Case of the Day: Abdul Latif Jameel Transportation v. FedEx

The case of the day is Abdul Latif Jameel Transportation Co. v. FedEx Corp. (6th Cir. 2019). The case is a big deal in the world of § 1782. One of the great open questions is whether a private international arbitral tribunal is a “tribunal” for purposes of the statute. There were some old cases that said “no,” but then came Intel, in which the Supreme Court adopted a functional test for deciding what is an is not a tribunal. People speculated that in light if Intel courts would begin to say that private arbitral tribunals were tribunals for purposes of the statute, but to date, that hasn’t happened at the appellate level. Today’s decision is the first decision of a circuit court, post-Intel that reaches what I think is the right result on this question. (more…)

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Case of the Day: Reyes v. Al-Malki

The case of the day is Reyes v. Al-Malki, [2017] UKSC 61. The case is in the “diplomat allegedly abuses a domestic servant and then claims immunity from suit” genre. The infamous Gurung v. Malhotra is in that genre, as is the Khobragade case from 2013. The cases I’ve seen don’t seem to get much appellate attention, so this decision of the UK Supreme Court is particularly noteworthy.
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President Obama Vetoes JASTA

The World Trade Center on 9/11
Credit: Robert on Flikr

Since we are talking about the other branches of government getting involved in foreign sovereign immunity, here is a report on the proposed Justice Against Sponsors of Terrorism Act, S. 2040. The purpose of the bill is “to provide civil litigants with the broadest possible basis, consistent with the Constitution of the United States, to seek relief against persons, entities, and foreign countries, wherever acting and wherever they may be found, that have provided material support, directly or indirectly, to foreign organizations or persons that engage in terrorist activities against the United States.” Its immediate impetus was the plight of the 9/11 survivors, who found that they could not bring a claim against Saudi Arabia on account of that country’s foreign sovereign immunity, taken together with the fact that the United States has not opened the doors to a suit by designating Saudi Arabia as a state sponsor of terrorism.

A few days ago the President vetoed the bill. For non-American readers: when a bill passes both houses of Congress, it goes to the President for his approval. If he approves it, it becomes a law, and if not, then he returns it to Congress, which has to reconsider the bill in light of the President’s objections. If each house of Congress again passes the bill by a two-thirds majority, then it becomes a law notwithstanding the President’s disapproval. The President can also “pocket veto” a bill that reaches his desk within ten days of Congress’s adjournment by neither signing it nor returning it to Congress. Since Congress was scheduled to adjourn, it may be that the administration’s plan was to pocket veto the bill, allowing Democrats to take a politically safe vote for the bill but still allowing for an effective veto. But Congress had to remain in session to pass a continuing resolution to fund the government, and the bill was brought up in the House of Representatives on a motion to suspend the rules for the purpose of allowing the bill to be passed sooner than it otherwise could be passed. I’m not totally sure of all of the machinations, but at the end of the day, the timing for a pocket veto didn’t work out. So Congress will have the opportunity to vote on the bill again, and it may hand President Obama the first veto override of his administration.
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Case of the Day: Certain Funds v. KPMG

The case of the day is Certain Funds, Accounts and/or Investment Vehicles Managed by Affiliates of Fortress Investment Group LLC v. KPMG, LLP (2d Cir. 2015). This is the appeal from Judge Buchwald’s interesting § 1782 decision from July 2014. Here was my summary of the case from the prior post:
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Case of the Day: In re Certain Funds

The case of the day rejoices in the name In re Petition of Certain Funds, Accounts, And/Or Investment Vehicles Managed By Affiliates Of Fortress Investment Group LLC (S.D.N.Y. 2014). Fortress was an investment management firm. It invested in bonds and notes issue by two Saudi Arabian businesses, the Saad Group and Ahmad Hamad Algosaibi & Brothers, or “AHAB.” AHAB, you may recall, has been the subject of two prior posts, one in February 2013, the other in October 2011.
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