Archive for the ‘U.S. Courts’ Category
June 6, 2012
S.I. Strong (University of Missouri School of Law) has posted “Navigating the Borders Between International Commercial Arbitration and U.S. Federal Courts: A Jurisprudential GPS”, Journal of Dispute Resolution (forthcoming)/University of Missouri School of Law Legal Studies Research Paper No. 2012-12. Here is the abstract:
To the uninitiated, international commercial arbitration may seem as if it “isn’t all that different” from domestic arbitration or litigation. However, the truth of the matter is that international commercial arbitration is an extremely challenging area of law, full of traps for inexperienced parties.
This is particularly true with respect to the parties’ ability to seek relief from U.S. federal courts. While some advocates may believe that a visit to the judge is the best and fastest way to get results in certain types of procedural disputes, that tactic is often inappropriate in international arbitral proceedings, where the tribunal’s jurisdiction and powers are frequently in tension with the jurisdiction and power of various national courts (since there may be multiple courts that could potentially become involved with a particular matter).
Quite simply, this area of practice is unlike any other, and the only way to avoid making expensive and time-consuming errors is to gain an overview of the process from a specialist’s perspective. This Article provides just that sort of guide, outlining the various ways in which U.S. federal courts can become involved in international commercial arbitration and introducing both basic and advanced concepts in a straightforward, practical manner. However, this Article provides more than just an overview. Instead, it discusses relevant issues on a motion-by-motion basis, helping readers find immediate answers to their questions while also getting a picture of the field as a whole.
Written especially for busy lawyers, this Article gives practitioners, arbitrators and new and infrequent participants in international commercial arbitration a concise but comprehensive understanding of the unique challenges that arise in this complex area of law. Experienced counsel will also find the discussion helpful, not only as a means of explaining the process to clients and junior colleagues but also as a tactical tool to help consider various options in situations where a U.S. federal court may become (or has become) involved in an international arbitral proceeding.
Download a pdf copy of the article at SSRN here.
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Tags:Arbitration, Arbitration award, Convention on the Recognition and Enforcement of Foreign Arbitral Awards, Dispute resolution, Federal Arbitration Act, Law, United States federal courts, University of Missouri School of Law
Posted in ADR, anti-suit injunctions, arbitration, civil procedure, enforcement, international commercial arbitration, International Commercial Law, New York Convention, U.S. Courts, United States | Leave a Comment »
August 24, 2011
David Kinley and Odette Murray (University of Sydney – Faculty of Law) and Joe W. “Chip” Pitts III (Stanford Law School) have published “Exaggerated Rumours of the Death of an Alien Tort: Corporations, Human Rights and the Peculiar Case of Kiobel”, Melbourne Journal of International Law, Vol. 12, No. 1, pp. 57-94, 2011/Sydney Law School Research Paper No. 11/48.
The abstract reads:
Over the past 15 years or so, we have become accustomed to assuming that corporations are proper subjects of litigation for alleged infringements of the ‘law of nations’ under the Alien Tort Statute (‘ATS’). But, in a dramatic reversal of this line of reasoning, the United States Court of Appeals for the Second Circuit in Kiobel v Royal Dutch Petroleum 2010 (‘Kiobel’), has dismissed this assumption and concluded that corporations cannot be sued under the ATS. This article explores the Court’s reasoning and the ramifications of the decision, highlighting the ways in which the Kiobel judgment departs from both Supreme Court and Second Circuit precedent. The authors take to task the critical failure of the majority in Kiobel to distinguish between the requirements of legal responsibility at international law and that which is necessary to invoke ATS jurisdiction in the US District Courts. In the context of the maturing debates over the human rights responsibilities of corporations, the authors point to the political as well as legal policy implications of Kiobel and underscore the reasons why the case has already attracted such intense interest and will continue to excite attention as a US Supreme Court challenge looms.
The .pdf copy of the article is available from SSRN here.
* Readers should take note of the recent decision of the U.S. Court of Appeals for the District of Columbia in John Doe VIII v. Exxon Mobil Corp.. U.S. Court of Appeals (D.C. Circuit, No. 09-7125, July 8, 2011)) which expressly rejected the Kiobel v. Royal Dutch Petroleum decision on the application of the ATS to corporate conduct.
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Tags:Alien Tort Statute, Chip Pitts, David Kinley, ExxonMobil, Melbourne Journal of International Law, Stanford Law School, United States, United States Court of Appeals for the District of Columbia Circuit, United States Court of Appeals for the Second Circuit, United States Supreme Court
Posted in Alien Tort Statute, conflict of laws, corporate liability, international law, international litigation, Kiobel v. Royal Dutch Petroleum, U.S. Courts, United States, universal jurisdiction | Leave a Comment »
January 10, 2011
On September 17, 2010, the United States Court of Appeals for the Second Circuit released its decision in Kiobel v. Royal Dutch Petroleum ,(06-4800-cv, 06-4876-cv). In a 2-1 split decision, the Court ruled that the Alien Torts Statute (ATS) grants U.S. courts jurisdiction over alleged violations of international law by individuals only, not by corporations. Essentially, the majority opinion held that corporations cannot be sued under the ATS for violations of customary international law because “the concept of corporate liability . . . has not achieved universal recognition or acceptance of a norm in the relations of States with each other.” (Slip op. at 49).
*Warning: This is a lengthy post (more…)
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Posted in aiding-and-abetting, Alien Tort Statute, Bil'In (Village Council) c. Green Park International Inc., Bouzari v. Iran (Islamic Republic), Canada, Canada-US Cross-Border relations, corporate liability, foreign judgments, foreign law, forum of necessity, international human rights, international law, international litigation, jurisdiction, jus cogens, justice, Kiobel v. Royal Dutch Petroleum, Quebec Civil Code, R. v. Hape, tort, torts, torture, U.K. Human Rights Act, U.N. Charter, U.S. Courts, Uncategorized, United Nations Security Council, United States Constitution, United States Supreme Court, universal jurisdiction, Van Breda, Yassin c. Green Park International Inc. | 3 Comments »
November 24, 2010
Won Kidane (Seattle University School of Law) has posted a new article on SSRN called, “The Status of Private Military Contractors Under International Humanitarian Law” (Denver Journal of International Law and Policy, Vol. 38, p. 361, 2010). Here is the abstract:
One of the serious problems that the new administration faces is undoubtedly the regulation and use of private military contractors in “the war on terror.” The private military industry is largely unregulated at the national level. Its status under international law is also poorly understood. This article assesses the legal status of this industry, characterizes the various functions, demonstrates the difficulty of regulating the industry as a unitary entity, and identifies the appropriate set of international standards that the new administration and Congress as well as the larger international legal community could employ in evaluating regulatory options.
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Tags:status of military contractors, private military contractors, private military companies, military contractors, private armies, combatants, humanitarian law, international humanitarian law, IHL, military contractor accountability
Posted in international litigation, international human rights, universal jurisdiction, director liability, aiding-and-abetting, terrorism, corporate liability, international law, U.N. Charter, U.K. Human Rights Act, Warfare and Conflict, 2003 invasion of Iraq, Afghanistan, U.S. Courts, torture, armed conflict, military commissions, global war on terror, torture memos | Leave a Comment »
August 6, 2010
This chapter, written to honor Professor Krešimir Sajko of the University of Zagreb, considers the question of personal jurisdiction in U.S. courts at the stage of submission of a foreign judgment for recognition. Existing cases dealing with both recognition of foreign judgments and with the recognition of foreign arbitral awards under the New York Convention fail to provide a clear position on (1) whether either personal jurisdiction or quasi in rem jurisdiction through the presence of the judgment/award debtor’s assets is required, and (2) if quasi in rem jurisdiction is relied upon, just what allegation or proof of the presence of the judgment/award debtor’s assets within the jurisdiction is necessary. The analysis here ends with the conclusion that due process for purposes of recognition jurisdiction may be satisfied based on concepts of consent that are fundamental to the operation of both the New York Convention and the 2005 Hague Convention on Choice of Court Agreements. Such a result would place the United States in a position consistent with its future treaty partners under the Hague Convention on the matter of recognition jurisdiction.
Professor Krešimir Sajko, University Of Zagreb
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Posted in foreign arbitral awards, foreign judgments, Hague Choice of Court Convention, New York Convention, personal jurisdiction, Quasi in Rem Jurisdiction, recognition and enforcement, U.S. Courts | Leave a Comment »
Antonin I. Pribetic
