Tag Archives: Romania

Case of the Day: In re Frau R

The case of the day, courtesy of Peter Bert of Taylor Wessing, is In re Frau R (German Fed. Constitutional Ct. 2015). Yes, I know that’s not the proper form for citing German cases, but it will have to do. Frau R., a Romanian national, sued a Romanian widow for a share of her dead husband’s estate on the grounds that the widow and her husband had adopted her. The widow denied the adoption, and so Frau R. sought recognition, in Germany, of the Romanian adoption. The lower court that heard the case failed to request the record of the adoption from the Romanian court under Council Regulation (EC) No 1206/2001, the EU regulation on judicial assistance, even though Frau R. had presented a letter from the Romanian authorities indicating that they would be receptive to a request from the German court. On appeal, the Federal Constitutional Court held that the lower court had violated Frau R.’s constitutional right to effective judicial protection.
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Case of the Day: Micula v. Government of Romania

The case of the day is Micula v. Government of Romania (D.D.C. 2015). Viorel Micula alleged that he had made investments in Romania in reliance on certain incentives offered by the Romanian government. He claimed that Romania later revoked the incentives, causing him to suffer a loss, and that Romania had acted in violation of its bilateral investment treaty with Sweden. Micula demanded an ICSID arbitration, which resulted in an award in his favor (and in favor of several other investors) of more than $116 million.

Romania asked ICSID to annul the award, and at Romania’s request, ICSID’s secretary-general granted an initial stay of enforcement of the award. Shortly thereafter, Micula brought a petition in Washington under 22 U.S.C. § 1605a seeking ex parte confirmation of the award. (Ex parte confirmation is a well-established procedure in the SDNY; I discussed the issue in a post on Mobil Cerro Negro v. Venezuela). ICSID later constituted an ad hoc committee to consider whether the award should be stayed pending a decision on annulment. The committee agreed to a further stay, but only if Romania gave a written assurance that it would pay the award in full if annulment were denied. Romania failed to give the written assurance, and the committee revoked the initial stay.
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Case of the Day: Microsoft v. John Doe

The case of the day is Microsoft Corp. v. John Doe (E.D.N.Y. 2012). Microsoft asserted claims against dozens of unknown defendants, the alleged creators, controllers, and users of the “Zeus Botnets” malware, a malicious computer program that is used to commit various cyber-crimes. Microsoft did not know the identities of the defendants, but its investigation had shown that they were “most likely [to] reside in the Russian Federation, Ukraine and/or Romania.” Microsoft had served process on the defendants via email and publication on the internet. When they did not answer, it sought entry of default.

The court agreed and directed the clerk to enter the defendants’ default. It noted that the Hague Service Convention did not apply, because the defendants’ addresses (and indeed, their names) were unknown, and it noted that the service satisfied the Due Process Clause because it was reasonably calculated in the circumstances to give notice to the defendants in time to allow them to defend.

My only concern about the decision is that it is not really clear to me that Microsoft obtained the judge’s permission to make service by email and publication before making the service, as I think FRCP 4(f)(3) requires. The rule permits service by such other means “as the court orders.” I don’t see an indication in the decision itself or in the docket of a motion for leave to make service by alternate means.