A Comparative Look At The New Hague Principles on Choice of Law & the Restatement (Second) of Conflict of Laws: First Post

As promised, here is the first post in what I hope will be a short series of posts comparing the new Hague Principles on Choice of Law in International Commercial Contracts and the Restatement (Second) of Conflict of Laws. I had a pleasant surprise after noting the publication of the Principles last month: Marta Perteg├ís, the First Secretary of the Permanent Bureau of the Hague Conference, took an interest in the idea of the post. From this, Jonathan Levin, an NYU law student who is interning this summer at the Permanent Bureau, independently offered to conduct a comparative study for the purposes of these posts. I’ll publish his report with the last post in the series.
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Case of the Day: Mees v. Buiter

The case of the day is Mees v. Buiter (2d Cir. 2015). This is the second significant appellate decision on § 1782 in a matter of days—I covered the new Posco case last week. Willem H. Buiter had made accusations against Heleen Mees that had led to her being arrested and charged with misdemeanors for stalking, menacing, and harassment in New York. Buster had claimed that Mees “had sent him thousands of emails and on several occasions attempted to meet him at his residence, despite numerous requests that she cease all contact with him.” He also claimed that her expressed wish that his “plane falls out of the sky” or her “sending him a picture of dead birds” caused him to fear for his safety. There were some racy bits too, which I won’t cover here. Because of the parties’ prominence—both are prominent economists, and Buiter coined the term “Grexit”—the case was covered in the press. The criminal case ended with an adjournment in contemplation of dismissal, contingent on Mees’s agreement to participate in counseling and to comply with an order of protection Buiter and his wife had obtained.

Mees brought a § 1782 application, seeking discovery from Buiter “as part of her Dutch attorneys’ investigation of a defamation claim against Buiter” in the Netherlands “and to prepare for the prosecution of such claim.” The basis of Mees’s claim was that she wasn’t a stalker, but instead, she and Buiter had “regularly had romantic encounters.” She wanted discovery in order to corroborate her claim that she had met Buiter on twenty-seven “Romantic Encounter Dates.”
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Case of the Day: In re POSCO

The case of the day is In re POSCO (Fed. Cir. 2015). I first noted the case back in April, and I covered the government’s amicus brief a few weeks later.

The question in the case is this: if I produce documents to you in a US litigation subject to a protective order requiring you to use them only for purposes of the US litigation, and after you receive them you ask the court to modify the protective order to allow you to use them in a related foreign litigation whose procedures wouldn’t have allowed you to obtain them in discovery, what standard should the court use in deciding whether to modify the protective order? You’ve just performed a bait-and-switch; does the fact that the other litigation is pending abroad change how the court should view your request?
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Case of the Day: United States ex rel. UXB International v. 77 Insaat & Taahut A.S.

The case of the day is United States ex rel. UXB International, Inc. v. 77 Insaat & Taahut A.S. (W.D. Va. 2015). UXB brought a qui tam action on behalf of the United States against 77 Construction Co., an Afghan corporation, and 77 Group Co., an Iraqi corporation. UXB sought leave to serve process on both defendants by email via the Afghan company’s US lawyer.
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Case of the Day: Akebia Therapeutics v. Fibrogen

The case of the day is Akebia Therapeutics, Inc. v. Fibrogen, Inc. (9th Cir. 2015). Fibrogen, a San Francisco biotech company, owns European and Japanese patents on the use of certain chemical compounds to treat anemia. Akeiba, a competitor, brought opposition proceedings in the European Patent Office and the Japanese Patent Office, asserting that the patents are invalid. Akeiba brought an application under § 1782 seeking leave to serve subpoenas for documents and testimony on Fibrogen. The judge granted the application ex parte, and Fibrogen appealed.
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Case of the Day: Howe v. Embassy of Italy

The case of the day is Howe v. Embassy of Italy (D.D.C. 2014). Simona Hall was an employee of the Italian embassy in Washington. She was a Canadian national residing in Virginia. She brought claims against the embassy under ERISA, claiming that the embassy had miscalculated her benefits under a deferred compensation plan.
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Case of the Day: Panchenkova v. Chigirisnky

The case of the day is Panchenkova v. Chigirinsky (Conn. Super. Ct. 2015). Tatiana Panchenkova and Shalva Chigirinsky were married in Russia in 2003. In 2009 they divorced, and a Russian court ordered Chigirinsky to pay one-half of his income to the wife as child support. The court also divided the parties’ assets evenly, and because Chigirinsky was awarded certain particularly valuable assets, the award included an order requiring him to pay Panchenkova more than 350,000 rubles. Panchenkova, who then resided in Connecticut, sought recognition and enforcement of the Russian judgment.
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In re Request for Judicial Assistance From the Norrköping District Court

The case of the day is In re Request for Judicial Assistance from the Norrköping District Court (D. Colo. 2015). In connection with paternity proceedings in a Swedish court, the Swedish judge issued a letter of request under the Hague Evidence Convention to the US central authority, and the central authority (the Department of Justice) filed an ex parte application under § 1782 for an order appointing a commissioner to take DNA evidence from the putative father, who was found in Colorado.
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Case of the Day: DLJ Mortgage Capital, Inc. v. Roland

The case of the day is DLJ Mortgage Capital, Inc. v. Roland (D.V.I. 2015). DLJ had obtained a summary judgment against Lincoln and Leila Roland. The case apparently involved a foreclosure, and so the court directed the clerk to provide a copy of the judgment to the marshal for service on the Rolands, who lived in Canada.
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