Angela Zhang on Coronavirus-related US Lawsuits Against China - Why They Might Backfire (SCMP Opinion)

"Coronavirus-related US lawsuits against China risk a further worsening of relations, and could backfire"

Angela Zhang

SCMP Opinion 

Published on May 11 2020

The passage of the Justice Against Sponsors of Terrorism Act in 2016 and its impact offer a glimpse into the possible knock-on effects of US lawsuits against China over its handling of the Covid-19 outbreak

A flurry of complaints have been filed against China in US federal courts seeking enormous damages caused by China’s mishandling of the coronavirus outbreak. These include class actions filed on behalf of individuals and businesses from at least five different states, as well as a lawsuit by the state attorney general from Missouri, while Mississippi has also said it will file a case.

     Plaintiffs from other countries are following suit. China has slammed this spontaneous order of litigations as “absurd”. Global Times, a state-run Chinese newspaper, responded by calling these litigations a political strategy to divert public anger away from the Trump administration’s ineptitude in handling the pandemic.

     As a general principle of international law, foreign governments cannot be sued except under limited circumstances. This is based on the doctrine of reciprocity. If the United States permits lawsuits against other sovereigns, this could prompt other countries to take reciprocal measures, exposing US citizens and businesses to legal risks abroad. For this reason, many legal experts expect these lawsuits to fail.

     Parallel to these lawsuits, Republicans are in the midst of proposing bills that will modify the Foreign Sovereign Immunities Act in an effort to strip China of its immunity from being challenged in US courts for Covid-19 damages. If Congress grants such a proposal, it could add new momentum to these litigations...  Click here to read the full text. 

CL Lim on Worldwide Litigation Over Foreign Sovereign Assets (Dispute Resln Int'l)

"Worldwide Litigation Over Foreign Sovereign Assets"
CL Lim
Dispute Resolution International
Vol. 10, No. 2, October 2016

Abstract: Recent litigation about Argentina's sovereign debt workout and the enforcement of arbitral awards against foreign sovereigns has cast a spotlight on foreign sovereign immunity rules. It tells of diverse national rules of such complexity that they demand concise explanation. This brief article attempts to provide such explanation, following a panel discussion at the 2015 IBA Annual Meeting in Vienna where panellists discussed the prospects of boilerplate, catch-all contractual waiver clauses and global rule convergence. What emerged was a sense that we need to find a way out of the thicket of rules, and the unpredictability, of foreign sovereign immunity litigation. This article expands on remarks originally made in Vienna, and contends that neither boilerplate contractual text nor global convergence are likely to offer wholly satisfactory solutions, and illustrates this with examples and explains some of the hidden strengths of our current practices.

James Fry Interviewed on Hong Kong Investigation of 1MDB Scandal

"Former Malaysian official asks Hong Kong police to investigate 1MDB scandal"
Ben Westcott
South China Morning Post
3 September 2015
A former Malaysian official has filed a report with Hong Kong police to investigate the 1MDB scandal, after he said he lost faith that police in his homeland would uncover the truth.
     Both local businessman Jho Low and Malaysian Prime Minister Najib Razak have been implicated in the ongoing investigation.
     But a University of Hong Kong law expert said it would be very difficult for local authorities to enforce any punishment against those accused...
     HKU associate law professor James Fry said under international law the ability to enforce legislation in a particular case or against a particular person usually depended on them being in the same jurisdiction.
     “Enforcement will be difficult until the person actually arrives in Hong Kong, even assuming there exists the ability to prescribe certain behaviour in that case,” he said.
     “This is to say nothing about any immunity issues that might exist if you are dealing with a leader from a foreign country.”... Click here to read the full story.