International Litigation & Arbitration Newsletter|November 2005|Volume 5 Issue 1|

International Litigation & Arbitration

Newsletter

 North America
Baker & McKenzie

November 2005
Volume 5, Issue 1

 

In this Issue

 

Articles

Case Summaries

Contributors

 

View Entire Newsletter

 

 

Related Links

North American Litigation Practice Group Web Site

 


 


Welcome to the November 2005 issue of the International Litigation and Arbitration Newsletter. This newsletter is an electronic bi-monthly publication distributed by Baker & McKenzie's North American Litigation Practice Group that provides summaries of recent decisions and other matters of interest in the area of international litigation and arbitration.

If you have any questions about the matters discussed below, or suggestions for improving the Newsletter, please forward any comments to us by clicking on one of our email links below.

If you would like to subscribe to other Baker & McKenzie newsletters, please click on the "subscribe" link to the left and select the newsletters that interest you.

Regards,

David Zaslowsky
Co-Editor

Grant Hanessian
Co-Editor


Articles

 

Our first featured article examines a recent decision that, paradoxically, seems to give foreign states less protection than private parties when it comes to enforcement of foreign arbitral awards. It was written by Lawrence W. Newman and David Zaslowsky of our New York office.

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Our second featured article looks at a landmark decision in which the French Supreme Court seemingly went beyond the provisions of the French Code of Civil Procedure in authorizing a French court to appoint an arbitrator in a dispute between Israel and the National Iranian Oil Company. The article was written by Jean-Pierre Harb of our Paris office.

> Read More

 

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Case Summaries

 

Abstention. International Comity. Maritime Jurisdiction. American customs broker can pursue claim against U.S. subsidiary of foreign manufacturer for unpaid freight charges under the federal courts' admiralty jurisdiction despite pendency of related proceeding in France.

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Agency. Plaintiffs adequately alleged an agency relationship between a global accounting firm and its affiliates; the global organization could be vicariously liable for alleged securities fraud committed by Italian affiliates.

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Alien Tort Act. Torture Victim Protection Act. Eleventh Circuit affirmed dismissal of claims under Alien Tort Act and Torture Victim Protection Act as to non-torture claims, but reverses dismissal as to those claims that adequately alleged state action and torture elements of torture claims under the ATA and TVPA.

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Alien Tort Claims Act. Second Circuit holds that there is no claim under the Alien Tort Claims Act for violation of alleged "right to life" or "right to health" under customary international law.

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Alien Tort Statute. Corporations may be liable for violations of international law.

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Alien Tort Statute. Political Question Doctrine. Colombian Plaintiffs' tort claims dismissed as raising a nonjusticiable political question.

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Arbitration Clauses-Non Signatories. Act of State Doctrine. Motion by foreign state and by state-owned oil company to stay arbitration denied where there was an issue of fact as to whether plaintiffs were estopped to deny that they were obligated to arbitrate, where the Defendant had not waived its right to arbitrate by alleged inconsistent actions and because the Act of State doctrine does not apply when considering whether to enforce an arbitration agreement.

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Blocking Statute. Considerations of international comity did not require a U.S. district court to recognize a privilege existing under the Spanish criminal code.

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Choice of Law. Choice of law clause stating that New York law governed international derivatives trading agreement was not broad enough to encompass extra-contractual setoff rights arising from bills of exchange; interest analysis favored application of Thai law over New York law.

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Evidence. Petition to Perpetuate Testimony and Preserve Documentary Evidence Pursuant to Fed. R. Civ. P. 27. Application denied because description of evidence to be elicited was insufficient, the purpose of the petition was to take discovery rather than to preserve evidence, and the risk that the testimony would be unavailable in the future was small.

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Foreign Sovereign Immunities Act. Discretionary Function Exception. Foreign state is immune from jurisdiction for tortious acts where the alleged acts were discretionary exercises of government policy.

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Foreign Sovereign Immunities Act. Neither the "expropriation" nor "commercial activity" exceptions to immunity applied to claims based on a government's failure to refund contributions made to a government retirement plan.

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Forum Non Conveniens. International Comity. Defendants' motion to dismiss was denied because Columbia did not provide an adequate alternative forum due to Plaintiffs' personal safety concerns.

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Forum Non Conveniens. Products liability suit brought by Israeli residents against U.S. medical products manufacturer dismissed on grounds of forum non conveniens.

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Personal Jurisdiction. New York Long Arm Statute. Complaint dismissed after Plaintiff failed to make out a prima facie case of personal jurisdiction over an association incorporated under the laws of Singapore and France.

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Revenue Rule. Post-Pasquantino challenge to the revenue rule fails.

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Standing. Beneficial owners of note issued by Province of Buenos Aires had standing to bring suit to recover for non-payment where Defendant waived standing defense and where Plaintiff had obtained permission to bring suit from the registered holder.

> Read More

 

Standing. Case remanded to district court where evidence was unclear as to whether beneficial owners of defaulted bonds, as opposed to registered owner, had standing to sue Argentina.

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