INTERNATIONAL COMMERCIAL DISPUTE RESOLUTION Introduction –Litigation Process –Alternatives to Transnational Litigation –Settlement or Trial –Enforcement of Foreign Judgment

LITIGATION PROCESS Approach to Litigation Process –Jurisdiction –Gathering of Evidence –General Procedure of Trial –Enforcement of Foreign Judgment –Choice of Law

Litigation Process Jurisdiction –Service of Process-necessary to obtain personal jurisdiction and to avoid a default judgment. Convention on the Service of Process Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. –Each Signatory Nation designates a Central Authority to handle personal service of process. –In countries that are not signatory nations, apply dual process. Comply with local rules and domestic rules. See case Alpine in text.

INTERNATIONAL LITIGATION Jurisdiction-continued –Defenses to Jurisdiction Forum Non Conviens-forum court not convenient to hear dispute for a number of reasons-See Central Bank Case. Immunity –Foreign Sovereign Immunity-domestic court does not have jurisdiction over government agents, corporations, government actors unless waiver or commercial matters. –Act of State-domestic court does not have jurisdiction over political acts that occur in foreign country. See Capital Bank.

INTERNATIONAL LITIGATION International Discovery Convention on the Taking of Evidence Abroad in Civil or Commercial Matters –Letters of Request that requires cooperation of foreign courts. –Limitations »Few Countries have adopted convention »Requested Information Cannot Violate National Policy or Laws

INTERNATIONAL LITIGATION Extraterritorial Enforcement –General Principle-In Hilton v. Guyot, Supreme Court ruled that foreign judgment is enforceable if defendant had an opportunity to a fair trial and foreign court adhered to “general principle”. –Proper Service, regular procedures and acting under a system of jurisprudence likely to secure an impartial administration of justice. –Comity and Rule of Reciprocity

INTERNATIONAL LITIGATION Extraterritorial Enforcement Conventions –Brussels Convention on Jurisdiction and Judgments in Civil and Commercial Matters-regional –Lugano Convention-European Free Trade Areas –Extraterritorial Validity of Foreign Judgments- Organization of American States –Recognition and Enforcement of Foreign Judgments-very few signatory nations. –Convention on the Recognition and Enforcement of Arbitral Awares-widely accepted and enforced.

INTERNATIONAL LITIGATION Choice of Law-which law will be applied in resolving international private disputes. Choice of Law Clause-parties agree what is the applicable law. Restatement 2 of Conflict of laws-domicile of contracting parties, where contract entered into, where contract performed Doctrine of Renvoi- Generally courts have enforced choice of law clauses if there is a substantial relationship

ALTERNATIVES TO LITIGATION Approach –Arbitration –Mediation –Negotiation (conciliation)

Alternatives to Litigation Arbitration-third party hears facts and renders an award –International Chamber of Commerce handles most international arbitration disputes. –Japanese Model provides for an alternative disputes system by law. –Most courts enforce arbitration clauses in contract.

Alternatives to Litigation Enforcement of Arbitration Awards –Convention on the Recognition and Enforcement of Foreign Arbitral Awards Widely accepted and ratified by many nations Grounds for vacating award –Award procured by corruption and fraud and undue means –Evidence of partiality or corruption of arbitrators –Arbitrator guilty of misconduct –Arbitrator exceeds powers –Miscalculation of award

ALTERNATIVES TO LITIGATION Arbitration-continued Arbitration Clause –Specify Rules under ICC or American Arbitration Association –Identify Issues to be disputed –Entry of Judgment Clause –Award binding or non-binding Settlement-Conciliation or Mediation may be included in the Arbitration Clause as a precursor to arbitration.

ALTERNATIVES TO LITIGATION Provisions in Arbitration Agreement Forum Selection Clause Choice of Law Rules to be applied in Arbitration Proceedings Liquidated Damage Clause Force Majeure-superior force. It allows a party to terminate its obligation under contract due to the occurrence of something described in the force majeure clause