Petroleo Brasileiro, S.A." on Justia Law
Brandi-Dohrn v. IKB Deutsche Industriebank AG
Petitioner appealed from an order of the district court granting respondent's motion to quash subpoenas issued pursuant to 28 U.S.C. 1782. Petitioner sought assistance from the district court to order discovery from three non-parties for use in a securities fraud action he filed in Germany. The district court allowed the discovery and the relevant subpoenas were issued. However, before any discovery was produced, respondent moved to vacate that order and quash the subpoenas. The district court granted the motion and ruled that the requested discovery could not be "for use" in the German tribunal because it was unlikely to be admitted in the foreign jurisdiction. The court reversed the order, concluding that the "for use" requirement was not limited to the actual receipt of materials into evidence in the foreign proceeding. View "Brandi-Dohrn v. IKB Deutsche Industriebank AG" on Justia Law
Licci v. Lebanese Canadian Bank, et al.
Plaintiffs appealed a decision and order of the district court granting the motions to dismiss filed by defendants, LCB and AmEx. Plaintiffs, all Israeli residents, were allegedly injured or their family members killed or injured, by rockets fired by Hizballah, a Lebanese terrorist organization, into northern Israel in July and August 2006. Plaintiffs asserted that Israeli law governed their negligence claim while AmEx maintained that New York law governed. The district court dismissed plaintiffs' negligence claim against AmEx, evaluating the claim under New York state law. Because the court concluded that New York law would apply even if a conflict between the laws of the relevant jurisdiction existed because New York had the greatest interest in the litigation, and that plaintiffs did not have a viable claim against AmEx under New York law, the judgment of the district court insofar as it was in favor of AmEx was affirmed. View "Licci v. Lebanese Canadian Bank, et al." on Justia Law
Chevron Corp. v. Donziger
Following about 30 years of oil extraction in the Ecuadorian Amazon, Ecuadorians brought a variety of claims against the company and obtained judgment in Ecuador. Chevron, a potential judgment-debtor, brought action under New York’s Uniform Foreign Country Money-Judgments Recognition Act, N.Y. C.P.L.R. 5301-5309, which allows judgment-creditors to enforce foreign judgments in New York courts, seeking a global anti-enforcement injunction against the Ecuadorians and their attorney to prohibit attempts to enforce the allegedly-fraudulent judgment entered by the Ecuadorian court. The district court granted the injunction. The Second Circuit reversed, vacating the injunction. The Recognition Act does not grant putative judgment-debtors a cause of action to challenge foreign judgments before enforcement of those judgments is sought. Judgment-debtors can challenge a foreign judgment’s validity under the Act only defensively, in response to an attempted enforcement.View "Chevron Corp. v. Donziger" on Justia Law
Skaftouros v. United States
Petitioner, wanted in his native Greece on charges related to the kidnapping and murder of a minor, was certified extraditable after a hearing in the district court, notwithstanding certain arguments he made regarding Greece's compliance, vel non, with its own criminal procedure. This appeal required the court to clarify the proper role of a district court considering a petition for a writ of habeas corpus challenging an extradition order. The court held that the district court erred by placing the burden of proof in the habeas proceeding on the United States rather than on petitioner and by engaging in an improper inquiry into Greece's compliance with its own laws. The court reaffirmed that a court considering an extradition request - or a petition for habeas corpus seeking collateral review of an extradition order - could review the demanding government's compliance with its own laws only insofar as it was necessary to ensure that the provisions of the federal extradition statute and relevant extradition treaty have been met. The court further held that petitioner had not carried his burden of proving that the requirements of the treaty were met. Accordingly, the court reversed the judgment, vacated the writ, and remanded the cause to the district court with instructions to enter a certificate of extraditability and order of commitment. View "Skaftouros v. United States" on Justia Law
Figueiredo Ferraz v. Republic of Peru
This was an interlocutory appeal from an order of the district court denying a motion to dismiss a suit seeking confirmation of an international arbitration award. Appellant contended that the petition should be dismissed on the ground of forum non conveniens (FNC) in favor of an action in the courts of Peru. The court reversed and remanded with directions to dismiss the petition, concluding that the underlying claim arose from a contract executed in Peru, by a corporation then claiming to be a Peruvian domiciliary against an entity that appeared to be an instrumentality of the Peruvian government, with respect to work to be done in Peru, and the public factor of permitting Peru to apply its cap statute to the disbursement of governmental funds to satisfy the award tipped the FNC balance decisively against the exercise of jurisdiction in the United States. View "Figueiredo Ferraz v. Republic of Peru" on Justia Law