NY Court of Appeals Rules that Where No Treaty Applies to Service of Process in Foreign Country, Compliance With New York Service Requirements Is Sufficient
Service pursuant to Civil Practice Law and Rules (CPLR) 313 was found sufficient to obtain personal jurisdiction over defendants located in Brazil despite the fact that the service dd not comply with Brazilian law which required that service be carried out by means of letter rogatory. The court concluded that service may be made outside the State in the same manner it is made within the State without any requirement to fulfil the foreign locale's service requirements. The Court found no need to apply principles of comity to this question, that the Letter Rogatory Convention does not prescribe an exclusive means of service, and that no other treaty applies to service in Brazil.
NY Supreme Court Grants Summary Judgment on Basis of New Jersey Default Judgment for Gambling Debt This decision summarizes some of the basic rules governing when a sister state judgment is entitled to the registration procedure under Article 54 of the CPLR, and when it must be the subject of a motion for summary judgment under Art. 32. Also addressed are issues of service, personal jurisdiction and the public policy defense in relation to judgments based on gambling debts.
Service of Foreign Court Documents in the United States
The Supreme Court of the State of New York, New York County, has ruled that documents served in the United States in support of a proceeding taking place outside the United States, including an initial summons and complaint, do not have to be translated into English under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (The Hague Service Convention). From the decision it is unclear whether the personal service in this particular case was accomplished by a private process server or through the agency of the US Central Authority.
Requirement that Foreign Plaintiff Post Security Bond as Condition of Suit Rule 54.2 of the Local Civil Rules for the United States District Courts for the Southern and Eastern Districts of New York provides ("Rule 54.2") that "[t]he court, on motion or on its own initiative, may order any party to file an original bond for costs or additional security for costs in such an amount and so conditioned as it may designate." In the event that a party fails to post bond as directed, "the court may make such orders in regard to noncompliance as are just, and among others the following: an order striking out pleadings or staying further proceedings until the bond is filed or dismissing the action or rendering a judgment by default against the noncomplying party." In a new decision the court decribes the factors considered when deciding whether to impose a bond requirement.
Sea Trade Co. Ltd. v. FleetBoston Financial Corp., 03 Civ. 10254 (US Dist. Ct., S. Dist N.Y.)
Forum Selection Clauses
Contracts governing international transactions often contain forum selection clauses designed to determine which nation's courts will have jurisdiction over disputes that may arise under the contract. They often also contain choice of law clauses which determine which nation's laws will apply to the interpretation of the contract. One or both of these clauses may appear in a given contract. A decision was recently given by the US Court of Appeals (10th Circuit) clarifying the rule that where both types of clause appear in a contract, the forum selection clause will be examined according to the law specified in the choice of law provision in order to determine whether and how it will be applied. For example, if according to a forum selection clause a contract calls for the Swiss courts to rule on disputes arising under the contract, and according to a choice of law provision the courts are instructed to have the dispute examined according to French law, and one of the parties submits a claim to a federal court in the United States, the US court will determine whether it has jurisdiction or must defer to the Swiss courts by examining what effect the forum selection clause would have under French law. The case is Yavuz v. 61 MM Ltd. (10th Circuit) Sept. 21, 2006.
Sovereign Immunity
Foreign governments typically enjoy soveriegn immunity from lawsuits in the United States. The major exception to this rule is where the foreign government has engaged in regular commercial activity such as the leasing of offfice space or the purchase of equipment and the like. In relation to this commercial activity the foreign government does not enjoy immunity and may be effectively sued as a typical private party could. Sometimes a question arises as to how a particular activity should be categorized: is the activity governmental in nature, or is it commercial activity for which the foreign government may be sued as easily as regular folk. An interesting decision on this subject was recently goven where the activity being examined was the foreign government's offer (in this case Peru's offer) of a reward for information leading to the location and capture of a fugitive. Specifically it was the government of Peru's offer of a $5,000,000 reward for information leading to the location and capture of Vladimiro Lenin Montesino Torres, the country's former spychief accused of a host of crimes and compared by US intelligence agencies to such sinister figures as Darth Vader and Cardinal Richelieu. After a fascinating and detailed history and analysis of the Foreign Sovereign Immunities Act (28 USC 1604 et seq.) the court concludes that the supply of information in a war on crime is no different than the supply of material in a standard war of arms, and that the FSIA does not bar plaintiff's breach of contract lawsuit for the collection of his reward. See the full case: Guevara v. Republic of Peru, US Court of Appeals for 11th Circ. (11/01/06 - No. 05-16235)