Letters Blogatory

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

ICC Building
Credit: OSeveno, CC BY-SA 4.0, via Wikimedia Commons

Event Announcement: Challenges for the International Criminal Court

Posted on April 15, 2021

Boston Bar AssociationReaders, the International Law Section of the Boston Bar Association is proud to be sponsoring a webinar on May 6, 2021 at 12:00 EDT (UTC -4): “Challenges for the International Criminal Court.” The event, which is free and open to the public, will feature Alex Whiting of Harvard Law School, Beth Van Schaack of Stanford Law School, and Sam Lowery of Bankside Chambers, and it will be modified by Kim West. Here is the overview:

Established by the Rome Statute in 2002, the International Criminal Court is the only permanent international judicial body to try individuals for genocide, crimes against humanity and war crimes. The Biden Administration recently rescinded sanctions levied against ICC Prosecutor Fatou Bensouda, who will be ending her nine-year term shortly. The new Prosecutor, British barrister Karim Khan, will take office in June after prevailing in a highly criticized election process. Multiple challenges are in store for Khan, including criticism of the organization for its lack of prosecutions, geo-centric investigations and inefficiency.

Please join our discussion with international experts and practitioners in their view of the historical challenges of the ICC, the recent election of the new prosecutor and hopes for the future of the organization.

Registration is required for non-BBA members, and if you would like to register, please send me an email (ted@folkman.law) and I will arrange it.

Ted with the New Book

Book of the Day: Arbitration of International Intellectual Property Disputes

Posted on April 12, 2021

Readers, check out the second edition of Arbitration of International Intellectual Property Disputes, just out from JURIS. My colleague David Evans and I have a chapter on choice of law and conflict of laws. There are many excellent authors from around the world, but I’m happy to report that Boston is well-represented, with Meriann Panarella, Philip O’Neill, and Conna Weiner among the authors. The book is worth your time! As I have come to expect, Tom Halket, the editor, did a terrific job pulling this project together. As you can imagine, getting a lot of lawyers to pull in the same direction can be a challenge.

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.