Case of the Day: Saleh v. Bush

US Marines entering an Iraqi palace in Baghdad
Credit: Lance Corporal Kevin C. Quihuis Jr.

The case of the day is Saleh v. Bush (9th Cir. 2017). Sundus Shaker Saleh was an Iraqi who became a refugee during the Iraq War when Kurdish forces aligned with the United States forced her to leave her home in 2003. She sued former President George W. Bush, Dick Cheney, Donald Rumsfeld, Condoleezza Rice, Colin Powell, Paul Wolfowitz, and the United States. Remember those guys and gals? Saleh brought her claim under the Alien Tort Statute, claiming the defendants had committed the crime of aggression, a violation of customary international law. The government certified that the defendants had been acting within the scope of their offices, and therefore the government was substituted as the sole defendant under the Westfall Act. The court then dismissed the claim on account of Saleh’s failure to exhaust her administrative remedies under the Federal Tort Claims Act. Saleh appealed.
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Case of the Day: Iraq Middle Market Development Foundation v. Harmoosh

The case of the day is Iraq Middle Market Development Foundation v. Harmoosh (4th Cir. 2017). The Foundation lent $2 million to Al-Harmoosh for General Trade, Travel, and Tourism, an Iraqi company. The loan agreement had an agreement to arbitrate all “disputes, controversies and claims between the parties which may arise out of or in connection with the Agreement.” Mohammad Harmoosh, a managing partner of Al-Harmoosh, gave a promissory note to the Foundation to guarantee payment of the loan. When Harmoosh refused to pay, the Foundation sued for breach of contract in the District of Maryland. Harmoosh successfully moved to dismiss on the grounds that the dispute was arbitrable, but he did not move to compel arbitration.
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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: Ministry of Oil of Iraq v. 1,032,212 Barrels of Crude Oil

The case of the day is Ministry of Oil of the Republic of Iraq v. 1,032,212 Barrels of Crude Oil Aboard the United Kalavrvta (S.D. Tex. 2014). The Iraqi government’s view is that under Iraqi law, it owns all of Iraq’s plentiful oil. The independence-minded leaders of the Kurdistan region, however, have other ideas. According to Iraq, the Kurdish government had been illegally pumping crude and had illegally transported some of it to Turkey via a pipeline. Despite Iraq’s opposition, Turkey loaded the oil onto the United Kalavrvta, which then set sail for Galveston. Iraq claims that Kurdistan is guilty of conversion. It brought an action in admiralty against the oil, in rem, and against the Kurdish government, in personam. The judge, on the strength of Iraq’s allegation that the ship was or soon would be in Galveston, ordered the arrest of the cargo. However, the ship was still sixty miles out to sea, outside of the United States’s territorial waters. Kurdistan moved to vacate the seizure order.
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Case of the Day: Republic of Iraq v. ABB AG

Motions to compel arbitration in international cases are, strictly speaking, outside of the scope of Letters Blogatory’s coverage, since if we’re going to cover them, we might as well cover forum non conveniens, and then other issues would seem logical to cover, and so on. But since it’s a slow news day and since the case has general interest, our case of the day is Republic of Iraq v. ABB AG (S.D.N.Y. 2011), an action by Iraq seeking damages arising from alleged corruption in the UN Oil-For-Food program, which the UN established in the 1990s to allow Iraq to sell oil in order to purchase humanitarian goods. The allegation in the case was that BNP Paribas had a contract with the United Nations under which it would operate the escrow account for the program’s funds.

Iraq sued BNP Paribas and others in 2008. Nearly two years later, it gave BNP a notice of arbitration pursuant to BNP’s contract with the UN, which provided:

Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity thereof, unless settled amicably … within sixty days after receipt by one Party [a defined term, which refers only to the UN or BNP] of the other Party’s request for such amicable settlement, shall be referred by either Party to arbitration …

Iraq then moved to compel arbitration, and BNP moved to enjoin arbitration.

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