Judicial assistance

• Pages: 88-90

88 Volume 20, October–December 2014 international law update

© 2014 International Law Group, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

of foreign judgments conrming foreign arbitral

awards,’ id. at 1319. Subsequently, in Seetransport

Wiking Trader Schiahrtsgesellschaft MBH &

Co., Kommanditgesellschaft v. Navimpex Centrala

Navala, 29 F.3d 79 (2d Cir.1994) (‘Seetransport

II’), the Second Circuit permitted the enforcement

under the New York Uniform Foreign Money-

Judgments Recognition Act of a judgment of

the Paris Court of Appeals awarding the sums in

an arbitral award where, as here, the period for

seeking conrmation of the award under the FAA

Chapter 2 had passed. e court had explained:

‘[U]nlike the recognition of arbitral awards,

which is governed by federal law, the recognition

of foreign judgments is governed by state law.’

Seetransport Wiking Trader Schiarhtsgesellschaft

MBH & Co., Kommanditgesellschaft v. Navimpex

Centrala Navala, 989 F.2d 572, 582 (2d Cir.1993)

(“Seetransport I”) (citing REST. (THIRD) OF

FOREIGN RELATIONS LAW OF THE *333

UNITED STATES § 481 cmt. a (1987)). e

Congo’s attempts to distinguish these cases are

unpersuasive.”

“Our conclusion is also consistent with the

presumption against preemption, which demands

that ‘in all pre-emption cases, and particularly those

in which Congress has legislated in a eld which the

States have traditionally occupied’ without enacting

an express preemption provision, the court must

assume ‘the historic police powers of the States were

not to be superseded by the Federal Act unless that

was the clear and manifest purpose of Congress.’

Wyeth, 555 U.S. at 565, 129 S.Ct. 1187 (alterations

and quotation marks omitted); cf. Bond, 134 S.Ct.

at 2089. As discussed, ‘the enforcement of foreign

judgments was, and remains, presumptively and

primarily under the control of the states.’ Reply

Br. 24; see RESTATEMENT (THIRD) OF

FOREIGN RELATIONS § 481 cmt. a (1987); see

also Aetna Life Ins. Co. v. Tremblay, 223 U.S. 185,

190, 32 S.Ct. 309, 56 L.Ed. 398 (1912); Johnston

v. Compagnie Generale Transatlantique, 242 N.Y.

381, 152 N.E. 121, 123 (1926). Because “Congress

does not cavalierly pre-empt state-law causes of

action,’ Medtronic, Inc. v. Lohr, 518 U.S. 470,

485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996), the

absence of a ‘clear and manifest’ preemptive purpose

in FAA Chapter 2 reinforces the conclusion that

preemption is not warranted here.”

“Accordingly, we hold that the limitations

period in FAA Chapter 2, 9 U.S.C. § 207, does

not preempt the longer limitations period in the

D.C. Recognition Act for enforcing a foreign court

judgment, D.C.Code § 15-369.” [757 F. 3d at 330-

333]

e Court reverses the dismissal of Company’s

complaint and remands the case for the district

court to determine whether the English Judgment

is enforceable under the D.C. Recognition Act.

citation: Commissions Import Export v. Republic of

the Congo, 757 F. 3d 321 (D.C. Cir. 2014)

JUDICIAL ASSISTANCE

In case of first impression related to

criminal investigation into Bernard

Madoff’s investments scheme, Second

Circuit reviews whether 28 U.S.C. § 1782

permits discovery for use in a foreign

criminal investigation conducted by a

foreign investigating magistrate

Frank Berlamont (“Berlamont”), the President

and CEO of Geneva Partners, seek from Optimal

Investment Services, S.A. (“OIS”) and Hunton

& Williams LLP (“H & W”) the production of

documents relating to the examination of Rajiv

Jaitly (“Jaitly Documents”) to provide to a Swiss

investigating magistrate overseeing a criminal

inquiry related to a Bernard Mado (“Mado”)

“feeder fund” in Switzerland.

Geneva Partners is an investment rm in

Switzerland that invested in a fund managed by OIS,

which, in turn, had invested signicant funds with

Mado. OIS is a subsidiary of Banco Santander. H

& W is OIS’s counsel in United States.

In 2009, Berlamont commenced a criminal

proceeding in Switzerland against OIS and its

former Director General, Manuel Echeverria