Commercial Litigation and Arbitration

No Cause of Action under Treaty unless One Is Expressly Set Forth

From Katel LLC v. AT&T Corp., 607 F.3d 60 (2d Cir. 2010):

KATEL argues that the International Telecommunications Regulations ("ITRs") afford it a private right of action against AT&T. This is a matter of first impression for this Court.

The ITRs have treaty status and were promulgated by the International Telecommunications Union (the "Union"). S. Treaty Doc. 102-13 (Melbourne 1988). See Cable & Wireless P.L.C. v. FCC, 166 F.3d 1224, 1230, 334 U.S. App. D.C. 261 (D.C. Cir. 1999). The Union is a specialized United Nations agency responsible for international telecommunications issues. See ITU TELECOM FAQs, available at There are currently 191 member states, including the United States and Kyrgyzstan. Id. (follow hyperlink "191 Member States"). ***

There is a presumption that "treaties do not create privately enforceable rights in the absence of express language to the contrary." Mora v. New York, 524 F.3d 183, 201 (2d Cir. 2008) (internal quotation marks omitted); see also id. at 202 n.25 (citing cases from other circuits); id. at 201-02 ("Our precedents recognize a presumption against inferring individual rights from treaties."). If a State that is party to a treaty wishes to create a private right of action, "we would ordinarily expect expression of these obligations to be unambiguous." Id. at 202. "Even when treaties are self-executing . . . the background presumption is that international agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts." Id. at 200 (quoting Medellin v. Texas, 552 U.S. 491, 506 n.3, 128 S. Ct. 1346, 170 L. Ed. 2d 190 (2008)).

No wording in the ITRs creates a private right of action, and KATEL cites none. Instead, KATEL argues that, because the treaty is binding on the United States (as a member state and signatory to the ITRs), it provides KATEL a private right of action ipso facto. However, membership in the Union is limited to sovereign entities (not private corporations such as KATEL). See Union Const., Art. 2. Furthermore, the Union's Constitution provides for the "Settlement of Disputes" only by "Member States," not by private entities in those member states. Id. at Art. 56. Whether a Member State has rights under the treaty, or is bound by it, says nothing about whether a private party in that Member State has a private right of action. See Medellin, 552 U.S. at 506 n.3.

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