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Wednesday, December 09, 2020

Hungary and Germany arguments

Here is my SCOTUSBlog recap of Monday's arguments in Hungary, which focused on comity abstention; the Germany argument focused on FSIA jurisdiction.

My (usually wrong) quick take is that the judges were sympathetic to the plaintiffs' arguments that abstention is categorically unavailable where FSIA accords jurisdiction. But several justices wondered whether that issue is mooted if it holds that the expropriation exception does not apply in Germany. I need to re-listen to the Germany argument; initial reports suggest at least some justices were skeptical of allowing FSIA's expropriation exception to reach these sorts of foreign genocide claims.

The lawyer for the plaintiffs in Germany mentioned abstention in his opening and closing, including with an awful baseball metaphor.

Posted by Howard Wasserman on December 9, 2020 at 10:13 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink


So what do you think about the Sinochem problem here? Assuming the Court issues a decision in Germany's case on the same day as or before its decision in Hungary's and holds Germany's right about jurisdiction, and that they can conclusively resolve that in these cases even though there seems to be an outstanding jurisdictional theory the plaintiffs have even if Germany's reading of the expropriation exception prevails (that Jewish people were rendered stateless and that the takings here therefore weren't merely domestic and violate international takings law), may the Court dismiss the suit against Hungary on international comity? On the one hand, the whole theory of Sinochem is that a want of jurisdiction only bars merits decisions, and I'm not sure why knowing that jurisdiction is lacking makes dismissal on a non-jurisdictional non-merits ground any more improper than knowing that it may be lacking. On the other, it does seem rather odd, and perhaps advisory, to go to the trouble of making law on a non-jurisdictional non-merits ground for dismissal when it's a given that there's no jurisdiction.

Seems like a really fun question to me, but I doubt the Court has to decide it because the plaintiffs do appear to have arguments under Germany's reading of the expropriation exception, such that a want of jurisdiction in Hungary's case isn't preordained, no matter how the Court reads the exception in Germany's.

Posted by: Asher Steinberg | Dec 9, 2020 10:15:53 PM

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