#11155 - Jurisdiction Conflict Of Laws - International Law I

Jurisdiction/Conflict of Laws

1. Permissible Exercise of Jurisdiction (Can we exercise jurisdiction?)

   1. Connectors

      1. Territorial Principle: Jurisdiction based on where the act was done

         • "[T]he general and almost universal rule is that the character of an act as lawful or unlawful must be determined wholly by the law of the country where the act is done." American Banana Co. v. United Fruit - pg. 838

           • "For another jurisdiction . . . to treat him according to its own notions rather than those of the place where he did the acts, not only would be unjust, but would be an interference with the authority of another sovereign, contrary to the comity of nations . . . ." American Banana Co. v. United Fruit - pg. 838

             • Although American Banana is no longer good law with respect to the exclusive potency of the territorial principle, it can still be used to support the existence of the territorial principle as a basis for a state's assertion of legislative, judicial, or executive jurisdiction.

         • Where an act occurs on a ship on the high seas, the act should be treated as if it had occurred upon the soil of the nation whose flag the ship is flying. See The Lotus Case - pg. 118

         • "It is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." E.E.O.C. v. Arabian American Oil Co. - pg. 840

      2. Nationality Principle: Jurisdiction based on the nationality of the defendant

         • "The jurisdiction of the United States over its absent citizen, so far as the binding effect of its legislation is concerned, is a jurisdiction in personam, as he is personally bound to take notice of the laws that are applicable to him and to obey them." Blackmer v. United States - pg. 842

         • "But, for the exercise of judicial jurisdiction in personam, there must be due process, which requires appropriate notice of the judicial action and an opportunity to be heard." Blackmer v. United States - pg. 842

           • "The mere giving of such notice to the citizen in the foreign country of the requirement of his government that he shall return is in no sense an invasion of any right of the foreign government, and the citizen has no standing to invoke any such supposed right." Blackmer v. United States - pg. 842

      3. Effects Principle: Jurisdiction based on conduct outside a nation's borders that has consequences within the borders of the nation asserting jurisdiction

         • "[I]t is settled . . . that any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the state reprehends; and these liabilities other states will ordinarily recognize." United States v. Aluminum Co. of America - pg. 845

           • Where agreements made beyond our borders are not intended to affect imports or exports, but do indeed affect them, such agreements are not covered by the Sherman Act and thus jurisdiction based upon the effects principle in such a situation would be improper. See United States v. Aluminum Co. of America - pg. 845

           • Where an agreement is intended to affect imports or exports, but is seems that there is no effect, there is a jurisdictional split. Blackmer v. United States - pg. 845

             • One approach is the "doctrine that intent may be a substitute for performance in the case of a contract made within the United States." Blackmer v. United States - pg. 845

             • Another approach is the "doctrine that a statute should not be interpreted to cover acts abroad which have no consequences here." Blackmer v. United States - pg. 845

               • Though the court in Blackmer does not decide the issue, the court assumes that "the [Sherman] Act does not cover agreements, even though intended to affect imports or exports, unless its performance is shown actually to have had some effect upon them." Blackmer v. United States - pg. 846

           • An agreement is unlawful, though made abroad, if it is intended to affect imports and did affect them. Blackmer v. United States - pg. 846

             • With respect to Anti-trust, Jurisdiction based upon the effects principle is permissible where (1) there was an agreement made abroad (2) that is intended to affect imports and (3) indeed affects imports. See Blackmer v. United States - pg. 846

         • "[A]n agreement to withdraw any substantial part of the supply from the market would, if carried out, have some effect upon prices, and [i]s as unlawful as an agreement expressly to fix prices." Blackmer v. United States - pg. 847

      4. Protective Principle: Jurisdiction based upon the protection of the security or the central interests of the state

         • The protective principle provides that a state has jurisdiction to prescribe law with respect to "certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other state interests." United States v. Bin Laden

         • Conduct outside U.S. territory that threatens U.S. security as a state or the operation of governmental functions validates jurisdiction provided the conduct is generally recognized as a crime under the laws of states that have reasonably developed legal systems. United States v. Pizzarus - pg. 849

         • Think terrorism

      5. Universality Principle (Not a connector): Jurisdiction based off the idea that some offenses are so heinous that any state has the right to assert jurisdiction

         • Examples:

           • In Filartiga, the court held that "the torturer has become - like the pirate and the slave trader before him - hostis humani generis, an enemy of all mankind."

             • In Smith, the court noted that a pirate could be criminally tried pursuant to notions of universal law.

           • In Kadie, the court upheld jurisdiction for acts committed abroad that allegedly constituted genocide, war crimes, torture, and summary execution.

           • Maybe terrorism

      6. Passive-Personality Principle: Jurisdiction based upon the interest in protecting nationals abroad; jurisdiction based on the nationality of the victim

         • "[A] state may apply law - particularly criminal law - to an act committed outside its territory by a person not its national where the victim of the act was its national." United States v Bin Laden

2. Advisability (Should we exercise jurisdiction?)

   1. Situations in which Congress Absolutely Intended our law to apply extraterritorially:

      1. (1) Economic Sanctions

      2. (2) Foreign Corrupt Practices Act

      3. (3) Extraterritorial Response to Extraterritorial Reach (e.g. Anti-Boycott Program)

   2. Situations where Extraterritorial Application is Common

      1. (1) Antitrust Laws

      2. (2) Securities Laws

      3. (3) Discovery

   3. Party's Choice

      1. Forum selection clauses "are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be 'unreasonable' under the circumstances." The Bremen v. Zapata Off-Shore Co. - pg. 854

         • The correct approach is to specifically enforce a forum selection clause unless the party challenging the enforcement clearly shows that "enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching." The Bremen v. Zapata Off-Shore Co. - pg. 856

         • Where a choice of forum was made "in an arm's-length negotiation by experienced and sophisticated business-men, and absent some compelling and countervailing reason it should be honored by the parties and enforced by the courts." The Bremen v. Zapata Off-Shore Co. - pg. 854

      1. Where there is a forum selection clause, in order to successfully invoke the doctrine of forum non conveniens, it is "incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court." The Bremen v. Zapata Off-Shore Co. - pg. 854

      2. "An agreement to arbitrate before a specified tribunal is in effect a specialized kind of forum-selection clause that posits not only the situs of suit but also the procedure to be used in resolving the dispute." Scherk v. Alberto-Culver Co. - pg. 863

         • "[A]n arbitration agreement . . . 'shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.'" Scherk v. Alberto-Culver Co. (quoting 9 U.S.C. § 2) - pg. 860

      3. Aside: In Britain, "it is the policy of the Court to hold parties to the bargain into which they entered." G.M.B.H. v. Zapata Off-shore Co. - pg. 858

   4. Comity

      1. Whether we should assert jurisdiction and apply our law extraterritorially?

         • Is there a conflict between the laws of the two nations?

           • If YES, balancing test (See Factors below)

           • If NO, comply with both laws (Hartford Fire Insurance Co. v. California)

         • Where there is no conflict between the laws and defendant can comply with both laws, our law applies and there is no need for the balancing test. See Hartford Fire Insurance Co. v. California

         • FACTORS - Timberlane Lumber Co. v. Bank of America

           • (1) The degree of conflict with foreign law or policy

           • (2) The nationality or allegiance of the parties and the locations or principal places of business of corporation

           • (3) The extent to which enforcement by either state can be expected to achieve compliance

           • (4) The relative significance of effects on the United States as compared with those elsewhere

           • (5) The extent to which there is explicit purpose to harm or affect American commerce

           • (6) The foreseeability of such effect

           • (7) The relative importance to the violations charged of conduct with the United States as compared with conduct...