#nonsignatory

[andrewjbernhard]

U.S. Public Policies Against Coercion to Arbitration Without a Contract

If you have any questions about arbitration without agreement in advance, coercion to arbitrate, and recognition and enforcement of foreign arbitration awards in the U.S., please contact Bernhard Law Firm at www.bernhardlawfirm.com.

This article briefly discusses the U.S. public policies that are well-defined and dominant, ascertained by reference to the laws and precedents cited, against coercion to arbitration without contract. If you have any questions about arbitration without agreement in advance, coercion to arbitrate, and recognition and enforcement of foreign arbitration awards in the U.S., please contact Bernhard…

[soolegal]

Supreme Court allows proceedings against non-signatory to dishonored cheque, but keeps question of law open

For further information, refer to this News Report By SoOLEGAL

[nothoward]

I tried to investigate "war criminal" it seems to be trendy. What follows is my attempt to get a quick bullet point explanation across to you. Such a thing helps me learn, too.

Ask questions. Make observations. Draw your own conclusions. Thanks for giving this/me a chance:

• In 1919 at the Paris Peace Conference, an International Tribunal was proposed.

• In July 1998, the Rome Statute of the International Criminal Court, was adopted by 120 United Nations members. Leaving 28 members.

• Crimes cited in the charter include:

Genocide

Crimes against humanity

War crimes

The crime of aggression

• Israel is not a signatory because of the inclusion of "the action of transferring population into occupied territory" within the definition of war crimes.

• The five other nations that failed to join in ratification are

China I admit to being confused here. It seems the PRC, need guarantees that the Statute cannot grant.

Libya similar to Qatar. At the time of ratification they had recently experienced a war funded on one side by the US and Russia on the other, giving them weak diplomatic footing.

Qatar seems to be the crabby neighbor of nations. They maintain a precarious uniform relationship with all (roughly) equally.

Russia signed in 2000. Withdrawn by Putin, 2016

US signed by Bill Clinton. Revoked by George W Bush.

https://nomadcapitalist.com/global-citizen/countries-arent-part-of-icc/

• 1 July 2002, the court became official.

• 11 March 2003 inaugural session.

• 8 July 2005 first arrest warrants.

• There may be people in the nonsignatory countries who would be eligible to be tried by the court. It is up to one of the participant countries to bring the subject to a signatory country, and at great diplomatic risk, charge the individual.

• Finally, any country may surrender a citizen to the court.

[financialconductauthority]

Memorandum of Law in Opposition

PRELIMINARY STATEMENT

Fritch’s motion to compel arbitration is premised on an arbitration agreement in the EEC Operating Agreement signed by her and defendant Igor Bron. That Agreement requires those two parties to arbitrate disputes between them related to their company E Electrical Contracting LLC (EEC). Richard Sajiun and his company Sajiun Electric are nonsignatories: they are not members of EEC and never signed that particular agreement or any other contract with Fritch with an arbitration clause. She does not dispute that material fact.

See MTC at 3 (conceding it is “irrefutable” that the Sajiun Defendants are “not signatories”). Since arbitration entails relinquishment of a party’s right of access to the judicial system and other legal and constitutional rights, in the absence of that party’s agreement to arbitrate, arbitration is not legally enforceable and cannot be lawfully compelled and imposed on a noncontracting party who never knowingly and voluntarily relinquished his legal rights.

Fritch tries to get around this fundamental rule by claiming – without any basis – that for purposes of this analysis the nonsignatories Sajiun and Sajiun Electric are legally indistinguishable from Igor Bron, who is a signatory. Trying to shoehorn the facts of this case where they do not fit, she argues that Sajiun Electric is a sham company that abused the corporate form and was an “alter ego” of Bron and that both Sajiun Electric and Sajiun somehow took advantage of and “benefitted” from the EEC Operating Agreement containing the arbitration clause – even though they were never members of EEC and never participated in or directly benefitted from EEC. Fritch’s contentions are knowingly false fabrications and are entirely unsupported and unsupportable.

In truth, Sajiun Electric has been in business for over 50 years, and was established in 1965 – decades before EEC, Fritch and Bron started work in the industry. Fritch offers not a shred of evidence to support her false claim that Sajiun Electric is a sham company or in any way abused the corporate form – which is not only untrue but libelous.

Her claim that Bron is a principal of and “secret partner” with Sajiun in Sajiun Electric is again completely unsupported and is malicious and knowingly false. There is no basis to discredit the sworn testimony of Bron and Sajiun attesting that Sajiun at all times relevant is and has been the sole 100% owner of Sajiun Electric and that Sajiun Electric is a duly incorporated New York corporation that has its own corporate structure, payroll, and books and records that are separate from and have never been commingled with Bron or any business entity owned or controlled by Bron. Sajiun Aff. ¶¶ 2-6; Bron Aff. ¶¶ 2-6.

Just as ludicrous is Fritch’s claim that Sajiun and his company “benefitted” from the EEC operating agreement containing the arbitration clause. Fritch’s argument in this respect is incoherent: She cannot even articulate how the EEC Operating Agreement signed by Fritch and Bron concerning EEC, a company owned only by Fritch and Bron, in any conceivable way benefitted Sajiun or his company, much less how Sajiun supposedly knowingly accepted the “benefit” of the terms of the EEC operating agreement.

Fritch thus brought this motion in open defiance of long-settled law and basic legal principles, which she and her counsel must have known since they do not and cannot offer a viable theory to compel arbitration and they have zero evidence in support. Her motion must therefore be denied and the Sajiun Defendants are entitled to their attorney’s fees as a sanction.

[floridaconstructionlegalupdates]

[prelawland]

The Supreme Court Decision On Arbitration And The New York Convention

By Qian Chen, University of California, San Diego Class of 2021

July 1, 2020

The New York Convention is a multilateral international treaty that sets a baseline for the contracting states to recognize foreign arbitral awards. It aims to promote arbitration as the means to settle international commercial disputes. In GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, LLC, the Court faced the legal question whether a nonsignatory of a contract can enforce an arbitration contract. Normally in the domestic case, under the principle of equitable estoppel, nonsignatories can bring a signatory into arbitration. In a unanimous decision, the Court ruled that the New York Convention does not bar application of the domestic principle of equitable estoppel and opens the door for many nonsignatories to solve disputes through efficient arbitration instead of lengthy court battles. The decision continues the trend of favoring arbitration.

For full article please visit

The Supreme Court Rules That Under The New York Convention Nonsignatories Can Enforce Arbitration Agreement

at

California PreLaw Land

[soolegal]

Supreme Court allows proceedings against non-signatory to dishonored cheque, but keeps question of law open

For further information, refer to this News Report By SoOLEGAL

[californiaprelawland]

The Supreme Court Rules That Under The New York Convention Nonsignatories Can Enforce Arbitration Agreement

By Qian Chen, University of California, San Diego Class of 2021

July 1, 2020

On June 1st, the Supreme Court unanimously decided that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not conflict with the domestic principle of equitable estoppel that permits a non-signatory of a contract to compel the arbitration. GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, LLC, 590 U. S. ____ (2020) The Court supports the petitioner’s claim (GE Energy) that the language of the Convention leaves ambiguity which does not bar the courts from enforcing domestic doctrines. In addition, the Court denied the Eleventh Circuit interpretation of the word “parties” in Article II as “the parties actually sign an agreement to arbitrate their disputes in order to compel arbitration”[1]. In the majority decision, Justice Thomas explained under the available tools of international treaty interpretation how the Convention should be read as a floor that the contracting states agree to do to promote arbitration, instead of a ceiling that precludes “the use of domestic law to enforce arbitration agreements”[2].

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as the New York Convention, is a multilateral trade treaty regarding arbitration in international commercial agreements. It aims to encourage arbitration as a means of resolving commercial disputes by seeking common legislative standards that the courts compel arbitration and enforce rewards[3]. The United States incorporates the New York Convention into its legal system through Chapter 2 of the Federal Arbitration Act. Section 201 recognizes the enforcement of the Convention, and Section 203 grants federal courts jurisdiction over actions governed under the Convention. In Section 202, the legal scope of the Convention is defined such that that Convention governs a legal relationship raised out of a contractual agreement, with one party that has a reasonable relationship with a foreign state[4]. This means that the Convention does not apply in a legal relationship that is entirely between citizens of the United States.

GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, LLC involves a dispute that falls under the governance of the Convention. On November 25th, 2007, ThyssenKrupp Stainless USA, LLC, a U. S. corporation, entered into three contracts with F. L. Industries, Inc., also a U. S. corporation, for the construction of cold rollings mills at a steel manufacturing plant in Alabama. Each contract contained an arbitration clause to settle any disputes. F. L. Industries, Inc. entered a subcontractor agreement with Converteam SAS, now known as GE Energy Power Conversion SAS, a French corporation, for the manufacture of motors. By August 2005, all the motors that GE Energy manufactured had failed. Outokumpu Stainless USA, LLC, which acquired ownership of the steel manufacturing plant, and its foreign insurers sued GE Energy in Alabama state court. GE Energy removed the case to the federal court under 9 U.S.C. §205. Federal subject matter jurisdiction allows the removal of suits that the subject matter “relates to an arbitration agreement or award falling under the Convention”. GE Energy moved to dismiss the case and to compel arbitration based on the arbitration clause under the original contracts between ThyssenKrupp and F. L. Industries, Inc. Outokumpu frivolously opposes this motion based on the claim that GE Energy, as the subcontractor, cannot invoke the arbitration under the governance of the New York Convention, since there exists no written agreement to arbitration between Outokumpu and GE Energy. 

This case is concerned with the interpretation of the language “the parties” in the Convention. Article II, clause 2 states that “the term ‘agreement in writing’ shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams”[5]. The language of “the parties” ambiguously means the buyers and the sellers in a commercial transaction. Whether the subtractors are considered as the seller parties in a contract determines whether a non-signatory can invoke the arbitration clause. The Eleventh Circuit ruled against GE Energy as it reads the requirement “agreement in writing” defines the parties as ones who actually sign the contract. During the oral argument, GE Energy disagreed with the Eleventh Circuit’s ruling and suggested that in a domestic dispute the courts will support a non-signatory’s motion to compel arbitration under the principle of equitable estoppel. In Arthur Andersen v. Carlisle, the Court decided that despite the Chapter 1 of the FAA mandates on a written contract for arbitration it does not “alter background principles of state contract law regarding the scope of agreements (including the question of who is bound by them)”[6]. The question left to answer is whether traditional state law permitted under Chapter 1 of the FAA conflicts with the Convention.

Justice Clarence Thomas delivered the unanimous opinion of the Court and reserved the Eleventh Circuit’s judgment. In the decision, Justice Thomas noticed that the Convention is silent on the issue of non-signatory enforcement. Given the principle of “a matter not covered is not covered”, the interpretation of the international law focuses on the requirements that are explicitly mentioned in the text, instead of inferring requirements on areas that are simply not covered. In the analysis of the Convention, the Court noticed that the language of the text leaves out ambiguity that can only be solved with the aid of domestic law, such that the Convention does not define what disputes are arbitrable and fails to define important terms, such as “the parties” or “null and void”. It leaves the contracting states to interpret those words based on their own domestic principle. Another reason in support of GE Energy’s claim is that the Convention contains no exclusive language that would effectively limit the enforcement of arbitration to certain circumstances. Article II(3) where it states that courts of a contracting state “shall . . . refer the parties to arbitration”[7], does not limit the courts to compel arbitration only in the identified circumstance. 

Justice Thomas also looked at other treaty interpretation tools to clarify the meaning of the text. Despite the drafting history of a treaty cannot support interpretations that find no evidence in the text, the drafters of the Convention wish to impose a baseline requirement that encourages arbitration or at least the courts of the contracting states will recognize and enforce arbitral awards in the identified circumstance. The Court also looks into the decisions made by the courts of other convention signatory states, which permits non-signatory to enforce arbitration. The Court noticed that despite those decisions made decades after the finalization of the New York Convention, it supports the Court’s reading. Therefore, it is only natural to read the Convention as it does not bar non-signatory of a contract from the enforcement of arbitration under the domestic principle of equitable estoppel. 

This decision not only upholds the trend of favoring arbitration over court battle, but also it opens the doors for many non-signatories of a contract to resolve commercial disputes through arbitration. A commentary notices that “Many subcontractors, distributors, vendors, guarantors, and customers in the international commercial chains may not be signatories to agreements containing arbitration clauses”[8]. Excluding all of them from the enforcement of arbitration for the reason that they do not actually sign the contract is only counterintuitive to the purpose of the New York Convention. With the substantial growth of international commerce and economic interdependence, the Convention paves the groundwork for prompting arbitration as the means to settle disputes. The courts of contracting states should have corporate domestic principles to encourage arbitration, instead of vice versa. 

________________________________________________________________

Qian Chen is a rising senior at the University of California, San Diego, where he studies Philosophy and Politics with an emphasis on Law, Ethics and Society. Qian is always interested in the philosophy of law and the Constitution. He plans to attend law school or a master’s program in public policy after his bachelor’s degree.

________________________________________________________________

[1] Outokumpu Stainless USA, LLC v. Converteam SAS, 902 F. 3d 1316 (2018)

[2] GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, LLC, 590 U. S. ____ (2020)

[3] UNCITRAL, “Convention on the Recognition and Enforcement of Foreign Arbitral Awards”, UNCITRAL, accessed June 28th, 2020.

[4] 9 U. S. C. §201, 9 U. S. C. §202, 9 U. S. C. §203

[5] New York Convention, Article II(2)

[6] Arthur Andersen LLP v. Carlisle, 556 U. S. 624, 630

[7] New York Convention, Article II(3)

[8] Max B. Chester, “U.S. Supreme Court Holds That New York Convention Does Not Bar Nonsignatory From Compelling International Arbitration”, The National Law Review, accessed June 28th, 2020.

[maxwellyjordan]

Sequel Watch

John Elwood reviews Monday’s relists.

For more than a month, most of the relist action has featured big knots of relists involving just two blockbuster issues — challenges to qualified immunity and Second Amendment challenges to firearm regulations and not much else. This week, as the Supreme Court faces the end of the term in about a month, there is a decided uptick in the variety of cases that are being seriously considered for plenary review. And they consist of six cases that are (at least kinda sorta) sequels to recent Supreme Court decisions.

First up among this week’s new relists: Kansas, fresh off a couple of wins in criminal law cases, seeks review in Kansas v. Boettger, 19-1051, of whether the First Amendment prohibits a state from criminalizing threats to commit violence communicated in reckless disregard of the risk of placing another in fear. This case is a sequel to Elonis v. United States, in which the court faced the question whether the First Amendment requires a minimum showing of mens rea, or criminal intent. In Elonis, the court avoided the question by instead holding that, as a matter of statutory construction, the federal threat statute requires some proof of a guilty mind greater than the negligence showing that was the basis for Anthony Elonis’ conviction. The court left for another day the question of what minimum showing of mens rea suffices to satisfy the First Amendment. The court has considered cases raising related questions in the years since, but hasn’t squarely addressed the issue. The Kansas Supreme Court invalidated a state threat statute that permitted conviction upon a showing that the speaker had reckless disregard for whether their statement placed the listener in fear. The state seeks to revisit that holding.

Henry Schein, Inc. v. Archer and White Sales, Inc., 19-963, and Archer and White Sales, Inc. v. Henry Schein, Inc., 19-1080, are sequels to — you’ll never guess — Henry Schein, Inc. v. Archer and White Sales, Inc. Last term, the Supreme Court unanimously held that under the Federal Arbitration Act, a court may not decide a question of arbitrability — that is, whether an arbitration agreement applies to the particular dispute — if the parties clearly and unmistakably delegated the question to an arbitrator, even if the court believed that the argument for arbitrability was “wholly groundless.”

On remand, the U.S. Court of Appeals for the 5th Circuit once again refused to compel arbitration. It concluded that the parties had delegated at least some questions of arbitrability to the arbitrator. But it held that because the arbitration agreement included a provision exempting certain claims from arbitration (as relevant here, actions seeking injunctive relief), the agreement did “not clearly and unmistakably delegate[] the question of arbitrability to an arbitrator.” Henry Schein, Inc., seeks to challenge that determination. In a conditional cross-petition, Archer and White Sales argues that this question does not warrant review, but that if the court takes the case anyway, the court should also decide (1) whether an arbitration agreement that identifies a set of rules to apply if there is arbitration clearly and unmistakably delegates to the arbitrator disputes about whether the parties agreed to arbitrate in the first place; and (2) whether an arbitrator or a court decides whether a nonsignatory to an arbitration agreement can enforce it through equitable estoppel.

Albence v. Arteaga-Martinez, 19-896, and Albence v. Guzman Chavez, 19-897, are sequels to Jennings v. Rodriguez, which held that 8 U.S.C. § 1226 does not give detained aliens the right to periodic bond hearings during the course of their detention, and that the U.S. Court of Appeals for the 9th Circuit had misapplied the canon of constitutional avoidance — the idea that courts should avoid deciding a case on constitutional grounds if they can decide it some other way — in holding otherwise. Arteaga-Martinez presents the question whether a different provision of the Immigration and Nationality Act, 8 U.S.C. § 1231, entitles detained aliens to periodic bond hearings at which the government must prove by clear and convincing evidence that further detention is justified. The U.S. Court of Appeals for the 3rd Circuit held, as a matter of statutory interpretation, that Section 1231 requires such hearings be held every six months. The solicitor general argues that was an error — and if Jennings is any indication, the government is likely to prevail.

Guzman Chavez involves a related issue. The INA provides that when the Department of Homeland Security finds that an alien has illegally reentered the United States after having been removed, the prior order of removal is reinstated from its original date. Guzman Chavez involves the truly arcane question whether 8 U.S.C. § 1231 or 8 U.S.C. § 1226 governs the detention of an alien whose prior order of removal has been reinstated and who is seeking withholding of removal. The issue matters because noncitizens in removal proceedings under Section 1226 generally have a right to a bond hearing, and the government takes the position that those in removal proceedings under Section 1231 do not. The court denied cert on that very question just last term in Padilla-Ramirez v. Culley, but the government argues that Guzman Chavez is a better vehicle for resolving the issue.

The last new relist is Rogers v. United States, 19-7320, a sequel to Stokeling v. United States. Stokeling held that a robbery offense that requires the defendant to overcome the victim’s resistance counts toward the Armed Career Criminal Act’s mandatory sentence enhancement for defendants with past convictions for “violent felon[ies].” Rogers asks whether bank robbery (18 U.S.C. § 2113) qualifies as a “crime of violence” under ACCA because it has as an element “the use of physical force against the person or property of another.” Petitioner Jurden Rogers argues that it does not, because bank robbery may be committed by unintentionally intimidating a victim or by presenting a teller with a demand note. Rogers argues that, although several circuits have held that bank robbery by intimidation qualifies as a “crime of violence” under ACCA, other circuits have held that similar state statutes do not qualify as “violent felonies.” If the question sounds familiar to you, it’s because one of last week’s new relists, Hanks v. United States, 19-7732, involves Rogers’ co-defendant Jerad Hanks and raises the same issue. The court will consider both cases together at this week’s conference.

That’s all for this week. Until next week, stay safe! 

New Relists

Albence v. Arteaga-Martinez, 19-896 Issue: Whether an alien who is detained under 8 U.S.C. § 1231 is entitled by statute, after six months of detention, to a bond hearing at which the government must prove to an immigration judge by clear and convincing evidence that the alien is a flight risk or a danger to the community. (relisted after the June 4 conference)

Albence v. Guzman Chavez, 19-897 Issue: Whether the detention of an alien who is subject to a reinstated removal order and who is pursuing withholding or deferral of removal is governed by 8 U.S.C. § 1231, or instead by 8 U.S.C. § 1226. (relisted after the June 4 conference)

Henry Schein, Inc. v. Archer and White Sales, Inc., 19-963 Issue: Whether a provision in an arbitration agreement that exempts certain claims from arbitration negates an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator. (relisted after the June 4 conference)

Archer and White Sales, Inc. v. Henry Schein, Inc., 19-1080 Issues: (1) Whether an arbitration agreement that identifies a set of arbitration rules to apply if there is arbitration clearly and unmistakably delegates to the arbitrator disputes about whether the parties agreed to arbitrate in the first place; and (2) whether an arbitrator or a court decides whether a nonsignatory to an arbitration agreement can enforce the arbitration agreement through equitable estoppel. (relisted after the June 4 conference)

Kansas v. Boettger, 19-1051 Issue: Whether the First Amendment prohibits a state from criminalizing threats to commit violence communicated in reckless disregard of the risk of placing another in fear. (relisted after the June 4 conference)

Rogers v. United States, 19-7320 Issues: (1) Whether bank robbery, 18 U.S.C. § 2113, which may be committed by unintentionally intimidating a victim or by presenting a teller with a demand note, has as an element “the use of physical force against the person or property of another” under 18 U.S.C. § 924(c)(3)(A); and (2) whether bank robbery by intimidation qualifies as a “crime of violence” under Section 924(c)’s elements clause, as the U.S. Court of Appeals for the 11th Circuit and many other circuits have held, although some other circuits have recently determined that similar state statutes do not qualify as “violent felonies” under the elements clause of the Armed Career Criminal Act. (relisted after the June 4 conference)

Returning Relists

Andrus v. Texas, 18-9674 Issue: Whether the standard for assessing ineffective assistance of counsel claims, announced in Strickland v. Washington, fails to protect the Sixth Amendment right to a fair trial and the 14th Amendment right to due process when, in death-penalty cases involving flagrantly deficient performance, courts can deny relief following a truncated “no prejudice” analysis that does not account for the evidence amassed in a habeas proceeding and relies on a trial record shaped by trial counsel’s ineffective representation. (rescheduled before the November 1, 2019, and November 8, 2019, conferences; relisted after the November 15, 2019, November 22, 2019, December 6, 2019, December 13, 2019, January 10, January 17, January 24, February 21, February 28, March 6, March 20, March 27, April 3, April 17, April 24, May 1, May 15, May 21, May 28 and June 4 conferences)

United States v. California, 19-532 Issue: Whether provisions of California law that, with certain limited exceptions, prohibit state law-enforcement officials from providing federal immigration authorities with release dates and other information about individuals subject to federal immigration enforcement, and restrict the transfer of aliens in state custody to federal immigration custody, are preempted by federal law or barred by intergovernmental immunity. (relisted after the January 10, January 17, March 6, March 20, March 27, April 3, April 17, April 24, May 1, May 15, May 21, May 28 and June 4 conferences)

Mance v. Barr, 18-663 Issue: Whether prohibiting interstate handgun sales, facially or as applied to consumers whose home jurisdictions authorize such transactions, violates the Second Amendment and the equal protection component of the Fifth Amendment’s due process clause. (relisted after the May 1, May 15, May 21, May 28 and June 4 conferences)

Rogers v. Grewal, 18-824 Issues: (1) Whether the Second Amendment protects the right to carry a firearm outside the home for self-defense; and (2) whether the government may deny categorically the exercise of the right to carry a firearm outside the home to typical law-abiding citizens by conditioning the exercise of the right on a showing of a special need to carry a firearm. (relisted after the May 1, May 15, May 21, May 28 and June 4 conferences)

Pena v. Horan, 18-843 Issue: Whether California’s Unsafe Handgun Act violates the Second Amendment by banning handguns of the kind in common use for traditional lawful purposes. (relisted after the May 1, May 15, May 21, May 28 and June 4 conferences)

Gould v. Lipson, 18-1272 Issues: (1) Whether the Second Amendment protects the right to carry a firearm outside the home for self-defense and (2) whether the government may deny categorically the exercise of the right to carry a firearm outside the home to typical law-abiding citizens by conditioning the exercise of the right on a showing of a special need to carry a firearm. (relisted after the May 1, May 15, May 21, May 28 and June 4 conferences)

Cheeseman v. Polillo, 19-27 Issue: Whether states can limit the ability to bear handguns outside the home to only those found to have a sufficiently heightened “need” for self-protection. (relisted after the May 1, May 15, May 21, May 28 and June 4 conferences)

Ciolek v. New Jersey, 19-114 Issue: Whether the legislative requirement of “justifiable need,” which, as defined, does not include general self-defense, for a permit to carry a handgun in public violates the Second Amendment. (relisted after the May 1, May 15, May 21, May 28 and June 4 conferences)

Worman v. Healey, 19-404 Issue: Whether Massachusetts’ ban on the possession of firearms and ammunition magazines for lawful purposes unconstitutionally infringes the individual right to keep and bear arms under the Second Amendment. (relisted after the May 1, May 15, May 21, May 28 and June 4 conferences)

Malpasso v. Pallozzi, 19-423 Issue: In a challenge to Maryland’s handgun carry-permit scheme, whether the Second Amendment protects the right to carry handguns outside the home for self-defense. (relisted after the May 1, May 15, May 21, May 28 and June 4 conferences)

Culp v. Raoul, 19-487 Issue: Whether the Second Amendment right to keep and bear arms requires Illinois to allow qualified nonresidents to apply for an Illinois concealed-carry license. (relisted after the May 1, May 15, May 21, May 28 and June 4 conferences)

Wilson v. Cook County, 19-704 Issues: (1) Whether the Second Amendment allows a local government to prohibit law-abiding residents from possessing and protecting themselves and their families with a class of rifles and ammunition magazines that are “in common use at [this] time” and are not “dangerous and unusual”; and (2) whether the U.S. Court of Appeals for the 7th Circuit’s method of analyzing Second Amendment issues – a three-part test that asks whether a regulation bans (a) weapons that were common at the time of ratification or (b) those that have some reasonable relationship to the preservation or efficiency of a well-regulated militia and (c) whether law-abiding citizens retain adequate means of self-defense – is consistent with the Supreme Court’s holding in District of Columbia v. Heller. (relisted after the May 1, May 15, May 21, May 28 and June 4 conferences)

Brennan v. Dawson, 18-913 Issue: Whether a police officer may reasonably rely on a narrow exception to a specific and clearly established right to shield him from civil liability when his conduct far exceeds the limits of that exception. (relisted after the May 21, May 28 and June 4 conferences)

Dawson v. Brennan, 18-1078 Issue: Whether the U.S. Court of Appeals for the 6th Circuit misapplied the Supreme Court’s authority and created a conflict among the U.S. courts of appeals by holding that a law enforcement officer violates the Fourth Amendment by entering the rear curtilage of a home in attempting to gain the resident’s compliance with his probation condition. (relisted after the May 21, May 28 and June 4 conferences)

Baxter v. Bracey, 18-1287 Issues: (1) Whether binding authority holding that a police officer violates the Fourth Amendment when he uses a police dog to apprehend a suspect who has surrendered by lying down on the ground “clearly establish[es]” that it is likewise unconstitutional to use a police dog on a suspect who has surrendered by sitting on the ground with his hands up; and (2) whether the judge-made doctrine of qualified immunity, which cannot be justified by reference to the text of 42 U.S.C. § 1983 or the relevant common law background, and which has been shown not to serve its intended policy goals, should be narrowed or abolished. (relisted after the May 21, May 28 and June 4 conferences)

Anderson v. City of Minneapolis, Minnesota, 19-656 Issues: (1) Whether the burden of persuasion in qualified immunity cases should be, in part or entirely, on the plaintiff, as held by the U.S. Court of Appeals for the 8th Circuit in this case and by the U.S. Courts of Appeals for the 4th, 5th, 6th, 7th, 10th and 11th Circuits, or whether it should be placed on the defendant, as held by the U.S. Courts of Appeals for the 1st, 2nd, 3rd, 9th and District of Columbia Circuits; (2) whether, under the state-created-danger doctrine, due process is violated when first responders fail to provide any treatment to a person suffering from severe hypothermia, and instead erroneously declare him dead; and (3) whether the 8th Circuit erred in dismissing this state-created-danger case on qualified immunity grounds. (relisted after the May 21, May 28 and June 4 conferences)

Zadeh v. Robinson, 19-676 Issue: Whether the Supreme Court should recalibrate or reverse the doctrine of qualified immunity. (relisted after the May 21, May 28 and June 4 conferences)

Corbitt v. Vickers, 19-679 Issues: (1) Whether qualified immunity is an affirmative defense (placing the burden on the defendant to raise and prove it) or a pleading requirement (placing the burden on a plaintiff to plead its absence); and (2) whether the Supreme Court should recalibrate or reverse the doctrine of qualified immunity. (relisted after the May 21, May 28 and June 4 conferences)

Hunter v. Cole, 19-753 Issues: (1) Whether, if the barrel of a gun is not yet pointed directly at an officer, clearly established federal law prohibits police officers from firing to stop a person armed with a firearm from moving a deadly weapon toward an officer if the officer has not both shouted a warning and waited to determine whether the imminent threat to life has subsided after the warning; and (2) whether a police officer who inaccurately reports his perceptions of events during a dynamic shooting encounter violates clearly established rights under the 14th Amendment. (relisted after the May 21, May 28 and June 4 conferences)

West v. Winfield, 19-899 Issue: Whether an officer who has consent to “get inside” a house but instead destroys it from the outside is entitled to qualified immunity in the absence of precisely factually on-point case law. (relisted after the May 21, May 28 and June 4 conferences)

Mason v. Faul, 19-7790 Issues: (1) Whether a finding of “objectively unreasonable excessive force” can be squared with a finding of qualified immunity under the facts and circumstances of this case, including whether determinations of the trial court, as affirmed by the U.S. Court of Appeals for the 5th Circuit, resulted in an incorrect analysis of the qualified immunity issue; and (2) whether the 5th Circuit’s determination can be reconciled with other courts’. (relisted after the May 21, May 28 and June 4 conferences)

Hanks v. United States, 19-7732 Issues: (1) Whether 18 U.S.C. § 924(c)(1), which criminalizes the use of a firearm during a “crime of violence” – in this case, the federal bank-robbery statute, 18 U.S.C. § 2113 –may be violated by unintentionally intimidating a victim through verbal demands or the passing of a demand note rather than the use or threatened use of physical force, and whether the definition of the term “crime of violence” cabined in 18 U.S.C. § 924(c)(3)(A) is unconstitutionally vague on its face and unconstitutionally vague under the rule of lenity; and (2) whether there is currently a conflict among the U.S. courts of appeals and an ambiguity in the law regarding the federal statutory definition of the term “crime of violence,” and a conflict between the holdings of some circuits, specifically the U.S. Court of Appeals for the 11th Circuit, and the Supreme Court’s previous holdings regarding the constitutional viability of the current definition of the term “crime of violence” in Section 924(c) and related federal statutes. (relisted after the May 28 and June 4 conferences)

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[quekuleru1987-blog]

A Cold War Arms Treaty Is Unraveling. But the Problem Is Much Bigger.

WASHINGTON — After the United States delivered an ultimatum to Russia last week that it was preparing to abandon a landmark weapons treaty, drawing a combative response from President Vladimir V. Putin, the specter of a rekindled nuclear arms race was widely seen as a rewind of the Cold War.

But that encompasses only one slice of the problem — and perhaps the easiest part to manage. Short Term Loans Online

The United States and Russia no longer have a monopoly on the missiles that Ronald Reagan and Mikhail S. Gorbachev agreed in 1987 to ban with the Intermediate-Range Nuclear Forces, or I.N. Spectrum.net F., agreement. Today, China relies on similar missiles for 95 percent of its ground-based fleet, and Iran, India, Saudi Arabia, North Korea and Taiwan are among the 10 states with similar, fast-growing arsenals.

In a reflection of the Trump administration’s view of how to navigate a new, more threatening global order, Washington seems uninterested in trying to renegotiate the treaty to embrace all the countries that now possess the weapons, which can carry conventional or atomic warheads. Instead, it is moving to abandon the accord and, with an eye on China, deploy in Asia the sorts of arms it pulled from Europe in the perilous days before the fall of the Berlin Wall.

The administration blames Russian violations — denied by Moscow — for the demise of what until now has been considered one of the most successful of the Cold War arms control agreements. But the bigger issue is that President Trump wants to throw off what he sees as constraints from countering other rising powers, principally China.

A Realignment of Mid-Range Missile Arsenals

In 1987, the U.S. and Russia signed a pact eliminating land-based missiles with ranges of 310 to 3,420 miles. Since that time, nonsignatories to the pact, mainly countries in Asia and the Middle East, have amassed large arsenals of such missiles and developed many distinct models.

By The New York Times | Source: Ian Williams, Center for Strategic and International Studies

[whittlebaggett8]

At Indian General Election Rallies, Modi Beats the Nuclear Drums

The Indian prime minister touts New Delhi’s nuclear abilities.

Fewer than two months right after India’s worst crisis with Pakistan since 2002, Indian Primary Minister Narendra Modi has manufactured recurring references to nuclear dynamics amongst the two nations around the world at election rally addresses. India’s general elections began before this thirty day period and will run into mid-May, with Modi’s nationally dominant Bharatiya Janata Social gathering (BJP) hoping seize on its stewardship of India’s countrywide stability to maintain a dominant position in the Lok Sabha (the reduce residence of India’s bicameral parliament).

On April 17, at a campaign rally, Modi touted that India experienced named Pakistan’s nuclear bluff. It is unclear if the key minister was referring to a certain weapon. “Earlier, terrorists from Pakistan would come in this article and go again following conducting an attack. Pakistan would threaten us, saying it has the nuclear bomb and will push the button,” Modi claimed, underscoring what had prolonged been a predicament for India, whose conventionally superiority was undermined by Pakistan’s growth of reduced-yield nuclear weapons in distinct. “We have nuclear of nuclear bombs,” Modi mentioned, intending to spotlight India’s capabilities. “I determined to explain to them, do whatever you want to do,” Modi included, promising that India would retaliate.

On April 20, at a individual rally, Modi returned to the concept: “Every other working day, they made use of to say ‘we have nuclear button, we have nuclear button.’ What do we have then? Have we retained it for Diwali? (A Hindu holiday break traditionally involving lights and firecrackers.)” Modi also reviewed the functions of February 26 and 27, when India and Pakistan almost went to war. Referring to the seize of the Indian pilot whose MiG-21 Bison was shot down by Pakistan, Modi presented the 1st on-report Indian assertion concerning a achievable common missile strike on Pakistan by India. Describing what a “senior American official” experienced stated in the third human being, he explained: “Modi has kept prepared 12 missiles and may well attack and the predicament will deteriorate… Pakistan introduced they would return the pilot on the 2nd working day.” In executing so, Modi delivered the initially on-history Indian affirmation of studies citing Pakistani officials of feasible common missile strikes as retaliation soon after the Pakistan Air Drive retaliated on February 27. Indian official resources had denied those reports.

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These utterances are unusual from an Indian prime minister, but underscore the extent to which the nationalist BJP is leaning on its national stability qualifications and India’s armed forces abilities to charm to voters trying to find to reconstitute a authorities immediately after the standard elections. Right away following its nuclear exams in 1998, India embarked on a two-10 years marketing campaign to underscore its status as a “responsible” nuclear electricity. It introduced a draft nuclear doctrine in 1999, which was finalized in 2003 and bundled the articulation of a conditional no to start with-use plan. In the meantime, as India pursued the normalization of its nuclear status, even as it continues to be a nonsignatory to the Treaty on the Nonproliferation of Nuclear Weapons, senior Indian officials and diplomats would point to India’s relative restraint with nuclear weapons—a comparison that was all-the-starker in South Asia specified Pakistan’s promptly rising arsenal, aggressive nuclear strategy predicated on initial-use, and improvement of reduced-produce nuclear weapons.

Modi, of program, is not the 1st Indian prime minister to make public remarks touting India’s nuclear capabilities. His BJP predecessor Atal Behari Vajpayee, the primary minister who directed India’s nuclear tests in 1998, claimed in 2000 that India was “being threatened [by Pakistan] with a nuclear attack.” “Do they recognize what it usually means? If they believe we would wait for them to drop a bomb and encounter destruction, they are mistaken,” he stated in remarks that ended up at odds with India’s 1999 draft nuclear doctrine, which noted that “India will not be the first to initiate a nuclear strike.”

The context of Modi’s remarks on nuclear weapons — election rallies — make a difference, of course. With a very poor economic track history since 2014, the BJP has rightly made the decision to focus on what a lot of the Indian public perceives as a toughness: its administration of countrywide protection and defense. In India, the conclusion by Modi to retaliate working with conventional air electricity into Pakistani territory following the February 14 Pulwama assault was commonly well-liked. But utterances on nuclear weapons do not acquire location in a vacuum and Modi’s remarks will be listened to across the planet.

Pakistan has by now seized on the chance to chide India for Modi’s opinions. A Pakistani International Ministry spokesman released a assertion on Monday noting that “Pakistan considers these remarks as very unfortunate and irresponsible.” “Such rhetoric for shorter-time period political and electoral gains, with full disregard to its effects on strategic steadiness in South Asia is regrettable and in opposition to norms of responsible nuclear conduct,” the statement additional.

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[triteplaza5]

The Texas Supreme Court Holds That Incorporating The AAA Rules Does Not Delegate Arbitrability Issues To The Arbitrator For Nonsignatories

Background: Arbitration Clauses May Apply To Trust Disputes - The Texas Supreme Court held that arbitration clauses in trust documents may be enforced regarding claims by beneficiaries against trustees. In Rachal v. Reitz, a beneficiary sued a...By: Winstead PC from Wills, Trusts, & Estate Planning RSS Feed | JD Supra Law News https://ift.tt/2KHKbK4

[leeannclymer]

Blog Post: Statoil's Claims Against Ex-Exec Headed For Arbitration

A Texas federal judge held Wednesday that Statoil must arbitrate its claims that a former executive for one of its units schemed to steal trade secrets, but rejected his efforts to force the subsidiary into arbitration and to convince the court that an arbitration agreement he signed applies to nonsignatories. Blog Post: Statoil's Claims Against Ex-Exec Headed For Arbitration published first on http://www.lexisnexis.com/legalnewsroom/workers-compensation/rss.aspx

[cisrjmu]

by Roly Evans [ Issue 21.2 ]

Mortar impact patterns, Douma, Syria. Note how the scaring is similar to cylindrical submunition fragmentation patterns. The two are easy to mistake for one another. Also note the same orientation of the three patterns indicating they all came from the same direction and probably from the same mortar barrel. The mortar round tail units are embedded at the base of each pattern. Photo courtesy of KiloBuzz.

Submunition fragmentation can produce distinct patterns on hard surfaces that can assist in establishing if a cluster munition has been used. This article will review some of the submunition fragmentation impact patterns seen in current and former conflict zones around the world. It will also underline the risks of misidentifying such patterns and the need to corroborate them with associated evidence such as the submunition fragmentation itself. Trying to accurately identify evidence of cluster munition strikes is an important skill, not just for those surveying contamination for subsequent clearance, but also for journalists and human rights advocates seeking to document instances of cluster munition use.

When a submunition impacts the ground, normally from a high angle, those that function typically spread fragmentation of one form or another. If a submunition impacts a hard surface such as concrete or asphalt, fragmentation can cause distinctive scarring. Different submunitions make differing fragmentation scarring patterns. These patterns are sometimes referred to as craters. If taken in conjunction with corroborating evidence, these may be used as a basis for assessing whether a strike has taken place and if so, dependent on the submunition, possibly what direction it came from. It should be noted that some submunition fragmentation patterns can easily be mistaken for those caused by other munitions such as mortar rounds.

Article 2 of the 2008 Convention on Cluster Munitions (CCM) classifes an explosive submunition as “a conventional munition that in order to perform its task is dispersed or released by a cluster munition and is designed to function by detonating an explosive charge prior to, on or after impact.” Most mechanically fuzed submunitions function on impact. Currently there is a range of what could be classified as submunitions in use by nonsignatories to the CCM. For example, there are spin-stabilized fragmentation submunitions, anti-armor and stabilized submunitions, anti-armor chute stabilized submunitions, and Dual Purpose Improved Conventional Munitions (DPICM) (with or without a self-destruct mechanism). There are even modern sensor fuzed submunitions that might be referred to as submunitions but are not necessarily classed as such by the CCM.

Read more ...

[maxwellyjordan]

Opinion analysis: Justices reject limitations on enforcement of arbitration agreements by nonsignatory businesses

GE Energy Power Conversion France SAS v Outokumpu Stainless USA is a bit different from the typical Supreme Court arbitration case. Most of those cases involve a predispute arbitration agreement between a consumer and a business, in which a lower court has found some reason to allow the consumer to evade arbitration and the Supreme Court considers whether the Federal Arbitration Act justifies compelling arbitration. This case, by contrast, involves a dispute between two businesses over an international contract. The relevant body of law for that dispute is the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as the New York Convention. That treaty (to which the United States and about 160 other nations are signatories) obligates nations to enforce arbitration agreements between businesses of member states.

The specific question before the court was whether it is consistent with the obligations of the United States under the New York Convention for federal courts to apply traditional doctrines of equitable estoppel that permit the enforcement of an arbitration agreement by a business that did not sign the agreement.

The factual background starts with contracts between the predecessor of respondent Outokumpu Stainless USA (the U.S. subsidiary of a large Finnish stainless-steel producer) and F. L. Industries (an affiliate of a French engineering group) to construct steel mills at a plant in Alabama. When motors failed at the Alabama facility, F. L. Industries disclaimed responsibility, arguing that any fault lay with its subcontractor, petitioner GE Energy Power Conversion France (a French subsidiary of General Electric that had built and installed the motors). Outokumpu and its insurers responded by suing GE France in Alabama. Because Outokumpu had agreed to arbitrate any disputes with F. L. Industries, GE France argued that the common law doctrine of equitable estoppel should compel Outokumpu and its insurers to present their claims in arbitration, even though GE France had not signed the contracts that contained the arbitration agreement.

The equitable estoppel doctrine is notoriously malleable, so the court of appeals might have held that GE France’s role in performing the original contracts on behalf of F. L. Industries, the French company that signed the contracts, should allow GE France to claim the benefit of the arbitration clause. Instead, however, the court of appeals held that the New York Convention categorically prohibits application of any doctrine that would permit a nonsignatory to a cross-border commercial arbitration agreement to use the Convention to compel arbitration. On that narrow question, the justices unanimously reversed the court of appeals.

Writing for the court, Justice Clarence Thomas explained that the New York Convention “focuses almost entirely on arbitral awards” and “contains only three provisions, each one sentence long,” that “addres[s] arbitration agreements.” Those three sentences, Thomas explained, obligate courts to “recognize” written arbitration agreements, including arbitral clauses in longer contracts, and then refer the parties to those agreements to arbitration upon request.

With so little of the New York Convention focused on the problem of arbitration agreements, it was easy for Thomas to conclude that the “text of the New York Convention does not address whether nonsignatories may enforce arbitration agreements [because t]he Convention is simply silent on the issue.” Thomas pointed out that the Convention’s only substantive statement that relates to agreements requires courts to “refer the parties to arbitration.” For him, that “provision, however, does not restrict contracting states from applying domestic law to refer parties to arbitration in other circumstances.” Rephrasing, he explained: “[The Convention] provides that arbitration agreements must be enforced in certain circumstances, but it does not prevent the application of domestic laws that are more generous in enforcing arbitration agreements.”

Turning from the text, Thomas next considered whether three aspects of the Convention’s history and context shed any light on the question before the court. The first is the negotiation and drafting history of the treaty, an “interpretive aid” that federal courts often have employed. For Thomas, that history “shows only that the drafters sought to impose baseline [enforcement] requirements on contracting states,” not “that the Convention sought to prevent contracting states from applying domestic law that permits nonsignatories to enforce arbitration agreements.”

Second, he turned to the “post-ratification understanding” of other countries, noting that the Supreme Court previously has looked to the decisions of other nations’ courts when interpreting treaties. On that point, Thomas noted that “numerous contracting states permit enforcement of arbitration agreements by entities who did not sign an agreement” and that “at least one contracting state” had adopted legislation to that effect. Thomas acknowledged that the post-ratification materials are “not without their faults,” in part because they “occurred decades after the finalization of the New York Convention’s text in 1958,” which “diminishes the value of these sources as evidence of the original shared understanding of the treaty’s meaning.” But the weakness of the materials did not change his view that “any weight” at all given to those materials tended to “confir[m] our understanding.”

Third and finally, Thomas turned to the question whether the lower courts should have given “great weight” to the amicus brief filed by the United States. Thomas disposed of that point quickly, noting that because the court’s “textual analysis aligns with the Executive’s … there is no need to determine whether the Executive’s understanding is entitled to ‘weight’ or ‘deference.’”

The opinion closed by emphasizing that the lower courts are free on remand to consider whether any estoppel doctrine in fact would permit GE France to enforce the arbitration agreement. That closing passage might hold the key to the unanimity of the decision. I noted in my post on the argument that the justices seemed divided about the propriety of enforcing arbitration here, with Chief Justice John Roberts and Justice Ruth Bader Ginsburg quite dubious about GE France’s estoppel claim and Justice Sonia Sotomayor quite receptive to it. By leaving that question to the lower courts and deciding the case on the narrow basis that the Convention permits the application of estoppel doctrines (whatever those might say), Thomas seems to have brought all nine votes together.

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[maxwellyjordan]

Petitions of the week

This week we highlight petitions pending before the Supreme Court that address, among other things, whether the Sixth Amendment right to effective assistance of counsel includes the right to a plea offer that was never made; whether a criminal defendant has a constitutional right to subpoena service providers and force them to turn over the contents of their account-holders’ communications; and whether the “motivating factor” standard is most consistent with the plain language and purposes of the Americans with Disabilities Act, which forbids discrimination “on the basis of” disability but does not specifically set forth the standard to be applied in determining causation.

The petitions of the week are below the jump:

Henry Schein Inc. v. Archer and White Sales Inc. 19-963 Issue: Whether a provision in an arbitration agreement that exempts certain claims from arbitration negates an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator.

Skipper v. Byrd 19-992 Issue: Whether the Sixth Amendment right to effective assistance of counsel includes the right to a plea offer that was never made.

Murray v. Mayo Clinic 19-995 Issue: Whether the “motivating factor” standard is most consistent with the plain language and purposes of the statute, and congressional intent, and therefore the appropriate standard to be applied under the Americans with Disabilities Act, which forbids discrimination “on the basis of” disability, but does not specifically set forth the standard to be applied in determining causation.

Facebook Inc. v. Superior Court of California, San Francisco County 19-1006 Issue: Whether a criminal defendant has a constitutional right to subpoena service providers and force them to turn over the contents of their account-holders’ communications, notwithstanding the Stored Communications Act’s express prohibition on such disclosures, and whether a service provider can be held in contempt for refusing to violate the SCA in response to such a subpoena.

Altera Corp. v. Commissioner of Internal Revenue 19-1009 Issues: (1) Whether the Treasury Department’s regulation requiring related companies (such as parents and subsidiaries) to share the cost of stock-based employee compensation is arbitrary and capricious and thus invalid under the Administrative Procedure Act; (2) whether, under Securities and Exchange Commission v. Chenery Corp., the regulation may be upheld on a rationale that the agency never advanced during rulemaking; and (3) whether a procedurally defective regulation may be upheld under Chevron, U.S.A., Inc. v. Natural Resources Defense Council Inc. on the ground that the agency has offered a “permissible” interpretation of the statute in litigation.

General Electric Co. v. United Technologies Corp. 19-1012 Issue: Whether competitive harm alone suffices to confer Article III standing to appeal an inter partes review determination, or whether an appellant must also show concrete plans for future activity that creates a substantial risk of a future patent infringement action.

Matthews v. Barr 19-1022 Issue: Whether a provision of the Immigration and Nationality Act—that noncitizens may be removed and are ineligible for many forms of discretionary relief if “convicted of … a crime of child abuse, child neglect, or child abandonment”—encompasses a crime of “child endangerment,” a different child-related offense that criminalizes an individual act—like leaving a child briefly unattended—that creates some risk of potential harm to a child, even if no harm results.

Ford Motor Co. v. United States 19-1026 Issues: (1) Whether the U.S. Court of Appeals for the Federal Circuit erred in holding, contrary to Supreme Court precedent, that a product’s post-importation modification and use can determine its classification under a tariff heading that is not statutorily “controlled by use”; and (2) whether the Federal Circuit erred in holding, in conflict with the decisions of the other 12 circuits, that an appellee must brief issues not decided by the trial court or raised by the appellant to preserve them for remand.

Bun v. United States 19-1037 Issue: Whether a defendant is “unable to stand trial” within the meaning of the Interstate Agreement on Detainers when he or she has a motion pending before the trial court.

Archer and White Sales Inc. v. Henry Schein Inc. 19-1080 Issues: (1) Whether an arbitration agreement that identifies a set of arbitration rules to apply if there is arbitration clearly and unmistakably delegates to the arbitrator disputes about whether the parties agreed to arbitrate in the first place; and (2) whether an arbitrator or a court decides whether a nonsignatory to an arbitration agreement can enforce the arbitration agreement through equitable estoppel.

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