There is a little-known provision of the Lanham Act (the US Trademark Act) that packs a potentially big punch. 15 USC § 1051(e) provides that if a non-U.S. entity registers for a trademark in the United States without designating a United States resident for service of “notices or process in proceedings affecting the mark” (a
Halkbank v. United States: Initial Read on the Supreme Court’s Decision on Foreign State Immunity from Criminal Prosecution
Yesterday, the Supreme Court issued its decision in Turkiye Halk Bankasi A.S., aka Halkbank v. United States. This groundbreaking case represents the first known attempt by the United States (or likely any state in modern history) to indict and criminally-prosecute the agency or instrumentality of a foreign state. The Supreme Court held that…
New York State Court Decision Provides Practice Guidance for Sovereigns and Landlords
As we’ve previously written, complications arise for foreign sovereigns (States) and private companies when they structure commercial transactions. States prefer to hold as much of their immunities as is possible, while private companies prefer the State waive all immunities. This is particularly true with respect to execution on a judgment for breach of the…
New Law in Québec Will Impact Businesses And Trademarks
On June 1, 2022, Bill 96, an act passed by the Québec legislature, became law. In general, Bill 96 broadens French language requirements, affecting many aspects of commercial, governmental, and public life in Québec. Sanctions for non-compliance can include fines ranging up to $7,000 per day for individuals and up to $30,000 per day for entities, with increased fines for repeat offenders.
Bill 96’s new requirements include the following:…
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Ninth Circuit Weighs In On Section 1782 Issue That Has Split Federal Courts
As we’ve previously written (most recently here), 28 U.S.C. § 1782 is a useful federal statute that allows overseas litigants to obtain discovery through U.S. federal courts for use in the overseas litigation. With respect to adjudication of Section 1782 applications, some federal courts have disagreed about whether such are “dispositive” or “non-dispositive” matters when the application is decided by a federal magistrate judge, as opposed to a federal district judge. The distinction is relevant because federal district judges review magistrate judges’ reports and recommendations on “dispositive” matters de novo, but review magistrate judges’ rulings on “non-dispositive” matters only to determine whether the ruling was clearly erroneous or contrary to law.
In a recent decision, the Ninth Circuit Court of Appeals held that Section 1782 applications are “dispositive” for purposes of a magistrate judge’s ruling on the issue. The Ninth Circuit reasoned that the matter was “dispositive” because “the magistrate judge’s order denied the only relief sought by [the applicant] in this federal case: court-ordered discovery.” The court distinguished the situation from the types of discovery matters typically heard by a magistrate judge because those discovery matters are usually in the context “of an ongoing civil case in that same federal court for monetary damages, injunctive relief, or the like.” In the Section 1782 context, however, there is no ongoing federal civil case: the Section 1782 application is the only relief sought in, and the only purpose for having commenced, the action.…
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The Future of Bilateral Investment Treaty Arbitrations Between EU Member Countries
Post Achmea and Komstroy, arbitration provisions in bilateral investment treaties have come into doubt with respect to intra-EU disputes between investors and EU member states. Most recently, the Contracting Parties to the Energy Charter Treaty (ECT) on June 24, 2022, announced their agreement in principle on the modernisation of the ECT. Part of the agreement “confirm[s] that an investor from a Contracting Party that is part of a regional economic integration organisation (REIO), like the EU, cannot bring an Investor-state dispute settlement (ISDS) claim against another Contracting Party member of the same REIO.” The Parties addressed that aspect in order to “finally bring an end to the intra-EU applications under the ECT that are contrary to the EU law and recent judgments by the Court of Justice of the EU.” This post summarizes the background, recent decisions post-Achmea and Komstroy, and the resort to enforcement outside of the EU, particularly the actions pending in the United States.
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US Supreme Court Clarifies the Scope of 28 U.S.C. § 1782
The federal statute 28 U.S.C. §1782 allows litigants in a foreign proceeding to obtain discovery in the United States, under the broad US discovery rules, for use in such proceedings. Although Section 1782’s use has been expanding (which you can read about here) and has been applied even to documents held overseas (which you can read about here and here), there was a split in authority regarding whether the statute was broad enough to permit US courts to authorize discovery for use in private arbitrations overseas. The Fourth and Sixth Circuit courts of appeals held that it was broad enough to cover private arbitrations, while the Second, Fifth and Seventh Circuits held that the statute does not extend to private arbitrations. On June 13, 2022, the US Supreme Court resolved the split and sided with the courts holding that the statute does not extend to private arbitrations overseas.1…
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Federal Court Addresses Central Bank Immunity and Authority to Waive Under Foreign Sovereign Immunities Act
In recent weeks sanctions against Russia’s central bank have prompted renewed buzz around the issue of sovereign immunity. The interpretation of the Foreign Sovereign Immunities Act (“FSIA”), specifically with relation to central banks, may become particularly important as sanctions continue to mount against Russia and its central bank. A recent decision from a District of Columbia federal court fits a pattern of courts granting protection to central banks under FSIA. The decision also deepened the split among federal courts regarding the authority required to waive immunity, which we previously wrote about here.
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