Articles Posted in International Law

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WesternGeco owns patents for a system used to survey the ocean floor. ION sold a competing system, built from components manufactured in the U.S., then shipped abroad for assembly into a system indistinguishable from WesternGeco’s. WesternGeco sued for patent infringement, 35 U.S.C. 271(f)(1) and (f)(2). The jury awarded WesternGeco royalties and lost profits under section 284. The Supreme Court reversed the Federal Circuit, holding that WesternGeco’s award for lost profits was a permissible domestic application of section 284 of the Patent Act, not an impermissible extraterritorial application of section 271. To determine whether the case involves a domestic application of the statute, courts must identify the statute’s "focus” and ask whether the conduct relevant to that focus occurred in U.S. territory. If so, the case involves a permissible domestic application of the statute. When determining the statute’s focus, the provision at issue must be assessed in concert with other provisions. Section 284, the general damages provision, focuses on “the infringement.” The “overriding purpose” is “complete compensation” for infringements. Section 271 identifies several ways that a patent can be infringed; to determine section 284’s focus in a given case, the type of infringement must be identified. Section 271(f)(2) was the basis for WesternGeco’s claim and damages. That provision regulates the domestic act of “suppl[ying] in or from the United States,” and vindicates domestic interests, The focus of section 284 in a case involving infringement under section 271(f)(2) is the act of exporting components from the U.S., so the relevant conduct occurred in the U.S. Damages are not the statutory focus but are merely the means by which the statute remedies infringements. The overseas events giving rise to the lost-profit damages here were merely incidental to the infringement. View "WesternGeco LLC v. ION Geophysical Corp." on Justia Law

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Purchasers of vitamin C filed suit, alleging that Chinese exporters had agreed to fix the price and quantity of vitamin C exported to the U.S., in violation of the Sherman Act. The exporters unsuccessfully moved to dismiss the complaint and later sought summary judgment, arguing that Chinese law required them to fix the price and quantity of exports, shielding them from liability under U.S. antitrust law. China’s Ministry of Commerce, the authority authorized to regulate foreign trade, asserted that the alleged conspiracy was actually a pricing regime mandated by the Chinese Government. The purchasers countered that the Ministry had identified no law or regulation requiring the agreement; highlighted a publication announcing that the sellers had agreed to control the quantity and rate of exports without government intervention; and noted China’s statement to the World Trade Organization that it ended its export administration of vitamin C in 2002. The Second Circuit reversed a verdict for the purchasers, stating that federal courts are “bound to defer” to the foreign government’s construction of its own law, whenever that construction is “reasonable.” The Supreme Court vacated. A federal court determining foreign law under Federal Rule of Civil Procedure 44.1 should accord respectful consideration to a foreign government’s submission, but is not bound to accord conclusive effect to such statements. Relevant considerations include the clarity, thoroughness, and support of the foreign government's statement; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement’s consistency with the foreign government’s past positions. Determination of foreign law must be treated as a question of law; courts are not limited to materials submitted by the parties, but “may consider any relevant material or source.” View "Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co." on Justia Law

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Petitioners sought compensation under the Alien Tort Statute (ATS), part of the Judiciary Act of 1789, 28 U.S.C. 1350, based on terrorist acts committed abroad. They alleged that those acts were in part facilitated by Arab Bank, a Jordanian institution with a New York branch. They claimed that the bank used that branch to clear dollar-denominated transactions that benefited terrorists through the Clearing House Interbank Payments System (CHIPS) and to launder money for a Texas-based charity allegedly affiliated with Hamas. The Second Circuit and Supreme Court affirmed the dismissal of the case. Foreign corporations may not be defendants in suits brought under the ATS, which is "strictly jurisdictional” and does not provide or define a cause of action for international law violations. The Court noted that after the Second Circuit permitted plaintiffs to bring ATS actions based on human-rights laws, Congress enacted the 1991 Torture Victim Protection Act, creating an express cause of action for victims of torture and extrajudicial killing. ATS suits then became more frequent but “the presumption against extraterritoriality applies to [ATS] claims.” Separation-of-powers concerns that counsel against courts creating private rights of action apply with particular force to the ATS, which implicates foreign-policy concerns. Courts must exercise “great caution” before recognizing new forms of liability under the ATS. In this case. the only alleged connections to the United States, the CHIPS transaction and a brief allegation about a Texas charity, are “relatively minor” and the litigation has caused diplomatic tensions with Jordan, a critical ally. View "Jesner v. Arab Bank, PLC" on Justia Law

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The Foreign Sovereign Immunities Act grants foreign states and their agencies and instrumentalities immunity from suit in the U.S. and grants their property immunity from attachment and execution in satisfaction of judgments against them, 28 U.S.C. 1609, with some exceptions. Petitioners obtained a judgment against the Islamic Republic of Iran under section 1605A, an exception that applies to foreign states designated as state sponsors of terrorism with respect to claims arising out of acts of terrorism. Petitioners sought to attach and execute against Iranian assets—a collection of ancient clay tablets and fragments housed at University of Chicago. The Seventh Circuit and Supreme Court affirmed a holding in favor of Iran. Section 1610(g), which provides that certain property is “subject to attachment in aid of execution, and execution, upon [a 1605A] judgment as provided in this section” does not provide a freestanding basis for parties holding a 1605A judgment to attach and execute against the property of a foreign state. For section 1610(g) to apply, the immunity of the property at issue must be rescinded under a separate section 1610 provision. The section 1610 provisions that unambiguously revoke the immunity of a foreign state’s property employ textual markers that are absent from 1610(g). There is support for petitioners’ position that section 1610(g) was intended to divest all property of a foreign state or its agencies or instrumentalities of immunity. View "Rubin v. Islamic Republic of Iran" on Justia Law

Posted in: International Law

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In January 2017, President Trump signed executive order EO-1, "Protecting the Nation From Foreign Terrorist Entry," suspending, for 90 days, entry of foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, and suspending the United States Refugee Admissions Program (USRAP) for 120 days. The Ninth Circuit upheld a nationwide temporary restraining order. The government revoked EO-1. EO-2 issued on March 6, describing conditions in six countries that “demonstrate ... heightened risks to [U.S.] security.” EO–2 section 2(a) directs Homeland Security to determine whether foreign governments provide adequate information about nationals applying for U.S visas and to report those findings to the President within 20 days; nations identified as deficient will have 50 days to alter their practices (2(b)). EO–2 2(c) directs that entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, be suspended for 90 days; section 3(c) provides for case-by-case waivers. Section 6(a) suspends decisions on applications for refugee status and travel of refugees under the USRAP for 120 days; 6(b) suspends refugee entries in excess of 50,000 for this year. The order’s stated effective date is March 16, 2017. The Ninth Circuit again declined to stay a temporary injunction. The Supreme Court stayed the order in part, with respect to sections 2(c), 6(a), and 6(b). An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country can legitimately claim concrete hardship if that person is excluded, even if the 50,000-person cap has been reached. As to these individuals and entities, the Court did not disturb the injunction; as to those lacking any such connection, the balance tips in favor of the government’s compelling interest in security. The Court noted a June 12 Ninth Circuit decision vacating the injunction as to 2(a) and stated that the Executive should conclude its work and provide adequate notice to foreign governments within the 90-day life of 2(c). View "Trump. v. International Refugee Assistance Project" on Justia Law

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In 2010, a U.S. Border Patrol agent standing on U.S. soil shot and killed Hernandez, an unarmed 15-year-old Mexican national, standing on Mexican soil. Hernandez had been playing a game that involved running up the embankment on the U.S. side of the border. After the Justice Department closed an investigation, declining to file charges, Hernandez’s parents filed suit, including a “Bivens” claims for damages against the agent. The Fifth Circuit affirmed dismissal. The Supreme Court vacated and remanded. A “Bivens” implied right of action for damages against federal officers alleged to have violated a citizen’s constitutional rights is not available where there are special factors counselling hesitation in the absence of affirmative action by Congress. In light of recent Supreme Court precedent (Abbasi), the Fifth Circuit must consider “whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” The Court noted that the Fourth Amendment question is sensitive and may have far-reaching consequences. Qualified immunity shields officials from civil liability if their conduct does not violate clearly established constitutional rights of which a reasonable person would have known. The lower court concluded that the prohibition on excessive force did not apply to Hernandez, as a foreign national on foreign soil, but the Court noted that Hernández’s nationality and the extent of his ties to the U.S. were unknown to the agent at the time of the shooting. View "Hernandez v. Mesa" on Justia Law

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Lexmark holds patents on the components of toner cartridges that it manufactures and sells. Lexmark allows consumers to buy a cartridge at full price, with no restrictions, or to buy a cartridge at a discount through Lexmark’s “Return Program,” by signing a contract agreeing to use the cartridge only once and to refrain from transferring the cartridge to anyone but Lexmark. Remanufacturers acquire empty Lexmark cartridges—including Return Program cartridges—from purchasers in the U.S. and overseas, refill them, and resell them in the U.S. Lexmark sued remanufacturers with respect to Return Program cartridges that Lexmark had sold within the U.S. and cartridges that Lexmark had sold abroad and that remanufacturers imported into the country. The Federal Circuit ruled for Lexmark with respect to both. The Supreme Court reversed. Lexmark exhausted its patent rights (35 U.S.C. 271(a)) in all of the cartridges. A patentee’s decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose. If a patentee negotiates a contract restricting the purchaser’s right to use or resell an item, it may be able to enforce that restriction as a matter of contract law, but may not do so through a patent infringement lawsuit. The exhaustion doctrine is not a presumption about the authority that comes along with a sale; it is a limit on the scope of the patentee’s rights. The Patent Act just ensures that the patentee receives one reward—of whatever it considers satisfactory compensation—for every item that passes outside the scope of its patent monopoly. View "Impression Products, Inc. v. Lexmark International, Inc." on Justia Law

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Water Splash sued Menon, a former employee, in Texas state court. Because Menon resided in Canada, Water Splash obtained permission to effect service by mail. Menon declined to answer or enter an appearance. The trial court issued a default judgment. Menon argued that service by mail was impermissible under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (Hague Service Convention). Vacating a Texas Court of Appeals decision in Menon’s favor, the Supreme Court held that the Convention does not prohibit service of process by mail. Article 10(a) uses the term “judicial documents” and the ordinary meaning of the word “send” is broad enough to cover the transmission of any judicial documents. The Convention’s drafting history strongly suggests that the drafters understood that service by postal channels was permissible; in the half-century since the Convention was adopted, the Executive Branch has consistently maintained that it allows service by mail. Other Convention signatories have consistently adopted that view. That Article 10(a) encompasses service by mail does not mean that it affirmatively authorizes such service; service by mail is permissible if the receiving state has not objected to service by mail and if such service is authorized under other applicable laws. View "Water Splash, Inc. v. Menon" on Justia Law

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A case falls within the scope of the Foreign Sovereign Immunities Act, 28 U.S.C. 1604, “expropriation exception” and may be pursued against a foreign state in U.S. federal courts only if the property in which the party claims to hold rights was indeed “property taken in violation of international law.” The Supreme Court held that the exception should not be evaluated under the “nonfrivolous-argument standard” and remanded to the District of Columbia Circuit. The case was filed by a wholly-owned Venezuelan subsidiary and its American parent company that supplied oil rigs to entities that were part of the Venezuelan Government, claiming that Venezuela had unlawfully expropriated the subsidiary’s rigs by nationalizing them. A court should decide the foreign sovereign’s immunity defense at the threshold of the action, resolving any factual disputes as near to the outset of the case as is reasonably possible. The expropriation exception grants jurisdiction only where there is a legally valid claim that a certain kind of right is at issue (property rights) and that the relevant property was taken in a certain way (in violation of international law). Simply making a nonfrivolous argument to that effect is not sufficient. View "Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co." on Justia Law

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The Racketeer Influenced and Corrupt Organizations Act (RICO), makes it a crime to invest income derived from a pattern of racketeering activity in an enterprise “which is engaged in, or the activities of which affect, interstate or foreign commerce,” 18 U.S.C. 1962(a); to acquire or maintain an interest in an enterprise through a pattern of racketeering activity, 1962(b); to conduct an enterprise’s affairs through a pattern of racketeering activity, 1962(c); and to conspire to violate any of the other three prohibitions, 1962(d). Section 1964(c) creates a private right of action. The European Community and 26 member states filed a RICO civil suit, alleging that RJR participated in a global money-laundering scheme in association with organized crime groups, under which drug traffickers smuggled narcotics into Europe and sold them for euros that—through black-market money brokers, cigarette importers, and wholesalers—were used to pay for large shipments of RJR cigarettes into Europe. The Second Circuit reversed dismissal of the claims, concluding that RICO permits recovery for a foreign injury caused by the violation of a predicate statute that applies extraterritorially. The Supreme Court reversed, first noting the presumption against extraterritoriality. While allegations under Sections 1962 (b) and (c) do not involve an impermissibly extraterritorial application of RICO, Section 1964(c), creating private remedies, does not overcome the presumption against extraterritoriality. Allowing recovery for foreign injuries in a civil RICO action could create a danger of international friction that militates against recognizing foreign-injury claims without clear direction from Congress that is not present in Section 1964(c). View "RJR Nabisco, Inc. v. European Cmty." on Justia Law