Arbitrat ion Enforcement
| Pages | 53-55 |
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international law update Volume 17, July–September 2011
© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com
U.S. import market. e direct-eects exception
captures foreign anticompetitive conduct that has a
direct, substantial, and reasonably foreseeable eect
on U.S. domestic or import commerce regardless
of whether the overseas anticompetitive conduct
actually ‘involves’ the U.S. import market.” “
Contrary to what the district court seemed to think,
it is not enough that the defendants are engaged
in the U.S. import market, though that may be
relevant to the analysis. Rather, the import trade or
commerce exception requires that the defendants’
foreign anticompetitive conduct target U.S. import
goods or services.” 657 F.3d 661 (internal citation
omitted).
e Court states that the complaint oers
very little information concerning the relationship
between the Defendants’ alleged overseas
anticompetitive conduct and the American
domestic market for potash. “e problem with
these generalized allegations is the absence of
specic factual content to support the asserted
proposition that prices in China, India, and Brazil
serve as a benchmark for prices in the United
States and that this benchmark, if it exists, has a
strong enough relationship with the domestic
potash market to raise a plausible inference that the
defendants’ foreign anticompetitive conduct has a
direct, substantial, and reasonably foreseeable eect
on domestic or import commerce. at is, the
complaint only generally alludes to a link between
the cartelized prices in these three foreign markets
and American potash prices.” 657 F.3d 662.
ese general allegations are not enough to
permit an inference that the increase in potash
prices in another country due to the Defendants’
anticompetitive behavior had anything to do with
the increased prices in the United States. e Court
states that without something more, the Plaintis’
complaint fails to satisfy the direct and substantial
eect test of the FTAIA. e complaint relied too
heavily on chain-of-events allegations that the Court
nds to be too cryptic and unreliable. erefore, the
Court holds that the complaint does not contain
sucient factual content to plead a plausible direct,
substantial, and reasonably foreseeable connection
between the alleged foreign anticompetitive activity
and the domestic potash market.
: Minn–chem v. Agrium Inc., 657 F.3d 650
(7th Cir. 2011).
ARBITRATION
ENFORCEMENT
E C
N Y C,
Plainti Harold Leonel Pineda Lindo, a citizen
and resident of Nicaragua, began employment
with NCL Ltd., a Bermudan corporation with
its principal place of business in Miami, Florida.
In December 2008, Lindo claims that he injured
his back while on board one of NCL’s vessels
while acting within the scope of his employment,
later requiring surgery for his injury. Lindo’s
employment contract with NCL was governed by a
collective bargaining agreement. e contract also
states that all personal injury and Jones Act claims
would be resolved by binding arbitration pursuant
to the United Nations Convention on Recognition
and Enforcement of Foreign Arbitral Awards. e
contract stated that the place of arbitration would
be the place of the employee’s citizenship, unless
arbitration is unavailable under the Convention
in that country, in which case it shall take place in
Nassau, Bahamas. e choice of law would be that
of the ag state of the vessel (Bahamas).
Lindo challenged having arbitration, arguing
that the claim would arise under Bahamian
negligence law, not the Jones Act. Lindo then led
a lawsuit in Florida state court. NCL moved to
compel arbitration and removal to federal court.
Lindo amended his complaint to allege a single
count of Jones Act negligence. e district court
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