By any measure, the topics that form the broad subject of international judicial assistance are junctures of multilateral engagement. They define when and how courts of one country will acknowledge the executive acts of another (e.g. service of process), the judicial acts of another (e.g. the recognition of foreign judgments), and when they will lend assistance in the taking of evidence or request the same from another court. While sovereigns interact daily at the executive level, these are the instances when at least nominally independent domestic judiciaries interact as global players. While this is important in its own right (so that civil and commercial disputes can be efficiently resolved across national borders), there is another consequence of this interaction: it is where judiciaries judge judiciaries, decide on the propriety of their acts, and in the process elevate vital normative standards to announce what precisely qualifies as “justice, very simple, very fundamental, and of such general acceptance by all civilized countries as to form a part of the international law of the world.” (E. Borchard, 1939)

For instance, over the past ten years, we have learned from our courts that foreign judgments based on irrefutable presumptions of causation fall short of international standards of due process (Osorio), as do those where is a litigant is unable to attend the proceedings or secure counsel (DeJoria). Sometimes, transnational discovery can shed light on foreign judicial malfeasance and yield material evidence of the same (Chevron). All told, the field of international judicial assistance exhibits a vibrant reaffirmation of Professor Harold Koh’s “transnational legal process” in a microcosm of private litigants and domestic courts, where each interact to discern, internalize and enforce universal norms.

The deduction of such norms and principles is no mean task, and while the field of international judicial assistance does not undertake it alone, questions of legitimacy plague the alternatives. States can be held accountable for falling short of international standards under investment treaties, and at the dawn of the last decade the institution of investment arbitration held remarkable promise for expand the existing “enclaves of justice” (J. Paulsson, 2009). Since then, however, States have increasingly recorded their discontent with the system, leading many to reject international efforts to hold them accountable. A State who wants its judicial acts recognized abroad, however, has no such luxury to simply walk away from the community of states and the norms it seeks to uphold. One would hope that the field of international judicial assistance can provide a loose multilateral system where independent courts, not subverted by the reflexive instincts of politics, can remain beacons for due process—a force to mold and uphold those constructive norms that help bend the arc of the universe towards justice. At the very least, it reminds us of the “need [for] the courts and the legal profession to understand both the legal and practical realities elsewhere in the world if we are to preserve our own basic American values.” (Justice Breyer, THE COURT AND THE WORLD 235 (Vintage 2015).

I cannot offer such optimism as a prediction, but it remains my sincere hope for the next ten years of international judicial assistance and private international law, and a challenge to the lawyers who read this terrific blog.

The post Tenth Anniversary Post: Chuck Kotuby on the Future of IJA appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.

Lozano concerned the Hague Convention on Civil Aspects of Child Abduction, which in essence says that if one parent unilaterally takes their child to another country, and the child is found within a year, the child must be automatically returned home. Otherwise, a court must consider the best interests of the child, who may have developed ties in the new country. But what to make of the clandestine parent and a child whose location could not be discovered for 16 months? Is there a principle of “equitable tolling” under the Convention, according to which the one-year period should only begin after the child’s location can be ascertained? This is certainly a familiar doctrine under U.S. law—equity tolls statutory limitations periods all the time. So as not to reward a clandestine parent, the father in the Lozano case wanted the same principle applied to his case.

The Supreme Court refused this request. The Convention, they said, was not a federal statute—it was a “contract between … nations”—so it would be “particularly inappropriate to deploy this background principle of American law” when interpreting it. Interpreting the Convention to preclude equitable tolling is more consistent with its text; if the drafters of the Convention had wanted the one-year period to start when the left-behind parent actually discovered where the child was, they could have easily said so. Because they didn’t, the uniquely common law notion of equitable tolling could not justify the father’s suit for automatic return.

The notion of a treaty as a contract pervaded the BG Group decision, too. On their face, the two cases had some similarities. Both involved UK parties with rights under an international treaty. The similarities, however, ended there. Lonzano was a father seeking the return of his foreign-domiciled daughter. BG Group was a British multinational oil and gas company who had invested in an Argentine gas distribution company, and whose investment was harmed by Argentine emergency legislation. BG Group filed a Notice of Arbitration against Argentina under the UK-Argentina Bilateral Investment Treaty (“BIT”) and sited the arbitration in the United States under the UNCITRAL Rules.

But Article 8(2) of the BIT provides that disputes under the Treaty between an investor and Argentina must first be submitted to a competent court in the sovereign state where the investment was made. Subsequently, the dispute can go to international arbitration at one party’s request only if (1) a period of eighteen months has elapsed since the dispute was presented to the court and no decision has been made; or (2) a final decision was made by the court, but the parties still disagree. Argentina opposed jurisdiction of the arbitral tribunal because the dispute had not been submitted to Argentine courts at all. BG Group argued that waiting to meet the requirements of Article 8(2) of the BIT would have been futile. The arbitral tribunal determined that they had jurisdiction because Argentina had enacted laws hindering judicial recourse for foreign investors, and ultimately issued an award on the merits in favor of BG Group.

Both parties filed petitions for review in the United States District Court for the District of Columbia, which deferred to the arbitrators and upheld the arbitration award. The United States Court of Appeals for the District of Columbia Circuit, however, overturned that decision. It found that the arbitral tribunal did not have jurisdiction because BG Group had not complied with the local litigation requirements of Article 8(2) of the BIT. As a result, it set aside the award. The Supreme Court was asked to decide the question that had split the inferior U.S. Courts, namely: “whether a court of the United States, in reviewing an arbitration award made under the Treaty, should interpret and apply the local litigation requirement de novo, or with the deference that courts ordinarily owe arbitration decisions.”

Now here comes the “intellectual whiplash.” A majority of the Supreme Court “treat[ed] the [treaty] before us as if it were an ordinary contract between private parties.” In doing so, Justice Breyer—citing the Court’s domestic, commercial arbitration jurisprudence—found that the local litigation requirement was a procedural condition precedent to arbitration, which determined “when the contractual duty to arbitrate arises, not whether there is a contractual duty to arbitration at all.” Thus, as a procedural precondition rather than a substantive bar to arbitrability, Breyer found that, “courts presume that the parties intend arbitrators, not courts, to decide disputes about [the local litigation requirement’s] meaning and application.” The Court found nothing in Article 8 of the BIT to overcome this presumption, and thus saw “no reason to abandon or increase the complexity of [its] ordinary intent-determining framework” for contractual arbitration clauses. (Of course, it remains an open question of what the Court would do if the Treaty were more express on the obligatory nature of the local litigation provision). Under a deferential review of the arbitrators’ decision, the award was allowed to stand.

The dissent, authored by Chief Justice Roberts and joined by Justice Kennedy, harkened back to Lozano and took issue with the majority’s decision to consider the BIT as an ordinary contract between private parties. In their view, when looking at the BIT as an act of state between co-equal sovereigns, with all deference that comes with that conclusion, the local litigation requirement can only be viewed as a textual precondition to the formation of an agreement to arbitrate against the state. By focusing first on private contracts, the majority “start[s] down the wrong road” and “ends up at the wrong place,” the dissent noted. “It is no trifling matter for a sovereign nation to subject itself to suit by private parties,” the Chief Justice said; “we do not presume that any country—including our own—takes that step lightly.” Thus, without having submitted to the local courts before it initiated arbitration, the dissent would have held that BG Group had no agreement to arbitrate against Argentina.

In some contexts, sovereign consent to convene an arbitration deserves a special place in the law. At least one federal judge has said that the federal policy in favor of arbitration carries special force when the agreement to arbitrate is contained in a treaty as opposed to a private contract. And take, for example, the recurring situation where parties use the U.S. courts to seek evidence by way of 28 U.S.C. § 1782 for use in international arbitration proceedings. Where that arbitration is convened by treaty and not by contract, U.S. courts will more readily lend their assistance. On its face, the BG Group decision runs counter to the idea that U.S. courts will treat investment treaty arbitration with greater deference than commercial arbitration. On the other hand, however, upholding the award furthers the above jurisprudence, the Supreme Court’s recent string of pro-arbitration rulings, as well as the “basic objective of … investment treat[ies].” But “intellectual whiplash” still occurs when we consider that, in Lonzano, the Court was unwilling to “rewrite the treaty” in order to “advance its objectives.”

The post “Intellectual Whiplash”: One Day, Two International Cases, and Two Different Results at the U.S. Supreme Court appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.

We previewed the Chafin case on this site when certiorari was granted last summer. It was decided yesterday by a unanimous Court. This is the second Hague Convention case to reach the Court in three years, and while the decision itself is not altogether surprising, Chief Justice Roberts does include an interesting discussion that touches on a wide array of transnational issues (outside of the family law context).

Chafin involves a U.S. Army sergeant and a Scottish woman he had married while stationed in Germany. The couple later moved to Alabama, and after their divorce, disputed the care of their daughter, who is now five years old. After obtaining a federal court order under the Hague Convention declaring that Scotland was the girl’s country of habitual residence, Mrs. Chafin returned to Scotland with the child. Sgt. Chafin appealed that decision to the Eleventh Circuit, but that court dismissed the case as moot because the child had already returned to Scotland, and was outside the court’s jurisdiction. Circuits were deeply split over a fundamental and very practical question: Is the court’s jurisdiction over the dispute truly limited by the water’s edge? In other words, if the case were to be reversed on appeal, does the uncertainty of enforcement of the order abroad render the case moot?

The Supreme Court reversed the decision of the Eleventh Circuit because, in Chief Justice John Roberts’s words, “[t]his dispute is still very much alive.” “On many levels, the Chafins continue to vigorously contest the question of where their daughter will be raised. This is not a case where a decision would address ‘a hypothetical state of facts.’” The Respondent and the Eleventh Circuit, the Court held, “confuse[d] mootness with the merits.” To be sure, “Scotland [may] ignore a U.S. re-return order, or decline to assist in enforcing it,” but a litigants “prospects of success are [ellipsis] not pertinent to the mootness inquiry,” and the “uncertain[]” efficacy of the ultimate judgment “does not typically render cases moot.”

That was enough for Mr. Chafin to win before the Court, but here is where the decision got a bit more interesting for transnational litigants writ large. As I’ve discussed before elsewhere, the circuits are decidedly split on that standard for ordering antisuit injunctions, and recent high-profile cases illustrate the uncertainty surrounding injunctive orders when it concerns foreign parties living abroad. The Court in Chafin, however, noted the existence of its power to make such orders with little apparent concern. U.S. courts can “command[] [a party properly before it] to take action [ellipsis] outside the United States” under the pain of sanctions for non-compliance, the Chief Justice said. He then swiftly moved from an assertion of the Court’s inherent authority to an acknowledgment of its practical limits. Parties ignore our authority all the time, the Court seems to suggest (without expressly saying it that way, of course). For instance, U.S. Courts often “decide cases against foreign nations, whose choices to respect final rulings are not guaranteed.” So Argentine bondholders and an Alabama father find themselves in the same legal limbo. It remains true that a return order may not give Mr. Chafin his daughter, “just as a an order that [a foreign state] pay $100 million may not make a plaintiff rich.”

These propositions are little more than an interesting aside to the central holding of the case, but they illustrate the Court’s view of its tenuous place in the broader arena of transnational justice.

The post Chafin v. Chafin: Hague Convention, Mootness, Extraterritorial Authority and Futility appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.

The post Guest Post by Charles Kotuby on the <em>Chafin</em> Case appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.