Letters Blogatory

The Blog of International Judicial Assistance | By Ted Folkman of Folkman LLC

Case of the Day: Gorsoan v. Bullock

Posted on April 6, 2021

The case of the day is Gorsoan Ltd. v. Bullock (Fla. Cir. Ct. 2020). I came across the case on the website of friend of the blog George Benaur. I wrote about a related § 1782 proceeding in July 2020.

The question in the case was whether the Florida courts should recognize and enforce a Mareva injunction, i.e., an asset-freeze injunction, entered by a court in Cyprus. The injunction was interlocutory. The Florida court enforced the Cyprus injunction on the grounds that, in general, foreign decrees should be enforced unless contrary to public policy, without undertaking the traditional analysis courts use in deciding whether to enter a preliminary injunction.

I am not sure that the ruling is correct, although I do not say that it is wrong. The court cited § 102, cmt. g of the Restatement (Second) of Conflicts of Laws, which reads:

It can therefore be assumed that a decree rendered in a foreign nation which orders or enjoins the doing of an act will be enforced in this country provided that such enforcement is necessary to effectuate the decree and will not impose an undue burden upon the American court and provided further that in the view of the American court the decree is consistent with fundamental principles of justice and of good morals.

But the blackletter rule of Section 102 makes it clear that the section is talking about judgments:

A valid judgment that orders the doing of an act other than the payment of money, or that enjoins the doing of an act, may be enforced, or be the subject of remedies, in other states.

Does the Restatement mean to include preliminary injunctions? It’s not clear from the face of the relevant section, § 92 and comments. “Judgment,” in the Restatement, “is a general term which includes not only judgments at law but also the orders, injunctions or decrees of equity courts, and the judgments of probate courts, admiralty courts and other special courts.” But does that mean permanent injunctions or decrees that come at the end of the case, or interlocutory orders? If it includes interlocutory orders, are interlocutory orders that a court issues in a purely legal action, where the words “injunction” or “decree” would not apply, also entitled to recognition and enforcement? If a US court orders a foreign litigant to turn over particular documents in discovery, could I take that order to the relevant foreign court and ask to have it enforced on comity grounds?

As I say, I am not sure what the right answer is here. All of this is not to say, by the way, that a plaintiff should not be able to get an asset freeze injunction in the United States (at least in state courts, in light of Grupo Mexicano, which freezes federal equity jurisdiction in the amber of 1789). But the question is whether the plaintiff is simply obtaining recognition of a foreign decree, or whether the plaintiff needs to make the usual showing of irreparable harm, likely success on the merits, etc.

Lago Agrio: Second Circuit Affirms Donziger’s Pretrial Conditions of Release

Posted on March 30, 2021

In a non-precedential decision, the Second Circuit has affirmed the district court’s order denying Steven Donziger’s motion for relief from the conditions of his pretrial release, which has amounted to home confinement (with exceptions) while he awaits trial in May on the charges of criminal contempt. If you want to read bombastic takes on the decision, you can check out Twitter, where Donziger’s lawyer is quoted as calling the case “a major stain on the U.S. federal judiciary,” and Donziger itself accuses Judge Preska of being “a leader of the Chevron-funded Federalist Society.” My non-bombastic (I hope!) take is that Donziger had a good point in arguing that since the government has decided to seek only six months’ imprisonment or less if Donziger is convicted, and since the contempt, if proved, is therefore a petty offense that will be tried to the court, it seems wrong to conclude that Donziger’s history of violating court orders and his close ties with Ecuador mean he is a real flight risk: who would “risk it all” over a petty offense? The subtext is that the government should not be able to have its cake and eat it too by charging Donziger in a way that avoids a trial by jury while still emphasizing the seriousness of the crime and the penalty when seeking to maintain Donziger’s conditions of release. The judges thought this point weighed in Donziger’s favor, too, but ultimately the case came down to the standard of review. Judge Preska weighed the considerations, perhaps differently than the Second Circuit would have, but her conclusion was not clearly erroneous.

The trial is scheduled to begin in May, and while I won’t be covering it “gavel to gavel,” I will of course bring you the highlights and the result!

What’s In A Name? New Rules For The HCCH Conventions

Posted on March 29, 2021

Readers, I would like to invite you to participate with me in what may be a Sisyphean task—to change the names we give to the HCCH conventions when we speak or write about them. Instead of calling it the “Hague Service Convention,” or, heaven forbid, the “Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters,” we should call it the “HCCH 1965 Service Convention.” Ditto for the HCCH 1970 Evidence Convention and the others.

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