LexisNexis® Legal Newsroom
Spanish War Ship Sunk Since 1804, and Its Cargo, Immune from Suit in U.S. Under FSIA

By Louis M. Solomon Odessey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel, et al. , No. 10-10269 (11th Cir. Sept. 2011) [ enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law ], offers a glimpse into the fascinating world...

Second Circuit Affirms Direction to Arbitrate But Holds the Arbitration Panel Determines Scope of Contractual Forum Clause

By Louis M. Solomon UBS Financial Services, Inc., et al. v. West Virginia University Hospitals (WVUH), et al. , Dkt. No. 11-235-cv (2d Cir. Sept. 2011) [ enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law ], involves three issues of relevance...

New York’s Intermediate Appellate Court, Vacating Earlier Ruling

Reaffirms that It Is the Court, Not the Arbitrator, Who Decides Threshold Issue of Arbitrability By Louis M. Solomon We earlier blogged on the Appellate Divisions decision in Jalas v. Halperin . The Appellate Division subsequently granted a motion to reargue that decision, vacated the earlier...

Failure to Follow German Validation Procedure Dooms Claims for Payment on Pre-War German Bearer; FSIA Precludes Balance of Claims

By Louis M. Solomon We have previously posted on the significance of the international practice decisions by the Second and Eleventh Circuits' decisions relating to validation procedures preventing Foreign Sovereign Immunities Act immunity . Mortimer Off Shore Services, Ltd. v. Federal Republic...

Arbitration Compelled for Industry-wide Antitrust Claim Made against a Single Defendant despite Active Participation in Multidistrict Litigation for Over a Year

Nokia Corp., et al. v. AU Optronics Corp. (AUO), et al. , MDL No. 1827 (N.D. Cal. July 2011) [ enhanced version available to lexis.com subscribers ], orders arbitration on the basis of reasoning that is noteworthy for the litigation of international disputes. Nokia's complaint alleges a price...

Third Circuit Affirms Class Certification, Cautioning Against the Need for Mini Trials

By Louis M. Solomon Our immediately prior posting addressed the issue of how a single case in a multiparty, multidistrict litigation raising industry-wide antitrust claims was plucked out and sent to arbitration. How a plaintiff manages around that result is a question not just of international...

How to Keep Confidential Arbitral Awards Confidential Even When Seeking To Enforce/Vacate Them

By Louis M. Solomon One of the promises made by international dispute resolution is that when the forum of the dispute is an arbitration the proceedings are, and can remain, confidential (see generally the discussion of the confidential nature of arbitrations in our e-book, International Practice...

International Banking and Finance Provide Grounds for Removal of State Court Action to Federal Court

By Louis M. Solomon American Int'l Group, Inc., et al. v. Bank of America Corp., et al. , 11 Civ. 6212 (BSJ) (S.D.N.Y. Oct. 2011) [ enhanced version available to lexis.com subscribers ], highlights one of the common ways to order, sequence, rationalize a complex international litigation (see...

Released Claims Against Non-U.S. Sovereign Not Revived By Subsequent Expansion of Plaintiff’s Statutory Rights

By Louis M. Solomon We have recently been focused on how international law firms can offer more than just litigation help to clients - that is, how corporate lawyers and drafters of contracts can avoid or at least ameliorate some of the problems encountered in connection with the pursuit of an...

Choice of Non-U.S. Law Informs Damages Models and Amounts in FSIA Case Against Iran

By Louis M. Solomon Oveissi v. Islamic Republic of Iran, et al. , 03-cv-1197 (RCL) (D.D.C. Mar. 2011) [ enhanced version available to lexis.com subscribers ], provides a recent example of how choice of law can inform and in some respects determine not just the categories but the actual quantum...

Choice of Law Determines Arbitrability; “Clear and Unmistakable” Standard Adopted; “Arising Under” Deemed a Narrow Arbitration Clause

By Louis M. Solomon The recent decision by the Ninth Circuit in Cape Flattery Limited (Cape) v. Titan Maritime, LLC, et al. (Titan) , No. 09-15682 (9th Cir. July 2011) [ enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law ], discusses several...

Choice of Law Determines Arbitrability; “Clear and Unmistakable” Standard Adopted; “Arising Under” Deemed a Narrow Arbitration Clause

By Louis M. Solomon The recent decision by the Ninth Circuit in Cape Flattery Limited (Cape) v. Titan Maritime, LLC, et al. (Titan) , No. 09-15682 (9th Cir. July 2011) [ enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law ], discusses several...

Non-U.S. Judgment Enforced in U.S.

Challenges Even Based on Fraud Need To Be Asserted in the Country Issuing the Original Judgment; U.S. Court Declines "Interjudicial Conference" of Having the Judges From the Two Countries Talk By Louis M. Solomon Tettamanti, et al. v. Opcion Sociedad Anonima , No. 3D11...

Combination of Arbitration and Non-U.S. Choice of Law Provisions Contrary To Public Policy; Defendant Permitted To Stipulate to U.S. Law to Compel Arbitration

By Louis M. Solomon Alcalde v. Carnival Cruise Lines , Case No. 10-24457-Civ-Moore/Torres (S.D. Fla. July 2011) [ enhanced version available to lexis.com subscribers ], is another in the line of recent cases struggling with the interplay between the public policy favoring arbitration of international...

Supreme Court Agrees To Resolve Deep Circuit Split and Decide If Alien Tort Statute Permits Actions against Corporations

By Louis M. Solomon We have followed the development of federal Circuit law on whether the Alien Tort Statute, 28 U.S.C. § 1350, and specifically the Torture Victim Protection Act, 28 U.S.C. § 1350 note § 2(a), create rights of action against corporations. The Supreme Court has agreed...

Court Appoints Neutral Expert On Choice of Law Issues But Rejects Public International Law Concepts’ Applicability To Private Claims

By Louis M. Solomon A recent decision, Pallano v. AES Corp. , C.A. No. 9C-11-021 JRJ (Del. Super. Ct. July 2011) [ enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law ], addresses three issues that frequently face the litigation practitioner...

As More “Confidential” International Arbitral Awards Made Public, the Practitioner’s Need to Consider Alternatives Increases

By Louis M. Solomon We recently posted on the peril to the intended confidentiality accorded the arbitration of international disputes by the necessity of having to file in open court arbitral awards in order to enforce or challenge them. The issue can be addressed in a number of ways, two of which...

9th Circuit Denies Rehearing in Bauman v. DaimlerChrysler

Finding Personal Jurisdiction by Imputation and Watering Down "Agency" Test for Finding Jurisdiction, Say 8th Circuit Judges Who Would Grant Rehearing En Banc By Louis M. Solomon Bauman, et al. v. DaimlerChrysler, et al., No. 07-15386 (9th Cir. 18 May 2011) [ enhanced version...

Waiver of Privilege and Crime Fraud Exception at Play in International Litigation over Ecuadorian Judgment against Chevron

By Louis M. Solomon The most recent installment in the U.S. proceedings in which Chevron is trying to avoid the $8 billion judgment entered against it in an Ecuadorian court (which we have posted on many times) takes the form of a decision by a Magistrate Judge in the Southern District of New York...

Post-Arbitral Award Proceeding to Pierce Corporate Veil Correct Procedure but Fails on the Merits

By Louis M. Solomon Ahcom, Ltd. v. Hendrik Smelding, et al . , Case No. 07-1139 SC (N.D. Cal. Aug. 2011) [ enhanced version available to lexis.com subscribers ], presents two interesting issues for international litigation and dispute resolution. Nuttery Farms, Inc., a U.S. corporation, defaulted...

Courts Continue To Resist Confidentiality in Filing Arbitral Vacatur/Confirmation Proceedings; Other Rulings Lead To Confirmation of Award

By Louis M. Solomon Harper Ins. Ltd. v. Century Indemnity Co. , 10 Civ. 7866 (S.D.N.Y. July 2011)(NRB) [ enhanced version available to lexis.com subscribers ], addresses cross-petitions to vacate and confirm an arbitral award. The case addresses several typical issues arising in such proceedings...

FSIA Immunity Found In Suit Against Germany; Neither Commercial Activity Nor Takings Exceptions Applies To Real Property Located in Germany

By Louis M. Solomon Hammerstein v. The Federal Republic of Germany , 09-CV-443 (ARR)(RLM) (E.D.N.Y. Aug. 2011) [ enhanced version available to lexis.com subscribers ], dismisses for want of subject matter jurisdiction claims asserted against Germany. Plaintiff fought over the right to own the property...

Courts Continue To Resist Confidentiality in Filing Arbitral Vacatur/Confirmation Proceedings; Other Rulings Lead To Confirmation of Award

By Louis M. Solomon, Partner, Cadwalader, Wickersham & Taft LLP Harper Ins. Ltd. v. Century Indemnity Co. , 10 Civ. 7866 (S.D.N.Y. July 2011)(NRB) (Free Download), addresses cross-petitions to vacate and confirm an arbitral award. The case addresses several typical issues arising in such proceedings...

Claim Alleging Derivative Possession of Good Allegedly “Taken” in Violation of International Law Still Precluded by FSIA

by Louis M. Solomon We discuss briefly the final installment (in the District Court) of the attempt to recover possession of a Van Gogh drawing allegedly sold away from the plaintiff's great-grandmother "under duress during the Nazi era in Germany for fraction of its fair value", Orkin...

Cadwalader: Pharmaceutical Manufacturer's Preemptive Suit Secures Preliminary 1st Amendment Protection for Script to Promote Off-Label Use

On August 7, 2015, the U.S. District Court for the Southern District of New York invoked the First Amendment, granting Amarin Pharma, Inc. ( Amarin ) preliminary protection against federal criminal prosecution for misbranding and allowing Amarin to promote its drug, Vascepa, for off-label use through...