International Litigation - International Legal Developments Year in Review: 2023

This Article discusses significant legal developments in international litigation from 2023.

I. Foreign Sovereign Immunities Act

Foreign states are presumptively immune from suit, and their property is presumptively immune from attachment and execution, unless an exception in the Foreign Sovereign Immunities Act (FSIA) applies.

A. Inapplicability to Criminal Cases

In United States v. Turkiye Halk Bankasi A.S., the U.S. Supreme Court held that the FSIA does not immunize foreign sovereigns or their instrumentalities from criminal prosecution in U.S. courts or indeed cover criminal cases at all. The decision affirmed the Second Circuit’s holding that there was federal subject matter jurisdiction over a criminal indictment against Halkbank, one of Turkey’s largest state-owned banks, for evading U.S. sanctions against Iran under the general federal criminal jurisdiction statute, 18 U.S.C. § 3231. Citing the plain text of the FSIA—including Section 1330, which grants jurisdiction over a “nonjury civil action against a foreign state”—the Court reasoned that the statute exclusively addresses civil suits against foreign states and their instrumentalities, and that it was unlikely that Congress, in “enact[ing] a comprehensive scheme governing claims of immunity,” also silently intended to codify sovereign immunity from criminal proceedings. Notably, the decision did not address whether Halkbank is immune from federal prosecution under general common law. The Court remanded the case to the Second Circuit to consider Halkbank’s common law immunity arguments, and that court’s decision remains pending.

B. Later-Acquired Sovereign Status

In Bartlett, et al. v. Baasiri, et al., the Second Circuit held, in a case of first impression, that a defendant who gains sovereign status after a lawsuit is filed can assert sovereign immunity as a defense under the FSIA. The U.S. District Court for the Eastern District of New York had found that American military service members (or their relatives) who were killed or injured in Iraq by alleged proxies of Hezbollah could sue Jammal Trust Bank (JTB), a Lebanese bank, rejecting the argument that JTB was immune as an “organ of a foreign state” because it had been liquidated and its assets acquired by Lebanon’s central bank after the lawsuit was filed. In reversing, the Second Circuit accepted arguments of the U.S. State Department in an amicus curiae brief, holding that the “most natural reading” of the FSIA “gives foreign sovereigns immunity even when they gain their sovereign status mid-suit.”

C. Commercial Activity Exception – Direct Effect

In Jones v. PGA Tour, Inc., a California district court held that Saudi Arabia’s Public Investment Fund (PIF) was not immune from responding to a subpoena for documents and deposition testimony. Affirming a Magistrate Judge’s order, the court found that PIF’s conduct—which involved “substantial commercial activity outside the United States,” including the founding of a disruptor golf league—caused a “direct effect” in the United States under the third clause of the commercial activity exception. Relying on Ninth Circuit precedent, the court rejected PIF’s argument that the commercial activity did not form the gravamen of the suit under the first clause of the exception, as “the gravamen requirement need not be met here” where “the basis of the lawsuit caused a direct effect in the United States.”

The Supreme Court might consider in its 2024 term whether military purchases are considered a “commercial activity” under the FSIA. The Fourth Circuit’s decision in Blenheim Capital Holdings Ltd. v. Lockheed Martin Corp., holding that South Korea’s purchase of military equipment was not “commercial” activity because it was of an exclusively sovereign nature, is subject to a certiorari petition before the Court, which requested the views of the Solicitor General on October 2, 2023.

II. International Service of Process

The FSIA provision governing service of process on foreign states and their political subdivisions provides four methods for service: service per a special arrangement, service under an applicable treaty, service by post, and service through the diplomatic channel. The statute lists the four methods in hierarchical order. That is, a plaintiff can try a method of service only if the preceding methods of service are unavailable.

The correct method of service is usually clear. But problems can arise when it is not clear which methods are available, or when the plaintiff makes a mistake in its choice. In LS Energia Inc. v. Corp. Electrica Nacional S.A., the plaintiffs first moved for leave to serve process through the diplomatic channel on Venezuela and two of its subdivisions or instrumentalities. Their motion argued that service through the diplomatic channel was “the only method of service available to them.” The plaintiffs represented that there was no special arrangement for service and that service under the Hague Service Convention was unavailable because “Venezuela has failed to comply with its obligations to receive and transmit service papers under [the framework of the Hague Convention].” After the court granted the motion, the plaintiffs transmitted the papers to the State Department, but “[a]fter many months the Department of State [had] not yet indicated that it [had] transmitted those documents to Defendants, and Plaintiffs [had] lost hope that they [could] serve Defendants in this manner.”

The plaintiffs then brought a second motion, this time seeking leave to serve by mail. In the first motion, they had claimed that service by mail was unavailable, because Venezuela had objected to service by postal channels under Article 10(a) the Hague Service Convention. In their second motion, the plaintiffs asserted that Venezuela’s declaration under Article 10(a) was no bar to service by mail.

The district court disagreed. In Water Splash, Inc. v. Menon, the Supreme Court held that the Convention permits service by post “[i]f two conditions are met: first, the receiving state has not objected to service by mail; and second, service by mail is authorized under otherwise-applicable law.” The district court decisions after Water Splash took the same view in dicta. The LS Energia court agreed, noting the importance of comity, the sensitivity involved in foreign sovereign litigation, and the risk that Venezuela would not receive actual notice of the lawsuit if served by mail.

Although the court did not dismiss the plaintiffs’ arguments on procedural grounds in light of its change in position, the court expressed concern about the change in position. In light of the long time it can take to serve process through the diplomatic channel, one practical implication of the case is that, if there is any question about the availability of a method of service under the FSIA, a plaintiff should attempt all possible methods before seeking to serve another party via diplomatic channels.

III. Personal Jurisdiction

In Mallory v. Norfolk Southern Railway Co., the U.S. Supreme Court clarified the contours of consent as a means to establishing personal jurisdiction. There, the Court was faced with a suit brought in Pennsylvania state court by a Virginia-based man against his former employer, a Virginia-based corporation, for events that took place in Ohio and Virginia. When challenged, the plaintiff contended that the defendant had consented to suit in Pennsylvania. He relied on a Pennsylvania statute, which states that in order to do business in Pennsylvania, an out-of-state corporation must register with the Department of State, identify an “office” in the state and “continuously maintain” it. After registration, the corporation is subject to the same rights and liabilities as domestic entities. Pennsylvania law provides elsewhere that “‘qualification as a foreign corporation” shall permit state courts to “exercise general personal jurisdiction” over a registered foreign corporation, just as they can over domestic corporations.’”

The Supreme Court accepted plaintiff’s argument, holding that the defendant corporation had consented to personal jurisdiction. The plurality reasoned that the facts in Mallory fell “squarely within [the] rule” from a 1917 case, Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co. There, the Supreme Court held that where Missouri law “required any out-of-state insurance company . . . to file paperwork agreeing to (1) appoint a state official to serve as the company’s agent for service of process, and (2) accept service on that official as valid in any suit,” a compliant corporation consented to personal jurisdiction.

The Mallory case was decided on June 27, 2023. In the months following, a handful of lower courts have applied the decision. These opinions reflect an effort by plaintiffs’ counsel to expand the holding in Mallory, and hesitance by the judiciary to step outside Mallory’s bounds. In Fuld v. Palestine Liberation Organization, the Second Circuit was faced with determining the constitutionality of the “Promoting Security and Justice for Victims of Terrorism Act of 2019” (PSJVTA), which would have conferred personal jurisdiction over the defendants by virtue of “deemed consent.” The PSJVTA predicated “deemed consent” on a defendant making payments to an individual who had committed an act of terrorism injuring or killing a U.S. national, due to that individual’s imprisonment or death. The Second Circuit rejected Congress’ attempt to “by legislative fiat, simply “deem” activities to be “consent’” to personal jurisdiction. It distinguished the PSJVTA from Mallory, noting that the statute in Mallory had required that the defendant “accept[] a government benefit conditioned on submitting to suit in the forum.” “Because the PSJVTA’s predicate activities cannot reasonably be understood as signifying the defendants’ consent, the statute does not effect a valid waiver of the defendants’ due process protection against the ‘coercive power’ of a foreign forum’s courts.”

In Simon v. First Savings Bank of Indiana et al., the plaintiff asserted the defendant corporation had consented to personal jurisdiction, using the statute at issue in Mallory as a hook. Unlike Mallory, the defendant in Simon “had not registered to do business or appointed an agent to accept process” in Pennsylvania. The Eastern District of Pennsylvania rejected this attempt to “considerably expand the reach of Mallory.” In Lumen Techs. Serv. Grp., LLC v. CEC Grp., LLC, the Colorado District Court rejected the argument that because the defendant corporation had registered to do business in Colorado and had designated a registered agent for service of process there, it had consented to personal jurisdiction. The court concluded that because Colorado law is not “explicit that qualification as a foreign corporation shall permit state courts to exercise general personal jurisdiction over a registered foreign corporation, just as they can over domestic corporations,” the corporation had not consented to personal jurisdiction.

These and other cases applying Mallory illustrate how critical the language of a registration statute, and underlying state law, will be to evaluating consent by registration going forward.

IV. The Act of State Doctrine

The Act of State Doctrine is a prudential limitation on the exercise of judicial review, requiring U.S. courts to refrain from judging the validity of acts of a foreign sovereign taken within its own territory.

American courts continue to clarify the territorial limitations of a sovereign’s actions under the doctrine, the appropriate prudential concerns, and the limitations of the doctrine as applied to non-sovereign parties.

In Rusesabagina v. Republic of Rwanda, the District Court for the District of Columbia addressed claims of illegal surveillance, kidnapping, imprisonment, and torture by a sovereign entity, brought under both common law and the Torture Victim Protection Act (TVPA). The Court dismissed the common law claims stemming from actions within the sovereign’s own borders but allowed common law claims stemming from actions taking place elsewhere to proceed. The court reasoned that the Act of State Doctrine applies to official acts taken within the sovereign’s borders, but allegations of torts committed outside the sovereign’s territory are not barred. Although the U.S. State Department had already taken a position on the legality of the underlying actions, the Court highlighted that diplomatic efforts were ongoing, and it was “reluctant to insert itself into those negotiations” by adjudicating the claims.

The court also allowed claims brought under the TVPA to proceed, regardless of where the underlying acts occurred. The court agreed with plaintiffs that the enactment of the TVPA reflected a decision by Congress that such claims should be heard by the U.S. judiciary, even if they would otherwise have been barred under the Act of State Doctrine. The court reasoned that Congress was aware of the prudential concerns of the Act of State Doctrine when it created a cause of action under the TVPA, which therefore represented a “clear statement by Congress that federal courts should not cite the Act of State Doctrine as grounds to refuse to hear a case to which the [TVPA] statute applies.”

In D’Augusta v. American Petroleum Institute, the Northern District of California dismissed claims against non-sovereign oil companies accused of colluding with the governments of Russia and Saudi Arabia to reduce oil production and increase oil prices. The court concluded that Russia and Saudi Arabia were “indispensable co-conspirators in the alleged [price-fixing] scheme.” Thus, adjudicating plaintiffs’ claims would require the court to evaluate the legality of Russia’s and Saudi Arabia’s decisions to reduce oil production, which would violate the Act of State Doctrine. Similarly, in Li v. Li, the District Court for the District of Columbia dismissed a case against a private party similarly alleged to have acted in concert with a sovereign entity to injure plaintiffs. Plaintiffs alleged that the Chinese government illegally seized and auctioned their property, and the defendant bank had facilitated the transaction. The court reasoned that under the Act of State Doctrine, it was required to assume that the Chinese government’s actions within its own territory were valid. Consequently, plaintiffs could not maintain a claim against the Chinese bank for facilitating the transaction.

In contrast, in A.O.A. v. Rennert, the District Court for the Eastern District of Missouri held that claims against a private company that had purchased a Peruvian government refinery were not barred by the Act of State Doctrine, despite many of the alleged toxic emissions having occurred while the Peruvian government operated the plant. Defendants argued that such claims were barred under the Act of State Doctrine because they would require the court to parse liability between the Peruvian government and the defendant company. However, the court reasoned that even if it found that the Peruvian government partially caused plaintiffs’ injuries, that would not require a determination of the validity of a foreign sovereign’s actions, and the case could therefore proceed.

V. International Discovery

A. Obtaining U.S. Discovery For Use In Foreign Proceedings

Following last year’s landmark decision in which the U.S. Supreme Court held that a private international arbitration tribunal does not qualify as a “foreign or international tribunal” under 28 U.S.C. § 1782 (Section 1782), but left open the possibility that arbitral panels constituted in investor-state cases involving international investment agreements might meet the statutory definition, two U.S. district courts in New York have grappled with the question of whether arbitral tribunals constituted under the International Centre for Settlement of Investment Disputes (ICSID) are within the ambit of Section 1782.

In re Webuild, the District Court for the Southern District of New York held that Section 1782 does not apply to permit U.S. discovery in ICSID arbitrations. In a decision that has since been appealed to the U.S. Court of Appeals for the Second Circuit, the district court reasoned that the ICSID panel formed as part of an investor-state arbitration under the bilateral investment treaty (BIT) between Panama and Italy was not a “foreign or international tribunal” within the meaning of Section 1782 because the two States did not “intend to imbue the ICSID Panel with governmental authority”—a hallmark of Section 1782 eligibility, as per the Supreme Court.

Similarly, In re Alpene, the District Court for the Eastern District of New York affirmed a Magistrate Judge’s order from 2022 and denied an application for discovery under Section 1782, reasoning that the ICSID tribunal was created by treaty among sovereign nations and derives its power from the consent of the parties. The court noted that the ICSID tribunal was one of several options for the parties to litigate their dispute under the BIT, including the parties’ home jurisdictions, China and Malta, and concluded that this evidenced the states’ intention not to imbue the panel with governmental authority required for discovery under Section 1782.

These two cases point towards New York district courts’ continued exclusion of ICSID tribunals from the definition of a “foreign or international tribunal” under Section 1782, in line with the Second Circuit’s position prior to the Supreme Court’s decision.

Outside of the arbitration context, U.S. courts have continued to consider applications for Section 1782 discovery in aid of foreign court proceedings. In re Application of Venequip, S.A. v. Caterpillar Inc., the Seventh Circuit affirmed the denial of a Section 1782 application for discovery for use in court proceedings in Switzerland. Applying the four discretionary factors established by the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc. in deciding whether to exercise the authority conferred in Section 1782, the Seventh Circuit reasoned that “freely and intelligently selected” forum-selection clauses may be relevant to the exercise of discretion under Section 1782, as they “might indicate parties’” preference for a court system that doesn’t contemplate the level of compulsory process available in America.” In balancing these “permissible contextual factors,” the appellate court held that the district court’s exercise of its discretion in declining Section 1782 discovery was proper.

B. Obtaining Discovery From Abroad For Use In U.S. Proceedings

In a notable decision, the Southern District of New York held in Owen v. Elastos Foundation that China’s Personal Information Protection Law (PIPL) did not bar a U.S. discovery request. Cryptocurrency purchasers moved to compel the production of documents, which defendants had withheld in reliance on the PIPL, claiming that the law prohibits the transfer of data stored within mainland China to the judicial or law enforcement authorities of foreign countries without the approval of competent authorities. The court granted the motion, finding that, under the PIPL’s Article 13 exception, handling personal information was permitted where necessary “for the performance of statutory duties or obligations,” including obligations under foreign law. In the alternative, the court held, applying a seven-factor analysis, that comity would not prevent the court from ordering defendants to produce discoverable documents within and outside of China.

VI. Extraterritorial Application of United States Law

A. Maritime Drug Law Enforcement Act

In United States v. Antonius, the Second Circuit affirmed the convictions of three non-U.S. citizens for conspiring to transport drugs on the high seas, using a stateless vessel in violation of the Maritime Drug Law Enforcement Act (MDLEA). The drug traffickers had a scheme to transfer cocaine from Guyana to the Netherlands but had not planned for the drugs to be delivered to the United States or to travel in U.S. waters. Further, the vessel that was eventually used to transport the drugs did not originate in the United States, was not bound for the United States, and was not intercepted in U.S. waters.

The traffickers argued that their MDLEA convictions violated their Fifth Amendment right to due process, because there was no nexus between their alleged criminal conduct and the United States. The Second Circuit previously had not required a showing of nexus for MDLEA prosecution of accused draft traffickers “who are actually on board of a stateless vessel . . . because such prosecutions are not arbitrary, because any nation may exercise jurisdiction over stateless vessels,” nor unfair, because “such activity is illegal and may be prosecuted somewhere.” Noting that it had left open the question of “whether proof of nexus with the United States must be established in cases involving land-based conspirators using stateless vessels on the high seas to traffic drugs,” the Second Circuit declined to answer that question in this case. The court explained that, even if such a nexus were required, it would be met where “the aim of [the] activity is to cause harm inside the United States or to U.S. citizens or interests,” and that drug trafficking on the high seas inherently involves such an aim because it threatens the societal well-being of the United States.

B. Lanham Act

In Abitron v. Hetronic, the Supreme Court held that provisions of the Lanham Act prohibiting trademark infringement—15 U.S.C. §§ 1114(1)(a) & 1125(a)(1)—are not extraterritorial and apply only when the claimed infringing use in commerce is domestic.

The Court first concluded that the Lanham Act’s definition of “commerce” as “all commerce which may lawfully be regulated by Congress” was insufficient to rebut the general presumption against extraterritoriality because that definition did not provide the requisite clear, affirmative indication of extraterritorial application.

The Supreme Court then examined “when claims [under the Lanham Act] involve “domestic” applications of these provisions.” Reaffirming its rule that this inquiry “turns on the location of the conduct relevant to the focus of the statutory provisions,” the Court explained that the relevant conduct was “the unauthorized “use in commerce” of a protected trademark when that use “is likely to cause confusion.”’ The Supreme Court then vacated the decision below because it was “not in accord with this understanding of extraterritoriality.” Four of the Justices concurred in the judgment only, and would have held that the Lanham Act “extends to activities carried out abroad when there is a likelihood of consumer confusion in the United States.”

C. Racketeer Influenced and Corrupt Organizations Act

The Racketeer Influenced and Corrupt Organizations Act (RICO) provides a private right of action to “[a]ny person injured in his business or property by reason of a violation of” RICO’s substantive provisions. The Supreme Court had previously held, in RJR Nabisco, that this statute may apply extraterritorially where the plaintiff alleges and proves a “domestic injury to its business or property.”

In Yegiazaryan v. Smagin, the Supreme Court held that this extraterritoriality analysis requires a fact-based, totality-of-the-circumstances approach (as opposed to an analysis of only the plaintiff’s place of residence) to ascertain whether an injury is “domestic” in nature. In this case, the Court concluded that Smagin had alleged a sufficient “domestic” injury to justify RICO’s application where “his ability to enforce a California judgment in California against a California resident was impaired by racketeering activity that largely occurred or was directed from and targeted at California.” Three Justices criticized the Court’s rule as “offer[ing] virtually no guidance,” and would have dismissed the writ of certiorari.

VII. Recognition and Enforcement of Foreign Judgments

In U.S. courts, the U.N. Convention on the Recognition and Enforcement of Foreign Arbitration Awards (the Convention) governs the recognition and enforcement of most foreign arbitral awards. State law, however, governs the recognition and enforcement of foreign court judgments.

A. Foreign Arbitral Awards

In Yegiazaryan v. Smagin, the U.S. Supreme Court held (as described above) that courts must apply a context-specific inquiry, rather than a “residency-based” bright-line rule, in determining whether a foreign plaintiff has pleaded a “domestic injury” to sustain a RICO claim. The Court accordingly upheld a Ninth Circuit decision permitting a Russia-based plaintiff to use RICO to claim damages resulting from a California resident defendant’s obstruction of the plaintiff’s efforts to enforce a non-U.S. arbitral award. The Court declined to provide an exhaustive list of factors for analyzing the situs of the injury, instead focusing on the location where the racketeering activity and the “injurious aims and effects of that activity” occurred, which in this case was California, where the defendant—against whom a London-seated tribunal had issued an award—coordinated a scheme to evade payment.

In Baker Hughes Servs. Int’l LLC v. Joshi Techs. Int’l, Inc., the Tenth Circuit considered whether it was deprived of jurisdiction to enforce an arbitral award where it had been provided a translation of the award, but not a “duly authenticated original award or a duly certified copy,” as required by Article IV of the Convention. The court held that the failure to satisfy the Article IV requirements does not deprive the court of jurisdiction, distinguishing between the procedural requirements set out in Article IV, and the jurisdictional requirements set out in the FAA.

In Corporación AIC, SA v. Hidroelétrica Santa Rita S.A., the Eleventh Circuit considered whether the FAA or the Convention provides the grounds for vacatur of awards in arbitrations seated in the United States or governed by U.S. arbitration law (i.e., where the United States is, in arbitration terminology, the “primary jurisdiction”). Hearing the case en banc, the Eleventh Circuit reversed its own precedent and, following the Second, Third, Fifth, and Seventh Circuits, held that the FAA provides the grounds for vacatur if the United States is the primary jurisdiction.

B. Foreign Court Judgments

28 U.S.C. § 2467 provides the mechanism for the United States to recognize and enforce foreign forfeiture judgments, subject to certain statutory requirements, including that the foreign judgment was rendered under processes compatible with due process and the foreign court had personal and subject matter jurisdiction. On the request of the Republic of the Philippines, the United States filed an action in the Southern District of New York to enforce a 2012 Philippine Supreme Court judgment ordering the estate of former President Ferdinand Marcos to forfeit allegedly stolen assets. In recognizing the judgment, the district court applied U.S. (as opposed to foreign law) standards to the due process inquiry and the law of the Philippines to the questions of the existence of personal and subject matter jurisdiction. The court rejected as irrelevant other defenses to enforcement, e.g., comity, given that 28 U.S.C. § 2467 makes no mention of such defenses.

In Gibson v. Wikeley, a Kentucky district court denied a temporary restraining order that would have prevented defendants from taking actions barred by an interim judgment from New Zealand’s High Court enjoining a corporation from enforcing a default judgment obtained in Kentucky state court. The decision highlighted that (1.) the New Zealand orders were interim, not final; (2.) it was unclear that New Zealand courts would defer to an American interim order; and (3.) plaintiffs failed to join a necessary party to the action.

VIII. Forum Non Conveniens

The doctrine of forum non conveniens permits a court to dismiss a case, which was properly brought before it, when the suit would be more convenient in a foreign forum. Before considering whether a foreign forum would be more convenient, the court must address the threshold issue of whether there is an adequate alternative forum to adjudicate the dispute. This year, an appellate court in the Tenth Circuit considered whether a district court may dismiss part of an action pursuant to the forum non conveniens doctrine while allowing the other part to proceed before it.

In DIRTT Environmental Solutions, Inc. v. Falkbuilt Ltd., the plaintiffs were a Colorado corporation and its Canadian parent corporation, who brought an action against multiple defendants. The defendants consisted of the Canadian competitor to the Colorado corporation (established by the corporation’s former chief executive officer), the former chief executive officer, and other individuals based in Utah. The plaintiffs originally filed suit in Canada, but subsequently filed a second suit in Utah based on an theft of trade secret claims under federal and state law.

Two of the defendants moved to dismiss the plaintiffs’ complaint, based on forum non conveniens, claiming that Canada would be a more appropriate forum. The remaining defendants refused to join the motion or to consent to Canadian jurisdiction. The Utah district court granted the defendants’ motion to dismiss the case on the grounds of forum non conveniens, effectively dismissing the case against only those defendants who filed the motion and were subject to jurisdiction in Canada.

On appeal, the Tenth Circuit found that the district court’s dismissal was an abuse of discretion because forum non conveniens is not available as a tool to split or bifurcate cases. Specifically, the district court erred in finding the Canadian forum was available when only some of the defendants could be brought before that court. Instead, courts should consider convenience as it applies to the entire case and all the parties as well as the court’s inherent interest in the efficient administration of justice. The court stated that forum non conveniens is a “multi-dimensional concept” that is concerned with convenience for the entire case.

Similarly, in Riot Games, Inc. v. Suga PTE, a federal district court in California denied the defendants’ motion to dismiss for forum non conveniens because the defendants were not able to demonstrate that their co-defendants would accept service in the foreign forums. In Riot Games, the plaintiff, a producer of the well-known video game League of Legends, sued the defendants for copyright infringement for creating a “knock-off” game similar to the plaintiff’s game.

The court denied the defendants’ motion to dismiss for forum non conveniens because the defendants were not able to show that an adequate alternative forum existed. The defendants focused on their own amenability to jurisdiction in the alternative forums but failed to address whether the other defendants would accept service in those forums. The California court stated that dismissing only some of the defendants, while allowing the case against the other defendants to continue “would result in the great inconvenience to [the] Plaintiff, which would override the premise of forum non conveniens.” The court referred to DIRTT v. Falkbuilt, and quoted its language that “forum non conveniens is not available as a tool to split or bifurcate cases.”

IX. Parallel Proceedings

A. Anti-Suit Injunctions

In Ganpat v. Eastern Pacific Shipping PTE, Ltd., the Fifth Circuit affirmed the issuance of an anti-suit injunction mentioned in the 2022 edition of this Year in Review, holding that the district court was “well within its discretion to conclude that the vexatiousness of the Indian litigation outweighed any comity concerns,” and that the issuance of an anti-suit injunction was “unsurprising[],” in part because the plaintiff was “placed in a prison for violent criminals.” The court also held that a showing of “irreparable injury,” as would be required for a preliminary injunction, was not required for an anti-suit injunction. The defendant-appellant—against whom the anti-suit injunction was issued— has petitioned the U.S. Supreme Court for a writ of certiorari.

Three recent decisions by the U.S. District Court for the District of Columbia have left an uneven landscape for litigants in that court. Two judges gave opposing rulings on three similar cases, all of which pertained to efforts to enforce arbitration awards against Spain. In each case, Spain argued that the arbitration agreement under which the awards had been rendered (contained in the Energy Charter Treaty) was invalid as a matter of EU law. In Nextera Energy Global Holdings and 9REN Holding, Judge Tanya S. Chutkan dismissed that argument, granting the plaintiff’s requests for anti-suit injunctions and ruling that the invalidity alleged by Spain may not be used “to rebut a plaintiff’s evidence that an agreement to arbitrate exists.” By contrast, in Blasket Renewable Investments, Judge Richard J. Leon “respectfully disagree[d]” with Judge Chutkan and ruled for Spain, finding that Spain “lacked the legal capacity to extend an offer to arbitrate any dispute with the Companies under the law that applied to the parties.” As “no agreement to arbitrate ever existed,” the court granted a motion to dismiss.

B. International Abstention

Under Colorado River Water Conservation District v. United States, federal courts have a “virtually unflagging obligation” to exercise jurisdiction in cases in which there is a parallel state proceeding, absent “exceptional” circumstances. But there is no such uniform rule for exercising jurisdiction in cases of parallel foreign proceedings.

An interlocutory appeal of the U.S. District Court for the Eastern District of Missouri’s decision to deny a motion for international abstention in A.O.A. v. Rennert is currently pending before the Eighth Circuit. In Rennert, the district court applied a modified version of the Colorado River test, finding that where no actual parallel foreign proceeding is yet pending, a motion for international abstention should be granted only if there is “a serious problem that would be created by federal court proceedings but that would not be present if the matter were adjudicated abroad.” In dismissing the motion requesting the abstention, the court noted a lack of controlling Eighth Circuit precedent.

In Marti v. Iberostar Hoteles y Apartamentos S.L., the Eleventh Circuit reversed a decision of the District Court for the Southern District of Florida to maintain a years-long stay, pending a decision by the European Commission. The Eleventh Circuit recognized that “[its] cases considering international comity have generally occurred in the context of whether to abstain out of deference to a foreign court, not an administrative body,” whereas the European Commission’s “foreign administrative decision” is not a “judicial act” and “will have no effect on the claims here.” For these reasons, considerations of “international comity” were less significant.

Stanislas Conze, and Arjan Heir. Section II was authored by Theodore J. Folkman. Sections III and VIII were authored by Phillip B. Dye, Jr., and Jose F. Sanchez, who were assisted by Kylie P. Terry and Haley Griffin. Section IV was authored by Mark E. McDonald, with assistance from Sara Watson and Arjan Heir. Section V was authored by Ari MacKinnon, with assistance from Paul Kleist, Katie L. Gonzalez, and Stanislas Conze. Sections VI and IX were authored by Igor V. Timofeyev and Joseph R. Profaizer, with assistance from Matthew K. Morantz, Michael H. Rover, and Bhavana Sunder.