Justia International Trade Opinion Summaries

After the Republic of Argentina defaulted on its external debt, NML, one of its bondholders, prevailed in 11 debt-collection actions filed against Argentina in New York. To execute its judgments, NML sought discovery of Argentina’s property, serving subpoenas on nonparty banks for records relating to global financial transactions. The district court granted motions to compel compliance. The Second Circuit affirmed, rejecting Argentina’s argument that the order transgressed the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. 1330, 1602. The Supreme Court affirmed; the FSIA does not immunize a foreign-sovereign judgment debtor from post-judgment discovery of information concerning its extraterritorial assets. The FSIA replaced factor-intensive loosely-common-law-based immunity with “a comprehensive framework for resolving any claim of sovereign immunity” so that any sort of immunity defense made by a foreign sovereign in a U.S. court must stand or fall on its text. The FSIA established jurisdictional immunity, section 1604, which was waived here. FSIA execution immunity under sections 1609, 1610, 1611, generally shields “property in the United States of a foreign state” from attachment, arrest, and execution. Nothing forbids or limits discovery in aid of execution of a foreign-sovereign judgment debtor’s assets. Even if Argentina is correct that section 1609 execution immunity implies coextensive discovery-¬in-aid-of-execution immunity, there would be no protection from discovery a foreign sovereign’s extraterritorial assets. Section 1609 immunizes only foreign-state property “in the United States.” The prospect that NML’s general request for information about Argentina’s worldwide assets may turn up information about property that Argentina regards as immune does not mean that NML cannot pursue its discovery. View "Republic of Argentina v. NML Capital, Ltd." on Justia Law

Residents of Argentina sued Daimler, a German company, in a California federal district court, alleging that Mercedes-Benz Argentina, a Daimler subsidiary, collaborated with state security forces during Argentina’s 1976–1983 “Dirty War” to kidnap, detain, torture, and kill MB Argentina workers, related to the plaintiffs. They asserted claims under the Alien Tort Statute and the Torture Victim Protection Act of 1991, and under California and Argentina law. Personal jurisdiction was predicated on the California contacts of Mercedes-Benz USA (MBUSA), another Daimler subsidiary, incorporated in Delaware with its principal place of business in New Jersey. MBUSA distributes Daimler-manufactured vehicles to independent U.S. dealerships, including some in California. The district court dismissed. The Ninth Circuit reversed, holding that MBUSA, which it assumed to fall within the California courts’ all-purpose jurisdiction, was Daimler’s “agent” for jurisdictional purposes. The Supreme Court reversed. Daimler is not amenable to suit in California for injuries allegedly caused by MB Argentina outside the U.S. California’s long-arm statute allows the exercise of personal jurisdiction to the full extent permissible under the U. S. Constitution. Even if California is home to MBUSA, Daimler’s affiliations with California are not sufficient to subject it to the general jurisdiction of that State’s courts. The proper inquiry is whether a foreign corporation’s “affiliations with the State are so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.” Neither Daimler nor MBUSA is incorporated in California; neither has its principal place of business there. If Daimler’s California activities sufficed to allow adjudication of this case in California, the same global reach would presumably be available in every other state in which MBUSA’s sales are sizable. View "Daimler AG v. Bauman" on Justia Law

Wiley, an academic publisher, often assigns to its foreign subsidiary (WileyAsia) rights to publish, print, and sell Wiley’s English language textbooks abroad. WileyAsia’s books state that they are not to be taken (without permission) into the U.S. When Kirtsaeng moved to the U.S., he asked friends to buy foreign edition English-language textbooks in Thai book shops, where they sold at low prices, and mail them to him. He sold the books at a profit. Wiley claimed that Kirtsaeng’s unauthorized importation and resale was an infringement of Wiley’s 17 U.S.C. 106(3) exclusive rights to distribute its copyrighted work and section 602’s import prohibition. Kirtsaeng cited section 109(a)’s “first sale” doctrine, which provides that “the owner of a particular copy or phonorecord lawfully made under this title ... is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” The district court held that the defense did not apply to goods manufactured abroad. The jury found that Kirtsaeng had willfully infringed Wiley’s American copyrights and assessed damages. The Second Circuit affirmed, concluding that section 109(a)’s “lawfully made under this title” language indicated that the “first sale” doctrine does not apply to copies of American copyrighted works manufactured abroad. The Supreme Court reversed; the “first sale” doctrine applies to copies of a copyrighted work lawfully made abroad. Section 109(a) says nothing about geography. A geographical interpretation of the first-sale doctrine could re¬quire libraries to obtain permission before circulating the many books in their collections that were printed overseas; potential practical problems are too serious, extensive, and likely to come about to be dismissed as insignificant—particularly in light of the ever-growing importance of foreign trade to America. View "Kirtsaeng v. John Wiley & Sons, Inc." on Justia Law

This case arose when plaintiffs acquired on the secondary market hundreds of millions of dollars of non-performing bonds issued by the Republic of Argentina. In due course, plaintiffs began to bring suit in the United States courts to collect the debt. In these eleven consolidated appeals, they moved to attach a New York bank account owned by ANPCT. The court held that the district court correctly held that the funds in the ANPCT account were subject to attachment pursuant to 28 U.S.C. 1610 because they were "used for a commercial activity in the United States." View "NML Capital, Ltd. v. Republic of Argentina" on Justia Law

Following about 30 years of oil extraction in the Ecuadorian Amazon, Ecuadorians brought a variety of claims against the company and obtained judgment in Ecuador. Chevron, a potential judgment-debtor, brought action under New York’s Uniform Foreign Country Money-Judgments Recognition Act, N.Y. C.P.L.R. 5301-5309, which allows judgment-creditors to enforce foreign judgments in New York courts, seeking a global anti-enforcement injunction against the Ecuadorians and their attorney to prohibit attempts to enforce the allegedly-fraudulent judgment entered by the Ecuadorian court. The district court granted the injunction. The Second Circuit reversed, vacating the injunction. The Recognition Act does not grant putative judgment-debtors a cause of action to challenge foreign judgments before enforcement of those judgments is sought. Judgment-debtors can challenge a foreign judgment’s validity under the Act only defensively, in response to an attempted enforcement.View "Chevron Corp. v. Donziger" on Justia Law

Defendant, a Russian citizen, attended graduate school and owns real property, vehicles, and bank accounts in Ohio. He spends some time in Ohio each year, ranging from 40 days in 2007 to a total of 17 days in 2008–2009. He visits under a tourist visa and does not have an Ohio driver's license. After going to Russia to take part in a business venture with defendant, plaintiff filed suit in Ohio. The contract had no connection to the state. The trial court dismissed for lack of personal jurisdiction, noting that defendant was not served with process in a manner that automatically confers personal jurisdiction. The Sixth Circuit affirmed, finding that notions of fair play and substantial justice weigh against jurisdiction in Ohio. The court quoted a Russian proverb, “If you’re afraid of wolves, don’t go into the forest” that could be read, “If you’re afraid of the Russian legal system, don't do business in Russia.” View "Conn v. Zakharov" on Justia Law

The Tariff Act of 1930 provides for two types of duties on imports that injure domestic industries: antidumping duties on goods sold in the U.S. at less than fair value, 19 U.S.C. 1673, and countervailing duties to offset subsidies on goods from a foreign government (1671(a)). In the case of goods exported from market economy countries (non-NME countries), both antidumping and countervailing duties may be imposed. The U.S. Court of International Trade ordered the Department of Commerce not to impose countervailing duties on goods from China, a NME country. The Trade Court held that Commerce's 2007 interpretation of countervailing duty law as permitting the imposition of such duties was unreasonable because of the high likelihood of double counting when both countervailing duties and antidumping duties are assessed against goods from NME countries. The Federal Circuit affirmed on different grounds. In amending and reenacting countervailing duty law in 1988 and 1994, Congress legislatively ratified earlier consistent administrative and judicial interpretations that government payments cannot be characterized as subsidies in a NME context, therefore countervailing duty law does not apply to NME countries.View "GPX Int'l Tire Corp. v. United States" on Justia Law

Plaintiffs brought suit against defendants for breach of duty, improper taking in violation of international law, conversion, conspiracy to commit a tort, aiding and abetting an improper taking and fraudulent scheme, and unjust enrichment. Plaintiffs appealed the district court's dismissal of their claims for lack of subject matter jurisdiction under Rule 12(b)(1). The court held that, because the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. 1330, 1602 et seq., applied to all defendants and no exception to sovereign immunity existed in this case, the judgment was affirmed. View "Community Finance Group, Inc., et al. v. Republic of Kenya, et al." on Justia Law

Plaintiffs, citizens and residents of China, alleged that they were injured by melamine-contaminated infant formula in China. Defendant, among others, manufactured and distributed the contaminated products exclusively to China. At issue was the district court's forum non conveniens dismissal. The court held that defendant carried its burden and showed that plaintiffs could obtain a remedy for their injuries either from the Chinese courts or a fund established by the Chinese government to compensate the children and families affected by contaminated infant formula (the Fund). Therefore, the district court did not abuse its discretion in finding that China was an adequate alternative forum and the district court did not err by weighing the public and private interest factors, finding that China was a more convenient forum in which to adjudicate the dispute. Accordingly, the district court's forum non conveniens dismissal was not an abuse of discretion. View "Tang, et al. v. Synutra Int'l, Inc., et al." on Justia Law

Plaintiffs, domestic purchasers of magnesite, alleged that defendants, Chinese exporters, engaged in a conspiracy to fix the price of magnesite in violation of the Clayton Act, 15 U.S.C. 4, 16, predicated on alleged violation of the Sherman Act, 15 U.S.C. 1. The district court dismissed, holding that it lacked subject matter jurisdiction under the Foreign Trade Antitrust Improvements Act, 15 U.S.C. 6a. The Third Circuit vacated. FTAIA states that the Sherman Act "shall not apply to conduct involving trade or commerce . . . with foreign nations" with two exceptions. The Sherman Act does apply if defendants were involved in "import trade or import commerce" or if defendants' "conduct has a direct, substantial, and reasonably foreseeable effect" on domestic commerce, import commerce, or certain export commerce and that conduct "gives rise" to a Sherman Act claim. FTAIA imposes a substantive merits limitation, not a jurisdictional bar. On remand, if the court addresses the "import trade" exception, it must assess whether plaintiffs adequately allege that defendants' conduct is directed at a U.S. import market and not solely whether defendants physically imported goods. If the court assesses the "effects exception" it must determine whether the alleged domestic effect would have been evident to a reasonable person making practical business judgments. View "Animal Science Prods. Inc. v. China Minmetals Corp." on Justia Law