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, mediation, 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, registered gmatplus.com and gmatplus.net. 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 Admission 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: 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 His survivors sue the elevator company, Otis, and its parent company, 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 pursue the matter in Colombia?
Decision: The Court should give deference to the plaintiff’s choice of the U.S. forum.

10. Iragorri v. United Technologies
Remand the matter to the lower court to consider the Plaintiff’s interest, the hardship of litigating in Colombia, the witnesses on the defective design 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, 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
Antisuit 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 forum 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 Zapata (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.”

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 U’s motion to stay the U.S. proceedings.
Issue: Does the forum selection clause control requiring any disputes to be heard in London?

19. Bremen 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 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 the 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. The 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 reversed 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 unreasonably 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 establish oppressiveness and vexation to a defendant out of proportion to the plaintiff’s convenience, or when the chosen forum is inappropriate because of considerations affecting the court’s own administrative and legal concerns, the court may in the exercise of sound discretion dismiss the case by applying 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
other 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
the 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 world's worst industrial catastrophe.
It occurred on the night of December 2–3, 1984 at the Union 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 approximately 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:
Spiliada 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 doctrine
The presence of an alternative forum
The public interest factors
The private interest factors

34. Chinese FNC
2005 The second  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) case 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 doesn’t occurr in our country and does not be governed by our laws, there may be major difficulties to find the 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 same 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 specific circumstances of the case. 
If the foreign judgments  has been recognized or enforced in the people's 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 involving 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 people’s court can accept jurisdiction over the case.

39. 2015 Chinese Judicial Interpretation of Civil Procedure Law
Art.532
The people's court may, in accordance with the following circumstances, dismiss the plaintiff's claim and inform him/her to bring a lawsuit to a more convenient foreign court in a foreign related civil case:
(a) the defendant's request that it is more convenient for the foreign court to hear the case or to raise the objection to the jurisdiction of the people’s 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 exclusive jurisdiction of the courts of the people's Republic of china;
(d) the case does not involve the interests of the state, citizens, legal persons or other organizations of the people's Republic of china;
(e) the main facts of the dispute did not occur in the territory of the people's Republic of China, and is not applied the law of the people's Republic of China, there are major difficulties in the determination of the facts and the application of the law if the people's court hears the case.
(f) the foreign court has jurisdiction over the case, and the trial of the case is more convenient in that 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 countries
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 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. (a) in writing or evidenced in writing;
Such jurisdiction shall be exclusive unless the parties have 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 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 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 actions 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 jurisdiction 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 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 the 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 damage.
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 Tankers 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) in order to recover the sums they had paid to Erg.
The action was based on their statutory right of subrogation to Erg’s 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 agreement.

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.

54. West Tankers also sought an injunction restraining Allianz and Generali from pursuing any proceedings other than arbitration and requiring them to discontinue the proceedings commenced before the Tribunale di Siracusa (‘the anti-suit injunction’).

55. By judgment of 21 March 2005, the High Court of Justice of England and Wales, Queens Bench Division (Commercial Court), upheld West Tankers’ claims and granted the anti-suit injunction sought against Allianz and Generali.
The latter appealed against that judgment to the House of Lords. They argued that the grant of such an injunction is contrary to Regulation No 44/2001.

56. The House of Lords first referred to the judgments in Case C-116/02 Gasser [2003] ECR I and Case C-159/02 Turner [2004] ECR I-3565, which decided in substance that an injunction restraining a party from commencing or continuing proceedings in a court of a Member State cannot be compatible with the system established by Regulation No 44/2001, even where it is granted by the court having jurisdiction under that regulation.

57. That is because the regulation provides a complete set of uniform rules on the allocation of jurisdiction between the courts of the Member States which must trust each other to apply those rules correctly.

58. However, that principle cannot, in the view of the House of Lords, be extended to arbitration, which is completely excluded from the scope of Regulation No 44/2001 by virtue of Article 1(2)(d) thereof.
In that field, there is no set of uniform Community rules, which is a necessary condition in order that mutual trust between the courts of the Member States may be established and applied.

59. Moreover, it is clear from the judgment in Case C-190/89 Rich [1991] ECR I that the exclusion in Article 1(2)(d) of Regulation No 44/2001 applies not only to arbitration proceedings as such, but also to legal proceedings the subject-matter of which is arbitration.
The judgment in Case C-391/95 Van Uden [1998] ECR I-7091 stated that arbitration is the subject-matter of proceedings where they serve to protect the right to determine the dispute by arbitration, which is the case in the main proceedings.

60. Finally, the House of Lords points out that the courts of the United Kingdom have for many years used anti-suit injunctions. That practice is, in its view, a valuable tool for the court of the seat of arbitration, exercising supervisory jurisdiction over the arbitration, as it promotes legal certainty and reduces the possibility of conflict between the arbitration award and the judgment of a national court.
Furthermore, if the practice were also adopted by the courts in other Member States it would make the European Community more competitive vis-à-vis international arbitration centres such as New York, Bermuda and Singapore.

61. ECJ
In those circumstances, the House of Lords decided to stay its proceedings and to refer the following question to the Court for a preliminary
ruling:
‘Is it consistent with Regulation No 44/2001 for a court of a Member State to make an order to restrain a person from commencing or continuing proceedings in another Member State on the ground that such proceedings are in breach of an arbitration agreement?’

62. the answer to the question referred is that it is incompatible with Regulation No 44/2001 for a court of a Member State to make an order to restrain a person from commencing or continuing proceedings before the courts of another Member State on the ground that such proceedings would be contrary to an arbitration agreement.

63. On those grounds, the Court (Grand Chamber) hereby rules:
It is incompatible with Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters for a court of a Member State to make an order to restrain a person from commencing or continuing proceedings before the courts of another Member State on the ground that such proceedings would be contrary to an arbitration agreement.

64. Problem: even if you win, you still have to consider!
Enforcement of foreign judgments
Not automatic, why not?
No treaty

65. How do businesses manage conflict?
Try to minimize the chance of litigating in two countries
Forum selection clauses
Consider ADR