Saturday, August 21, 2010
The New York Times has a feature on Ken Feinberg and the new challenges of administering the BP Spill Fund.
From the article:
The attacks of Sept. 11 were largely fixed in time and place, killing almost 3,000 in a morning and raining destruction on three distinct areas: Lower Manhattan, the Pentagon and a field in Pennsylvania.
The oil spill, by contrast, is more open-ended. When the Deepwater Horizon rig exploded, 11 workers were killed and oil was sent gushing into the Gulf of Mexico for months, damaging the environment and the economies of at least four states for what could well be years.
The two funds are different, too. The Sept. 11 fund was created to compensate people who were injured in the attacks and the families of people who were killed, while the oil spill fund will largely compensate people and businesses for lost income.
Thursday, August 19, 2010
Wednesday, August 18, 2010
Professor Jie Huang (Duke University School of Law; Shanghai Institute of Foreign Trade School of Law) has posted "Interregional Recognition and Enforcement of Civil and Commercial Judgments: Lessons for China from US and EU Laws" on SSRN. It will be published in the Journal of Private International Law.
The abstract states:
Tuesday, August 17, 2010
Alan Scott Rau has posted Understanding (and Misunderstanding) "Primary Jurisdiction" to SSRN.
In our “Westphalian” regime of international arbitration, conflict and competition between national jurisdictions, with overlapping and yet plausible claims to supervise the process, become inevitable. The conventional starting point for any discussion - the fulcrum around which the entire arbitral enterprise pivots - has been the supposed dichotomy between the state of the “seat” - where the arbitration finds its juridical “home,” and whose jurisdiction over the process is therefore “primary” - and all other states whose jurisdiction must therefore be deemed only “secondary.” Both legislation and Convention envisage an exclusive role for the former in setting the process in motion - for example, by appointing the arbitrators - and above all in monitoring compliance with the agreement - for example, by annulling or vacating the resulting award.
That the “seat” is the privileged starting point with respect to any allocation of judicial authority has traditionally been a simple reflection of the power of any sovereign over acts taking place within its “territory”; an alternative and perhaps more robust explanation would be somewhat more “contractualist,” giving priority to the parties’ exercise of autonomy in the very act of selecting the place of arbitration - and to the intuition that, by extension, they have presumptively chosen to subject themselves both to a certain body of “arbitration law,” and to the supervisory jurisdiction of the courts charged with applying that law.
I begin by canvassing the various fact patterns in which the traditional allocation of international competence on the basis of “primary” and “secondary” jurisdiction might possibly be thought useful: It has become, for example, the heuristic of choice to test the extraterritorial effect of an award, in circumstances where the agreement of the parties has subjected the arbitral process to a particular legal system whose own courts have found it lacking in legitimacy. All this is much controverted, but generally well understood.
The inevitable problem, though, is that none of this is a universal solvent - the world can after all be understood and patterned and divided up in all sorts of ways. What may have begun as a rough attempt to allocate responsibility over the unfolding of the process, has often been unthinkingly applied to all sorts of new and unexpected and inappropriate contexts.
Where, for example, a party has asked a court to enjoin an arbitration against him that has been threatened or initiated - perhaps on the fundamental ground that he has never even given his assent - American courts will increasingly hold that, whatever power they might have to enjoin a “local” arbitration, it would be “inconsistent with the purpose of the New York Convention” to enjoin arbitral proceedings in a state of “secondary jurisdiction” - and thus they “lack jurisdiction” to do so. Where a party has claimed that a foreign award has been obtained by bribery and corruption, and wishes to institute a “collateral attack” in this country through a RICO action, it may equally be held that the court lacks “subject matter jurisdiction” to reassess an award rendered in a state of “primary jurisdiction”; “under the framework of the New York Convention, the proper method of obtaining this relief is by moving to set aside or modify the award in a court of primary jurisdiction.”
American courts thus seem curiously mesmerized, when asked to deploy familiar procedural devices in aid of their nationals, by a rhetoric invented for quite different purposes. What purports in cases like these to be a commendable solicitude for the needs of international arbitration, takes the form of an abdication of any decision making power whatever, in favor of the courts of the seat. To invoke a putative lack of “power” based upon absolute prohibitions that supposedly emanate from the Convention seems a crude and clumsy and overbroad and irresponsible way of responding; even a legal system quite committed, for example, to the proposition that attempts to evade the arbitral process are likely to be quite without merit - or for that matter to the proposition that international neutrals cannot possibly be corrupt - need not shrink, on the prophylactic grounds of lack of jurisdiction, from testing any challenges.
The U.S. Court of Appeals for the Fifth Circuit has decided Clemens v. McNamee, No. 09-20625 (Aug. 12, 2010). If those names sound familiar, it’s because this case is the defamation action filed by baseball legend Roger Clemens against ex-trainer Brian McNamee based on McNamee’s statements that Clemens used performance-enhancing drugs. Clemens filed the case in Texas state court, and McNamee removed it to the U.S. District Court for the Southern District of Texas. The district court dismissed for lack of personal jurisdiction. A Fifth Circuit panel has now affirmed the dismissal in a 2-1 decision. From the majority opinion authored by Judge W. Eugene Davis:
In this appeal, we consider whether allegedly defamatory statements made elsewhere but which caused damage to the plaintiff in the forum state are sufficient to confer personal jurisdiction over the defendant when the content and context of the statements lack any connection with the forum state. For the following reasons, we agree with the district court that the plaintiff failed to establish personal jurisdiction over the defendant and affirm.
. . .
The most instructive case on this issue from the Supreme Court is Calder v. Jones, 465 U.S. 783 (1984). . . . We read Calder as requiring the plaintiff seeking to assert specific personal jurisdiction over a defendant in a defamation case to show (1) the subject matter of and (2) the sources relied upon for the article were in the forum state. Thus the question in this case further narrows to whether McNamee’s allegedly defamatory statements were aimed at or directed to Texas. . . . [T]he statements in this case concerned non-Texas activities–the delivery of performance-enhancing drugs to Clemens in New York and Canada. The statements were not made in Texas or directed to residents of Texas.
In support of jurisdiction, Clemens points to the harm he suffered in Texas and to McNamee’s knowledge of the likelihood of such damage in the forum. Yet . . . Clemens has not made a prima facie showing that McNamee made statements in which Texas was the focal point: the statements did not concern activity in Texas; nor were they made in Texas or directed to Texas residents any more than residents of any state. As such, the district court did not err in dismissing Clemens’ suit for lack of personal jurisdiction over McNamee.
From the dissenting opinion by Judge Catharina Haynes:
Because I conclude that specific jurisdiction exists here, I respectfully dissent. McNamee had sufficient minimum contacts with Texas, and the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice.
. . .
In this case, there are two independent grounds upon which the minimum contacts inquiry is satisfied. First, McNamee made numerous business trips to Texas to train Clemens, and these trips “relate to” and form an integral part of the instant cause of action. Second, under the Calder “effects test,” McNamee established minimum contacts with Texas because, taking Clemens’s allegations as true, McNamee intentionally directed his false claims at Texas, where he knew Clemens resided and where it was foreseeable that the brunt of the injury from McNamee’s statements would be felt.
Monday, August 16, 2010
Margaret Williams (Federal Judicial Center) and Tracey George (Vanderbilt University) have posted Who Will Manage Complex Civil Litigation?: The Decision to Transfer and Consolidate Multidistrict Litigation to SSRN.
The United States Judicial Panel on Multidistrict Litigation may transfer factually related actions filed in different federal districts to a single judge for consolidated pretrial litigation. This transferee judge has significant discretion over the management of the litigation, and nearly all cases are resolved without returning to the original district court. Thus, as a practical matter, the Panel controls where these disputes will be litigated. And, the Panel has substantial discretion in making that decision. In its forty years of existence, the Panel has transferred roughly 325,000 lawsuits including high-profile securities and derivative lawsuits (the collapse of Lehman Brothers and the Ponzi scheme of Bernie Madoff), consumer claims (Countrywide Mortgage’s lending practices), and mass torts ranging from the Vioxx litigation to the Union Carbine disaster in Bhopal to the bombing of Pan Am Flight 103. BP already has moved to consolidate and transfer more than 100 Gulf of Mexico oil spill suits filed against it in the various districts along the Gulf coast to the Southern District of Texas for pre-trial litigation, and potentially related suits filed in the future are likely to be transferred as well.
The current study provides the first empirical investigation of the Panel’s decision to transfer and consolidate pending federal civil lawsuits, examining the rationale for transfer and for the selection of a specific district court and judge to handle the consolidated litigation. The results provided here represent a draft paper based on a sample from an ongoing data project which ultimately will include all Panel orders.
Professor Lisa A. Dolak (Syracuse University College of Law) has posted "Lawyers Acting Badly, or Not? Misconduct in IP Litigation: Recent Examples and the Issues They Raise" on SSRN.
The abstract states: