Justia International Law Opinion Summaries

Articles Posted in US Court of Appeals for the Second Circuit
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Plaintiffs and their family members were injured or killed in attacks carried out by Hamas, which the United States has designated as a foreign terrorist organization. They sued BLOM Bank for aiding and abetting Hamas’s attacks by providing financial services to customers affiliated with Hamas, in violation of the Anti-Terrorism Act (ATA), 18 U.S.C. 2333, as amended by the Justice Against Sponsors of Terrorism Act (JASTA), section 2333(d)(2). The district court dismissed. concluding that Plaintiffs failed to plausibly allege BLOM aided and abetted Hamas’s attacks in violation of JASTA.The Second Circuit affirmed. While the district court applied the wrong standard for JASTA aiding-and-abetting liability, the complaint fails to state a claim under the correct standard. Plaintiffs plausibly alleged that the party whom BLOM aided (indirectly), Hamas, committed attacks causing the Plaintiffs’ injuries but their allegations did not support an inference that BLOM was aware of the customers’ ties with Hamas before the relevant attacks. The complaint’s references to media articles and publications on the connection to Hamas were insufficient. View "Honickman v. BLOM Bank SAL" on Justia Law

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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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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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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

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In 2017, Swiss law enforcement officers seized more than a thousand pieces of ancient art owned by the plaintiffs as part of an ongoing investigation into the illegal trafficking of cultural property. The plaintiffs sued the Swiss government entities and instrumentalities in the Southern District of New York, alleging that the seizure was arbitrary and made without probable cause. The district court dismissed the cases, holding that it lacked jurisdiction over the defendants under the Foreign Sovereign Immunities Act, 28 U.S.C. 1605(a)(3).The Second Circuit affirmed, rejecting an argument that jurisdiction was proper under the statute’s “expropriation exception,” which applies in cases involving property taken by a foreign state in violation of international law. A routine law enforcement seizure does not ordinarily constitute a taking at all, let alone a taking in violation of international law, because it falls within a state’s traditional police powers. Although there are a handful of narrow exceptions to that general rule, such as when the seizure is not rationally related to a public purpose and is a pretextual attempt to nationalize property without compensation, or (has continued for an unreasonable amount of time, none of those exceptions applies here. View "Beierwaltes v. L'Office Fédérale de la Culture de la Confederation Suisse" on Justia Law

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The Second Circuit affirmed the district court's dismissal of the operative amended complaints in two actions seeking to hold defendant bank liable under the Antiterrorism Act of 1990 (ATA), for providing banking services to a charitable organization with alleged ties to Hamas, a designated Foreign Terrorist Organization (FTO) alleged to have committed a series of terrorist attacks in Israel in 2001-2004. The actions also seek to deny leave to amend the complaints to allege aiding-and-abetting claims under the Justice Against Sponsors of Terrorism Act (JASTA).The court concluded that 18 U.S.C. 2333(a) principles announced in Linde v. Arab Bank, PLC, 882 F.3d 314 (2d Cir. 2018), were properly applied here. The court explained that, in order to establish NatWest's liability under the ATA as a principal, plaintiffs were required to present evidence sufficient to support all of section 2331(1)'s definitional requirements for an act of international terrorism. The court saw no error in the district court's conclusion that plaintiffs failed to proffer such evidence and thus NatWest was entitled to summary judgment dismissing those claims. The court also concluded that the district court appropriately assessed plaintiffs' request to add JASTA claims, given the undisputed evidence adduced, in connection with the summary judgment motions, as to the state of NatWest's knowledge. Therefore, based on the record, the district court did not err in denying leave to amend the complaints as futile on the ground that plaintiffs could not show that NatWest was knowingly providing substantial assistance to Hamas, or that NatWest was generally aware that it was playing a role in Hamas's acts of terrorism. The court dismissed the cross-appeal as moot. View "Weiss v. National Westminster Bank PLC" on Justia Law

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The Second Circuit affirmed defendant's conviction and sentence for international parental kidnapping and passport fraud. After determining that defendant's vagueness challenge fails insofar as it is premised on deficient notice, the court held that the International Parental Kidnapping Crime Act (IPKCA) is not unconstitutionally vague as applied to him. In this case, the IPKCA is not unconstitutionally vague as applied to someone who retains children abroad without first abducting them, when the children had not been in the United States for several years prior to the unlawful retention.The court also held that the district court properly applied two Sentencing Guidelines enhancements for substantial interference with the administration of justice and for fraudulent use of a United States passport. View "United States v. Houtar" on Justia Law

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Respondents appeal the district court's grant of an application for discovery in aid of a foreign proceeding under 28 U.S.C. 1782 brought by petitioner. The application relates to complex litigation stemming from the sinking of an oil tanker captained by petitioner off the coast of Spain. Petitioner cross-appeals, arguing that the district court should have refrained from entering final judgment and instead maintained the case on its active docket to facilitate further uses of the discovery materials.The Second Circuit concluded that petitioner's cross-appeal, unlike respondents' appeal, no longer presents a live case or controversy and is therefore moot. The court also concluded that the district court erred by failing to conduct a choice-of-law analysis with respect to applicable privileges and in analyzing whether one of the proceedings cited by petitioner as a basis for his application was within reasonable contemplation. Therefore, the court dismissed the cross-appeal and vacated the district court's judgment. The court remanded for further proceedings and ordered respondents to refrain from destroying or altering any records, materials, or documents that may reasonably be considered to be subject to discovery pursuant to the section 1782 applications at issue in this case until July 30, 2021, unless otherwise directed by an order of a United States court. View "Mangouras v. Boggs" on Justia Law

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Plaintiffs filed a putative class action on behalf of members and descendants of the Ovaherero and Nama indigenous peoples against the Federal Republic of Germany, seeking damages for the enslavement and genocide of the Ovaherero and Nama peoples in what is now Namibia, as well as for property they alleged Germany expropriated from the land and peoples.The Second Circuit affirmed the dismissal of the suit for lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA). Germany is a foreign sovereign; the only path for the exercise of jurisdiction is if a FISA exception applies. FSIA’s takings exception, 28 U.S.C. 1605(a)(3), provides that a foreign state is not immune from the jurisdiction of U.S. courts in cases "in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in commercial activity in the United States.” The plaintiffs’ allegations were insufficient to trace the proceeds from property expropriated more than a century ago to present‐day property owned by Germany in New York. View "Rukoro v. Federal Republic of Germany" on Justia Law

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Plaintiffs filed suit as shareholders on behalf of Lebanese Canadian Bank (LCB), alleging that defendants used LCB to facilitate a money-laundering scheme benefiting Hezbollah. Plaintiffs contend that defendants' conduct violated an actionable norm of international law that confers a cause of action on them over which the federal courts have jurisdiction under the Alien Tort Statute (ATS). The district court held that the prohibition against financing terrorism is a universal, specific, and obligatory norm of international law, and allowed plaintiffs to proceed with their suit.The Second Circuit reversed and held that plaintiffs' effort to amend their complaint is futile, because – even if "financing terrorism" violates a universal, specific, and obligatory norm of international law – their cause of action is based on harm that falls outside the scope of any such norm. In this case, plaintiffs' economic harm is disconnected from the risks that would bring the financing of terrorism within the purview of international law, and the ATS does not confer federal jurisdiction over the alleged violations of corporate law principles that ground plaintiffs' claim. The court remanded for further proceedings. View "Abu Nahl v. Abou Jaoude" on Justia Law