CS manufactures and sells X-ray and metal detection devices for use in public facilities around the world. Tecapro is a private, state-owned company that was formed by the Vietnamese government to advanced technologies into the Vietnamese market. In 2010, Tecapro purchased 28 customized AutoClear X-ray machines from CS for $1,021,156. The contract provides that disputes shall be settled at International Arbitration Center of European countries for claim in the suing party’s country under the rule of the Center. Tecapro initiated arbitration proceedings in Belgium in November 2010. In December 2010, CS notified Tecapro of its intention to commence arbitration proceedings in New Jersey. In January 2011, CS filed its petition to compel arbitration in New Jersey and enjoin Tecapro from proceeding with arbitration in Belgium. The district court concluded that it had subject matter jurisdiction under the U.N.Convention on the Recognition and Enforcement of Foreign Arbitral Awards, that it had personal jurisdiction over Tecapro, and that Tecapro could have sought to arbitrate in Vietnam and CS in New Jersey. The latter is what happened, so “the arbitration shall proceed in New Jersey.” After determining that it had jurisdiction under the Federal Arbitration Act, 9 U.S.C. 1, the Third Circuit affirmed. View "Control Screening LLC v. Technological Application & Prod. Co." on Justia Law
Posted in: Arbitration & Mediation, Commercial Law, Contracts, International Law, International Trade, U.S. 3rd Circuit Court of Appeals
Nortel employed about 24,000 people worldwide when it filed Chapter 11 petitions. Its affiliates entered insolvency proceedings in Canada and the U.K. The Bankruptcy Court recognized the foreign proceedings as triggering the automatic stay of 11 U.S.C. 362(a). Nortel entities from several countries entered into an Interim Funding and Settlement Agreement, approved by the Bankruptcy Court, providing for cooperation in sales of business units and that proceeds of any sale will be held in escrow. Claims filed in the U.S. asserted that U.S. debtors might be required to provide financial support for U.K. pension obligations under the U.K. Pensions Act 2004. The claims were contingent and unliquidated, based on the outcome of the U.K. proceedings. U.S. debtors sought to enforce the stay, to prevent participation in U.K. proceedings concerning their liability. The court granted the motion, holding that the police power exception to the automatic stay did not apply because neither the Trustee nor the U.K. agency is a governmental unit under 11 U.S.C. 101(27) and that U.K. proceedings do not pass the public policy or pecuniary purpose tests because the focus is a benefit for a private party, the Trustee. Canadian courts reached the same conclusion. The district court affirmed the stay. In U.K. proceedings, the debtors were ordered to secure financial support for the plan. The Third Circuit affirmed the stay. View "In Re: Nortel Network" on Justia Law
Defendant boarded a plane in New York City and flew to Hamburg. Six months after his arrival in Germany, he sexually molested a 15-year-old boy. After serving 19 months in a German prison, defendant returned to the United States and was convicted of engaging in noncommercial illicit sexual conduct in a foreign place (18 U.S.C. 2423(c) and (f)(1)) and sentenced to 30 years in prison. The Third Circuit affirmed. The offense began when defendant boarded a plane, but the bulk of the offense was not committed in any district in the United States, so venue was proper in the Delaware district where the arrest occurred. Rejecting a facial challenge to the statute, the court stated that the statute is within the authority of Congress under the Foreign Commerce Clause. View "United States v. Pendleton" on Justia Law
Plaintiffs, domestic purchasers of magnesite, alleged that defendants, Chinese exporters, engaged in a conspiracy to fix the price of magnesite in violation of the Clayton Act, 15 U.S.C. 4, 16, predicated on alleged violation of the Sherman Act, 15 U.S.C. 1. The district court dismissed, holding that it lacked subject matter jurisdiction under the Foreign Trade Antitrust Improvements Act, 15 U.S.C. 6a. The Third Circuit vacated. FTAIA states that the Sherman Act "shall not apply to conduct involving trade or commerce . . . with foreign nations" with two exceptions. The Sherman Act does apply if defendants were involved in "import trade or import commerce" or if defendants' "conduct has a direct, substantial, and reasonably foreseeable effect" on domestic commerce, import commerce, or certain export commerce and that conduct "gives rise" to a Sherman Act claim. FTAIA imposes a substantive merits limitation, not a jurisdictional bar. On remand, if the court addresses the "import trade" exception, it must assess whether plaintiffs adequately allege that defendants' conduct is directed at a U.S. import market and not solely whether defendants physically imported goods. If the court assesses the "effects exception" it must determine whether the alleged domestic effect would have been evident to a reasonable person making practical business judgments. View "Animal Science Prods. Inc. v. China Minmetals Corp." on Justia Law
Posted in: Antitrust & Trade Regulation, International Law, International Trade, U.S. 3rd Circuit Court of Appeals
The company sued, in New Jersey, for breach of contract, conversion, and embezzlement, based on defendant's retention of checks worth $587,775.05. Defendant asserted counterclaims based on termination of an employment contract. While the lawsuit was pending, the company brought an identical action in South Korea. In 2005, a South Korean court entered judgment for the company in an amount equivalent to $587,755.05 plus post-judgment interest. In 2006, the U.S. district court entered judgment for the company, $587,755.05 on the conversion claim, and for defendant, $910,000 on the counterclaim. The U.S. district court declined the company's request that a turnover order include a setoff, reasoning that setoff would result in double recovery. The Third Circuit affirmed, but remanded pending enforcement of the Korean judgment. Defendant paid the Korean judgment. The district court rejected an argument that the Korean judgment should be equalized with the American judgment in the amount of $205,540.05, the difference between the American judgment ($587,755.05) and actual payments adjusted by currency devaluation ($382,215). The Third Circuit affirmed, characterizing the claim as an attempt to satisfy the Korean judgment for a second time. View "Otos Tech. Co. Ltd. v. OGK Am., Inc." on Justia Law
The Immigration and Nationality Act, 8 U.S.C. 1231(b)(3)(B)(iv), precludes withholding of removal if there are reasonable grounds to believe that the alien is a danger to the security of the United States. In November 2003, the Government of Uzbekistan requested the extradition of the petitioners, asserting they participated in seeking the forced overthrow of the Republic and the establishment on its territory of a religious extremist Islamic fundamental state. Immigration judges concluded that the extradition request would be given no weight, coming from a government with a history of persecution and torture. On remand from the Third Circuit, the Board of Immigration Appeals found that petitioners are a danger to national security and ineligible for withholding of removal, but granted deferral of removal under the United Nations Convention Against Torture. The Third Circuit held that petitioners are entitled to withholding of removal as a matter of law; the determination that petitioners are a danger to national security was not supported by substantial evidence and there is no question that they will be persecuted and tortured on religious and political grounds if returned. View "Yusupov v. Att'y Gen. of U.S." on Justia Law
After first filing claims in a U.S. district court, inhabitants of eastern Ecuador filed suit in their country, alleging that the company contaminated the area and caused residents' health problems. The company, attempting to establish fraud and collusion in the proceedings, sought discovery from the plaintiffs' attorney for use in that litigation, in criminal proceedings in Ecuador, and in arbitration initiated against the Republic of Ecuador with the United Nations. The district court granted discovery under 28 U.S.C. 1782, which provides that the court of the district in which a person is found may order him to give testimony or to produce a document or thing for use in a proceeding in a foreign tribunal, unless the disclosure would violate a legal privilege. The court concluded that attorney-client privilege had been waived because documentary film-makers had been allowed intimate access to proceedings involving the environmental litigation. The Third Circuit reversed in part, holding that the public disclosure of certain communications did not lead to "subject matter waiver" of attorney-client privilege for communications that were covered by the privilege. The court remanded for consideration of whether certain communications are discoverable pursuant to the crime-fraud exception to the attorney-client privilege.
Posted in: Environmental Law, International Law, International Trade, U.S. 3rd Circuit Court of Appeals
The defendant, a dual-citizen of the U.S. and Iran and a chemical engineer, marketed a dynamic software program to Iranian actors and agreed to provide Iranian entities with technology for construction of chemical plants, with a goal of converting Iran into a chemical powerhouse. His efforts included contacting President Ahmadinejad to unveil his plan to help Iran, with respect to the United States' "cruel and tyrannical" treatment of the Iranian people. He was convicted on 10 chargesâfour counts stemming from violations of the International Emergency Economic Powers Act (IEEPA), three counts of making false statements, and three counts of bank fraud and sentenced to a four years imprisonment. The Third Circuit affirmed, rejecting a challenge to the constitutionality of the IEEPA and Treasury Department's Office of Foreign Assets Control regulations. The law meaningfully constrains the President's discretion and does not violate the separation of powers doctrine. The government proved, beyond a reasonable doubt, that the defendant's operation does not fall within the informational-materials exemption of the Act. The regulations are not unconstitutionally vague.