Letters Blogatory

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

Supreme Court Grants Cert. In Servotronics Case

Posted on March 22, 2021

Today the Supreme Court granted the petition for a writ of certiorari in the Servotronics case. This is the case that will (we hope!) address the most significant outstanding circuit split in Section 1782 practice today: does the statute allow the federal courts to order discovery in the United States in aid of a private international arbitration seated abroad? I’ve written about the case a few times before, both substantively and procedurally. On the procedural front, it will be interesting to see whether the Court can get to the case in sufficient time for a decision before the issue becomes moot—there were some interesting hijinks in the petition stage indicating the petitioner is worried about this. On the substantive front, the questions are interesting and, I think, not easy. Given the limitations on the parties’ ability to take discovery without leave of the arbitrators in domestic cases, isn’t it incongruous to let them do it in international cases? On the other hand, doesn’t a private international arbitral tribunal have the same functions as a foreign court in the relevant senses, and doesn’t it therefore pass muster as a “tribunal” under Intel? We’ll be keeping a close eye on this one.

Missouri v. China: a Letters Blogatory (Informal) Amicus

Posted on March 10, 2021

I wrote almost a year ago about Missouri v. China, which I called the “unmeritorious case of the day.” This is the case brought by the state of Missouri against the Chinese government, the Chinese Communist Party, the Wuhan Institute of Virology, and the Chinese Academy of Sciences, alleging that the COVID-19 pandemic is “the direct result of a sinister campaign of malfeasance and deception carried out by the Defendants.” When we think, a year later, about the reasons the pandemic has been so bad in the United States, “blame China” seems quaint. Anyway, as I observed in the prior post, leaving aside everything else wrong with the case, it was going to be a challenge to serve process on the defendants, and that’s how it turned out. After China predictably refused to execute a letter of request under the Service Convention on Article 13 grounds, Missouri has recognized that it is going to need to serve process on the governmental defendants via diplomatic channels as prescribed in such cases under 28 U.S.C. § 1608. And after first saying that it would seek to serve all defendants under the FSIA, Missouri now seeks leave under FRCP 4(f)(3) to serve process on the Communist Party, the Wuhan Institute of Virology, and the Chinese Academy of Sciences by email.

Because motions like this are almost always heard ex parte, without giving the court the benefit of the arguments against alternate service, I’ve prepared this post as a kind of informal amicus brief, which perhaps some enterprising clerk in St. Louis will find. I suppose I could seek submit an amicus brief directly, but that seems uncool to me and would, I think, put me in bad company when you consider the lawyers who seek to inject themselves into politically salient cases. Anyway, here for what it is worth is the argument that shows that Missouri’s motion must be denied.

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Guest Post: Hans Hysenaj on Enforcement in Albania

Posted on March 8, 2021

A warm welcome to new guest poster Hans Hysenaj, a student at Suffolk Law School here in Boston! I met Hans at an event sponsored by the International Law section of the Boston Bar Association—it’s great to meet law students eager to connect with colleagues through bar associations and the like. Hans is Albanian and brings us this note about the legal climate in his country.

I have been invited to write a post on Ted’s blog, and I am very excited to be given this opportunity to write a post. This is the first time my writing will be shared with an audience, and it is an audience of high intellectuals and decision makers no less. (Ed. note: laying it on a little thick, Hans!) I have read some of the posts Ted has written, as well as some of the posts of the other guests, and I am impressed with the knowledge and information packed into their posts. I thank Ted for this opportunity, and I hope this contribution brings the reader as much pleasure and insight as they are used to receiving while scrolling through the blog.

The issue I am writing about is the enforceability of contracts, and judicial assistance available for foreign companies investing in my country, Albania, and the underlying problems surrounding these issues.

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