In my post on the beginning of the war with Iran, I wrote: ” I have grave concerns about whether this President has the moral authority to take the country to war.” That concern has grown and grown over the last month. And it’s not just a concern about moral authority. It’s a concern about strategic understanding and the ability to make rational decisions.

Today the American president said: “A whole civilization will die tonight, never to be brought back again.”¹ Maybe this is his way of trying to pressure Iran into reopening the Straits of Hormuz, a closure that the Trump administration was obviously unprepared to meet when the war started. Who knows what he is thinking. No doubt he wasn’t really thinking. The point is, war is a deadly serious business and should be led by serious people. As a country, we have to express revulsion at comments like this from our head of state and the commander-in-chief of our armed forces. We cannot have carnival barkers and charlatans at the helm. “War is a matter of vital importance to the State; the province of life or death; the road to survival or ruin.” It is not a TV show.

1. Compare Pres. Truman’s speech after the bombing of Hiroshima. “We are now prepared to obliterate more rapidly and completely every productive enterprise the Japanese have above ground in any city. We shall destroy their docks, their factories, and their communications. Let there be no mistake; we shall completely destroy Japan’s power to make war. It was to spare the Japanese people from utter destruction that the ultimatum of July 26 was issued at Potsdam. Their leaders promptly rejected that ultimatum. If they do not now accept our terms they may expect a rain of ruin from the air, the like of which has never been seen on this earth. Behind this air attack will follow sea and land forces in such numbers and power as they have not yet seen and with the fighting skill of which they are already well aware.” And recall that that much more rational and measured statement didn’t work: the United States ended up bombing Nagasaki before the Japanese finally surrendered. ︎

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The case of the day is Fox Corp. v. Media Deportes Mexico S. de R.L. de C.V. (S.D.N.Y. 2026). The case raises a perennial Letters Blogatory question: when the Hague Service Convention applies, can you serve a temporary restraining order or a preliminary injunction on a defendant in a way that you couldn’t serve the summons and complaint? For example, in a foreign state that has objected to service under Article 10 of the Convention, can you serve the TRO or the preliminary injunction by email?

In today’s case, Fox had licensed Media Deportes Mexico to broadcast sporting events in Mexico. It claimed that MDM had breached the license agreement by obtaining an injunction, in a Mexican court, barring Fox from using the Fox Sports trademarks in Mexico. Fox sued in New York, seeking a TRO to restrain MDM from using the Fox Sports trademarks in Mexico or in the US, and from prosecuting its injunction case in the Mexican courts. The court issued the TRO and authorized Fox to serve the TRO electronically, which Fox did. Fox then asked the court to find MDM and related entities, including MSD, in contempt of court for violating the TRO. Eventually, MSD appeared in the New York case and argued that the service of the TRO by electronic means was impermissible under the Convention. In the meanwhile, the Second Circuit decided the Smart Study case, which held that when the Convention applies and when the state of destination has objected to service by alternate means, service by email is impermissible.

The court rejected MSD’s argument. The judge grounded his analysis in part on the last sentence of Article 15 of the Convention. Here is Article 15 (I’ve omitted the second paragraph and bolded the key language):

Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that—

the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or

the document was actually delivered to the defendant or to his residence by another method provided for by this Convention,

and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

* * *

Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures.

That last sentence is obviously key. But I am not certain that it means what the judge thought. I do not think the sentence means, “In case of urgency, the judge can authorize methods of service that the Convention otherwise would not permit.” Instead, I think it means, “The judge can, consistent with the Convention, order provisional or protective measures, even if there is no evidence that the service on the defendant has been accomplished.” The Convention, in other words, is no bar to issuance of a TRO directed to a defendant where there is no proof of service, even though it may, under Article 15, be a bar to issuance of a default judgment against a defendant in such circumstances.

Still, US law of course requires notice to a defendant subject to a TRO before the defendant can be found in contempt for violating the TRO. The trouble is that a TRO implies that there is a need for emergency relief and thus a need to get notice to the defendant very quickly. How to square that need with the Convention?

It seems to me that the key is in Article 1, which provides that the Convention applies “where there is occasion to transmit a judicial or extrajudicial document for service abroad.” If I want to serve a defendant with a summons and complaint, I can’t just send a letter giving the defendant notice that he had been served, even if I include the summons and complaint with my letter.¹ It’s not enough for the defendant to read about the lawsuit in a newspaper. But if I want to make sure a defendant subject to a TRO has notice of the TRO, I think I could simply write him a letter. Or, I suppose, I could put an ad in his local newspaper. What matters, for satisfying due process, is that the defendant has actual notice. So even if I send the TRO, which is undoubtedly a judicial document, by mail, I am not sending it abroad for service. I am just providing notice. That’s the reason why “serving” it (that is, sending it) by email is permissible.

The judge also suggested a reason to distinguish this case from Smart Study. Smart Study, he wrote, involved entry of a default judgment, and this case didn’t. Perhaps the point is that a violation of the Convention really only matters to the defendant when a judgment enters that rests on the violation. But when the Convention applies, it applies, and I think a defendant threatened with contempt of court would disagree with the thrust of the judge’s point. It seems to me that my reading of Article 15 avoids the need to make a point like this.

In short, I think the judge got to the right result, but I think there is a much better and clearer way to get there.

1. Sometimes service by mail is permissible, of course! ︎

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The case of the day is Petersen Energía Inversora v. Argentine Republic (2d Cir. 2026). This was the appeal from the $16 billion dollar judgment in favor of minority shareholders of YPF, who sought damages after Argentina nationalized the company in 2012. Although there were two consolidated cases, I’m going to focus just on one, brought by Petersen.¹ Petersen sued in New York, bringing claims for breach of contract under Argentine law. Their claim was that Argentina was liable because it had failed to make a tender offer before expropriating the shares of the majority owner, Respol, as YPF’s bylaws required. Petersen had pledged its shares to secure loans it had taken to buy them, and it planned to use YPF dividends to pay the lender. But when Argentina expropriated Repsol’s shares, the company stopped paying dividends, so Petersen could not pay its debts. It sought bankruptcy protection in Spain, and in the bankruptcy, it sold a majority interest in its claim against YPF to a subsidiary of Burford Capital, a publicly traded litigation finance firm. In 2018, the Second Circuit denied Argentina’s motion to dismiss on foreign sovereign immunity grounds. Petersen Energía v. Argentine Republic, 895 F.3d 194 (2d Cir. 2018). Usually at Letters Blogatory the FSIA decision is the main event. But this case went the distance and ended with a summary judgment in favor of Petersen on the breach of contract claim, and then a trial on damages. Petersen’s judgment was for $7.5 billion, plus $6.9 billion in prejudgment interest. Burford stood to recover 70% of that, or about $10 billion.

Everyone agreed that the merits were governed by Argentine law, and I don’t have a lot to say about the substance of the Second Circuit’s discussion of the merits, except to say that to this American lawyer, it seems odd to claim that when one shareholder causes a corporation to violate its bylaws, it is therefore liable for breach of contract to another shareholder for damages flowing from the violation. As the court’s opinion observes, the obvious remedy in a case like that is a corporate law remedy. That would mean suing in the courts of Argentina, which for obvious reasons Petersen was not keen on doing.² But isn’t the answer to that just to shrug your shoulders and say that if investing in Argentina is just too risky, perhaps you should do something else with your money?³

A lot of the coverage has been about the implications for Burford in losing its risky bet, and about the implications for big-time litigation finance generally. Given the Second Circuit’s en banc practice and the unlikelihoods that the Supreme Court would grant cert. in a case that turns on Argentine contract law, the panel decision is almost certainly the end of the road, which doesn’t mean that we won’t see an petition for rehearing en banc and a cert. petition, given the amount at stake. Burford has said as much in its press release. I’m sure there will also be coverage about increased borrowing costs for countries like Argentina. But there is one point about how to frame the decision that I’d like to note. Burford characterized the decision as “a remarkable abdication of the Second Circuit’s role as a guardian of the rights of NYSE investors.” I really don’t understand that at all. There can be no question that the forum provided a fair hearing to both sides. But everyone agreed that Argentine domestic law governed the outcome, and while it’s possible that the Second Circuit got the law of Argentina wrong, I don’t see why it makes sense for a US court to interpret the law of Argentina with the goal of protecting US investors. The US does a good job of protecting investors by providing fair tribunals and by having stable and investor-friendly corporate and securities laws that the courts interpret in a consistent way. Burford didn’t purchase its stake in Petersen’s claim against Argentina under any naive illusion that it wasn’t taking a very large legal risk (including a collection risk that I don’t discuss here), and I assume that Petersen didn’t invest in the company under the illusion that it was investing in a Delaware corporation.

1. And I’m going to ignore some of the technical stuff about ADRs and the like. ︎
2. I don’t know if it would have been possible to include an agreement to arbitrate in an Argentine corporation’s bylaws. ︎
3. That problem is the reason why we have investment treaties, but this is not a treaty case. Burford’s press release suggests that an investment treaty arbitration is coming. ︎

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Gavin Newsom, governor of California and potential Democratic presidential candidate, was asked the other day if he is a Zionist. He was like a deer in the headlights. He had just walked back his remarks on Israel and apartheid. Then came the question. He paused, repeated the question, and said something deeply weird and creepy: “I revere the state of Israel.” I can just imagine the political calculations whirling through his head as he struggled to come up with an answer to a simple question that wouldn’t offend anyone. He ended up saying something that I have never heard an American or Israeli Jew say, or for that matter, that I have ever heard anyone say about any state.

Why is this hard? Because on the left, where Gov. Newsom will be seeking votes, “Zionism” has become an all-purpose boogeyman. There is no good reason for this. Zionism is simply the belief that the Jewish people have a right to political self-determination in their land. That’s it! It’s just the belief that the very first sentence of Article 1 of the International Covenant on Civil and Political Rights, “All peoples have the right of self-determination,” applies to the Jews just as much as it applies to all other peoples.

You can be a Zionist and favor the two-state solution to the conflict between Israel and the Palestinians. In fact, that’s the position of the AJC and other leading Jewish advocacy groups, and it’s my position.

You can be a Zionist and oppose actions and policies of the Israeli government. (AJC and me).

You can be a Zionist and oppose actions by Jewish extremists in the West Bank. (AJC, and me).

You don’t have to “revere” the state of Israel to be a Zionist, and frankly, I think most Jews would rather you didn’t. We don’t want to be symbols of all that is good any more than we want to be symbols of all that is bad. And the idea of revering any state is, I think, deeply un-Jewish.

You might be someone who doesn’t believe that any people has a right to a state, someone who thinks that peoplehood just isn’t a basis for collective rights. “I reject nationalism,” or whatever. If that’s you, then I respect your views. You want every state to be more like the “settler-colonial states” (the US, Canada, Australia, etc.), and less like, say, France, or Japan, or any of the many Arab states, or the nascent Palestinian state. Just be sure that you apply your principles in an evenhanded way.

In short, if you think the Jewish people is a people just like any other people, with the same fundamental political rights, congratulations, you’re a Zionist! I wish that instead of cowering in fear in the face of activists who have distorted what Zionism means beyond all recognition for their own malign political goals, smart people like Gavin Newsom, who want to be leaders, should have the courage just to tell it like it is.

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If that’s right, then as Ingrid agrees, the most obvious answer is that of course the foreign sovereign can waive the service provisions of the FSIA, just as the foreign sovereign can waive the substantive immunity the statute provides. Note, though, that the statute (§ 1605(a)(1)) expressly provides for waiver of immunity, but it doesn’t expressly provide for waiver of the service provisions. This starts to get at Ingrid’s main point. She observes that there are some procedural rules that parties cannot waive, e.g., deadlines in ordinary civil litigation, which can only be modified with the court’s approval, or limits on the court’s subject-matter jurisdiction. She suggests that the FSIA’s service rules might be similar.

I am not sure the examples of non-waivable rules she cites really make the point, because court control of deadlines and congressional control of jurisdiction do not implicate just the interests of the litigant but rather institutional interests of the court and the state. (The situation is similar to objections under Article 10 of the Service Convention, which in my view anyway cannot be waived because Article 10 exists to protect the interests of the state, not the interests of the litigants). I don’t see that the method of serving process is like that. The FSIA’s rules seem to exist only to protect the interests of the foreign sovereign, so why should the foreign state be forbidden to waive them?

But Ingrid makes another point, which I think is stronger. She points out that under 28 U.S.C. § 1330(b), the court’s personal jurisdiction, in an FSIA case, is tied to whether “service has been made under section 1608 of this title.” She suggests that we can infer that the statute means to tie personal jurisdiction not just to any old method of service, but to service under the statute. That argument has a lot of appeal. But I am not sure it is right. Personal jurisdiction, like methods of service, seems only to implicate the interests of the litigant, so it, too, should be waivable. Another way to think about the statute is to say that the connection between the two sections means that waiver of the service rules is also waiver of the defense of lack of personal jurisdiction.

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The case of the day is Wepard Corp. v. Diaz, Reus & Targ, LLP (Fla. Dist. Ct. App. 2026). Diaz, Reus & Targ, a law firm, sued Wepard for allegedly unpaid legal fees. Wepard was located in Malta. DRT moved for leave to serve process by email, but Malta has objected to service by alternate means under Article 10 of the Service Convention. So as long-time readers know, service by email is inconsistent with the Convention, a point that more and more American courts are getting right. Wepard challenged the service, but the lower court held that service by email was permissible. Wepard appealed.

There’s no question that Florida law authorized service by email on its face. But as we know from Volkswagenwerk AG v. Schlunk, because the Convention is a US treaty and thus part of the law of the United States, and because the Convention is exclusive, the Supremacy Clause bars states from authorizing methods of service that the Convention does not authorize, or at least permit.

I have to say that Florida appellate court really missed the boat on this one. It noted that Malta had not expressly objected to service by email, and it reasoned that therefore, service by email was allowed. But the Convention does not allow all methods of service unless expressly objected to. It allows only the methods of service that it authorizes or permits. If Malta objects to service under Article 10, what other provision of the Convention authorizes or permits service by email? None.

A petition for discretionary review is now pending in the Supreme Court of Florida. I had the privilege to represent Professor Huo Zhengxin of the China University of Political Science and Law in Beijing, as a potential amicus curiae. (In Florida, at this stage, you just file a notice indicating your intent to file an amicus brief if the Supreme Court decides to take the case). The views of a scholar from a country like China with a lot of inbound US service will be useful to allow the Florida court to understand a couple of points that may not be apparent from any briefing of the US law issues. First, whatever the time savings that stem from service of process by email, they may be outweighed if, as in the case of China, the plaintiff will end up finding that the eventual judgment is unenforceable in the foreign country if based on service that was contrary to the Convention. Second, the misuse of alternate methods of service that are inconsistent with the Convention is a source of diplomatic friction between the United States and other countries, including China, that the courts ought not to exacerbate.

I’ll keep you posted.

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At the end of last year, the HCCH announced that its website now features “e-country profiles” for several conventions, including the Service and Evidence Conventions. That doesn’t mean that lots of country profiles are now available; it means that there is now a place on the HCCH website where states can, if they want, publish profiles that will aid foreign practitioners and authorities.

So far, it seems that no states have published profiles of their practices under the Evidence Convention. Two states, the United States and Latvia, have published profiles of their practices under the Service Convention. The American profile is well-done and explains the United States’s liberal practice under the Convention. I assume it was put together by the excellent lawyers in the Office of International Litigation in the DOJ.

I hope more states will take advantage of the opportunity to provide practical guidance to foreign practitioners. I do not, though, expect these e-profiles to be a substitute for consulting with qualified local counsel, especially on Evidence Convention matters. I always recommend to my clients that, budget permitting, we bring local counsel on at the outset. This is useful in the preparation of the letter of request, because while I have a sense of what works and what doesn’t work in various jurisdictions, I cannot advise on any foreign jurisdiction’s law. It also is useful in terms of practical preparation. If there are proceedings in the foreign jurisdiction, then you’ll need local counsel anyway, and it’s better to have advice up-front to prepare for possible disputes.

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Some thoughts on the war with Iran:

First, I am thinking about the servicemen and servicewomen in harm’s way, as well as the civilians in Iran and in Israel and the Arab countries that Iran is attacking. I hope they all get through this safe and sound, though I know that’s not likely.

Second, the Iranian government has been among the most malign and destabilizing forces in the world since I was young. From the kidnapping of Americans during the Islamic Revolution to the AMIA bombing in Argentina to the attacks on the writer, Salman Rushdie, to the support and arming of terrorist proxies such as Hamas and Hezbollah and the Houthis to the bombing of the US embassies in Kenya and Tanzania to the bombing of the USS Cole to the 2024 terror attacks in Australia—I could go on and on and on and on—Iran has exported war, terror, and destruction. I’ll comment on the legal dimensions below, but the world’s failure to put a stop to the Iranian government until (one hopes) now is a shocking failure. What makes it worse is that the Iranian government has so ruthlessly oppressed its own people, imposing a regressive and medieval theocracy on people who, like everyone, want something better for themselves and their children. The demonstrations we’ve seen in Iran and among expatriate communities in the last days show just why it is time for a new start in Iran. To me, an acceptable end to this war is one where Iran is no longer ruled by medieval theocrats, no longer has the capacity to launch ballistic missiles at its neighbors, no longer seeks nuclear weapon capabilities, and no longer arms and supports non-state terrorist groups anywhere in the world. That is not something the United States or anyone else can necessarily impose on Iran. It is something that the Iranians must at some point do for themselves.

Third, I have grave concerns about the legality of the attack under US law. The Constitution gives Congress, not the President, the power to declare war. This is not a new problem. Congress has more or less abdicated to the President in this area over the past several decades. It is right that Congress should now consider whether or not to approve what the President has done, though one of the knotty problems is that it is one thing to weigh in on war before the war starts, and another thing to weigh in on war when the war is underway.

Fourth, I have grave concerns about whether this President has the moral authority to take the country to war. I am not going to dwell on this. If you’ve read my blog for a long time, you know what I think of Donald Trump and his character. I’m not qualified to say anything interesting about the reasons why a war leader must demonstrate the relevant virtues in order to succeed. I never want to see the United States at war, but I particularly don’t want to see the United States at war with feckless and unqualified political leadership. Let me leave it at that.

Fifth, I always like to say that I am not an expert on public international law and can’t give an expert view. The basic rule is against the use of force, except in self-defense. I understand why that rule has served and will, I hope, continue to serve the national interests of the United States and the interests of others. On the other hand, the world’s tolerance of states that export chaos and terrorism by non-state proxies, especially in the service of illiberal and malign ideologies, and especially when combined with their development of nuclear and ballistic capabilities, has led to irreconcilable tensions between the real needs of states for security and at least the naive view of the rule against the use of force. Lectures by states and groups that have never been willing to confront the Iranian government, or have supported or apologized for it, are in my view remarkably hollow.

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The case of the day is Bayerische Motoren Werke AG v. Onesta, LLC (W.D. Tex. 2026). It raises a super-interesting question: can you litigate infringement of a US patent in a foreign court? The EU gave its own answer to this question last year, in the context of an EU patent dispute rather than a US patent dispute, in BSH v. Electrolux. In BSH, a German company sued a Swedish company in the Swedish courts for infringement of a European patent. European patents can be validated in European states, and when they are, the European patents become national patents in those states. The patent at issue had been validated in several states, including Sweden. I’ll explain why that is in a moment. Anyway, Electrolux argued that the Swedish court could adjudicate the claims about the Swedish part of the EU patent, but that it had to dismiss the other national parts. That question was referred to the CJEU. On the one hand, the Brussels I bis regulation provides that persons domiciled in EU states are to be sued in the courts of that state. On the other hand, that rule is subject to the other rules of the Brussels I bis regulation, and Brussels I bis states that member states’ courts have exclusive jurisdiction of certain subject matters, regardless of domicile. One of those exceptions is for proceedings involving the validity of a patent, whether invalidity is raised as a claim or as a defense to a claim of infringement. So it’s pretty clear that the Swedish court could not, for example, declare that the German part of the EU patent was invalid as against the whole world. But does that mean that the Swedish court could not decide the claim that the German part of the patent had been infringed? No, the CJEU held, though the court hearing the infringement case could decide to stay the case if a validity case was pending in the courts of the state that had issued the patent. What about third states, non-European states? The court held that Brussels I bis did not limit the jurisdiction of the court of the state where the defendant is domiciled, which means that the Swedish court could, for example, adjudicate the validity of, say, a US patent. But it held that a decision on validity would not “affect the existence or content of that patent in that third State” or “cause the national register of that State to be amended.”

In today’s case, Onesta sued BMW in BMW’s home court, in Germany, for infringement of US patents. This was, of course, just taking up the CJEU’s invitation. BMW then sued Onesta in Texas, seeking declarations that the patent misuse doctrine applied, that the patents had not been infringed, and that the patents were invalid. It also sought an anti-suit injunction.

The judge granted the anti-suit injunction from the bench, with a written decision (the decision I’m covering today) to follow. In between the decision from the bench and the judge’s explanation, the Federal Circuit temporarily stayed the judge’s order.

I have to say I didn’t find the judge’s explanation particularly persuasive. Yes, patent rights are relentlessly territorial. A US patent only regulates the use, sale, importation, etc., of a patented invention in the United States. Yes, patent rights, like rights in real property, are recorded in a public registry. But as long as a foreign judgment does not affect rights in rem in the United States, it’s not clear why it should be wrong for a court in the state of the defendant’s domicile to decide on infringement. Suppose I travel from Massachusetts to New Hampshire and trespass on your land there. Can you come to Massachusetts, where I am domiciled, and litigate the question of who has superior rights to the land in a way that will bind the whole world? No. Can you come to Massachusetts and sue me in damages for trespass? Why not, even though the law of New Hampshire will govern the substance of the dispute and your rights to the land are recorded in a registry of deeds?¹

The judge seemed to focus most strongly on the lack of discovery in Germany, the lack of a right to trial by jury in Germany, and the risk that a foreign court might decide on validity in a way that affect the rights of third parties. But the differences between US practice and the practice, well, nearly everywhere else concerning pretrial discovery and jury trials in civil cases don’t have any special salience, it seems to me, in patent cases. Yet we wouldn’t say that those differences mean that you shouldn’t be able to sue someone domiciled abroad on any generic civil claim governed by US law. And the CJEU’s decision, while not 100% clear, seems to me to mean that a European court will not issue decisions that purport to declare a US patent invalid, except as between the parties.

I think the right rule is the rule suggested in the ALI’s Principles of the Law of Intellectual Property § 211:

1. Except as provided in subsection (2), a court is competent to adjudicate claims arising under foreign laws pertaining to the subject matter of these Principles. However, with respect to each asserted claim, the court must have subject-matter jurisdiction under its local law and personal jurisdiction …
2. A judgment holding registered rights granted under the laws of another State invalid is effective only to resolve the dispute between or among the parties to the action.

Now having opined that Onesta should be allowed to litigate the issue of infringement in the German court, let me suggest that it might be smarter to litigate them in the US, in part because of the pretrial discovery considerations the judge raised. I’ve brought many 1782 proceedings for use in European patent litigation, and I can tell you that no matter what European lawyers say about our system of pretrial discovery in principle, when they get to use it in order to prove their cases, they can be like kids in a candy store. Indeed, if the case does proceed in Germany, it wouldn’t surprise me if both parties end up seeking evidence in the United States, since by definition the infringement must have occurred here. Also, if the patent owner believes it has a strong validity case, a decision of a US court holding the patent is valid may be more valuable to it in the long run than a decision of a German court awarding it damages in the particular case. (I have no idea if that is true in this particular case, though).

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