Book of the Day: General Principles of Law and International Due Process

Cover of General Principles of International Due Process

Readers, I’ve been meaning for a while to call to your attention a new book by friend of Letters Blogatory Charles T. Kotuby Jr. and Luke A. Sobota: General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes. Most of the book has to do with the substantive law—the requirement of good faith and pacta sunt servanda, principles of corporate separateness, and other topics.

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Kvetch of the Day: the FSIA and the Clerks

Okay, here is my kvetch of the day. I have a new FSIA case in a district that does not hear many FSIA cases. Under the FSIA, a foreign sovereign has sixty days, rather than twenty-one days, to answer a complaint. The clerk issued the ordinary twenty-one day summons, which was expected. I spoke with a deputy clerk and asked for her office to issue a sixty-day summons, or to allow me to submit a form of a summons for her office to issue. FRCP 4(b) seems to say that that’s the right thing for me to do.

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Case of the Day: Livnat v. Palestinian Authority

Joseph's Tomb at Shechem
David Roberts, Joseph’s Tomb at Shechem

The case of the day is Livnat v. Palestinian Authority (D.C. Cir. 2017). In 2011, Ben-Yosef Livnat was killed, and Yitzhak and Natan Safra were wounded, in a terrorist attack at Joseph’s Tomb, a holy site in Nablus. The Livnat and Safra families sued the Palestinian Authority, alleging that the terrorists in the incident were the security guards the PA had hired to guard the site. The claims were under the Anti-Terrorism Act, 18 U.S.C. § 2333, and for common-law torts. The PA moved to dismiss for lack of personal jurisdiction. The district court granted the motion, and the plaintiffs appealed.

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Case of the Day: Cunningham v. Cunningham

I’m happy to welcome a new guest-poster and fellow blogger, Nathan Park of Kobre Kim, who brings us a short discussion of Cunningham v. Cunningham (M.D. Fla. 2017). Welcome, Nathan!


This case follows a proceeding in which plaintiff ex-wife sued the defendants ex-husband and his current wife, in order to secure return of the child between ex-wife and ex-husband from U.S. to Japan, back to ex-wife’s custody. The court previously ordered the child to be returned to the ex-wife pursuant to Hague Convention on Child Abduction. On the day the ex-wife was supposed to be on the flight back to Japan with a child, the defendants filed the motion to stay the order.

The court denied the stay motion, noting that the ex-wife and the child likely left the United States already. Further, the court found the stay motion to be an attempt to re-litigate the previous proceeding.

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Case of the Day: Cerner Middle East v. Al-Dhaheri

The case of the day is Cerner Middle East Ltd. v. Al-Dhaheri (D. Mass. 2017). Cerner was a Cayman Islands company with its offices in Missouri. Ahmed Dhaheri was a UAE citizen living in Abu Dhabi. He was one of the two members of iCapital LLC, a UAE company.

In 2008, iCapital made a contract with Cerner for development of a medical IT platform in the UAE. Cerner claimed that iCapital defaulted on its payment obligations. They entered into a settlement and payment agreement that contained an agreement to arbitrate under the ICC rules. iCapital defaulted again, and Cerner demanded arbitration against iCapital and Dhaheri (who was not personally a party to the agreement). The arbitration was held in Paris in 2014. The tribunal issued an award for more than $62 million in damages. It found the agreement was valid and that Dhaheri was acting as iCapital’s alter ego and was therefore bound by the agreement to arbitrate.

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Water Splash: Reaction to the Oral Argument

Here is the transcript of the oral argument in the Water Splash case. Nothing in the transcript makes me want to revise the view I gave earlier this week about the likely outcome of the case. It still seems likely to me that the case will come out in the petitioner’s favor, and my best guess is that it’s a unanimous decision.

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Water Splash: My Prediction

Okay, one last thought on the Water Splash case, which is being argued tomorrow. My skill at prediction has proved poor again this year during the NCAA tournament, but maybe I can do a little better in predicting the outcome of this case. After all, there are at most nine possible vote totals in the case, while there are 9,223,372,036,854,775,808 possible basketball brackets!

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Case of the Day: CE Design v. HealthCraft Products

The case of the day is CE Design Ltd. v. HealthCraft Products, Inc. (Ill. App. Ct. 2017). CE Design, a now-defunct Illinois business, brought a class action in Chicago against HealthCraft, an Ontario business, alleging that HealthCraft had sent it and other class members unsolicited faxes. HealthCraft tendered the defense of the case to its liability insurer, ING, a Canadian insurer. ING reserved its rights while it investigated the claim. In the meanwhile, HealthCraft hired its own counsel and agreed to a settlement with CE Design for $543,000 and assignment to CE Design of all of HealthCraft’s claims against ING. The Illinois court approved the settlement without prior notice to ING and entered a consent judgment.

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