Kuwait Airways: New German Appellate Decision Allows Discrimination Against Israelis

Friend of Letters Blogatory Peter Bert has pointed me to a new decision from the Oberlandesgericht M√ľnchen in the Kuwait Airways affair. The airline, Kuwait’s flag carrier, refuses to carry Israeli passengers because of Kuwait’s discriminatory anti-Israeli boycott law. As I noted several years ago, the airline dropped its New York to London route rather than comply with US law on nondiscrimination by air carriers. (more…)

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Consumer Arbitration: A Cautionary Tale

Readers, you may know that in addition to serving as an arbitrator in commercial cases, I hear consumer cases under the American Arbitration Association’s consumer arbitration rules. My own experience, which I hope is shared by the parties that appear before me in consumer cases, is that done right, a consumer arbitration can provide a very high quality of justice to the parties in a reasonable time for a reasonable cost. But consumer arbitration is different than most arbitration, because in many cases, the consumer does not want to be there. Yes, the consumer has signed the agreement to arbitrate, and yes, under the law the agreement to arbitrate is, in most cases, valid and binding. But many consumer contracts are really contracts of adhesion—contracts drafted by the business and presented to the customer on a take-it-or-leave-it basis, with no possibility of negotiation and often no real understanding of what the consumer has signed. I was at the 2019 annual meeting of the American Law Institute, where we debated the proposed restatement of the law of consumer contracts, and if there is one thing everyone agreed on at that very contentious meeting, it is that no one, not even ALI members, read the many consumer contracts we all sign, or these days click on, all the time. (more…)

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1782 to Watch: In re Republic of the Gambia

You may be interested in a § 1782 application just filed in Washington by the Republic of the Gambia, which is prosecuting a case against Myanmar in the International Court of Justice concerning the situation of the Rohingya people. This brings to mind my last visit to the Hague in December, when I arrived early in the morning at the Peace Palace for a talk I was giving at a Hague Conference event. There were large crowds chanting slogans and waiving flags outside the Peace Palace grounds. Surely they weren’t there out of an interest in the Service Convention? It turned out they were Burmese people there to support their President, Aung San Suu Kyi, who was there to present Myanmar’s case before the ICJ. The photograph that goes with this post is my photo of the demonstrators as I was entering the Peace Palace. (more…)

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Case of the Day: Densys Ltd. v. 3Shape Trios A/S

The case of the day is Densys Ltd. v. 3Shape Trios A/S (W.D. Tex. 2020). Densys was an Israeli company. It sued 3Share, a Danish company, for patent infringement. Densys served process by having the clerk send the documents to 3Share in Denmark by Fedex. 3Share moved to dismiss. (more…)

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Prince Andrew and the Epstein Case: Can the US Government Force The Prince to Cooperate?

In light of today’s news about a US request to the UK government seeking evidence from Prince Andrew, I am re-upping this post from January 2020.

Back in 2015 I wrote about some unserious attempts by lawyers for an alleged victim of Jeffrey Epstein to get testimony or a statement from Prince Andrew. I commented on the haplessness of the strategy of sending requests to Buckingham Palace and the awesomeness of the letterhead of the alleged victims’ lawyers. Later, I commented on a silly follow-up attempt to send official letters to the British Embassy. (more…)

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Case of the Day: GE Energy v. Outokumpu

The case of the day is GE Energy Power Conversion France SAS Corp. v. Outokumpu Stainless USA LLC (S. Ct. 2020). ThyssenKrupp had a contract with FL Industries for the construction of cold rolling mills at ThyssenKrupp’s steel plant in Alabama. The contract provided: “All disputes arising between both parties in connection with or in the performances of the Contract … shall be submitted to arbitration for settlement.” FL had a subcontract with GE for the design and construction of motors for the mills. Outokumpu later acquired the mills from ThyssenKrupp. It alleged that the motors had failed, and it brought an action against GE in the Alabama state court. GE removed the case to the district court and moved to compel arbitration. The Eleventh Circuit rejected GE’s argument, holding that under the New York Convention, only a signatory could be compelled to arbitrate. The question for the Supreme Court was whether the Convention displaced ordinary principles of equitable estoppel, under which a nonsignatory can compel arbitration where the signatory has to rely on the rely on the terms of the contract containing the agreement to arbitrate in order to prevail against the nonsignatory. (more…)

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