INTERNATIONAL LAW
W.B. Fisch, Fall 2008
Assignment #24

Ch. 12. INTERNATIONAL CONFLICT OF LAWS

A. The Principles of Jurisdiction

1. The Territorial Principle

AMERICAN BANANA, p. 768 (US 1909)

1. Where did the conduct at issue occur?

2. Where was its primary effect felt?

3. Different decision, if Congress had enacted a law explicitly making US antitrust laws applicable to conduct of US companies abroad?

2. The Nationality Principle

BLACKMER V. UNITED STATES, p. 772 (US 1932)

1. Where did the conduct at issue occur?

a. At the place where the subpoena was received by Blackmer?

b. At the place where Blackmer was required to appear?

2. Did the court have jurisdiction to serve the subpoena in France?

a. Whose law would determine that?

b. If French law forbade such service (i.e., without the participation of French authorities), would Blackmer have gotten off?

c. What other consequence, if any, would the unlawfulness of the service under IL have had?

3. The Effects Principle

ALCOA, p. 774 (2d Cir. 1945).

1. Where did the conduct complained of occur?

2. Did it have clear effects in the US?

a. What were those effects?

b. How did the court know that they had occurred?

3. Was it intended to have such effects? Should that make a difference?

4. Other Principles of Jurisdiction

4. Protective: state security

5. Universal: matters that concern every state (e.g., slavery, piracy, genocide?)

6. Passive personality: nationality of the victim of a wrong – why should this be controversial?

a. presupposes that conduct occurs and harm is suffered elsewhere

b. Terrorism!

B. Resolving Conflicts of Jurisdiction

1. Party Choice

THE BREMEN V. ZAPATA OFF-SHORE CO., p. 781 (U.S. 1972)

1. Did the parties have a forum-selection clause for disputes under their towing contract?

a. was it a standard-form contract, or freely negotiated? Should it matter?

b. did the chosen forum have any connection with the K? If not, why was it chosen?

2. why did the defendant want to litigate in London rather than Tampa?

a. admiralty action to limit liability

b. exculpatory clause

3. why did the plaintiff choose the forum it did?

4. are international contracts especially suited to enforceable choice-of-forum clauses?

5. what discretion the trial court have in deciding whether to enforce the forum clause?

SCHERK V. ALBERTO-CULVER CO., p. 789 (U.S. 1974)

1. what was the plaintiff complaining about, and what was its legal theory of liability?

2. why did the defendant say the plaintiff was suing in the wrong forum?

3. what difference would it make to the plaintiff, if it had to use the other forum?

4. why would claims under the US Securities Acts not be arbitrable?

5. why should international disputes be an exception to the rule of non-arbitrability?

2. The Balancing Test

TIMBERLANE LUMBER CO. V. BANK OF AMERICA, p. 797 (9^th Cir. 1976)

1) what is the nature of the dispute?

2) what is the basis for U.S. jurisdiction to prescribe?

a) territory?

b) effects?

c) nationality?

d) passive personality?

3) what other country has jurisdiction to prescribe with respect to the conduct at issue?

a) on what basis?

b) do its rules conflict with the US rules, calling for different results?

4) how does the court resolve the issue of priority?

a) “assess the conflict” – what does that mean?

b) weigh the elements – what are they?

c) are any factors in the balance given special weight?