Forum non conveniens
Pages | 84-85 |
84 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
surveillance orders are reasonable under the Fourth
Amendment.” [Slip op. 23-24]
With regard to the “signicant purpose test” of
FISA, the Court holds that it is reasonable under the
Fourth Amendment, and, therefore, constitutional.
“First, the ‘signicant purpose’ standard reects a
balance struck by Congress between ‘the legitimate
need of Government for intelligence information’
and ‘the protected rights of our citizens.’ Keith, 407
U.S. at 323.” [Slip op. 28] “e legislative history
reveals that Congress was keenly aware that [the
Patriot Act’s amendment to what is now § 1804(a)
(6)(B)] relaxed a requirement that the government
show that its primary purpose was other than
criminal prosecution.” [Slip op. 28]
Additionally, the Court concludes that the
signicant purpose test is reasonable by examining
the government’s legitimate national security goals.
“We are mindful of the high stakes involved and
emphasize the Supreme Court’s admonition that
‘[w]here, as here, the possible harm against which
the Government seeks to guard is substantial, the
need to prevent its occurrence furnishes an ample
justication for reasonable searches calculated to
advance the Government’s goal.’ [Nat’l Treasury
Emps. Union v. Von Raab, 489 U.S. 656, 674-75
(1989)].” [Slip op. 29]
Lastly, the Court highlights that FISA contains
several safeguards against abuse and provides
appropriate judicial review.
: United States v. Duka, 2011 U.S. App.
LEXIS 25868 (3rd Cir. Dec. 28, 2011).
FORUM NON
CONVENIENS
A
P, S C
F N C
Figueiredo Ferraz Consultoria E Engenharia de
Projeto Ltda. entered into a consulting agreement
with the Programa Agua Para Todos (“the Program”),
where Figueiredo was to prepare engineering
studies on water and sewage services in Peru. e
agreement stated that they would avail themselves
to the Judges and Courts of the City of Lima or the
Arbitration Proceedings, if a dispute arose. When
a fee dispute did arise, Figueiredo commenced an
arbitration action in Peru against the Program. In
2005, the arbitral tribunal rendered an award. e
Ministry of Housing, Construction, and Sanitation
appealed the arbitration award to the Court of
Appeals in Peru, but the appeal was denied.
Figueiredo led a petition in the Southern
District Court of New York to have the arbitration
order conrmed. e arbitration award was
conrmed against the Republic of Peru and its
agencies for a sum of more than $21 million.
However, Peru has a statutory cap that prevents
the country from paying more than 3% of its
annual budget in awards enforced against the state.
erefore, the country sought to dismiss the action
for forum non conveniens (“FNC”). e district
court denied the motion, nding that dismissal was
not proper under FNC.
e U.S. Court of Appeals for the Ninth Circuit
reverses the district court’s ruling and remands the
case with directions to dismiss the petition. e
Court notes that in analyzing FNC, courts must
look to public and private interests. e public
interests can include “a local interest in having
localized controversies decided at home . . . and
the interest in having foreign law interpreted by a
foreign court.” [Slip op. 9] e Court further notes
that although the Panama Convention established
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