Business Litigation Report -- November 2014

In This Issue:

- Main Article:

..Foreign Investor Protection v. National Sovereignty: The Pros and Cons of Investor-State Arbitration

- Noted With Interest:

..Gelboim et al. v. Bank of America Corp. et al.: Supreme Court to Address Viability of Partial Appeals in Multi-District Litigations

- Practice Area Notes:

..White Collar Litigation Update

..Class Action Litigation Update

..Appellate Practice Update

- Victories:

..Another Microsoft Patent Invalidated

..Appellate Victory for Samsung Electronics

..Favorable Settlement of Allstate RMBS Lawsuits

..Victories for Leading Electronic Marine Navigation Equipment Manufacturer

- Excerpt from Foreign Investor Protection v. National Sovereignty: The Pros and Cons of Investor-State Arbitration:

United States companies investing abroad stand to gain additional legal protections in the near future from two international treaties currently under negotiation intended to safeguard investments of United States investors in China and throughout much of the Asia-Pacific. These treaties would of course also extend greater legal protections to investors of other signatory countries in the United States. Public interest groups fear a threat to United States regulatory freedom by extending those same protections to foreign investors, despite the United States having never been found to have breached any of these international legal instruments. These concerns are felt in other countries also, because the rights and obligations these regimes create are reciprocal.

The Trans-Pacific Partnership (TPP) is a multilateral free trade agreement (FTA) currently under negotiation between the United States and 11 other countries throughout the Asia-Pacific region (Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam). These 12 states account for around 40 percent of the world’s GDP and close to one third of global exports. While discussions are on-going with respect to the precise scope and application of the TPP, according to an announcement on October 25, 2014 by the Australian trade minister, Andrew Robb, there is a push to conclude the treaty by the year’s end. Such is its significance to U.S. investors that the Office of the U.S. Trade Representative has described the TPP as “the cornerstone of the Obama Administration’s economic policy in the Asia Pacific.” It remains to be seen, however, whether ultimately the U.S. is willing to bind itself to multilateral legal arrangements that in any way limit its legislative and regulatory discretion, in particular, by opening itself to potential legal claims brought by foreign investors in investor-state arbitration and agreeing to be bound by the resulting arbitral awards.