Posner's Zapata Reinstated

Over the past year or so, there has been an ongoing lawsuit in the U.S. concerning the long-established rule of the Zapata case on attorneys' fees. When the Zapata decision had been rendered, the case brought controversy as to whether attorneys' fees should be considered as "foreseeable loss" recoverable under CISG Art. 74. A Writ of Certiorari had been filed with the U.S. Supreme Court, but it had been denied in 2003.

After two decades, a Minnesota District Court judge "re-ignited" the discussions by reversing the long-established Zapata case law on attorneys' fees. The 2023 District Court noted the established case law by the U.S. 7th Circuit Court, nevertheless, it essentially held that the vast majority of the CISG states adhered to the "English rule" and as such, attorneys' fees should be recoverable as per the CISG. This could have created a circuit split, but recently in May 2024, the U.S. 8th Circuit Court partially reversed the lower court's finding and reinstated the Zapata rule on attorneys' fees essentially relying on the "international character" as per CISG Art. 7.

The issue of whether attorneys' fees are recoverable under the CISG itself is still not "set in stone" in the "world of the CISG". Commentary on the district court decision can be accessed here and on Lexis UK.

The summary of the entire court proceedings, along with the history of filings (briefs and replies) can be found on the Pace Database, including references to Zapata and the past controversy.