Hundreds of billions of dollars' worth of goods and services flow between the United States and China every year, and all of that commerce gives rise to disputes. While we at FITCH usually recommend entering into International Arbitration agreements when contracting with parties in China, sometimes that is not an option, such as when Chinese companies creates knock-off products and sell them online to U.S. consumers. While U.S. courts will have jurisdiction over these disputes, just serving process on Chinese companies or individuals can be bedeviling.
Foreign litigants recently successfully sought the assistance of the United States District Court for the District of Massachusetts in obtaining discovery of Massachusetts residents and a Massachusetts company for use in a foreign proceeding. See In re Penner, No. 17-CV-12136-IT, 2017 WL 5632658 (D. Mass. Nov. 22, 2017). The foreign litigants in that case relied on a Federal Statute, 28 U.S.C. § 1782, that permits U.S. District Courts to order discovery for use in foreign proceedings under certain circumstances. Section 1782 provides, in pertinent part, "[t]he district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal." In granting discovery pursuant to Section 1782, the Penner court relied upon the United States Supreme Court's analysis of that statute in Intel Corp. v. Advanced Micro Devices, Inc.
The Court of Appeals for the Eleventh Circuit will be the next body to weigh in on a dispute between Del Monte International GmbH ("Del Monte") and Inversions y Procesadora Tropical INPROTSA, S.A. ("INPROTSA") over an exclusive sales agreement for pineapples. The case has been appealed to the Eleventh Circuit, and the appeal raises issues of the finality of international arbitration awards.
When handling a commercial case between parties from different countries, it is important to consider what impact, if any, the United Nations Convention on Contracts for the International Sale of Goods ("CISG") may have on the dispute. If it applies to a contract dispute, the CISG will supplant the Uniform Commercial Code and other state law concerning sales of goods.
The Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") is a multilateral treaty. The signatory countries cooperate in returning children to their home country for custody proceedings. The United States assisted in drafting the Hague Convention and became a signatory in 1981.
A judge recently held that the Massachusetts Superior Court did not have long-arm jurisdiction to hear a defamation claim against several non-residents who allegedly published false, defamatory statements about a Massachusetts resident on the Internet. See Arthur v. Doe, 32 Mass. L. Rptr. 296 (2014), 2014 WL 4364850. The opinion -- while not binding authority -- may be of interest to foreign litigants who find themselves facing Internet-based defamation claims in the Commonwealth.
Earlier this month, a federal judge in the Southern District of New York spun a new twist in the long-standing legal battle over environmental contamination in the Lago Agrio region of Ecuador. In a 485-page ruling, Judge Lewis Kaplan ruled that lawyers leading the Lago Agrio plaintiffs' prosecution of claims against Chevron (which acquired the alleged contaminator, Texaco) used corrupt means to secure an $18 billion judgment from an Ecuadorian court. See Chevron Corp. v. Donziger et al, S.D.N.Y. 11-00691.
Discretion, they say, is the better part of valor. So, too, judicial discretion is the better part of equity. Last fall, despite acknowledging "the equitable power and authority" to issue an injunction, the Worcester Superior nonetheless chose to keep its powder dry.