Transnational Litigation 2024 Year-End Update
Client Alert | March 7, 2025
There have been several recent significant developments in transnational litigation. This Update breaks down those developments and provides detail into the courts’ analyses in several key areas of transnational litigation, as listed below.
TABLE OF CONTENTS
I…Global Climate Change Lawsuits
A…Climate Change Litigation in the United States
B…Climate Change Litigation in Germany and the EU
II…Supply Chain Due Diligence in the European Union
A…EU Corporate Sustainability Due Diligence Directive
1…Scope of application and obligations
2…Enforcement and Sanctions
3…Civil Liability of Companies
III…Developments in Transnational Jurisdiction: Personal Jurisdiction
A…The Ford Motor Decision and Its Impact on Specific Personal Jurisdiction
B…The Mallory Decision and the Expansion of General Jurisdiction
C…Personal Jurisdiction and Forum Selection Clauses in Subsidiary-Parent Relationships: Binding Non-Signatory Parents or Subsidiaries
IV…The Continued Evolution of Extraterritorial Application of RICO
V…Cross-Border Discovery and Issues Related to Privileges Protections
VI…Supply Chain Litigation Under The Trafficking Victims Protection Reauthorization Act
I…Foreign Judgment Recognition and Enforcement in the UK
A…Hague Convention on Recognition and Enforcement of Foreign Judgments to Come into Force in the UK
B…English Court of Appeal judgment on sovereign immunity and ICSID Awards
II…ESG Litigation: Parent Company Liability and Supply Chain Risk
Decision regarding Greenwashing by the German Federal Court of Justice
I. Global Climate Change Lawsuits
All over the world, plaintiffs are using courts to try to hold private companies and governments liable for what they allege are the effects of global climate change. These cases underscore the legal pressures on both public and private sectors to adopt and meet stringent climate targets and the potential for significant legal and financial implications. Understanding these developments is crucial for businesses to navigate the evolving regulatory landscape and mitigate risks.
Since 2017, state and local governments across the United States have filed lawsuits in state courts against private energy companies, alleging that the companies’ worldwide extraction, production, promotion, marketing, and sale of fossil fuels has contributed to global climate change and thereby caused injury. The plaintiffs seek damages and other relief for the alleged impacts of climate change, which they allege has been caused by interstate and international emissions, the cumulative actions of billions of individuals the world over the past century. Dozens of nearly identical actions have been brought under this theory, including in San Francisco, New York City, Baltimore, and Boulder.[1] Additional suits continue to be filed.
Most state courts that have confronted the merits of these claims have concluded that federal law precludes states from using their own law to resolve claims seeking relief for injuries arising from international emissions. Those courts have held that the federal constitutional structure of the United States does not allow state law to resolve claims that are based on such inherently interstate and international phenomena, and also that the Clean Air Act preempts these state-law claims. As the Circuit Court of Maryland, Baltimore City recently held, “the Constitution’s federal structure does not allow the application of state law to” these claims; rather, they “g[o] beyond the limits of … state law.”[2] The Circuit Court for Anne Arundel County, Maryland, too, has held that “federal law precludes and preempts the application of state law” to these types of claims.[3] The Delaware Superior Court has concluded that “[t]he federal Constitution prohibits the State from using its own laws to resolve claims seeking redress for injuries allegedly caused by out-of-state emissions.”[4] And the New Jersey Superior Court came to the same conclusion, explaining that “only federal law can govern Plaintiffs’ interstate and international emissions claims because ‘the basic scheme of the Constitution so demands.’”[5] The Hawaii Supreme Court, by contrast, has held that claims of this sort are not “preempted by federal law.”[6]
The federal courts that have considered the merits, meanwhile, have unanimously held that federal law precludes state-law claims seeking redress of injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate. For example, in dismissing New York City’s lawsuit in 2021, the Second Circuit held that “such a sprawling case is simply beyond the limits of state law,” and that “municipalities may [not] utilize state tort law to hold multinational oil companies liable for the damages caused by global greenhouse gas emissions.”[7] Similarly, the U.S. District Court for the Southern District of New York held that claims of this sort “are ultimately based on the ‘transboundary’ emission of greenhouse gases,” so “our federal system does not permit the controversy to be resolved under state law.”[8] And the U.S. District Court for the Northern District of California agreed.[9]
So far, the U.S. Supreme Court has not weighed in to definitively resolve this issue of federal law. Until that Court intervenes, or until the state courts come to a consensus that state law cannot be used to resolve these disputes, States and municipalities likely will continue to bring these cases.
In the EU, too, climate-change litigation is becoming increasingly important, both for the public sector and private companies. The claims are based on new environment-related policies and legislation but also fundamental rights such as those enshrined in the European Convention on Human Rights.
The Deutsche Umwelthilfe (DUH), or “German environmental aid,” is an independent non-profit organization that brought several claims against Germany and various private companies in 2023 and 2024. First, the DUH filed two complaints in the Higher Administrative Court Berlin-Brandenburg against Germany’s 2023 Climate Protection Program, arguing that it lacked sufficient measures concerning the energy, industry, buildings, agriculture, transport sectors, and the land use sector.[10] On May 16, 2024, the Court ruled in favor of the DUH, finding that the program had failed to meet the 2030 climate target pursuant to Section 3 (1) No. 1 of the Climate Protection Act. In September 2024, the Ministry of the Environment appealed the ruling, and the case is currently pending before the Federal Administrative Court. Additionally, on July 17, 2023, the DUH filed a constitutional complaint after the German Parliament approved changes to the Climate Protection Act.[11] The DUH argued that the amendment reduces the responsibility of sectors like transport and buildings for greenhouse gas emissions. Instead of sector-specific reduction targets, the law introduces a holistic approach focusing on savings where the greatest potential exists. That case is pending.[12]
With respect to the private sector, DUH filed lawsuits i.a., against Mercedes-Benz Group AG (“Mercedes”) and BMW AG (BMW). The plaintiffs, managing directors of DUH, are claiming violations of their personal rights due to the continued production and sale of combustion engines, and are requesting that the companies produce only electric vehicles beginning in 2030. These lawsuits are based on the Federal Constitutional Court’s climate ruling from 2021, which states that the responsibility for reducing emissions must not be postponed at the expense of future generations.[13] The Stuttgart Regional Court ruled in favor of Mercedes,[14] and that decision has been affirmed by the Stuttgart Higher Regional Court.[15] The judges held that the determination of emission values or reduction targets is the task of the legislator, not the courts. The case is currently pending on appeal before the German Federal Court of Justice. Similarly, DUH failed in its climate action against BMW before the Munich Higher Regional Court: the court dismissed the claim and found that BMW was acting in accordance with applicable laws.[16] In addition, DUH has filed but meanwhile withdrawn a lawsuit against the oil and gas company Wintershall Dea—which sought to order the company to tighten its carbon-emissions target and to cease the extraction of natural gas and crude oil nationally and internationally by 2025.[17]
Additionally, Milieudefensie, a Dutch environmental organization, sued Royal Dutch Shell, alleging that Shell is at odds with global climate targets, violating its duty of care under Article 6:162 of the Dutch Civil Code—which is based on Articles 2 and 8 of the European Convention on Human Rights (ECHR) that guarantee the right to life (Article 2) and the right to private and family life, home, and correspondence (Article 8)—and failing to comply with the goals of the Paris Agreement. The first instance ruling required Shell to reduce its total CO₂ emissions by 45% by the end of 2030 compared to 2019.[18] The court identified a duty of care under Dutch law arising from the “unwritten standard of care.” The court also ruled that Shell can also be held responsible for emissions of its suppliers and end customers. In November 2024, the Court of Appeals in The Hague confirmed that Shell has a duty of care under Dutch tort law, in line with international human rights law as well as EU and international climate regulations, to take action to prevent dangerous climate change. However, the court overturned the judgment by rejecting the imposition of a specific emission reduction target for Shell, as there was not enough scientific consensus to define a precise reduction percentage, and such decisions should be made by politicians, not by courts.[19]
II. Supply Chain Due Diligence in the European Union
On July 25, 2024, the Directive on Corporate Sustainability Due Diligence, EU Directive 2020/1760 (CSDDD) entered into force.[20] The CSDDD establishes far-reaching mandatory human-rights and environmental obligations on both EU and non-EU companies meeting certain turnover thresholds. Those obligations apply with respect to a company’s own operations and those of its subsidiaries—but also to those carried out by a company’s “business partners” in the company’s “chain of activities.”[21] The EU member states are required to transpose the CSDDD into national law by July 26, 2026. However, the European Commission has presented its proposal for an “First Omnibus Package” that shall simplify and streamline reporting requirements across multiple EU sustainability laws such as the CSDDD and the Corporate Sustainability Reporting Directive (the CSRD). The First Omnibus Package is split into two separate proposals: (i) a Postponement Directive[23] to delay certain reporting obligations for two years and due diligence obligations until 2028, and (ii) an Amendment Directive[24] to revise key elements of the EU’s sustainability reporting and due diligence frameworks, including changes to the scope of the CSDDD. Since the Amendment Directive will most likely cause lengthy negotiations, we proceed below on the basis of the initial text and highlight key considerations of the First Omnibus Package.
The CSDDD will apply to EU companies that have more than 1,000 employees on average and a net worldwide turnover of more than EUR 450 million;[25] and also will apply to non-EU companies that have generated a net turnover in the EU of more than EUR 450 million.
Notably, the scope of application of the CSDDD is more limited than that of the CSRD,[26] which (save with respect to franchisors or licensors) applies lower employee and turnover thresholds. While the CSDDD is expected to apply to around 5,500 companies, the CSRD covers approximately 50,000 companies. However, with the First Omnibus Package the European Commission proposes to align the scope of the CSRD more closely with the CSDDD.
Generally, the CSDDD, one of the most debated pieces of European legislation of recent times, establishes an obligation on in-scope companies to: (a) identify (due diligence) adverse human-rights and environmental impacts; (b) prevent, mitigate, and bring to an end/minimise such adverse impacts; and (c) adopt and put into effect a transition plan for climate-change mitigation which aims to ensure—through best efforts—compatibility of the company’s business model and strategy with limiting global warming to 1.5°C in line with the Paris Agreement.
The CSDDD also sets out minimum requirements (including the ability for claims to be made by trade unions or civil society organisations) of a liability regime to be implemented by members states of the EU for violation of the obligation to prevent, mitigate and bring to an end or at least minimise adverse impacts.
The Directive requires EU member states to designate independent “Supervisory Authorities” to supervise compliance.[27] A Supervisory Authority must have adequate powers and resources, including the power to require companies to provide information and carry out investigations. Investigations may be initiated by the Supervisory Authorities’ own motion or as a result of substantiated concerns raised by third parties. Sanctions regimes adopted by EU member states must be effective, proportionate and dissuasive.
Members States must establish a civil liability regime for companies which intentionally or negligently fail to comply with the CSDDD’s obligations and where damage has been caused to a person’s legal interest (as protected under national law) as a result of that failure.[28]
EU member states must provide for “reasonable conditions” under which any alleged injured party may authorize a trade union, non-governmental human rights or environmental organization or other NGO or national human rights’ institution, to bring actions to enforce the rights of the alleged injured party.[29]
The Directive requires a limitation period for bringing actions for damages of at least five years and, in any case, not shorter than the limitation period laid down under general civil liability national regimes.
Regarding compensation, the Directive requires Members States to lay down rules that fully compensate victims for the damage they have suffered as a direct result of the company’s failure to comply with the Directive. However, the Directive states that deterrence through damages (i.e., punitive damages) or any other form of overcompensation should be prohibited.
The CSDDD’s potential civil liability exceeds that of existing supply chain legislation in Member States, such as the German Supply Chain Due Diligence Act. However, the European Commission proposes with the First Omnibus to defer the civil liability regime to the EU Member States who shall ensure that, if companies are held liable in case of non-compliance with the due diligence requirements under the CSDDD, the injured parties will have a right to full compensation.
While the full impact of the civil liability regime linked to the CSDDD is still uncertain and it remains to be seen how the Member States transpose the CSDDD, for businesses, this new regime underscores the importance of robust due diligence and risk management practices as well as compliance with the CSDDD.
On June 29, 2023, the EU’s Deforestation Regulation (EUDR)—which restricts the sale in the EU of products that may cause deforestation or the degradation of forests—entered into force.[30] The EUDR prevents certain commodities and products linked to deforestation or forest degradation from entering the European market or being exported. Accordingly, EUDR imposes on operators and traders the obligation to maintain a due-diligence system to avoid sourcing materials that are connected to deforestation or forest degradation. The Regulation therefore requires geolocational data for all forest products imported into the EU. Other countries, such as the United States and China, have objected to the EUDR as imposing impossible standards and acting as a trade barrier.[31]
In response to these criticisms, the EU Council has extended the application timeline for the EUDR until December 30, 2025 for large- and medium-sized companies, and until June 30, 2026 for micro and small companies, and the EU Parliament has confirmed the postponement.[32]
III. Developments in Transnational Jurisdiction: Personal Jurisdiction
In the past few years, the U.S. Supreme Court has issued two significant personal-jurisdiction decisions: Ford Motor Co. v. Montana[33] and Mallory v. Norfolk Southern Railway.[34] In the wake of these decisions, many lower courts have expanded the circumstances that justify the exercise of specific personal jurisdiction.
A. The Ford Motor Decision and Its Impact on Specific Personal
Jurisdiction
In Ford Motor, the Supreme Court clarified that, in certain circumstances, a claim may “arise out of or relate to” the forum state for purposes of personal jurisdiction even in the absence of direct causation. Ford Motor involved product-liability lawsuits related to accidents involving Ford vehicles that took place in the State where the lawsuits were filed, and the plaintiffs were residents of those States. Ford had significant business operations in each State, including advertising, selling, and servicing the specific vehicle models involved in the accidents. The vehicles, however, were designed, manufactured, and sold outside the State.
The Court rejected Ford’s argument that the fact that the cars involved in the accidents were not purchased or manufactured in the forum states should be dispositive as to jurisdiction. As the Court explained, “some relationships will support jurisdiction without a causal showing.”[35] While the Court was careful to caution “[t]hat does not mean anything goes,”[36] it emphasized that “[w]hen a company like Ford serves a market for a product in a State and that product causes injury in the State to one of its residents, the State’s courts may entertain the resulting suit.”[37]
In the wake of Ford Motor, federal courts of appeals have expanded the reach of specific personal jurisdiction to include numerous international corporations that hitherto may not have been subject to the personal jurisdiction of U.S. courts. For example, in Hardy v. Scandinavian Airlines System, Hardy, a U.S. citizen was injured stepping off a plane in Oslo and sued the foreign airline company.[38] The district court held that the airline’s selling the ticket to Hardy was not causally connected with her injury, but the Fifth Circuit reversed, noting that, under Ford Motor, “some relationships will support jurisdiction without a causal showing,” and holding that the airline’s “advertising in the United States and its operation of a flight out of Newark. … combined to create an unbroken causal chain that ends with Hardy’s injury.”[39]
The Sixth Circuit came to a similar conclusion in Sullivan v. LG Chem, Ltd.[40] There, a consumer sued LG, a South Korean company, in Michigan for injuries sustained when LG’s batteries exploded. LG objected to personal jurisdiction on the basis that it never sold the batteries for consumer use in Michigan. The Sixth Circuit, however, held that this argument was simply “disguising” the causation analysis that Ford Motor “rejected”; the court accordingly held that personal jurisdiction was proper because LG conducted business with Michigan companies and had shipped the batteries into Michigan.[41]
Other courts, however, have recognized the limits of Ford. In Estados Unidos Mexicanos v. Smith & Wesson,[42] the Mexican government filed a lawsuit in the District of Massachusetts against seven U.S. gun manufacturers, accusing them of designing, marketing, and selling firearms in ways that they knew facilitated arming Mexican drug cartels. The court declined to assert specific jurisdiction over the manufacturers, distinguishing the case from Ford on the grounds that none of the alleged injuries took place in Massachusetts, nor did any of the plaintiffs have a connection to that State.[43]
The Northern District of California also distinguished Ford Motor in dismissing a case against the German airline Lufthansa. In Doe v. Deutsche Lufthansa Aktiengesellschaft,[44] the plaintiffs alleged that they suffered harm because the way Lufthansa agents treated them in Riyadh revealed their sexual orientation to the Saudi Arabian government. The plaintiffs, both California residents, brought suit in California. The court recognized that Lufthansa had clearly availed itself of the privileges of conducting business in California, “regularly operat[ing] flights between Saudi Arabia and California, and regularly operat[ing] flights to and from San Francisco, Los Angeles, and San Diego.”[45] Additionally, the airline is registered to operate in California, maintains an agent for service of process in the state, employs 41 staff members there, and operates offices at the San Francisco and Los Angeles airports.[46] However, because the flights were booked in Saudi Arabia, the claims stemmed from events at the Riyadh airport, and the disclosure of their personal information occurred outside the United States, the court determined that the plaintiffs’ claims did not arise out of or relate to Lufthansa’s contacts with the state.[47] Some commentators have criticized this holding, arguing that, as in Ford Motor, Lufthansa “deliberately cultivated a market in California,” the plaintiff “was induced by Lufthansa’s market presence in California to purchase Lufthansa tickets to fly to California,” and the plaintiff’s cause of action “derive[s] from their flights bound for the state.”[48] The court, however, despite declaring it a “close call,” found this line of argument “too speculative” to support specific personal jurisdiction.[49]
Nevertheless, in the wake of Ford Motor, firms should be aware that many courts have interpreted Ford Motor’s rejection of a causation requirement in the specific-personal-jurisdiction analysis as broadly expanding personal jurisdiction, even for foreign companies.
B. The Mallory Decision and the Expansion of General Jurisdiction
The Court’s 2023 decision in Mallory v. Norfolk Southern Railway, meanwhile, expanded the grounds for the exercise of general personal jurisdiction over foreign defendants. In Mallory, the Supreme Court upheld as constitutional Pennsylvania’s corporate-registration statute, which provides that all out-of-state corporations that register to do business within the State consent to general personal jurisdiction. The plaintiff, a Virginia resident, sued his previous employer, incorporated and based in Virginia, in Pennsylvania, arguing that, by registering to do business in Pennsylvania, the defendant had consented to general jurisdiction.[50] The Supreme Court agreed that, because Pennsylvania’s law “is explicit” that registration is a basis for general jurisdiction[51] and because the defendant had a substantial in-state presence,[52] the requisite “fair notice” was provided under the Due Process Clause, the statute was constitutional, and jurisdiction could be asserted. Because the defendant had registered to do business in Pennsylvania, it could be sued for any claims in that State, even if they had nothing to do with the forum.
So far, the functional consequences of the Mallory decision have been fairly limited. The majority holding of Mallory was narrow, finding only that Pennsylvania’s consent-by-registration statute did not violate due process. Whether such a statute might violate other constitutional clauses was a question expressly reserved by the Court.[53] Moreover, the holding of Mallory was limited to its facts: the majority expressly refused to opine on “whether any other statutory scheme and set of facts would suffice to establish consent to suit.”[54]
Indeed, Pennsylvania’s statute appears to be the only statute that expressly provides for consent-by-registration under the standards set forth in Mallory. Thus far, courts have largely avoided reading other statutes as providing similar jurisdiction-by-registration. As one court has explained, “[t]o read Mallory more broadly would not only go beyond the decision’s scope but would also subject every registered foreign corporation, without regard to its place of incorporation, its principal place of business, or the extent of its contacts within the state, to general personal jurisdiction in almost every single state. Nothing in Mallory suggests that the Court was announcing such a sweeping sea change in personal jurisdiction.”[55] Numerous other courts have similarly declined to find Mallory’s test satisfied.[56] Thus, at least for now, the impact of Mallory may be limited to Pennsylvania, but firms should examine States’ registration statutes to see if they are distinguishable from Pennsylvania’s regime.
C. Personal Jurisdiction and Forum Selection Clauses in Subsidiary-
Parent Relationships: Binding Non-Signatory Parents or Subsidiaries
Registration to do business is not the only way that a company might consent to jurisdiction; another way is via forum-selection clauses in contracts. Under the “closely related” doctrine, courts determine whether a non-signatory can be bound by a forum-selection clause when it is so “closely related” to a contracting party or dispute that it was “foreseeable” it would be subject to the clause. The Sixth Circuit recently grappled with applying this doctrine to a non-signatory subsidiary and came out staunchly in opposition.[57]
In Firexo, a subsidiary incorporated in Florida sued its parent company, based in the United Kingdom, for breach of contract in Ohio. The parent company argued that the suit had to be litigated in England per the forum-selection clause in an unrelated Joint Venture Agreement (JVA) the parent had entered into with a resident of Ohio, even though the subsidiary was not a signatory to the JVA.
The Sixth Circuit reversed the district court’s decision that the subsidiary was so “closely related” to the JVA that it was “foreseeable” that the clause would be applied to it. After first determining under an Erie analysis that federal common law (and thus, the “closely related” doctrine) did not apply to the dispute,[58] the court went on to challenge the validity of the “closely related” test itself. Per the majority, “[i]t is not entirely apparent [that the] benefits [of the doctrine] outweigh its concerns, especially the absence of consideration under the objective theory of contracts or the absence of ‘minimum contacts’ under the constitutional personal-jurisdiction analysis.”[59] In so holding, the opinion reflected concerns that binding an unwilling non-signatory to an agreement on this basis conflicts with fundamental principles of contractual consent.[60]
Firexo represents a decisive step in the direction of preserving the contractual agency of non-signatory parents and subsidiaries.
IV. The Continued Evolution of Extraterritorial Application of RICO
Whether and when federal law can be applied extraterritorially (and the implications of such extraterritorial application) continues to be the focus of significant litigation regarding the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968.
In 2016, the Supreme Court in RJR Nabisco had held that RICO’s private right of action does not apply extraterritorially unless the plaintiff alleges and proves a domestic injury to its business or property as a result of a RICO violation.[61] The Court noted that, generally, the presumption against extraterritoriality can be rebutted only if (1) the statute gives a clear indication that it applies extraterritorially, or, (2) the case involves a domestic application of the statute.[62] The Court held that RICO’s private right of action did not provide a clear indication of extraterritorial application, so for RICO suits, the presumption can be rebutted only by satisfying the domestic-injury requirement.[63]
RJR Nabisco had no occasion to explain what constitutes a domestic injury, but the Court recently addressed that question in Yegiazaryan v. Smagin.[64] There, the Supreme Court ruled that, for the purposes of a domestic-injury analysis under RICO, it is not the foreign plaintiff’s place of residence that matters, but rather where the plaintiff experienced the injury. Both parties in that case were Russian citizens, and the dispute involved a real-estate deal in Moscow. The plaintiff, who remained in Russia, obtained an arbitral award in London against the defendant, who was residing in California. The plaintiff then sued in California federal court to enforce the arbitral award. After the defendant attempted to avoid enforcement through fraudulent transactions in California, the plaintiff filed a civil RICO claim against him. The Court held in the plaintiff’s favor, adopting a “context-specific inquiry” for determining whether the alleged injury “arose in the United States.”[65] As the Court explained, the inquiry involves “looking to the nature of the alleged injury, the racketeering activity that directly caused it, and the injurious aims and effects of that activity.”[66] On the facts of the case, the Court held that the plaintiff had suffered a domestic injury, given that he was “injured in his ability to enforce a California judgment, against a California resident, through racketeering acts that were largely ‘designed and carried out in California’ and were ‘targeted at California.’”[67]
Lower courts have expanded on the contextual approach adopted in Yegiazaryan in a variety of contexts involving tangible property. The Ninth Circuit was the first lower court to apply the Yegiazaryan Court’s approach to the domestic-injury requirement. In Global Master International Group, Inc. v. Esmond Natural, Inc.,[68] a Chinese firm sued its American supplier for fraudulently providing a product different from what the plaintiff had contracted to purchase. The purchase orders between the two firms provided that title to the products would pass to the Chinese firm in California before they were exported to China. On this basis, the Ninth Circuit held that there was a domestic injury. The fact that the Chinese firm “owned its injured property in the United States establishes that its injury was domestic.”[69] In the Ninth Circuit’s view, this factor outweighed the fact that the goods were later exported to China and that the plaintiff itself was located in China.[70]
In the same way, the Fourth Circuit, applying Yegiazaryan, recently held that just because a defendant’s racketeering activity took place primarily in the United States does not necessarily mean that a “domestic injury” has occurred. In Percival Partners Ltd. v. Nduom,[71] the court ruled that Ghanaian investors who transferred their money to a Ghanaian company with the intention of investing in Africa could not have reasonably anticipated or expected that their funds would later be sent to the United States. The plaintiffs thus felt their injury in Ghana, not in Virginia, where the embezzling company was located. While acknowledging that “the RICO case law, Yegiazaryan prominently included, instructs that the place of racketeering conduct may be relevant to whether an injury is domestic or foreign,” the court clarified that relying solely on the location of the conduct would contradict the essence of Nabisco, whose “whole point . . . was to separate out conduct from injury when it comes to extraterritoriality.”[72] The court further emphasized that such an approach would disregard “the Supreme Court’s instruction that ‘no set of factors can capture the relevant considerations for all cases.’”[73] Thus, the court held that the plaintiff’s injury occurred abroad and was not domestic.
These decisions demonstrate that courts will focus holistically on all the facts surrounding an alleged injury to determine its location, and will not apply a residency requirement or other bright-line rule.
V. Cross-Border Discovery and Issues Related to Privileges Protections
28 U.S.C. § 1782 enables litigants to seek discovery through federal district courts for use in “foreign or international tribunal[s]” where the target of the discovery is located in that federal district. Section 1782 has become an essential tool in transnational litigation. In recent years, courts have issued rulings refining the scope of allowable discovery under that provision.
One question courts have been considering is under what circumstances Section 1782 can apply to foreign arbitral tribunals. The Supreme Court ruled in 2022 that Section 1782 applies only to foreign tribunals that are imbued with governmental authority.[74] Under that standard, the Court held, a United Nations Commission on International Trade Law (UNCITRAL) arbitral panel did not qualify because the panel was not created by a governmental action such as a treaty, the members of the panel were not affiliated with any governmental entity, the panel received no funding from a government, and the panel had no coercive power.[75] Applying this standard, the U.S. Court of Appeals for the Second Circuit recently ruled that an International Centre for Settlement of Investment Disputes (ICSID) arbitral panel is not a governmental tribunal subject to Section 1782.[76] Even though ICSID itself is established and funded by sovereign states, the court noted, the authority of the panel derives solely from party agreement.[77] And even though there are situations in which the ICSID Chairman could appoint panel members, the court stated, those situations did not arise in that case.[78] The Second Circuit ultimately held that the ICSID panel was sufficiently similar to the UNCITRAL panel in ZF Automotive and denied the 1782 application.
The Second Circuit’s decision suggests that, in the wake of ZF Automotive, courts may interpret Section 1782 narrowly, applying it only to tribunals that are clearly governmental. It also suggests that courts likely will not apply a bright-line test to determine whether Section 1782 applies to a particular foreign or international arbitral panel, but instead will consider holistically whether the relevant nations intended “to imbue to body in question with governmental authority.”[79] Finally, as the Second Circuit did here, courts may focus on the details of the particular ad hoc panel in the context of the dispute before it, and decline to develop broadly applicable rules.
Courts have also been grappling with when district courts, in their discretion, should grant 1782 applications. The Supreme Court has explained that district courts should exercise their discretion by considering four factors: (1) whether the applicant is a participant in the foreign proceeding; (2) the character of the foreign proceeding, in particular its receptivity to foreign assistance; (3) whether the application seeks to circumvent foreign restrictions; and (4) whether the request is unduly intrusive or burdensome.[80]
Recently, the Seventh Circuit, in upholding a denial of a Section 1782 application, demonstrated the deference that courts of appeal give district courts’ 1782 application of these factors.[81] Venequip, a Venezuelan heavy-equipment supplier, applied for 1782 discovery from Caterpillar, an Illinois-based machinery manufacturer, for use in breach-of-contract litigation in Switzerland.[82] The district court denied the application, noting that the third factor was particularly relevant, since the parties had contractually agreed to Swiss law, which has more circumscribed discovery procedures than U.S. law, so Venequip should not be allowed to use Section 1782 to circumvent those foreign restrictions.[83] The district court specifically noted, however, that it was open to considering a renewed 1782 application if Caterpillar was not cooperating with the discovery allowed by the Swiss tribunal.[84] The Seventh Circuit affirmed, deferring to the district court’s analysis and applauding its “wait-and-see” approach.[85]
This ruling underscores the deference accorded to district court decisions, and the importance to federal courts of respecting foreign legal systems. Litigants in Section 1782 disputes should keep in mind the importance of international comity, as well as the possibility that Section 1782 applications could be renewed based on developments in the foreign proceedings.
VI. Supply Chain Litigation Under The Trafficking Victims Protection Reauthorization Act
The Trafficking Victims Protection Reauthorization Act (TVPRA) allows victims of forced labor and other forms of trafficking to sue the perpetrators and, more generally, those who “knowingly benefit[]” from “participation in a venture” that they knew or should know engaged in conduct violating the TVPRA. In recent years, individuals who were alleged forced to work in commodities production abroad have attempted to sue multi-national corporations on the theory that those corporations participated in a venture with their suppliers or other in their extended supply chains. Courts have considered a series of questions about the meaning and scope of the TVPRA, including whether plaintiffs have standing to sue mere participants in a supply-chain venture, how to interpret key statutory language, and whether the TVPRA permits civil suits based on trafficking that occurred outside the United States.
On March 5, 2024, the U.S. Court of Appeals for the D.C. Circuit issued a significant decision rejecting a “supply-chain” venture theory of liability.[86] Plaintiffs were a group of children who alleged they were forced to work in cobalt mines in the Democratic Republic of the Congo. Their suit alleged that Apple, Alphabet, Dell Technologies, Microsoft, and Tesla “violated the TVPRA by participating in the global supply chain—a ‘venture’ that depends on forced labor.”[87] The district court had dismissed on numerous grounds, holding (among other things) that plaintiffs lacked Article III standing, that they failed to state a claim on the merits, and that the TVPRA’s civil remedies provision does not apply extraterritorially.
The D.C. Circuit affirmed dismissal. It first concluded that plaintiffs had standing to sue, holding that plaintiffs satisfied the minimal requirements to plead that their injuries were “fairly traceable” to Defendants’ alleged conduct because those Defendants were alleged to be “in a ‘venture’—as the plaintiffs understand the TVPRA—with” the entities whose were purportedly “responsible for the forced labor.”[88] But those same allegations were not sufficient to state a claim on the merits. Adopting a plain meaning interpretation of “participation in a venture,” the court reasoned that the TVPRA requires “taking part or sharing in an enterprise or undertaking that involves danger, uncertainty, or risk, and potential gain.”[89] Plaintiffs did not satisfy that definition because Defendants did not own any “interest in their suppliers” or “share in their suppliers’ profit and risks” but merely engaged “on opposite sides of an arms-length transaction” to buy and sell cobalt.[90] In short, “purchasing a commodity, without more, is not ‘participation in a venture’ with the seller” under the meaning of the TVPRA.[91]
The D.C. Circuit’s ruling is a significant limitation on “supply-chain” liability under the TVPRA. It confirms that simply purchasing a commodity that was produced using forced labor or trafficking should not be enough to subject the purchaser to liability under the TVPRA. That said, the D.C. Circuit’s opinion also leaves significant questions unresolved. For example, the court did not decide whether the district court was correct in concluding that the TVPRA’s civil remedies provision does not allow suits based on overseas trafficking.[92] With respect to standing, the court did not resolve whether plaintiffs always have constitutional standing whenever they allege a claim under the TVPRA, even if the direct perpetrators are not alleged to be part of the “venture.” And with respect to the merits, the court left the precise boundaries of supply-chain liability unresolved where purchasers have more control or involvement with their suppliers than simply an arm-length transactional relationship.
I. Foreign Judgment Recognition and Enforcement in the UK
A. Hague Convention on Recognition and Enforcement of Foreign
Judgments to Come into Force in the UK
On June 27, 2024, the UK Government ratified the Hague Convention on Recognition and Enforcement of Foreign Judgments, which is set to come into force for the UK on July 1, 2025.[93]
The Hague Convention is a multilateral convention, which provides a set of common rules for recognizing and enforcing judgments issued in civil and commercial matters, between Contracting Parties (including all EU member states (except Denmark), as well as Ukraine and Uruguay). The merits of a judgment cannot be reviewed, and recognition and enforcement can be refused only on specific grounds. While most national laws provide for the enforcement of foreign judgments, those laws differ between jurisdictions. This can make the enforcement of foreign judgments unpredictable, lengthy, and costly. By establishing common rules, the Hague Convention hopes to provide greater certainty and to reduce the complexity of that process.
This is a particularly important development for the UK because, following the UK’s departure from the European Union (Brexit), parties wishing to have UK judgments recognised and enforced in other jurisdictions could not rely on the broad-EU enforcement regimes.[94]
B. English Court of Appeal judgment on sovereign immunity and
ICSID Awards
As referenced in a recent client alert, the English Court of Appeal has confirmed that sovereign immunity does not bar the enforcement of International Centre for Settlement of Investment Disputes (ICSID) awards.[95]
On October 22, 2024, the Court of Appeal issued an important judgment in relation to arbitral award enforcement in the combined appeals of Infrastructure Services Luxembourg S.À.R.L. v. Kingdom of Spain and Border Timbers Limited v. Republic of Zimbabwe.[96] The court decided that, when the contracting states agreed to Article 54 of the ICSID Convention—which requires that an ICSID award must be enforced by a national court—this was a “written agreement” waiving State immunity and submitting to jurisdiction under the UK’s State Immunity Act 1978 (1978 Act). Section 2 of the 1978 Act provides that a State may waive its immunity by a “prior written agreement” (read together with s. 17(2) of the 1978 Act, which provides that a “prior written agreement” includes references to a “treaty, convention or other international agreement”). The Court of Appeal affirmed that such prior written agreement is found in Art. 54 of the ICSID Convention.
The decision is positive news for parties looking to enforce ICSID awards in the UK, as it re-affirms the UK’s pro-enforcement stance in relation to investor-State awards.
II. ESG Litigation: Parent Company Liability and Supply Chain Risk
In December 2024, the English Court of Appeal in Limbu v Dyson[97] held that England is the appropriate forum to determine claims brought by migrant workers in Malaysia against companies within the Dyson corporate group.
The claims—which relate to alleged abusive labor practices while manufacturing components for a third-party supplier in Malaysia—were brought by a set of migrant workers that had been employed by a Malaysian third-party supplier of components for Dyson-branded products. The claimants argued that they had been subjected to abusive and exploitative working and living conditions while working for the Malaysian supplier, and alleged that the relevant Dyson entities were liable in negligence and unjust enrichment. Two of the defendants were domiciled in England, and one was domiciled in Malaysia.
The High Court refused jurisdiction under forum non conveniens, finding that England was not the natural or appropriate forum for the dispute.[98] The High Court concluded that Malaysia was “clearly and distinctly more appropriate” as a forum because the dispute was governed by Malaysian law and the country represented the “centre of gravity” of the case due to the alleged harm occurring in Malaysia.[99]
The claimants appealed to the Court of Appeal, which reversed the first-instance decision. The Court of Appeal held that England was “clearly and distinctly the appropriate forum,” particularly in light of the claimants’ inability to secure funding for a claim in Malaysia, as well as other potential procedural difficulties and potential access-to-justice concerns in Malaysia. The Court found that Dyson’s UK domiciled corporate entity was “the principal protagonist” in the alleged breaches.
Subject to any further appeal to the UK Supreme Court, the matter will now return to the High Court to proceed on the merits, with decisions on liability, quantum of damages, and potential additional jurisdictional challenges yet to come.
Although the question of potential tortious liability for UK-domiciled parent companies for the operations of their foreign subsidiaries has previously been considered by the UK Supreme Court, those cases concerned the applicable EU jurisdiction rules.[100] Following the end of the Brexit transition period, this is the first time the Court has accepted jurisdiction when applying the English common law rules.
While it remains to be seen whether any clear jurisprudential patterns emerge following the renewed application of English common law rules on jurisdiction, parties to similar transnational disputes ought to be aware of the possibility of proceeding in UK courts. The London Bullion Market Association (LBMA), an independent association which provides accreditation to certain metal refiners, is facing a similar tortious claim in the UK for alleged human rights failings at a third-party owned Tanzanian gold mine from which an LBMA accredited refiner had sourced gold. After initially disputing the English Courts’ jurisdiction to hear the case, the LBMA withdrew its challenge in June 2024 and the trial has recently been scheduled to proceed during the summer of 2026.
Litigation Regarding the “Corporate Duty of Vigilance Law”
The Corporate Duty of Vigilance Law (2017) requires companies (i) headquartered in France with more than 5,000 employees in France or (ii) headquartered in France with 10,000 employees in France and/or abroad to establish a corporate sustainability due diligence plan.[101] This plan must include measures to identify risks and prevent serious harm to (i) human rights and fundamental freedoms, (ii) individuals’ health and safety, and (iii) the safety environment that may result from the company’s own activities or those of its subsidiaries, subcontractors or suppliers.[102] Any third party may issue a “formal notice” to any company covered by the law if they consider its corporate sustainability due diligence plan to be incomplete or insufficient.[103] The French courts may compel these companies to (i) modify their plans and/or (ii) pay damages to indemnify any harm resulting from the alleged insufficiency of the plans.[104]
In the past few years, this law has been used as a tool of transnational litigation, with third parties from within and outside of France bringing suit against France-based international corporations.
A. Notre Affaire à Tous TotalEnergies SE
On January 28, 2020, several non-governmental organizations, some French local authorities (including the city of Paris), and the city of New York subpoenaed TotalEnergies, a leading French oil company, regarding the alleged insufficiency of its corporate sustainability due diligence plan. The First Instance Tribunal dismissed the plaintiffs’ demands because the basis of the subpoena was different from the one in the formal notice they had previously issued to TotalEnergies. The plaintiffs appealed this decision to the Court of Appeal of Paris.
On June 18, 2024, the Court of Appeal deemed that the parts of the appeal brought by the NGOs and the city of Paris were admissible.[105] It dismissed the appeal by the other local authorities and the city of New York as it considered they did not demonstrate a sufficient “local public interest” to be deemed admissible.
The Court of Appeal of Paris also clarified several procedural rules: (i) a sufficiently clear formal notice must be issued prior to the subpoena; (ii) the formal notice and the subpoena do not need to include identical demands; and (iii) the formal notice and the subpoena do not need to concern the identical corporate sustainability due diligence plan if a further one is subsequently issued.
The case is now before the Judicial Tribunal of Paris which will rule on the substantive merits of the case.
B. European Center for Constitutional and Human Rights v. EDF
On October 13, 2020, two non-governmental organizations—including one from Germany—and local Mexican organizations subpoenaed EDF, the main French electricity provider, regarding an alleged failure to respect the right of the local Mexican community to consent to a wind farm project on indigenous lands in Union Hidalgo, Mexico.
On November 30, 2021, the Judicial Tribunal of Paris refused to suspend the wind farm project and declared that the request that EDF be ordered to publish a new corporate sustainability due diligence plan was inadmissible.[106]
The plaintiffs appealed this decision to the Court of Appeal of Paris. On June 18, 2024, the Court of Appeal deemed the appeal admissible and ruled on several procedural aspects.[107]
The case is now before the Judicial Tribunal of Paris which will rule on the substantive merits of the case.
C. French Human Rights League v. Suez
On June 11, 2021, two human rights organizations and two Chilean organizations subpoenaed Suez, a large French water and waste management company, regarding alleged negligence and failures in water management in Osorno, Chile in 2019. The plaintiffs claimed that some 2,000 liters of oil had spilled into a drinking water plant, owned by a 53.5% subsidiary of Suez, which led to a state of emergency for over a month.
On June 1, 2023, the Judicial Tribunal of Paris declared the case to be inadmissible as the plaintiffs had not proved that Suez was the correct defendant and the author of the corporate sustainability due diligence plan on which the claims were based.[108] The Tribunal also added that there was no evidence that the corporate sustainability due diligence plan mentioned in the formal notice was the same as the one referred to in the subpoena.
The plaintiffs appealed this decision to the Court of Appeal of Paris. On June 18, 2024, the Court of Appeal upheld the decision of the first instance tribunal and deemed the appeal inadmissible.[109]
Foreign investors seeking to invest in a French company meeting the thresholds should take into consideration these additional due diligence requirements and the judicial consequences of violating the Corporate Duty of Vigilance Law. In addition, since France was the first European country to introduce the concept of corporate due diligence, other European countries now subject to the new CSDD Directive may look to France to interpret and implement their own national law.
Decision regarding Greenwashing by the German Federal Court of Justice
In 2024, the German Federal Court of Justice (FCJ) rendered its first decision on the term “climate neutral” in connection with misleading advertising.[110] A German competition organization brought suit against the fruit gum manufacturer Katjes, arguing that the use of the term “climate neutral” in Katjes’s advertisements was misleading because it gave the impression that Katjes’s products were emission-free.
The FCJ held that the use of the term “climate neutral” is misleading because it can be understood both in the sense of a reduction of CO2 in the production process and in the sense of a mere compensation of CO2. Therefore, the court held, to prevent deception, the advertising itself must explain which specific meaning is relevant. In addition, the FCJ clarified that the risk of deception is particularly high in the area of environment-related advertising, so the strict requirements for health-related advertising—which require that the underlying meaning be “clear and unambiguous”—also apply to environment-related advertising.
The decision highlights the potential exposure of companies to environment-related claims regarding advertisements. It establishes a benchmark for communicating sustainability efforts, requiring clear distinction in consumer-facing advertising on whether climate neutrality is achieved through offsetting, reductions, or a combination of both. The ruling also underscores the growing debate that compensation for CO2 emissions is less effective than actual emission reduction, as it merely offsets emissions rather than preventing them.
[1] See, e.g., Cnty. of San Mateo v. Chevron, No. 17-3222 (Cal. Super. Ct. San Mateo Cnty.); City of Imperial Beach v. Chevron, No. 17-1227 (Cal. Super. Ct. Contra Costa Cnty.); Cnty. of Marin v. Chevron, No. 17-2586 (Cal. Super. Ct. Marin Cnty.); City of Richmond v. Chevron, No. 18-55 (Cal. Super. Ct. Contra Costa Cnty.); Cnty. of Santa Cruz v. Chevron, No. 17-3242 (Cal. Super. Ct., Santa Cruz Cnty.); City of Santa Cruz v. Chevron, No. 17-3243 (Cal. Super. Ct. Santa Cruz Cnty.); City of Oakland v. BP P.L.C., No. RG17875889 (Cal. Super. Ct. Alameda Cnty.); City & Cnty. of San Francisco v. B.P. P.L.C., No. CGC-17-561370 (Cal. Super. Ct. S.F. Cnty.); Mayor & City Council of Baltimore v. BP P.L.C., No. 18-4219 (Balt. Cir. Ct.); Pac. Coast Fed’n of Fishermen’s Ass’ns, Inc. v. Chevron, No. CGC-18-571285 (Cal. Super. Ct. S.F. Cnty.); King Cnty. v. BP P.L.C., No. 18-2-11859-0 (Wash. Super. Ct. King Cnty.); State v. Chevron, No. PC-2018-4716 (R.I. Super. Ct.); Bd. of Cnty. Comm’rs of Boulder v. Suncor Energy (U.S.A.), No. 2018-CV-030349 (Colo. Dist. Ct.); City & Cnty. of Honolulu v. Sunoco, No. 20-380 (1st Cir. Haw.); District of Columbia v. Exxon, No. 2020 CA 002892 B (D.C. Super. Ct.); Cnty. of Maui v. Sunoco LP, No. 2CCV-20-0000283 (2d Cir. Haw.); City of Charleston v. Brabham Oil Co., No. 2020-CP-10 (S.C. Ct. Com. Pl.); City of Annapolis v. BP P.L.C., No. C-02-CV-21-000250 (Md. Cir. Ct. Anne Arundel Cnty.); Anne Arundel Cnty. v. BP P.L.C., No. C-02-CV-21-000565 (Md. Cir. Ct. Anne Arundel Cnty.); State v. Exxon Mobil Corp., No. MER-L-001797-22 (N.J. Super. Ct. Mercer Cnty.). Gibson, Dunn & Crutcher LLP represents Chevron Corp. and Chevron U.S.A., Inc. in these cases.
[2] Mayor and City Council of Baltimore v. BP P.L.C., 2024 WL 3678699, at *6-7 (Md. Cir. Ct. July 10, 2024).
[3] City of Annapolis v. BP plc, No. C-02-CV-21-000250 (Md. Cir. Ct. Jan. 23, 2025); Anne Arundel County v. BP plc, No. C-02-CV-21-000565 (Md. Cir. Ct. Jan. 23, 2025), https://marylandmatters.org/wp-content/uploads/2025/01/Memorandum-Opinion-and-Order-of-Court.pdf.
[4] State ex rel. Jennings v. BP Am. Inc., 2024 WL 98888, at *8 (Del. Super. Ct. Jan. 9, 2024).
[5] Platkin v. Exxon Mobil Corp., No. MER-L-001797-22 (N.J. Super. Ct. Law Div. Feb. 5, 2025), https://climatecasechart.com/wp-content/uploads/case-documents/2025/20250205_docket-MER-L-001797-22_opinion-and-order-1.pdf.
[6] City & Cnty. of Honolulu v. Sunoco LP, 153 Haw. 326, 356 (2023).
[7] City of New York v. Chevron Corp., 993 F.3d 81, 85, 92 (2d Cir. 2021).
[8] City of New York v. Chevron Corp., 325 F. Supp. 3d 466, 471-72, 476 (S.D.N.Y. 2018), aff’d, 993 F.3d 81.
[9] City of Oakland v. BP P.L.C., 325 F. Supp. 3d 1017 (N.D. Cal. 2018), vacated on other grounds, 960 F.3d 570 (9th Cir. 2020).
[10] Press release from May 16, 2024, Judgment from May 16, 2024 -Higher Administrative Court Berlin-Brandenburg 11th Senate, 11 A 22/21, 11 A 31/22.
[11] Press release from DUH, July 16, 2024; Federal Constitutional Court 1 BvR 1699/24.
[12] German Federal Constitutional Court 1 BvR 1699/24.
[13] German Federal Constitutional Court, Judgment from March 24, 2021, 1 BvR 2656/18, 1 BvR 78/20, 1 BvR 96/20, 1 BvR 288/20); Press release, April 29, 2021.
[14] Regional Court of Stuttgart, Judgment from September 13, 2022 – 17 O 789/21. Gibson, Dunn & Crutcher LLP represented Mercedes.
[15] Higher Regional Court of Stuttgart, Judgment from November 9, 2023 – 12 U 170/22.
[16] Higher Regional Court of Munich, Judgment from October 12, 2023 – 32 U 936/23.
[17]Press release from DUH, October 5, 2021, Press release from Wintershall Dea, November 26, 2024.
[18]Vereniging Milieudefensie v. Royal Dutch Shell plc, District Court (“Rechtbank”) The Hague, Judgment of 26. May 2021 – C/09/571932 /HA ZA 19-379 (EWeRK 2021, 163).
[19]Milieudefensie et al. v. Royal Dutch Shell plc., https://climatecasechart.com/non-us-case/milieudefensie-et-al-v-royal-dutch-shell-plc/.
[20] https://www.gibsondunn.com/landmark-eu-corporate-sustainability-due-diligence-directive-imposing-human-rights-and-environmental-due-diligence-obligations-on-eu-and-non-eu-companies-approved-by-european-parliament/.
[21] Art. 1(a) of the Directive.
[22] See our client alert addressing the First Omnibus Package.
[23] COM(2025) 80 final, 2024/0044 (COD) – Directive of the European Parliament and of the Council amending Directives (EU) 2022/2462 and (EU) 2024/1760 as regards the dates from which the Member States are to apply certain corporate sustainability reporting and due diligence requirements.
[24] COM(2025) 81 final, 2024/0045 (COD) – Directive of the European Parliament and of the Council amending Directives 2006/43/EC, 2013/34/EU, (EU) 2022/2462 and (EU) 2024/1760 as regards certain corporate sustainability reporting and due diligence requirements.
[25] Turnover of branches of the relevant entity are also to be taken into account when calculating whether a threshold has been reached.
[26] See our previous client alert addressing the CSRD.
[27] Art. 24(1) of the Directive. For France and Germany, we expect the “Supervisory Authority” to be the same authority as is currently overseeing compliance with their analogous due diligence regimes.
[28] Art. 29 of the Directive.
[29] Art. 29(3)(d) of the Directive.
[30] (EU) 2023/1115.
[31] https://www.gibsondunn.com/gibson-dunn-esg-monthly-update-summer-2024/.
[32] https://www.gibsondunn.com/gibson-dunn-esg-monthly-update-december-2024/.
[33] Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 592 U.S. 351 (2021).
[34] Mallory v. Norfolk S. Ry. Co., 600 U.S. 122 (2023).
[35] Ford, 592 U.S. at 361.
[36] Id. at 362.
[37] Id. at 355 (emphasis added).
[38] 117 F.4th 252 (5th Cir. 2024).
[39] Id. at 266.
[40] 79 F.4th 651 (6th Cir. 2023).
[41] Id. at 673-74.
[42] Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc., 2024 WL 3696388 (D. Mass. Aug. 7, 2024).
[43] Id. at *11-14.
[44] Doe v. Deutsche Lufthansa Aktiengesellschaft, 2024 WL 1354523 (N.D. Cal. Mar. 29, 2024).
[45] Id. at *4.
[46] Id.
[47] Id. at *7-*8.
[48] Maggie Gardner, Saying Yes to the World, But No to Personal Jurisdiction, Transnational Litigation Blog (April 18, 2024), https://tlblog.org/saying-yes-to-the-world-but-no-to-personal-jurisdiction/.
[49] Lufthansa, 2024 WL 1354523 at *7.
[50] Mallory, 600 U.S. at 127.
[51] Id. at 134.
[52] Id. at 150 (Alito, J., concurring).
[53] Id. at 154-63 (Alito, J., concurring).
[54] Id. at 135.
[55] Madsen v. Sidwell Air Freight, 2024 WL 1160204 at *15 (D. Utah Mar. 18, 2024).
[56] See, e.g., Sahm v. Avco Corp., 2023 WL 8433158, at *4 (E.D. Mo. Dec. 5, 2023) (“absent a [state] statute providing an explicit grant of general jurisdiction over registered foreign corporations, the holding in Mallory is not applicable”); Pace v. Cirrus Design Corp., 93 F.4th 879, 899 (5th Cir. 2024) (“Mallory analyzes what a state may require; we still must examine the state law to find what it does require.”); AssetWorks USA, Inc. v. Battelle Mem’l Inst., 2023 WL 7106878, at *2 (W.D. Tex. Oct. 23, 2023) (“the holding of Mallory is narrow, and given that the Texas statute concerning registration of nonresident corporations neither mentions general jurisdiction nor mirrors the structure of the Pennsylvania statute, this Court sees no need to abandon established Fifth Circuit precedent”); Rosenwald v. Kimberly Clark Corp., 2023 WL 5211625, at *6 (N.D. Cal. Aug. 14, 2023) (Mallory “is not relevant to courts in California, because California does not require corporations to consent to general personal jurisdiction in that state when they designate an agent for service of process or register to do business”); Castillero v. Xtend Healthcare, LLC, 2023 WL 8253049, at *5 n.8 (D.N.J. Nov. 29, 2023) (“New Jersey’s registered agent statutes, unlike Pennsylvania’s, do not explicitly require a corporation to consent to personal jurisdiction”); Estate of Caviness v. Atlas Air, Inc., 693 F. Supp. 3d 1271, 1279 (S.D. Fla. Sept. 20, 2023) (“Florida law does not establish that a foreign corporation’s registration to do business in Florida amounts to consenting to general jurisdiction in Florida courts. Thus, Mallory does not apply here.”); Endo Ventures Unlimited Co. v. Nexus Pharms., Inc., 2024 WL 1254358, at *4 (E.D. Wis. March 25, 2024) (citation omitted) (“Mallory involved a consent to jurisdiction scheme that does not exist under Wisconsin’s statutes.”).
[57] Firexo, Inc. v. Firexo Grp. Ltd., 99 F.4th 304 (6th Cir. 2024)
[58] Id. at 321.
[59] Id.
[60] John F. Coyle & Robin J. Effron, Forum Selection Clauses, Non-Signatories, and Personal Jurisdiction, 97 NOTRE DAME L. REV. 187 (2021).
[61] RJR Nabisco v. Eur. Cmty., 579 U.S. 325, 346 (2016).
[62] Id. at 337.
[63] Id. at 346-50.
[64] Yegiazaryan v. Smagin, 599 U.S. 533, 536 (2023).
[65] Id. at 543-44.
[66] Id. at 544.
[67] Id. at 543.
[68] Glob. Master Int’l Grp., Inc. v. Esmond Nat., Inc., 76 F.4th 1266 (9th Cir. 2023).
[69] Id. at 1276.
[70] Id.
[71] Percival Partners Ltd. v. Nduom, 99 F.4th 696 (4th Cir. 2024).
[72] Id. at 702.
[73] Id. at 703.
[74] ZF Auto. US, Inc. v. Luxshare, Ltd., 596 U.S. 619, 632 (2022).
[75] Id. at 634-36.
[76] Webuild S.P.A. v. WSP USA Inc., 108 F.4th 138, 144 (2d Cir. 2024) (per curiam).
[77] Id. at 143.
[78] Id.at 144.
[79] ZF Automotive, 596 U.S.at 637.
[80] Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264–65 (2004).
[81] In re Application of Venequip, S.A. v. Caterpillar Inc., 83 F.4th 1048 (7th Cir. 2023).
[82] Id. at 1052-53.
[83] Id. at 1057.
[84] Id. at 1053.
[85] Id. at 1058.
[86] Doe 1 v. Apple Inc., 96 F.4th 403 (D.C. Cir. 2024).
[87] Id. at 406.
[88] Id. at 411.
[89] Id. at 415.
[90] Id.
[91] Id. at 416.
[92] See id. at 414 n.4.
[93] https://www.hcch.net/en/news-archive/details/?varevent=985.
[94] These regimes are the Recast Brussels Regulation (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast)) and the Lugano Convention (the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (2007)).
[95] https://www.gibsondunn.com/uk-court-of-appeal-confirms-sovereign-states-are-not-immune-from-enforcement-proceedings-for-icsid-awards/.
[96] Infrastructure Services Luxembourg SARL v. Kingdom of Spain and Border Timbers Ltd v Republic of Zimbabwe [2024] EWCA Civ 1257 (Sir Julian Flaux Chancellor of the High Court, Newey LJ, Phillips LJ).
[97] Limbu & Ors v. Dyson Technology Ltd & Ors [2023] EWHC 2592 (KB); [2024] EWCA Civ 1564.
[98] See Limbu & Ors v. Dyson Technology Ltd & Ors [2023] EWHC 2592 (KB), at [27]; see also Spiliada Maritime Corporation v. Cansulex Ltd. [1987] 1 AC 460.
[99] Limbu & Ors v. Dyson Technology Ltd & Ors [2023] EWHC 2592 (KB), at [102], [122] and [124] (emphases added).
[100] Okpabi & Ors v. Royal Dutch Shell Plc & another [2021] UKSC 3; Vedanta Resources PLC and another v. Lungowe and others [2019] UKSC 20; see also https://www.gibsondunn.com/okpabi-v-shell-clarification-from-the-english-supreme-court-on-jurisdiction-and-parent-company-liability/.
[101] Law No. 2017-399 (Mar. 27, 2017).
[102] Article L. 225-102-4, I. of the French Code of commerce.
[103] Article L. 225-102-4, II. of the French Code of commerce.
[104] Article L. 225-102-5 of the French Code of commerce.
[105] Paris Court of Appeal, No. 23/14348 (June 18, 2024).
[106] Paris Judicial Tribunal, No. 20/10246 (Nov. 30, 2021).
[107] Paris Court of Appeal, No. 21/22319 (June 18, 2024).
[108] Paris Judicial Tribunal, No. 22/07100 (June 11, 2023).
[109] Paris Court of Appeal, No. 23/10583 (June 18, 2024).
[110] German Federal Court of Justice, Judgment from June 27, 2024 – I ZR 98/23.
Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn lawyer with whom you usually work, any leader or member of Gibson Dunn’s Transnational Litigation, International Arbitration, or Judgment and Arbitral Award Enforcement practice groups, or the following:
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William E. Thomson – Los Angeles (+1 213-229-7891, [email protected])
Susy Bullock – London (+44 20 7071 4283, [email protected])
Perlette Michèle Jura – Los Angeles (+1 213-229-7121, [email protected])
Markus S. Rieder – Munich (+49 89 189 33-260, [email protected])
Andrea E. Smith – New York ( +1 212.351.3883, [email protected])
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Penny Madden KC – London (+44 20 7071 4226, [email protected])
Rahim Moloo – New York (+1 212.351.2413, [email protected])
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