Saint Louis, USA

Time is not on your side: timeliness of forum non conveniens motions in the Eighth Circuit

By Tyler Schwettman, Sandberg Phoenix & von Gontard

Earlier this year, the US Court of Appeals for the Eighth Circuit issued an opinion in the case of Hersh v. CKE Restaurants Holdings, Inc., 995 F.3d 659 (8th Cir. 2021), in which it held that the defendants’ motion to dismiss on forum non conveniens grounds was untimely. As further explained below, this decision serves as a warning to litigants and advocates who may choose to hold off on filing a motion to dismiss based on such grounds. In short, sooner is better than later, and later may very well be too late.

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for sale

Selling your home without satisfying an IRS tax lien

By Alison Gadoua, Prager Metis International LLC

If you owe money to the Internal Revenue Service (“IRS”) then it is very likely that it will file a Notice of Federal Tax Lien (“NFTL”) against you to secure the debt. The NFTL provides the US government the right to collect the net proceeds of any sale of property that you own in the county in which a lien has been filed. The fastest way to have the lien released is to pay your debt in full. But what if you can’t afford to pay the debt in full? What if you are looking to sell your home but the sale will not produce any funds for the IRS to entice them to release their lien? Is all hope lost? No!

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Portland, USA

How to write a bad international alternative dispute resolution clause

By Jihee Ahn, Harris Bricken

Many of our clients believe alternative dispute resolution (ADR) clauses are little more than boilerplate, but well-drafted ADR clauses can not only put you on the winning side in any litigation, they can also cause your counterparty to back away from litigation entirely. Unfortunately, a poorly drafted alternative dispute resolution clause can be worse than no clause at all.

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Amsterdam, The Netherlands

Recognising foreign judgments and the principle of exhaustion

By Michiel Teekens, TeekensKarstens advocaten notarissen

Based on private international law, a foreign decision from a nontreaty state is recognised in the Netherlands if, among other criteria, the recognition of the foreign decision is not contrary to Dutch public order. In such recognition proceedings it is often claimed by the defendant that the foreign legal proceedings and/or the foreign judgment violates its fundamental rights and is therefore contrary to the Dutch public order. The Dutch Supreme Court ruling of 05 April 2002 (ECLI:NL:HR:2002:AD9145) stipulated that a defendant that did not exhaust its legal remedies against the claimed violation of fundamental rights, cannot rely on the defence that recognition of the foreign judgment is contrary to the Dutch public order.

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New York, USA

The Supreme Court to determine issues concerning subject matter jurisdiction

By Leslie A. Berkoff, Moritt Hock & Hamroff LLP

On 17 May 2021, the US Supreme Court granted certiorari to address the question of whether federal courts have subject matter jurisdiction to confirm or vacate an arbitration award under the Federal Arbitration Act (“FAA”) where the only basis for jurisdiction is that the underlying dispute involves a question of federal law (see Badgerow v. Walters, No. 20-1143). The appeal challenges a Fifth Circuit decision finding that under Section 4 of the FAA, a petition to compel arbitration can be determined by “any United States district court which, save for [the arbitration] agreement, would have jurisdiction …[over the subject matter]” (9 U.S.C. § 4).

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New York, USA

Will the Supreme Court Further Restrict Jurisdiction of US Courts Over Foreign Entities?

By Howard L. Simon, Windels Marx Lane & Mittendorf LLP

At stake in a pair of cases pending before the Supreme Court is the reshaping of the constitutional due process standard for whether a US court can adjudicate a claim against a non-resident entity. It has long been the rule that depending on the nature of a defendant’s contacts with a forum, the court may exercise either general or specific personal jurisdiction over the defendant. Based on the Supreme Court’s 2014 Daimler decision, general jurisdiction – whereby a court may hear any and all claims against a defendant – is now limited, except in “exceptional” cases, to a corporation’s place of incorporation or its principal place of business.

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New York, USA

The Continuing Erosion of Arbitration Clauses in Bankruptcy Cases

By Leslie A. Berkoff and Michael C. Troiano, Moritt Hock & Hamroff LLP

Although federal courts in the US generally give deference to arbitration agreements, consistent with the mandate of the Federal Arbitration Act (FAA), bankruptcy courts often utilise an exception contained in the FAA and subsequent case law to retain jurisdiction over a dispute; this exception provides that courts may preclude arbitration of a dispute where there is an inherent conflict between arbitration and the underlying purposes of the implicated statute.

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Leiden, The Netherlands

What Constitutes Express Agreement for Valid Jurisdiction?

By Michiel Teekens, TeekensKarstens advocaten notarissen

The Netherlands Commercial Court (NCC) is a specific branch of the Amsterdam Court and Amsterdam Court of Appeal, and focuses on international commercial disputes. These include summary proceedings and main proceedings. Proceedings and judgments are in the English language. Like arbitration institutes, the jurisdiction of the NCC is dependent on an express agreement by parties.

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