international law

BG Group, PLC v. Republic of Argentina

Issues

  1. Does an arbitrator or a court decide whether a precondition to arbitration has been satisfied?
  2. To what extent can federal courts review such decisions?

The United Kingdom and Argentina signed the Bilateral Investment Treaty in 1990 to promote international investment in Argentina. The Treaty requires that disputes first be submitted to Argentine courts for a certain period before being arbitrated. After the Argentine economic crisis in 2001 and 2002, Argentina enacted several measures that restrained investors from litigating effectively. BG Group filed for arbitration in the United States against Argentina without first submitting the dispute to Argentine courts. After the arbitral tribunal issued an award, Argentina argued that the tribunal had no jurisdiction over the parties. The issue here is whether the arbitrators or the courts should determine whether a precondition for arbitration has been satisfied. BG Group argues that the purpose of international arbitration is to allow experienced arbitrators to decide issues in a neutral forum, not governed by a particular country. Argentina argues that the purpose of arbitration is to give the parties what they agreed to and that judicial review is necessary for securing international treaties. The Supreme Court will determine whether courts or arbitrators decide these threshold questions of arbitrability. This decision will impact the substance of international arbitration agreements and how the United States is perceived as a seat for international arbitration.

Questions as Framed for the Court by the Parties

  1. In disputes involving a multi-staged dispute resolution process, does a court or instead the arbitrator determine whether a precondition to arbitration has been satisfied?
  2.  Whether a federal court with jurisdiction over an application to vacate an arbitral award may independently decide whether a valid and binding agreement to arbitrate has been created under the terms of a bilateral investment treaty?

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Facts

On December 11, 1990, the United Kingdom and Respondent Argentina signed the Bilateral Investment Treaty (“BIT”). See Republic of Arg. v. BG Group PLC, 665 F.3d 1363, 1366 (D.C. Cir.

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bilateral investment treaty

CC/Devas (Mauritius) Limited v. Antrix Corp. Ltd.

Issues

When seeking to enforce an international arbitration award in U.S. court, must parties show a sufficient connection with the United States?

This case asks whether plaintiffs must prove minimum contacts before federal courts may assert personal jurisdiction over foreign states sued under the Foreign Sovereign Immunities Act. Antrix, which is an Indian state-owned corporation, repudiated its contract with Devas, which is a private Indian corporation. Devas argues that federal courts in the United States can exercise personal jurisdiction to enforce the arbitration award Devas had won. Antrix counters that because their dispute lacks minimum contact with the United States, federal courts in the United States lack personal jurisdiction to enforce the arbitration award. The outcome of this case has significant implications for international relations and post-judgment asset discovery. 

Questions as Framed for the Court by the Parties

Whether plaintiffs must prove minimum contacts before federal courts may assert personal jurisdiction over foreign states sued under the Foreign Sovereign Immunities Act.

Petitioner Devas Multimedia Private Ltd. (“Devas”) is a private Indian corporation. Devas Multimedia Private Ltd. v. Antrix Corp. Ltd. at 3. Respondent Antrix Corp. Ltd. (“Antrix”) is a corporation owned by the Government of India.

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customary international law

diplomatic law

Diplomatic law is a field of international law concerning the practice of diplomacy, and the rights and obligations of state representatives on the territory of other states. The broad corpus of diplomatic law derives from one of the oldest principles of customary international law, diplomatic immunity, and 

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Federal Republic of Germany v. Philipp

Issues

Does the Foreign Sovereign Immunities Act allow United States courts to assert jurisdiction over claims that a foreign country took the property of its own citizens “in violation of international law” and, if so, is international comity available as a defense to that jurisdiction?

This case asks the Supreme Court to determine whether foreign sovereign immunity and international comity prevent United States courts from asserting jurisdiction over a claim that a foreign nation unlawfully took the property of its own citizens during the Holocaust. The expropriation exception in the Foreign Sovereign Immunities Act (“FSIA”) grants the United States jurisdiction when property was “taken in violation of international law.” Petitioner Germany argues that the exception applies only to property taken in violation of the international law of expropriation and, even if jurisdiction exists, the Court should still dismiss the case based on international comity so it can be resolved in Germany. Respondents Alan Philipp and other heirs of German Jews who sold art to Nazis counter that any violation of international law, including genocide, is sufficient to grant jurisdiction under the FSIA, and the FSIA has already extended the required comity to Germany. The outcome of this case will determine whether United States courts can abstain from exercising jurisdiction over claims against foreign sovereigns and thus will affect American international relations and access to justice in United States courts.

Questions as Framed for the Court by the Parties

(1) Whether the “expropriation exception” of the Foreign Sovereign Immunities Act, which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,” provides jurisdiction over claims that a foreign sovereign has violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states’ responsibility for takings of property; and (2) whether the doctrine of international comity is unavailable in cases against foreign sovereigns, even in cases of considerable historical and political significance to the foreign sovereign, and even when the foreign nation has a domestic framework for addressing the claims.

Around 1929, three art dealer firms, J. & S. Goldschmidt, I. Rosenbaum, and Z.M. Hackenbroch, formed a Consortium (the “Consortium”) in Frankfurt, Germany. Philipp v. Fed. Republic of Germany, (D.D.C. 2017) at 64. The owners were German Jews and the ancestors or predecessors-in-interest of Respondents Alan Philipp, Gerald G. Stiebel, and Jed R. Leiber.

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Acknowledgments

The authors would like to thank Professor Maggie Gardner for her guidance and insights into this case.

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genocide

International Bank of Reconstruction and Development

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