Articles Posted in International Law

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The Republic of the Marshall Islands filed suit seeking a declaration that the United States breached its obligations pursuant to the Treaty on the Non-Proliferation of Nuclear Weapons and ordering the United States to engage in good-faith negotiations. The Ninth Circuit affirmed the district court's dismissal of the suit, holding that the claims were nonjusticiable. Article VI of the Treaty was not directly enforceable in federal court, the Marshall Islands' asserted injuries were not redressable, and the claims raised nonjusticiable political questions. The panel noted that, at bottom, the suit was doomed because diplomatic negotiations among parties to the Treaty fell quintessentially within the realm of the executive, not the judiciary. View "Republic of the Marshall Islands v. United States" on Justia Law

Posted in: International Law

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The zone of special danger doctrine can apply to local nationals working in their home countries under employment contracts covered by the Longshore and Harbor Workers' Compensation Act, as extended by the Defense Base Act (DBA). The Ninth Circuit denied a petition for review of a decision of the United States Department of Labor's Benefits Review Board (BRB) awarding disability benefits, pursuant to the DBA, to Edwin Jentil. Jentil was employed by a U.S. government contractor when he was injured. The panel held that the ALJ and BRB did not commit legal error by applying the zone of special danger doctrine to Jetnil. In this case, substantial evidence supported the ALJ and BRB's decision that Jetnil was entitled to disability benefits because his injury arose out of the zone of special danger associated with his employment. View "Chugach Management Services v. Jetnil" on Justia Law

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The incorporation of the rules of the International Chamber of Commerce (ICC) into an arbitration agreement constitutes clear and unmistakable evidence of a delegation of gateway issues to the arbitrator. The Ninth Circuit vacated the district court's judgment entering a preliminary injunction prohibiting sureties from pursuing claims against PGE in arbitration and denying a mandatory stay of the judicial proceedings under section 3 of the Federal Arbitration Act (FAA), 9 U.S.C. 3. The panel held that the district court erred in enjoining the sureties from participating in the ICC arbitration and denying at least a temporary stay of the litigation under the FAA, preventing the arbitral tribunal from addressing the scope of the arbitration. View "Portland General Electric Co. v. Liberty Mutual Insurance Co." on Justia Law

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The Ninth Circuit affirmed the dismissal of Ayco Farm's complaint for breach of an exclusivity agreement under the doctrine of forum non conveniens. The panel held that in performing a forum non conveniens analysis, a district court does not abuse its discretion by comparing the proposed foreign forum with the forum that the plaintiff actually chose, rather than with the United States as a whole. In this case, the district court did not err in affording less deference to Ayco Farm's choice to file a lawsuit in California. Furthermore, the district court properly balanced the private and public interest factors and decided that they strongly favor trial in Mexico. View "Ayco Farms, Inc. v. Rodriguez Ochoa" on Justia Law

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The Ninth Circuit reversed the grant of summary judgment, on remand, in favor of TBC in an action under the Foreign Sovereign Immunities Act concerning a Camille Pissarro painting. The painting was forcibly taken from plaintiffs' great-grandmother by the Nazi government. The panel held that plaintiffs' claims were timely within the statute of limitations recently enacted by Congress to govern claims involving art expropriated during the Holocaust in the Holocaust Expropriated Art Recovery Act of 2016 (HEAR). The panel applied the Second Restatement of the Conflict of Laws to determine which state's substantive law applies in deciding the merits of this case, and held that the Second Restatement directed the panel to apply Spain's substantive law. The district court erred in deciding that, as matter of law, TBC had acquired title to the painting through Article 1955 of the Spanish Civil Code because there was a triable issue of fact whether TBC was an encubridor (an "accessory") within the meaning of Civil Code Article 1956. Finally, TBC was not entitled to summary judgment based on its laches defense; the great-grandmother's acceptance of the 1958 Settlement Agreement did not foreclose plaintiffs' claims; Spain's Historical Heritage Law does not prevent TBC from acquiring prescriptive title to the painting; and the district court correctly found that the application of Article 1955 to vest TBC with title to the painting would not violate the European Convention on Human Rights. View "Cassirer v. Thyssen-Bornemisza Collection Foundation" on Justia Law

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The Convention on Supplementary Compensation for Nuclear Damage's (CSC) text, structure, and ratification history dictate that Article XIII’s jurisdiction-stripping provision applies only to claims arising out of nuclear incidents occurring after the CSC’s entry into force. Plaintiffs, members of the United States Navy, filed a putative class action against TEPCO, alleging that they were exposed to radiation when deployed near the Fukushima Daiichi Nuclear Power Plant (FNPP) as part of Operation Tomodachi. The Ninth Circuit affirmed the denial of TEPCO's motion to dismiss and held that the CSC did not strip it of jurisdiction over plaintiffs' claims; the district court did not err by dismissing plaintiffs' claims on comity grounds and did not abuse its discretion in deciding to maintain jurisdiction; the district court did not abuse its discretion in declining to dismiss this case on forum non conveniens grounds; the panel was unable to undertake the "discriminating inquiry" necessary to determine if this case presented a political question; and the panel provided no opinion as to whether the firefighter's rule applies to military servicemembers and, if so, whether it barred plaintiffs' claims. View "Cooper v. Tokyo Electric Power Co." on Justia Law

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S.H., the daughter of William and Chantal Holt, was born prematurely while the family was stationed at a United States Air Force (USAF) base in Spain. As a result of her premature birth, S.H. was diagnosed with cerebral palsy after the family returned to the United States. The Holts filed suit against the United States, alleging that officials at a USAF base in California negligently approved the family's request for command sponsored travel to a base in Spain ill-equipped to deal with Mrs. Holt's medical needs. The Holts also argued that S.H.'s injury first occurred upon their return to the United States. The district court awarded damages to the Holts. The court applied the foreign country exception of the Federal Tort Claims Act (FTCA), 28 U.S.C. 2680(k), and held that an injury is suffered where the harm first impinges upon the body, even if it is later diagnosed elsewhere. Here, the undisputed facts of this case indicate that the force—the brain injury S.H. suffered at or near the time of her birth—impinged upon her body in Spain. Consequently, Spain is where the Holts' claims arose. The court concluded that S.H.'s cerebral palsy is derivative of the harm she sustained at birth. Accordingly, the court vacated and remanded with instructions to dismiss for lack of subject matter jurisdiction. View "S. H. V. United States" on Justia Law

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Plaintiff, who had endured many hardships in 2003 while trying to leave Baghdad, alleged, in a purported class action, that former officials of the President George W. Bush administration engaged in the war against Iraq in violation of the Alien Tort Statute, 28 U.S.C. 1350. The district court held that plaintiff had not exhausted her administrative remedies as required by the Federal Tort Claims Act. The Ninth Circuit affirmed the dismissal, holding that the individual defendants were entitled to official immunity under the Westfall Act, 28 U.S.C. 2679(d)(1), which accords federal employees immunity from common-law tort claims for acts undertaken in the course of their official duties. The court upheld the Attorney General’s scope certification (determining that the employees were acting within the scope of their employment so that the action was one against the United States). The court rejected an argument that defendants could not be immune under the Westfall Act because plaintiff alleged violations of a jus cogens norm of international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law. Congress can provide immunity for federal officers for jus cogens violations. View "Saleh v. Bush" on Justia Law

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Plaintiff, an Indian citizen and a Sikh, sought relief from extradition pursuant to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment. Plaintiff argued that the United States would violate 22 C.F.R. 95.2(b) if it extradited plaintiff to India because he would “more likely than not” be tortured there, that diplomatic assurances would be insufficient to guarantee that he would not be tortured, and that he would be denied a fair trial in India. The Department and the Indian government exchanged a series of diplomatic notes and, in those notes (“the Understanding”), the Indian government stated that plaintiff would not be tortured. The Department then surrendered plaintiff to the Indian government where he was arrested and subjected to torture. Plaintiff filed suit arguing that the Indian government violated the Understanding when it subjected him to post-extradition torture. The district court dismissed the complaint based on lack of subject matter jurisdiction. The court held that the district court did not have jurisdiction over plaintiff's claim because the Indian Government did not waive their sovereign immunity through their diplomatic communications with the United States. The court explained that the Understanding is not an implicit waiver of sovereign immunity by the Indian government. Not only does the Understanding not match any of the three circumstances that ordinarily give rise to an implied waiver, but it also does not demonstrate that India intended the Understanding to be enforceable in United States courts. Accordingly, the court affirmed the judgment. View "Barapind v. Government of the Republic of India" on Justia Law

Posted in: International Law

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This dispute stems from plaintiff's attempt to protect his copyright in photographs of Pablo Picasso's artworks after an American art editor (Wofsy) reproduced the photographic images. Plaintiff received a judgment in French court of two million euros in "astreinte" against Wofsy. Plaintiff then sought to enforce the judgment in federal court in California under the California Uniform Foreign-Court Monetary Judgment Recognition Act, Cal. Civ. Proc. Code 1713 et seq. The court held that Fed. R. Civ. P. 44.1 authorizes district courts to consider foreign legal materials outside the pleadings in ruling on a motion to dismiss because Rule 44.1 treats foreign law determinations as questions of law, not fact. In this case, the district court did not err in considering expert declarations on the content of French law in ruling on Wofsy’s Rule 12(b)(6) motion. The court concluded that the district court erred in concluding that “the award of an astreinte in this case constitutes a penalty for purposes of the [Uniform Recognition Act].” The court held that the astreinte awarded by the French courts to plaintiff falls within the Uniform Recognition Act as a judgment that “[g]rants . . . a sum of money.” In this case, the astreinte was not a “fine or other penalty” for purposes of the Act, and accordingly the district court erred in concluding otherwise. Therefore, the court reversed and remanded. View "De Fontbrune v. Wofsy" on Justia Law