1、1,Chapter 3 JurisdictionII,2,Why is dispute settlement more difficult in an international transaction?,Spans continents Different legal systems Possible litigation in multiple forums Question of enforcement,3,Methods of Resolution,Litigation Alternative dispute resolution (ADR) (arbitration, mediati
2、on, other),4,Case How is jurisdiction affected in the age of the internet?,U.S When has the person or company met the test of minimum contacts? Differentiation between active and passive website Law is unsettled however,5,Graduate Management Admission Council v. Raju,Raju, a citizen of India, regist
3、ered and . He sold books to prepare students for the GMAT through his website.GMAT is a registered trademark in the U.S. GMAC , the non-profit that owns rights in GMAT and is based in Virginia, sued Raju for cyber piracy, infringement, unfair competition and other torts.,6,Graduate Management Admis
4、sion Council v. Raju,Issue-Does this interactive website provide the basis for jurisdiction over Raju? Holding: Yes, the website targeted the U.S. market in part and Raju did ship materials to the U.S Thus following the test, the exercise of personal jurisdiction comports with due process.,7,Venue:
5、geographical location of a court of competent jurisdiction,Forum shopping: what is it?,8,Iragorri v. United Technologies,Facts: A U.S. citizen visiting his mother in Cali, Colombia fell to his death via an open elevator shaft in 1993. His survivors sue the elevator company, Otis, and its parent comp
6、any, United Technologies, in federal court. The District court dismissed the case on the basis of forum non conveniens.,9,Iragorri v. United Technologies,Issue: Should the federal district court in Connecticut take jurisdiction over the matter or will forum non conveniens force the plaintiffs to pur
7、sue the matter in Colombia? Decision: The Court should give deference to the plaintiffs choice of the U.S. forum.,10,Iragorri v. United Technologies,Remand the matter to the lower court to consider the Plaintiffs interest, the hardship of litigating in Colombia, the witnesses on the defective design
8、 theory reside in Connecticut, and any public interest factors.,11,Parallel Litigation,Parallel litigation occurs when “substantially the same parties are litigating substantially the same issues simultaneously in two fora .”,12,repetitive action -A plaintiff may want to sue in several jurisdictions
9、, either to find the best possible venue or to harass the defendant reactive action -Defendants being sued in one jurisdiction may file a suit in another jurisdiction to protect their rights or to try to punish the plaintiff,13,Methods to handle parallel litigation,Do nothing Transfer/consolidate An
10、tisuit Injunction Stay proceedings Dismiss proceedings,14,How to solve Parallel proceedings,Choice of Court Forum Non Convenience Lis Pendens Antisuit Injunctions,15,Choice of forum,forum selection clauses -Exclusive forum selection clause -Non-exclusive forum selection clauses,16,Strategies for for
11、um choice,US as forum “As a moth is drawn to the light, so is a litigant drawn to the United States.” -Lord Denning Why contingent fees punitive, multiple damages jury trials in civil cases broader discovery no “loser pays” rule unique causes of action class actions,17,Bremen v. Zapata,Facts: 1967 Z
12、apata (Texas corp.) entered into contract with a German corp., Unterweser. U was supposed to tow a rig from Louisiana to Italy. Storm intervened and Z instructed U to drop off damaged rig in Florida. Contract had a forum selection clause stating disputes would be heard by “London Court of Justice.”,
13、18,Bremen v. Zapata,Z sued in U.S. federal court. U moved to dismiss. U filed in London. The U.S. district court and the court of appeals sided with Z and denied Us motion to stay the U.S. proceedings. Issue: Does the forum selection clause control requiring any disputes to be heard in London?,19,Br
14、emen v. Zapata,Holding: yes, the forum selection clause controls.,20,Choice of law and forum,In some cases the court may not enforce where “enforcement would be unreasonable and unjust,” or “invalid for fraud and overreaching.”,21,Forum Non Conveniens,the correct choice of forum in which to hear the
15、 subsequent action. This is called forum non conveniens.,22,Piper Aircraft v. Reyno,A plane manufactured by Piper Aircraft (D1), a Pennsylvania corporation, crashed in Scotland. Parts of the airplane were manufactured by Hartzell (D2), an Ohio corporation. Reyno (P) was appointed administrator for t
16、he families of five UK citizens involved in a plane crash in their suit against the defendants for negligence and strict liability. The families of the dead passengers sued Air Navigation, the operator of the plane (McDonald), and the estate of the deceased pilot in a separate action in the UK.,23,T
17、he complaint was filed in California by Reyno. The defendants removed to federal district court in California and then successfully sought transfer to Pennsylvania district court. The defendants motion to dismiss on forum non conveniens grounds was granted and Reyno appealed. The court of appeals re
18、versed and remanded.,24,Issues,Can Reyno prevail on the defendants motion to dismiss on the grounds of forum non conveniens by showing that the substantive law that would be applied in the alternative forum is less favorable to Reyno than that of the chosen forum?,25,Did the district court act unrea
19、sonably in concluding that fewer evidentiary problems would arise if the trial were held in Scotland, and in determining that the public interest factors favored trial in Scotland?,26,Conclusion,when an alternative forum has jurisdiction to hear a case and when trial in the chosen forum would establ
20、ish oppressiveness and vexation to a defendant out of proportion to the plaintiffs convenience, or when the chosen forum is inappropriate because of considerations affecting the courts own administrative and legal concerns, the court may in the exercise of sound discretion dismiss the case by applyi
21、ng the list of private and public interest factors.,27,Private factors,the relative ease of access to sources of proof availability of compulsory process for the attendance of unwilling witnesses the cost of attendance of witnesses the possibility of viewing the scene if appropriate to the action ot
22、her practical matters related to making the trial easy expeditious, and inexpensive.,28,Public factors,administrative difficulties of the courts interest in having local controversies adjudicated at home the interest in having the trial in a forum that is familiar with the law governing the action t
23、he avoidance of unnecessary problems in conflict of laws or the application of foreign law the unfairness of burdening citizens in an unrelated forum with jury duty.,29,Bhopal Case,The Bhopal disaster was the worlds worst industrial catastrophe. It occurred on the night of December 23, 1984 at the U
24、nion Carbide India Limited (UCIL) pesticide plant in Bhopal, India. A leak of toxic gas and other chemicals from the plant resulted in the exposure of hundreds of thousands of people. A government affidavit in 2006 stated the leak caused 558,125 injuries including 38,478 temporary partial and approx
25、imately 3,900 severely and permanently disabling injuries.,30,UCIL was the Indian subsidiary of Union Carbide Corporation (UCC) UCC-a New York Company,31,What is the test of a convenient forum?,The Australian approach: The test is one of the clearly inappropriate forum.,32,The English approach: Spil
26、iada Maritime Corporation Ltd v Cansulex Ltd 1987 AC 460 The test is one of the clearly more appropriate forum.,33,Three elements should be considered when applying the doctrineThe presence of an alternative forumThe public interest factorsThe private interest factors,34,Chinese FNC,2005 The second
27、Conference Memo of National Foreign Commercial Maritime trial,35,Art.11 (1) the defendant or the court made applicable “the principle of forum non conveniens, (2) of the court seized of the case have jurisdiction over the case; (3 ) there is no choice of court agreement between the parties;,36,(4) c
28、ase does not under the exclusive jurisdiction of the courts; (5) case does not involve the interest of our citizens, legal persons or other organizations ; (6) The main controversial facts doesnt occurr in our country and does not be governed by our laws, there may be major difficulties to find the
29、facts and applicable law if our courts accept the case; (7) The foreign court has jurisdiction over the case and hear the case even more convenient.,37,10. If our courts and foreign courts both have jurisdiction over foreign-related commercial disputes, a party to a foreign court and then to the sam
30、e dispute to be accepted to our courts, or the other party to the same dispute sued in the courts in China, whether the foreign court has heard the case or whether the verdict has been accepted,does not affect the exercise of jurisdiction of the court, but whether to accept it or not depend on the s
31、pecific circumstances of the case. If the foreign judgments has been recognized or enforced in the peoples court, the court will not hear the same dispute. Exceptions happened if there are special regulations in international treaties concluded or acceded by China.,38,12. When commercial disputes in
32、volving foreign parties has non-exclusive jurisdiction of foreign courts , the court can assume that the agreement does not exclude other competent courts jurisdiction. If a party files a suit in our courts, in accordance with the relevant provisions of “PRC Civil Procedure Law”, the peoples court c
33、an accept jurisdiction over the case.,39,2015 Chinese Judicial Interpretation of Civil Procedure Law,Art.532 The peoples court may, in accordance with the following circumstances, dismiss the plaintiffs claim and inform him/her to bring a lawsuit to a more convenient foreign court in a foreign relat
34、ed civil case: (a) the defendants request that it is more convenient for the foreign court to hear the case or to raise the objection to the jurisdiction of the peoples court; (b) there is no agreement between the parties which choose the court of the PRC;,40,(c) the case does not belong to the excl
35、usive jurisdiction of the courts of the peoples Republic of china; (d) the case does not involve the interests of the state, citizens, legal persons or other organizations of the peoples Republic of china; (e) the main facts of the dispute did not occur in the territory of the peoples Republic of Ch
36、ina, and is not applied the law of the peoples Republic of China, there are major difficulties in the determination of the facts and the application of the law if the peoples court hears the case. (f) the foreign court has jurisdiction over the case, and the trial of the case is more convenient in t
37、hat court.,41,Lis pendens,Permit a court to stay an action before it in deference to pending foreign litigation.,42,Antisuit Injunction,Definition -permit a court to enjoin a litigation from commencing or continuing litigation in a foreign forum.Reasons Comments,43,Litigation differences between cou
38、ntries,Common vs. civil law countries Role of lawyers Collection of evidence, discovery,44,Treaties,EU-The Brussel regulation,45,Art.25,1. If the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have
39、 arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State.,46,Such jurisdiction shall be exclusive unless the parties have
40、agreed otherwise. The agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing; (b) in a form which accords with practices which the parties have established between themselves; or (c) in international trade or commerce, in a form which accords with a usage of which
41、the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.,47,Article 29 1. Without prejudice to Article 31(2), where proceedings involving the
42、 same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.,48,Article 31 1. Where actio
43、ns come within the exclusive jurisdiction of several courts, any court other than the court first seised shall decline jurisdiction in favour of that court. 2. Without prejudice to Article 26, where a court of a Member State on which an agreement as referred to in Article 25 confers exclusive jurisd
44、iction is seised, any court of another Member State shall stay the proceedings until such time as the court seised on the basis of the agreement declares that it has no jurisdiction under the agreement.,49,3. Where the court designated in the agreement has established jurisdiction in accordance with
45、 the agreement, any court of another Member State shall decline jurisdiction in favour of that court. 4. Paragraphs 2 and 3 shall not apply to matters referred to in Sections 3, 4 or 5 where the policyholder, the insured, a beneficiary of the insurance contract, the injured party, the consumer or th
46、e employee is the claimant and the agreement is not valid under a provision contained within those Sections.,50,West Tankers case,In August 2000 the Front Comor, a vessel owned by West Tankers and chartered by Erg Petroli SpA (Erg), collided in Syracuse (Italy) with a jetty owned by Erg and caused d
47、amage. The charter party was governed by English law and contained a clause providing for arbitration in London (United Kingdom).,51,Erg claimed compensation from its insurers Allianz and Generali up to the limit of its insurance cover and commenced arbitration proceedings in London against West Tan
48、kers for the excess. West Tankers denied liability for the damage caused by the collision.,52,Having paid Erg compensation under the insurance policies for the loss it had suffered, Allianz and Generali brought proceedings on 30 July 2003 against West Tankers before the Tribunale di Siracusa (Italy)
49、 in order to recover the sums they had paid to Erg. The action was based on their statutory right of subrogation to Ergs claims, in accordance with Article 1916 of the Italian Civil Code. West Tankers raised an objection of lack of jurisdiction on the basis of the existence of the arbitration agreem
50、ent.,53,In parallel, West Tankers brought proceedings, on 10 September 2004, before the High Court of Justice of England and Wales, Queens Bench Division (Commercial Court), seeking a declaration that the dispute between itself, on the one hand, and Allianz and Generali, on the other, was to be settled by arbitration pursuant to the arbitration agreement.,
