Supreme Court Update

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The Supreme Court, amidst all the high-profile, politically charged cases it’s been deciding, has granted cert. petitions in three cases that will be of interest to Letters Blogatory readers. Here’s a quick overview:

  • ZF Automotive v. Luxshare and Alixpartners v. Fund for Protection of Investors’ Rights. These cases raise the question the court was set to decide earlier this year in the Servotronics case: is a private international arbitral tribunal a “foreign or international tribunal” for purposes of Section 1782? Although the court has failed to reach the issue a few times now due to mootness problems, I predict that this time the court will find a way to rule on the merits, come what may. So we should have an answer soon to the biggest open question in Section 1782 practice.
  • Golan v. Saada. In this Abduction Convention case, the question is whether courts have an obligation to consider ameliorative measures that might facilitate the return of a child to the state of his or her habitual residence, if it has found that returning the child would pose a grave risk (which is one of the grounds on which a return can be refused).
  • Viking River Cruises v. Moriana. Under California law, an arbitration agreement prohibiting class actions is unenforceable when the plaintiff brings a claim under California’s Private Attorney General Act. The court will decide whether the FAA preempts California law on this point. I think we can confidently predict the outcome of this one?

I’m also keeping my eye on the petition in Cassirer v.Thyssen-Bornemisza Collection, an FSIA case where the petition is still pending. The question in the case is whether, in an FSIA case where the foreign state or instrumentality is not immune from jurisdiction, the court must apply the conflict of laws rules of the forum state, or whether it applies federal common law. I am dealing with some thorny questions about federal common law in one of my cases now, and I have to say that given that the rule is that there is no general federal common law, we sure seem to have a lot of federal common law in practice!

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