Please enable JavaScript.

Coggle requires JavaScript to display documents.

The resolution of commercial disputes, Required to appear in court, tort…

- - - - Threatens bond of trust
      - Seek good legal advice
      - "Hope for best and plan for worst"
      - Cultural factors influence a party’s attitude toward how disputes are settled
- - - - Private
        
        No public records
    - - Binding arbitration
      - Litigation
  - - - "Levels the playing field"
      - "neutral" country allowed
      - impartial and straightforward rules
      - Private
        
        No public records
      - Arbitration rules
    - - 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (The New York Convention)
    - - impartial industry experts
      - distinguished lawyers
    - - Limited appeal
      - Discovery is limited
      - Relaxed procedural rules
      - may limit right to initiate litigation
      - May disadvantage less sophisticated parties
      - No procedural value
    - - most commercial nations
    - - provide arbitral services
    - - Arbitration Clauses
  - - - "Choice of law clause" in contracts
        gives parties choice of substantive law and procedural rules (country or jurisdiction whose laws apply)
        (Schaffer, R.; Agusti, F & Dhooge, L. 2020:75)
        
        There must be sufficient nexus, or connection
    - - In rem jurisdiction
        
        Power over property within its geographical boundaries
      - Territorial jurisdiction
        
        cases involving crimes within territory
      - Subject matter jurisdiction
        
        Certain types of legal matters
        eg. tort cases / breach of contracts
        
        Federal courts
        
        Diversity jurisdictions
        
        Citizens of different states, citizens of the United States and citizens of foreign countries
        
        Federal statutes, federal government,agencies, constitutional issue,
      - In Personam Jurisdiction
        "Jurisdiction over the person"
        (Schaffer, R.; Agusti, F & Dhooge, L. 2020:63)
        
        Obtained by having
        Summons served
        on individual or legal agent of a corporation
        
        United States: the Due Process Clauses of the 5th and 14th Amendments to the U.S. Constitution
        
        Requires obtaining service of process on a defendant in a case
        
        One should not be “hauled into court” in some distant state or country unless that person has some connection to that place.
        
        Requirement: Minimum Contacts
        
        Physical presence in courts territory
        
        "implied consent" - for "reasons of justice and fairness, should be held to answer a complaint there"
        
        Foreign state or country
        
        case-by-case basis
        
        how much of a connection to the court's territory?
        
        Obtaining Jurisdiction by service of process
        (Schaffer, R.; Agusti, F & Dhooge, L. 2020:68)
        
        upon a foreign defendant is addressed in The Hague Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters
        
        Methods differ by country:
        
        Registered / certified mail
        
        Personal service by an agent or attorney
        
        letter rogatory
        letter of request sent through diplomatic channels
      - Jurisdiction in the EU
        (Schaffer, R.; Agusti, F & Dhooge, L. 2020: 65)
        
        Jurisdiction in civil and commercial cases between parties domiciled in two or more European Union (EU) countries is determined by EU Council Regulation No. 1215/2012.
        
        Corporations are domiciled in the Member State where they are incorporated, where they have their primary administrative offices, or where they have their principal place of business.
        
        Exceptions: Contract for sales of goods within EU, Breach of contract for services, Tort cases, consumer contract cases, employer suing a employee or ex-employee, an employee using an employer, by agreement
      - Jurisdiction in China
        (Schaffer, R.; Agusti, F & Dhooge, L. 2020: 65)
        
        Chinese courts may not exercise jurisdiction over nonresident defendants who are merely present in China
        
        Must have a meaningful connection to China
        
        The Civil Procedure Law of 1991
      - Jurisdiction in the Internet age
        (Schaffer, R.; Agusti, F & Dhooge, L. 2020: 66)
        
        “Minimum contacts” requirement
        
        "Passive website": insufficient to establish general jurisdiction
        
        “Transactional websites” personal jurisdiction is proper
        
        “interactive websites” “the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the [website]"
      - Conflict of law
        (Schaffer, R.; Agusti, F & Dhooge, L. 2020:73)
        
        Diversity of citizenship
        
        Federal courts
        
        Breach of contract , tort cases between residents of different states
        
        Refers to the rules by which courts determine which jurisdiction’s laws apply to a case and how to reconcile differences between laws
        
        Rules explained: Restatement (Second) of the Conflict of Laws, drafted under the auspices of the American Law Institute in 1971
        
        Contracts
        (Schaffer, R.; Agusti, F & Dhooge, L. 2020:73)
        
        Place of contracting
        
        Place of negotiation
        
        Where contract will be performed
        
        Location of subject matter
        
        domicile, residence, nationality, place of incorporation, place of business
        
        Torts
        (Schaffer, R.; Agusti, F & Dhooge, L. 2020:75)
        
        lex loci deliciti
        Governed by the law in which injury or damage took place
        
        place where injury occurred
        
        place where conduct causing the injury occurred
        
        domicile, residence, nationality, place of incorporation, place of business
        
        place where relationship between parties is centered
      - Power to hear and decide a case
    - - A court in another jurisdiction or location would be more convenient and justice would be better served.
        
        Examines “private factors and “public factors"
    - - Council "shops around" for better deal
    - - Federal Rules of Civil Procedure
        Rule 44.1
        
        Determines which foreign law to apply
        
        Considers any relevant material or source, including testimony
    - - State law
        
        Uniform Foreign Money Judgments Recognition Act of 1962
        Uniform Foreign-Country Money Judgments Recognition Act of 2005
        
        Comity
      - Not enforced: they violate due process or public policy, procured by fraud, the original proceeding contravened a forum selection clause in a contract, foreign court was a seriously inconvenient forum, there is serious doubt about the integrity of the foreign court
      - Abstention Doctrines
        U.S. court may refuse to exercise jurisdiction.
        (Schaffer, R.; Agusti, F & Dhooge, L. 2020:79-80)
        
        Comity
        Willingness of one court or department of government to respect the rules or decisions of another or to grant it some privilege or favor.
        
        Act of State
        Prohibits the courts of one country from inquiring into the validity of the legislative or executive acts of another country.
        
        Political question
        Case presents a political question
    - - Might not enforce if excessive, punitive or extended jurisdiction too widely
      - European Union Regulation 1215/2012
        Requires mutual recognition of court judgments among EU member countries, without any special procedures.
        
        Exceptions : judgments in violation of public policies of the state in which enforcement is sought, lack of adequate service of process and notice.
      - China
        Recognized and enforced inaccordance with a specific bilateral treaty, or through the application of the principle of reciprocity.
        
        Exceptions: judgment contravenes Chinese law, sovereignty, public security, or public interests
      - India: The Code of Civil Procedure, a
        Adopted in 1908 when India was a British colony, governs recognition of some foreign judgments in India. USA is nonreciprocating territory and must file lawsuit in India
      - Foreign Money Claims Act.
        Courts award money judgments in their own currencies
    - - Doctrine of sovereign immunity:
        courts of one country cannot hear cases brought against the government of another country, that courts cannot involve themselves in the internal affairs of a foreign country.
        
        Feudal notion : "King can do no wrong"
        
        USA: the Foreign Sovereign Immunities Act of 1976
        
        Exceptions: waiver (by statute or by agreement in a contract)
        
        commercial activity; certain violations of international law such as torture, terrorism, and unlawful expropriation of private property without payment of compensation; and lawsuits for money damages for torts committed within the United States.