Discovery

• Pages: 78-80

78 Volume 17, October–December 2011 international law update

© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

overarching theme of the sanctions’ prohibition of

nancial support to Iran, the Court notes that the

sanctions do not prevent the conrmation of the

award, though actual payment may be impeded.

e Court mentions the dierence between

conrmation and payment. “Conrmation,

standing alone, transfers no wealth to Iran. us,

even if Cubic is correct that the United States has

a fundamental public policy against economic

support for the government of Iran, conrmation

does not violate that policy.” [Slip op. 21004]

Additionally, the Court highlights that the

Plainti could obtain a specic license in order

to make the payment to Iran without breaching

the sanctions. ough the Iranian Transactions

Regulations and the WMD Sanctions Regulations

prohibit payment, each states that payment

may be made by obtaining a license from the

Treasury Department’s Oce of Foreign Assets

Control (OFAC). e Supreme Court has already

determined that a general license applies to the

award granted to the Ministry in this case.

“e dierence between conrmation and

payment is accentuated when, as in this case,

payment is subject to licensing rather than barred

absolutely. We should not refuse to conrm an

arbitration award because payment is prohibited

when payment may in fact be authorized by the

government’s issuance of a specic license.” [Slip op.

21004] erefore, the possibility that OFAC could

issue a license further supports conrmation.

Furthermore, the Court mentions that the

applicable regulations allow for Iran to obtain legal

representation in any legal proceedings between

Iran and a United States national. e Court argues

that they demonstrate that “legal proceedings

to resolve disputes such as this one are, short of

payment of a judgment, not in conict with United

States sanctions policy.” [Slip op. 21005]

Lastly, the Court notes that the United States

led an amicus brief in support of conrmation.

“An expression of national policy is not necessarily

dispositive of the public policy issue under

the Convention.” However, “the government’s

conrmation that the ICC’s award comports with

the national and foreign policy of the United States

is entitled to great weight.” [Slip op. 21006]

Despite the United States’ conict with Iran,

the Court nds that the Ministry is entitled to

conrmation of their arbitration award, as there is

no conict with the U.S.’s public policy. erefore,

the Court holds that conrmation of the ICC’s

award was not contrar y to the public policy of the

United States under Article V(2)(b) of the New

York Convention because Cubic had not identied

a public policy sucient to overcome the strong

federal policy in favor of recognizing foreign

arbitration awards.

: Ministry of Defense & Support for the

Armed Forces of the Islamic Republic of Iran v. Cubic

Def. Sys. Inc., 665 F.3d 1091 (9th Cir. 2011).

DISCOVERY

N C   

  E C

P A (“ECPA”)   

 

Appellant Suzlon Energy Ltd. led suit against

Rajagopalan Sridhar, an Indian citizen, for civil fraud

in Australia. Suzlon subpoenaed Appellee Microsoft

Corp., demanding that it release the emails from

an account held by Sridhar. Although Sridhar is

a citizen of India and is imprisoned abroad, the

relevant emails are stored on a domestic server by a

domestic corporation, Microsoft. e district court

initially granted Suzlon’s petition for production of

documents. However, Microsoft objected, arguing

that production of the emails would be a violation

of the Electronic Communications Privacy Act

(“ECPA”), 18 U.S.C. §§ 2510-2522. e district

court agreed with this argument, held that the

plain terms of the statute applied the ECPA to all

persons, and granted the motion to quash. Suzlon

led an appeal of the motion to quash.

e U.S. Court of Appeals for the Ninth

Circuit arms the district court’s nding that the

protections of the ECPA apply to foreign citizens.

e Court determines this by looking to the plain

text of the Act. “e Ninth Circuit has previously