Private Rights Of Action In Federal Statutes

First Tuesday Update is our monthly take on current issues in commercial disputes, international arbitration, and judgment enforcement. In today's update, we examine a recent Steptoe victory in federal court on behalf of its client, Korea Electric Power Corp. and Korea Hydro & Nuclear Power Co., Ltd. (KEPCO/KHNP). This victory highlights the importance of asking fundamental questions about a plaintiff's right to sue for declaratory relief.

The Declaratory Judgment Act (the Act) provides a mechanism for litigants to address statutory or constitutional violations in federal court. But it does not by itself provide a cause of action to sue. Indeed, the Supreme Court has observed that the availability of relief under the Act "presupposes the existence of a judicially remedial right." Schilling v. Rogers, 363 U.S. 666, 677 (1960) (emphasis added).