Justia International Law Opinion Summaries

Articles Posted in US Court of Appeals for the Second Circuit
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The case involves a Ukrainian couple, Yasamin Karimi and Roman Tereshchenko, who divorced and disputed custody of their two children. Following Russia's invasion of Ukraine, Tereshchenko agreed to Karimi removing the children from Ukraine for safety reasons, but requested that she bring them to him in Dubai. Instead, Karimi took the children to undisclosed locations, including the United States. Tereshchenko filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction for the return of the children. The District Court granted Tereshchenko’s petition and ordered the children returned to him in France, where he was currently residing.Karimi appealed the decision, challenging the District Court's jurisdiction and arguing that Tereshchenko had consented to the children's removal. The United States Court of Appeals for the Second Circuit affirmed the District Court's jurisdiction and rejected Karimi's argument that Tereshchenko had consented to the children's removal. The Court of Appeals also found that the District Court had erred in determining that the children would not be exposed to a grave risk of harm if they were returned to western Ukraine. However, the Court of Appeals concluded that the District Court was permitted to order the return of the children to Tereshchenko in a third country, France, as a temporary measure due to the grave risk of harm in Ukraine. The case was remanded to the District Court to modify the order to maintain the Ukrainian courts’ authority over an ultimate custody determination. View "Tereshchenko v. Karimi" on Justia Law

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The case involves Indemnity Insurance Company of North America ("Indemnity") and Unitrans International Corporation ("Unitrans"). Indemnity, as the insurer of Amgen, a pharmaceutical company, paid for the loss of a pallet of pharmaceutical drugs that was damaged while being unloaded from a truck at an airport. The pallet was being transported from Amgen's facility in Dublin, Ireland to Philadelphia, and Unitrans, a logistics company, had been engaged to arrange the transportation. Indemnity, as Amgen's subrogee, sued Unitrans for breach of contract, negligence, and breach of bailment.The United States District Court for the Eastern District of New York granted Unitrans's motion for summary judgment, ruling that Unitrans qualified as a contracting carrier under the Montreal Convention, and therefore, Indemnity's action was time-barred by the Convention's statute of limitations.The United States Court of Appeals for the Second Circuit agreed that contracting carriers are subject to the Montreal Convention, but found that there was a genuine dispute of material fact as to whether Unitrans was a contracting carrier. The court vacated the judgment and remanded the case for further proceedings. The court held that a contracting carrier, as defined by Article 39 of the Montreal Convention, is a person that, as a principal, makes a contract of carriage governed by the Montreal Convention with a consignor, and an actual carrier performs the whole or part of the carriage by virtue of authority from the contracting carrier. The court found that there was enough evidence cutting both ways to create a genuine question as to whether Unitrans qualifies as a contracting carrier. View "Indemnity Inssurance Co. of North America v. Unitrans International Corp." on Justia Law

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The case was a lawsuit filed by Janet and Joseph Harvey against the Permanent Mission of the Republic of Sierra Leone to the United Nations. The Harveys alleged that they were harmed by faulty renovations at the Mission's headquarters, which is located next door to their home in Manhattan. The Mission sought to dismiss the complaint, arguing that the district court lacked subject-matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA). The district court, however, denied the Mission's motion to dismiss, holding that two exceptions to the Mission's immunity applied: the commercial activity exception and the tortious activity exception.The United States Court of Appeals for the Second Circuit affirmed the district court's decision. The Appeals Court held that the commercial activity exception applied because the Harveys' claims were based upon the Mission's allegedly faulty contractual renovations, which is an activity that a private party can, and often does, do. The court did not need to address the tortious activity exception as the commercial activity exception was sufficient to affirm the district court's decision. The Mission, therefore, was not immune from the lawsuit under the FSIA. View "Harvey v. Permanent Mission of the Republic of Sierra Leone" on Justia Law

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The case originates from an Application for Judicial Assistance under 28 U.S.C. § 1782 by Frasers Group PLC ("Frasers"), a British retailer group. Frasers requested to obtain documentary and testimonial evidence from James Patrick Gorman, the former CEO of Morgan Stanley, for use in a lawsuit started in the UK. The district court denied the application, and Frasers appealed this decision.The dispute revolves around a series of transactions Frasers entered into with Saxo Bank A/S related to shares of the fashion company Hugo Boss. Concurrently, Saxo Bank engaged in trades with Morgan Stanley & Co. International PLC, a subsidiary of Morgan Stanley. A margin call was issued by Morgan Stanley, leading to a dispute and the commencement of the lawsuit in the UK.On appeal, the United States Court of Appeals for the Second Circuit affirmed the district court's decision, finding no abuse of discretion. The court considered the factors established by the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc., which guide district courts when determining whether to grant domestic discovery for use in foreign proceedings under 28 U.S.C. § 1782(a). The court found that the first factor—whether “the person from whom discovery is sought is a participant in the foreign proceeding”— and the fourth factor—whether the discovery request is “unduly intrusive or burdensome”— weighed against granting the Application. Consequently, the court upheld the denial of the Application. View "FRASERS GROUP PLC v. MORGAN STANLEY" on Justia Law

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Defendant-Appellant Petróleos de Venezuela, S.A. (“PDVSA”), an oil company wholly owned by the Bolivarian Republic of Venezuela, entered into two Note Agreements and a Credit Agreement with the predecessor-in-interest to now-Plaintiff-Appellee Red Tree Investments, LLC (“Red Tree”). PDVSA became delinquent on its obligations under the contracts. Red Tree’s predecessor-in-interest accelerated the outstanding debt. Then Red Tree initiated these actions in Supreme Court, New York County, which Defendants removed to district court. PDVSA claimed that any further payment under the Agreements was impossible and should therefore be excused. The district court granted summary judgment against PDVSA on the grounds that PDVSA had failed to provide sufficient evidence that payment was impossible or in the alternative, that any impediment to payment was not reasonably foreseeable. It therefore entered judgment in favor of Red Tree and imposed post-judgment interest. On appeal, PDVSA contends that the district court erred in concluding that no reasonable trier of fact could find that payment was impossible or that U.S. sanctions were unforeseeable. PDVSA further asserts that the district court incorrectly calculated post-judgment interest.   The Second Circuit affirmed. The court agreed with the district court that payment by PDVSA was not impossible. Further, the court concluded that the district court did not err in its calculation of post-judgment interest. The court explained that under the plain language of the Note and Credit Agreements, the outstanding principal and interest that accrued prejudgment—including both default and ordinary interest—are subject to default interest post-judgment. View "Red Tree Investments, LLC v. PDVSA, Petróleo" on Justia Law

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In January 2017, Defendant-Appellant Petróleos de Venezuela, S.A. (“PDVSA”), an oil company wholly owned by the Bolivarian Republic of Venezuela, entered into a Note Agreement with then-Plaintiff-Appellee Dresser-Rand Company. PDVSA made two of the twelve payments due under the Note Agreement in April and July 2017 but failed to make any subsequent payments. In February 2019, Dresser-Rand declared PDVSA to be in default, accelerated the debt, and initiated this action in Supreme Court, New York County, which Defendants removed to the district court. PDVSA claimed that any further payment was impossible and should therefore be excused. The district court concluded that PDVSA had failed to prove that repayment was impossible. It therefore entered judgment in favor of Dresser-Rand. On appeal, PDVSA contends that the district court erred in concluding that payment was not impossible. PDVSA further asserts that the district court incorrectly calculated post-judgment interest.   The Second Circuit affirmed. The court agreed with the district court that payment by PDVSA was not impossible, and the court further concluded that PDVSA forfeited any arguments relating to post-judgment interest. The court explained that the evidence demonstrates that PDVSA never attempted payment to a different bank or in an alternative currency, nor did it investigate whether this manner of payment would have been truly impossible. Instead of the evidence shows, did nothing. PDVSA cannot benefit from the impossibility defense on speculation. View "Siemens Energy, Inc. v. PDVSA" on Justia Law

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This case involves a dispute between two law firms, each of which claims the right to represent a Salvadoran company in its efforts to stave off a transnational judgment-collection effort. Specifically, the two firms are vying to defend ALBA Petróleos de El Salvador S.E.M. de C.V. (“ALBA”) in district court from the enforcement of a $45 million default judgment obtained against Colombian narco-terrorist organizations. Marcos D. Jiménez appeared to represent ALBA. White & Case LLP moved to substitute itself as ALBA’s counsel. Both purport to represent ALBA. White & Case argued that the political-question doctrine, the act-of-state doctrine, and Venezuelan law required the district court to allow it to represent ALBA. Jiménez responded that he had the right to represent ALBA under Salvadoran law. The district court denied White & Case’s motion, holding that the issue was governed by Salvadoran law. White & Case filed an interlocutory appeal and, in the alternative, a petition for a writ of mandamus.   The Second Circuit dismissed the appeal and denied the petition for a writ of mandamus. The court wrote that it lacks appellate jurisdiction over this interlocutory appeal of the denial of a third-party motion to substitute counsel. The court explained that such an appeal fails to satisfy the requirements of the collateral order doctrine because the denial of a motion to substitute counsel is effectively reviewable after final judgment and does not implicate an important issue separate from the merits of the underlying action. White & Case also does not meet the demanding standard required to obtain a writ of mandamus. View "In re ALBA Petróleos de El Salvador S.E.M. de C.V." on Justia Law

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Plaintiffs, several family members of a United States citizen killed in an overseas terrorist attack, appealed from the district court’s judgment dismissing their claims against the Palestine Liberation Organization (“PLO”) and the Palestinian Authority (“PA”) for lack of personal jurisdiction. The Government, as intervenor in accordance with 28 U.S.C. Section 2403(a) and Federal Rule of Civil Procedure 5.1(c), also appealed from that judgment. On appeal, both Plaintiffs and the Government argued that the district court erred in finding unconstitutional the Promoting Security and Justice for Victims of Terrorism Act of 2019 (“PSJVTA”), the statute on which Plaintiffs relied to allege personal jurisdiction over Defendants.   The Second Circuit affirmed. The court explained that the PSJVTA specifically provides that the PLO and the PA “shall be deemed to have consented to personal jurisdiction” in any civil action pursuant to the Anti-Terrorism Act, 18 U.S.C. Section 2333, irrespective of “the date of the occurrence of the act of international terrorism” at issue, upon engaging in certain forms of post-enactment conduct, namely (1) making payments, directly or indirectly, to the designees or families of incarcerated or deceased terrorists, respectively, whose acts of terror injured or killed a United States national, or (2) undertaking any activities within the United States, subject to a handful of exceptions. Thus, the court concluded that the PSJVTA’s “deemed consent” provision is inconsistent with the dictates of the Fifth Amendment’s Due Process Clause. View "Fuld v. Palestine Liberation Organization" on Justia Law

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Plaintiffs, a group of United States citizens injured during terror attacks in Israel and the estates or survivors of United States citizens killed in such attacks, brought an action against the Palestine Liberation Organization (“PLO”) and the Palestinian Authority (“PA”) pursuant to the Anti-Terrorism Act (“ATA”), seeking damages. The Second Circuit concluded on appeal that the district court lacked jurisdiction over the PLO and the PA and vacated the judgment entered against Defendants. Plaintiffs later moved to recall the mandate based on a new statute, the Anti-Terrorism Clarification Act of 2018. The Second Circuit denied that motion. Congress responded with the statute now at issue, the Promoting Security and Justice for Victims of Terrorism Act of 2019 (“PSJVTA”). The district court concluded that Defendants had engaged in jurisdiction-triggering conduct under the statute but that the PSJVTA violated constitutional due process requirements. Plaintiffs and the Government disputed the latter conclusion, and Plaintiffs argued generally that the PSJVTA justifies recalling the mandate.   The Second Circuit denied Plaintiffs’ motion to call the mandate. The court explained that the PSJVTA provides that the PLO and the PA “shall be deemed to have consented to personal jurisdiction” in any civil ATA action if, after a specified time, those entities either (1) make payments, directly or indirectly, to the designees or families of incarcerated or deceased terrorists, respectively, whose acts of terror injured or killed a United States national, or (2) undertake any activities within the United States, subject to limited exceptions. The court concluded that the PSJVTA’s provision for “deemed consent” to personal jurisdiction is inconsistent with the Fifth Amendment’s Due Process Clause. View "Waldman v. Palestine Liberation Organization" on Justia Law

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The plaintiffs in this case are American service members who were wounded, and the relatives of service members who were killed or wounded, in terrorist attacks carried out in Iraq from 2004 to 2011 by proxies of the Lebanese militant group Hezbollah. In 2019, victims 20 and their family members sued several Lebanese banks, alleging that the banks aided and abetted the attacks by laundering money for Hezbollah. After Plaintiffs filed suit, the United States Department of the Treasury labelled one of those banks, Jammal Trust Bank (JTB), a Specially Designated Global Terrorist. That designation prompted the Banque du Liban, Lebanon’s central bank, to liquidate JTB and acquire its assets. JTB then moved to dismiss the case against it, on the ground that it was now entitled to sovereign immunity as an instrumentality of Lebanon. The district court denied the motion, holding that a defendant is entitled to foreign sovereign immunity only if it possesses such immunity at the time suit is filed. JTB appealed.    The Second Circuit vacated. The court held that immunity under the Foreign Sovereign Immunities Act, 28 U.S.C. Section 1604, may attach when a defendant becomes an instrumentality of a foreign sovereign after a suit is filed. Further, the court explained that it was the U.S. designation of JTB as a terrorist organization, not any attempt by Lebanon to avoid this lawsuit, that forced the bank into liquidation and public receivership. View "Bartlett v. Baasiri" on Justia Law