Transnational Litigation
Introduction
Transnational Litigation
 Summer Course 2012
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Professor Volker Behr
 University of Augsburg
 volker.behr@jura.uni-augsburg.de
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Transnational Litigation
Introduction
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CL-INT
Transnational Litigation
Introduction
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What is Transantional litigation
concerned with?
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Litigation and arbitration in case there is a nexus to
more than one jurisdiction
Diversity of citizenship
 Diversity of domicile/residence
 Business transactions abroad
 Torts abroad
 Property abroad
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Transnational Litigation
Introduction
Scope of Law of International Civil
Procedure
 (International) Jurisdiction
 Domestic Law and Foreign Law in
Transnational Litigation
 Service Abroad
 Taking Evidence Abroad
 Enforcement of Foreign Judgments
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Transnational Litigation
Introduction
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Consequences of suing and being sued
abroad
 Legal consequences
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Court will apply it‘s domestic law of civil procedure
Court will apply it‘s own private international law
when determining the applicable law
Practical consequences
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Distance
Language
Finding a suitable lawyer
Transnational Litigation
Introduction
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When do you have to sue abroad?
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When do you want to sue abroad?
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No jurisdiction back home
No valid claim back home
Prescription
Enforceability questionable
Favorable law
Higher awards
Enforcdeability
When may you be sued abroad?
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Jurisdiction of the foreign court given
Transnational Litigation
Introduction
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Advantages of Suing in Domestic Courts
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Language
Access to lawyers
Favorable PLI and favorable applicable law
Enforceability in a country where other party has
assets
Advantages of Suing in Foreign Courts
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Favorable PLI and favorable applicable law
Higher awards
Lower costs
Enforceability in country where other party has
assets
Transnational Litigation
Introduction
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Legal Bases for international jurisdiction
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Domestic law of the court
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International treaties (conventions)
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Statutory,
E.g. 28 USC – Long Arm Statutes
Customary Law,
E.g. Case Law in American Courts
E.g.: Brussels Convention; Warsaw Convention
Within the EU: Regulations (EC or EU)
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E.g. Regulation (EC) 44/2001
Transnational Litigation
Introduction
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Legal Bases
Convention for the Unification of Certain Rules
Relating to International Carriage by Air, Signed at
Warsaw on 12 October 1929 - Warsaw Convention
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Article 28
1. An action for damages must be brought, at the option of the
plaintiff, in the territory of one of the High Contracting Parties,
either before the Court having jurisdiction where the carrier is
ordinarily resident, or has his principal place of business, or
has an establishment by which the contract has been made or
before the Court having jurisdiction at the place of destination.
2. Questions of procedure shall be governed by the law of the
Court seised of the case.
Transnational Litigation
Introduction

Legal Bases
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COUNCIL REGULATION (EC) NO. 44/2001 (BRUSSELS I
REGULATION)
 = Council Regulation (EC) No 44/2001 of 22 December 2000 on
jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters
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Article 2
1. Subject to this Regulation, persons domiciled in a Member State shall,
whatever their nationality, be sued in the courts of that Member State.
 2. Persons who are not nationals of the Member State in which they are
domiciled shall be governed by the rules of jurisdiction applicable to
nationals of that State.
Transnational Litigation
Introduction
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Competence of EU to legislate on international
civil procedure
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Article 81 TFEU
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(ex Article 65 TEC)
1.
The Union shall develop judicial cooperation in civil matters having cross-border
implications, based on the principle of mutual recognition of judgments and of decisions in
extrajudicial cases. Such cooperation may include the adoption of measures for the
approximation of the laws and regulations of the Member States.
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2.
For the purposes of paragraph 1, the European Parliament and the Council, acting in
accordance with the ordinary legislative procedure, shall adopt measures, particularly when
necessary for the proper functioning of the internal market, aimed at ensuring:
(a)
the mutual recognition and enforcement between Member States of judgments and of
decisions in extrajudicial cases;
(b)
the cross-border service of judicial and extrajudicial documents;
(c)
the compatibility of the rules applicable in the Member States concerning conflict of
laws and of jurisdiction;
(d)
cooperation in the taking of evidence;
….
Transnational Litigation
Introduction
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What does a EU regulation mean?
Article 288 TFEU
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(ex Article 249 TEC)
To exercise the Union's competences, the institutions shall adopt
regulations, directives, decisions, recommendations and opinions.
A regulation shall have general application. It shall be
binding in its entirety and directly applicable in all Member
States.
A directive shall be binding, as to the result to be achieved, upon
each Member State to which it is addressed, but shall leave to the
national authorities the choice of form and methods.
A decision shall be binding in its entirety. A decision which
specifies those to whom it is addressed shall be binding only on
them.
Recommendations and opinions shall have no binding force.
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Transnational Litigation
Introduction
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Priority of EC/EU Law
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ECJ Costa v. Ente Nazionale per l'Energia Elettrica Enel (Case 14/1964)
…
The pre- eminence of Community law is confirmed by Article 189
(now Article 288 TFEU) which prescribes that Community
regulations have an 'obligatory' value and are 'directly applicable
within each member-State'. Such a provision which, it will be
noticed, admits of no reservation, would be wholly ineffective if a
member-State could unilaterally nullify its purpose by means of a
Law contrary to Community dictates. It follows from all these
observations that the rights created by the Treaty, by virtue
of their specific original nature, cannot be judicially
contradicted by an internal law, whatever it might be, without
losing their Community character and without undermining
the legal basis of the Community.
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Transnational Litigation
Introduction
Interpretation of EU LAW
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Literal interpretation
Systematic interpretation
Historical interpretation
Teleological interpretation
Uniform interpretation
Effet utile
Transnational Litigation
Introduction
28 USC
 Sec. 1330. Actions against foreign
states
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(a) The district courts shall have original jurisdiction without
regard to amount in controversy of any nonjury civil action against
a foreign state as defined in section 1603(a) of this title as to any
claim for relief in personam with respect to which the foreign state
is not entitled to immunity either under sections 1605-1607 of this
title or under any applicable international agreement.
 …
Transnational Litigation
Introduction
28 USC
 Sec. 1332. Diversity of citizenship; amount in controversy;
costs
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(a) The district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or value
of $75,000, exclusive of interest and costs, and is between (1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign
state;
(3) citizens of different States and in which citizens or
subjects of a foreign state are additional parties; and
(4) a foreign state, defined in section 1603(a) of this title, as
plaintiff and citizens of a State or of different States. …
Transnational Litigation
Introduction
 CALIFORNIA CODES - CODE OF
CIVIL PROCEDURE
 SECTION 410.10
 410.10.
 A court of this state may exercise
jurisdiction on any basis not inconsistent
with the Constitution of this state or of
the United States.
Transnational Litigation
Introduction
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New York State Consolidated Laws: Civil Practice Law & Rules
 ARTICLE 3
 JURISDICTION AND SERVICE, APPEARANCE AND CHOICE OF
COURT
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S 301. Jurisdiction over persons, property or status. A court may exercise such jurisdiction
over persons, property, or status as might have been exercised heretofore.
S 302. Personal jurisdiction by acts of non-domiciliaries.
Acts which are the basis of jurisdiction. As to a cause of action arising from any of the
acts enumerated in this section, a court may exercise personal jurisdiction over any nondomiciliary, or his executor or administrator, who in person or through an agent:
1. transacts any business within the state or contracts anywhere to supply goods or
services in the state; or
2. commits a tortious act within the state, except as to a cause of action for defamation of
character arising from the act; or
3. commits a tortious act without the state causing injury to person or property within the
state, except as to a cause of action for defamation of character arising from the act, if he
(i) regularly does or solicits business, or engages in any other persistent course of
conduct, or derives substantial revenue from goods used or consumed or services rendered,
in the state, or
Transnational Litigation
Introduction
New York State Consolidated Laws: Civil Practice Law & Rules
(indirectly addressing case law)
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ARTICLE 3
JURISDICTION AND SERVICE, APPEARANCE AND CHOICE OF
COURT
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S 301. Jurisdiction over persons, property or status.
A court may exercise such jurisdiction over persons, property, or status
as might have been exercised heretofore.
Transnational Litigation
Immunity
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Not just a hypo
Augsburg W-Company constructs a highway in
Thailand. W-Company is not jet payed.
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Can they sue the state of Thailand in a German Court?
W-Company gets an Swiss arbitral award awarding
€ 30 mio. The crownprince of Thailand travels to
Munich using an airplane. It is questionable
whether the airplane in owned by the crownprince
or whether it is a military airplane of the Thailand
military.
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Can W-Company enforce the award by taking the airplane?
Transnational Litigation
Immunity
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Again not just a hypo
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DSK, the then head of the International Monetary
Fund (located in Washington, D.C.) alledgedly has
raped a chambermaid in a New York hotel.
 Can DSK be imprisoned in New York?
Transnational Litigation
Immunity
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Immunity from what?
Immunity from jurisdiction in civil and
commercial matters
 Immunity from execution
 Immunity from criminal charges
 Etc.
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Transnational Litigation
Immunity
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Immunity for whom?
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State immunity
Immunity of heads of state
Immunity of diplomats , diplomatic missions and
staff
Immunity of consulats and staff
Immunity of international organizations
Immunity of personal of international
organizations
Immunity of state-owned companies?
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Transnational Litigation
Immunity
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Reach of Immunity
Acta iure imperii (sovereign functions)
 Acta gestionis (civil or commercial
transactions)
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Catalogue of exceptions from immunity
Transnational Litigation
Immunity
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Legal Bases for Immunity
Customary law
 Statutes
 Conventions
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Transnational Litigation
Immunity
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Convention on the Privileges and Immunities of
the United Nations, 1 U.N.T.S. 15, 13 February
1946. (Adopted by the UN General Assembly on
13 February 1946
SECTION 19. In addition to the immunities and
privileges specified in Section 18, the SecretaryGeneral and all Assistant Secretaries- General shall
be accorded in respect of themselves, their spouses
and minor children, the privileges and immunities,
exemptions and facilities accorded to diplomatic
envoys, in accordance with international law.
Transnational Litigation
Immunity
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Articles of Agreement of the International Monetary Fund
Article IX - Status, Immunities, and Privileges
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Section 3. Immunity from judicial process
The Fund, its property and its assets, wherever located and by whomsoever held,
shall enjoy immunity from every form of judicial process except to the extent that it
expressly waives its immunity for the purpose of any proceedings or by the terms
of any contract.
Section 8. Immunities and privileges of officers and employees
All Governors, Executive Directors, Alternates, members of committees,
representatives appointed under Article XII, Section 3(j), advisors of any of the
foregoing persons, officers, and employees of the Fund:
(i) shall be immune from legal process with respect to acts performed by them in
their official capacity except when the Fund waives this immunity;
…
Transnational Litigation
Immunity
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European Convention on State Immunity (Basle Convention)
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Basel, 16 May 1972
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Preamble
The member States of the Council of Europe, signatory hereto,
Considering that the aim of the Council of Europe is to achieve a greater unity
between its members;
Taking into account the fact that there is in international law a tendency to restrict
the cases in which a State may claim immunity before foreign courts;
Desiring to establish in their mutual relations common rules relating to the scope
of the immunity of one State from the jurisdiction of the courts of another State,
and designed to ensure compliance with judgments given against another State;
Considering that the adoption of such rules will tend to advance the work of
harmonisation undertaken by the member States of the Council of Europe in the
legal field,
Have agreed as follows:
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Transnational Litigation
Immunity
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European Convention on State Immunity
(Basle Convention)
Article 15
 A Contracting State shall be entitled to
immunity from the jurisdiction of the courts of
another Contracting State if the proceedings
do not fall within Articles 1 to 14; the court
shall decline to entertain such proceedings
even if the State does not appear.
Transnational Litigation
Immunity
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European Convention on State Immunity (Basle
Convention)
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Article 1
1. A Contracting State which institutes or intervenes in proceedings before a court
of another Contracting State submits, for the purpose of those proceedings, to the
jurisdiction of the courts of that State.
2. Such a Contracting State cannot claim immunity from the jurisdiction of the
courts of the other Contracting State in respect of any counterclaim:
a. arising out of the legal relationship or the facts on which the principal claim is
based;
b. if, according to the provisions of this Convention, it would not have been
entitled to invoke immunity in respect of that counterclaim had separate
proceedings been brought against it in those courts.
3. A Contracting State which makes a counterclaim in proceedings before a court
of another Contracting State submits to the jurisdiction of the courts of that State
with respect not only to the counterclaim but also to the principal claim.
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Transnational Litigation
Immunity
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European Convention on State
Immunity (Basle Convention)
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Article 2
A Contracting State cannot claim immunity from the jurisdiction of
a court of another Contracting State if it has undertaken to submit
to the jurisdiction of that court either:
a. by international agreement;
b. by an express term contained in a contract in writing; or
c. by an express consent given after a dispute between the
parties has arisen.
Etc.
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Transnational Litigation
Immunity
 European
Convention on State
Immunity (Basle Convention)
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Waiver of immunity (Article 2)
In Writing
 Waiver of immunity as to service of process is
concerned
 Waiver from immunity in a lawsuit in courts
 Waiver of immunity from actions in arbitration
 Waiver of immunity in enforcement
Transnational Litigation
Jurisdiction
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Jurisdiction in civil and commercial
matters within the EU
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Council Regulation (EC) No. 44/2001
Transnational Litigation
Jurisdiction
Scope of Council Regulation (EC) No.
44/2001
 Article 1
 1. This Regulation shall apply in civil
and commercial matters whatever the
nature of the court or tribunal. It shall not
extend, in particular, to revenue,
customs or administrative matters.
 2. The Regulation shall not apply to: …
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Transnational Litigation
Jurisdiction
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Civil or commercial matters
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European Court of Justice
Judgment of the Court of 14 October 1976. LTU Lufttransportunternehmen GmbH & Co.
KG v Eurocontrol. Reference for a preliminary ruling: Oberlandesgericht Düsseldorf Germany. Case 29/76. (Date of judgment 1976/10/14) (European Court Reports 1976 page
1541 )
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As Article 1 serves to indicate the area of application of the convention it is necessary, in order to
ensure, as far as possible, that the rights and obligations which derive from it for the contracting states
and the persons to whom it applies are equal and uniform, that the terms of that provision should
not be interpreted as a mere reference to the internal law of one or other of the states
concerned.
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The concept in question must therefore be regarded as independent and must be interpreted by
reference, first, to the objectives and scheme of the convention and, secondly, to the general principles
which stem from the corpus of the national legal systems. = autonomous interpretation
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Although certain judgments given in actions between a public authority and a person governed by
private law may fall within the area of application of the convention, this is not so where the public
authority acts in the exercise of its powers.
Transnational Litigation
Jurisdiction
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Eurocontrol
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What can we learn from Eurocontrol?
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First of all, the ECJ asks for what is called an autonomous
interpretation, because otherwise equal and uniform interpretation in
the member states would be compromised.
Second, the ECJ takes from the fact that thy type of court or tribunal
concerned is of no significance, the division of jurisdiction between
different courts in different member states is of little significance.
Third, the ECJ asks for an interpretation in the light of the convention
(now Regulation) and in the light of general principles in the member
states.
Forth, the court states that where actions between a public authority
and a person governed by private law are determined by the
exercise of the power of the public authority, the do not fall under the
category of private or commercial.
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Transnational Litigation
Jurisdiction
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Scope of Regulation 44/2001
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Article 67 (prevailing EU instruments)
This Regulation shall not prejudice the application of provisions governing jurisdiction and the
recognition and enforcement of judgments in specific matters which are contained in
Community instruments or in national legislation harmonised pursuant to such instruments.
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Article 69 (prevailing older conventions)
Subject to Article 66(2) and Article 70, this Regulation shall, as between Member States,
supersede the following conventions and treaty concluded between two or more of them: …
Article 70
1. The Treaty and the Conventions referred to in Article 69 shall continue to have effect in
relation to matters to which this Regulation does not apply.
2. They shall continue to have effect in respect of judgments given and documents formally
drawn up or registered as authentic instruments before the entry into force of this Regulation.
Article 71 (prevailing special conventions)
1. This Regulation shall not affect any conventions to which the Member States are parties
and which in relation to particular matters, govern jurisdiction or the recognition or
enforcement of judgments.
Transnational Litigation
Jurisdiction
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Scope of Regulation 44/2001
Time requirements
Article 76
This Regulation shall enter into force on l March 2002.
Article 66
1. This Regulation shall apply only to legal
proceedings instituted and to documents formally
drawn up or registered as authentic instruments after
the entry into force thereof.
Transnational Litigation
Jurisdiction
Jurisdiction
 The U.S. system:
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Subject Matter Jurisdiction, In
personam Jurisdiction, and In rem
Jurisdiction
Transnational Litigation
Jurisdiction
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Jurisdiction
The U.S. system:
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Long Arm Statutes
Calif. CCP § 410.10.
Jurisdiction over Nonresident Defendants.
A court of this Territory may exercise
jurisdiction on any basis not inconsistent with
the Organic Act or the Constitution of the
United States.
Transnational Litigation
Jurisdiction
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Jurisdiction
The EU system
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General and Specific Jurisdiction
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General jurisdiction
Article 2
1. Subject to this Regulation, persons domiciled in a Member State shall,
whatever their nationality, be sued (whatever the claim) in the courts of that
Member State.
…
Special jurisdiction
Article 5
A person domiciled in a Member State may, in another Member State, be sued:
1. (a) in matters relating to a contract, in the courts for the place of
performance of the obligation in question;
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Transnational Litigation
Jurisdiction
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General jurisdiction
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Article 2
1. Subject to this Regulation, persons domiciled in a
Member State shall, whatever their nationality, be
sued in the courts of that Member State.
…
General jurisdiction as stated in Article 2 is
subordinate to quite a number of other jurisdictional
bases. Most of them – but not all of them – depend on
the defendant having his or her domicile in a Member
State but vest jurisdiction in another Member State.
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Transnational Litigation
Jurisdiction
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Exclusive Jurisdiction, Article 22 Brussels I
Regulation
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On top of the hierarchy of jurisdictional bases we find Article 22. Already
the title of Article 22 indicates the very special character of this provision.
And the text of Article 22 confirms this special character. Moreover, the
text of Articles 23 and 24 additionally demonstrate the extraordinary
power of Article 22.
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Section 6 Exclusive jurisdiction
Article 22
The following courts shall have exclusive jurisdiction, regardless of
domicile:
 1. in proceedings which have as their object rights in rem in immovable
property or tenancies of immovable property, the courts of the Member
State in which the property is situated. However, …
Transnational Litigation
Jurisdiction
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Exclusive Jurisdiction, Article 22 Brussels I
Regulation
European Court of Justice
JUDGMENT OF THE COURT (Sixth Chamber), 13 July 2000 in Case
C-412/98, Group Josi Reinsurance Company SA and Universal
General Insurance Company (UGIC),
 46. The same conclusion can be drawn from Article 16 of the
Convention, which states that the rules of exclusive jurisdiction which
it lays down are to apply without the domicile of the parties being
taken into consideration. The fundamental reason for those rules of
exclusive jurisdiction is the existence of a particularly close
connection between the dispute and a Contracting State,
irrespective of the domicile both of the defendant and of the
plaintiff (as regards, more specifically, in proceedings having as their
object tenancies of immovable property, the exclusive jurisdiction of the
courts of the Contracting State in which the property is situated, see, in
particular, Case C-8/98 Dansommer v Götz [2000] ECR I-0000,
paragraph 27).
Transnational Litigation
Jurisdiction
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Exclusive Jurisdiction, Article 22
Brussels I Regulation
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European Court of Justice
Erich Rösler v. Horst Rottwinkel (Case 241/83), [1985] (1
C.M.L.R. 806)
Article (now) 22 no. 1 old version
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Tenancies of immovable property in particular are 'usually governed
by special legislation' which should preferably be administered only
by the courts of the country where it is in force. Moreover 'several
States' provide for exclusive jurisdiction in such proceedings.
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However, as to short term tenancies see no Art. 22 no. 1
Transnational Litigation
Jurisdiction
 Exclusive
Jurisdiction, Article 22
Brussels I Regulation
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Jurisdiction
Hypo:
Shannon, a student from California, enjoys her stay in Augsburg so much that she
decides to stay in Germany for a couple of weeks after having finished her
summer course. Visiting Cinderella’s Castle Neuschwanstein she falls in love with
this site and decides to rent it for one month. Bavaria, the owner of the castle,
rents it out to Shannon. At the end of the written contract we find a clause:
Exclusive jurisdiction shall be vested in the California Courts.
a) Shannon does not pay the rent but returns to California. Bavaria sues Shannon
in the civil court in Fuessen (Neuschwanstein is located in the Fuessen Circuit).
b) Back in California Shannon sues Bavaria in a California Court claiming
damages for mental diseases because during her stay in Neuschwanstein a ghost
had appeared and terrified her almost to death.
Transnational Litigation
Jurisdiction
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Jurisdiction based on Appearance, Art. 24
Brussels I Regulation
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Section 7 Prorogation of jurisdiction
Article 24
Apart from jurisdiction derived from other provisions of
this Regulation, a court of a Member State before
which a defendant enters an appearance shall have
jurisdiction. This rule shall not apply where
appearance was entered to contest the jurisdiction, or
where another court has exclusive jurisdiction by virtue
of Article 22.
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Transnational Litigation
Jurisdiction
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Jurisdiction based on Appearance, 24 Brussels I Regulation
Section 7 Prorogation of jurisdiction
Article 24
Article 24 is somehow tricky and often misunderstood by lawyers
representing their client – which might be considered to be
professional malpractice. In case you want to challenge
jurisdiction of the court where the plaintiff has brought his or her
lawsuit, you first have to contest jurisdiction of the court.
Otherwise the court will have jurisdiction by appearance.
Once you may – additionally and auxiliary – argue on the case.
You even should do so, because in some member states rules of
civil procedure ask for pleasing everything at the very beginning
of the lawsuit, which is sanctioned by penalty of preclusion.
Transnational Litigation
Jurisdiction
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Jurisdiction based on Appearance, Art. 24
Brussels I Regulation
 Section 7 Prorogation of jurisdiction
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European Court of Justice
Hannelore Spitzley v. Sommer Exploitation S.A. (Case 48/84)
[1985] 2 C.M.L.R. 507
The court of a Contracting State before which the applicant, without raising any
objection, enters an appearance in proceedings relating to a claim for a set-off
which is based on a contract or on facts other than that or those on which the
claims in his application are founded and in respect of which there is a validly
concluded agreement conferring exclusive jurisdiction on the courts of another
Contracting State for the purposes of Article 17 of the Convention of 27
September 1968 on Jurisdiction and Enforcement of Judgments in Civil and
Commercial Matters, has jurisdiction by virtue of Article 18 of that Convention.
Transnational Litigation
Jurisdiction
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Prorogation and Derogation of Forum, Article 23
Brussels I Regulation
As far as doing transnational business is concerned,
predictability is one of the major issues. This is true
not only as to the obligations parties are entering into
or have entered into but as well as to the question
what happens in case the other party does not comply
with its obligations and a lawsuit cannot be avoided.
Choice of forum clauses and choice of law clauses
hence are widely practiced and of utmost importance.
A lawyer should at least try to warn his or her client of
the risks of not having such clauses.
Transnational Litigation
Jurisdiction
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Section 7 Prorogation of jurisdiction
Article 23
1. If the parties, one or more of whom is domiciled in a Member State, 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. Such
jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an
agreement conferring jurisdiction shall be either:
(a) in writing or evidenced in writing; or
(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.
2. Any communication by electronic means which provides a durable record of the
agreement shall be equivalent to "writing".
Transnational Litigation
Jurisdiction
Section 7 Prorogation of jurisdiction
 Article 23
 Different from the general principle in
Article 2 Article 23 does not ask for the
defendant to be domiciled in a member
state. It is sufficient that one of the
parties is domiciled in a Member State.
 If no party is domiciled in a Member
State, Article 23 § 3 applies.
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Transnational Litigation
Jurisdiction
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Prorogation of jurisdiction
CL-INT, Inc. (CL-INT), a corporation under Delaware law and
headquartered in Pittsburgh, PA, has invented a drug which
helps reducing blood sugar levels. CL-INT has applied for
patent protection in the US but not yet elsewhere. The new
drug is to be sold worldwide under the uniform name of
OPTISUGAR. In Europe it shall be marketed by Intermed
GmbH, a German corporation headquartered in Augsburg,
Germany.
Considering the eventualities of suing or being sued out of
the contract or in relation with activities out of the contract,
the contract between CL-INT and Intermed as prepared by
CL-INT lawyers contains suggestions for two final clauses:
Transnational Litigation
Jurisdiction
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Clause A
1. "All disputes arising out of or in connection with the present agreement shall be finally
settled under the arbitration rules of the UNCITRAL MODEL LAW ON INTERNATIONAL
COMMERCIAL ARBITRATION by three arbitrators (one appointed by each party and the
chairman appointed by the two arbitrators) in accordance with the said Rules. The place of
arbitration shall be New York. The arbitration shall be conducted in English language. The
arbitration award shall be final and binding.
2. ICC Arbitration Clause All disputes arising out of or in connection with the present contract
shall be finally settled under the Rules of Arbitration of the International Chamber of
Commerce by one or more arbitrators appointed in accordance with the said Rules.
3. Hamburg Chamber of Commerce Arbitration Clause
Any dispute arising in connection with the present contract or with respect to its validity shall
be finally settled by the Court of Arbitration of the Hamburg Chamber of Commerce, to the
exclusion of the ordinary courts of law.
4. Any dispute arising out of or in connection with the present contract shall be treated in the
Pittsburgh Courts.
5. Jurisdiction for all disputes arising out of or in connection with the present contract from
orders for OPTISUGAR should be in the Augsburg courts.
6. Any dispute arising must be treated before the London Court of Justice.
Transnational Litigation
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Clause B.
1. The substantive law of Pennsylvania shall
be applicable all arbitration/litigation.
2. The substantive law of Germany shall be
applicable to all arbitration/litigation.
3. The substantive law of Germany shall be
applicable to all arbitration/litigation. CISG is
excluded.
3. The German Civil Code shall be applicable
to all arbitration/litigation
Transnational Litigation
Jurisdiction
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Advantages or disadvantages of arbitration
as compared to litigation?
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Duration
Finality within one instance
Cost
Expertise of arbitrators
Secrecy
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What should be addressed in an arbitration
clause?
Number of arbitrators
Selection of arbitrators
Selection of the chairperson
Place of Arbitration
Language of Arbitration
Procedure
Solutions for solving the Gordian knot in case some
issues become controversial
Finality of an Award
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How to correctly draft a choice of forum clause?
Address all issues which might be important and might
become controversial
Rely on an arbitration clause prepared by an arbitral
institution and the framework statute of such institution
How to correctly draft a choice of law clause?
 Always in writing (how else to prove the existence and
content?)
 Address precisely what law you want to be applied
 Exclude expressly what otherwise might be implied
Transnational Litigation
Jurisdiction
Possible obstacles to arbitration
clauses?
 Will courts abide to arbitration
 Enforcement of an arbitral award
 Possible obstacles to choice of forum
clauses?
 Will the chosen forum accept jurisdiction
by choice of forum?
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Transnational Litigation
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Forum Shopping and Forum Non Conveniens
The combined system of general and special jurisdiction leaving
at the option of plaintiff where to sue as well as different
jurisdictional bases in different countries very often give the
plaintiff a choice among different courts where to sue the
defendant. Plaintiff in general may choose where to sue.
Selection of one special court among the available courts may be
influenced by reasons of practical convenience as well as by
expectations of a more favorable judgment as well as by reasons
of easier access to execution.
Question is whether the court may refuse jurisdiction (although
there is a jurisdictional base given). This question is treated under
the heading of forum non conveniens. The doctrine originally
was developed in Scottish courts.
Transnational Litigation
Jurisdiction
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Forum Shopping and Forum Non Conveniens
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U.S. Supreme Court
GULF OIL CORPORATION v. GILBERT, 330 U.S. 501 (1947) 330 U.S. 501
This Court, in one form of words or another, has repeatedly recognized the
existence of the power to decline jurisdiction in exceptional circumstances.
As formulated by Mr. Justice Brandeis the rule is: 'Obviously, the
proposition that a court having jurisdiction must exercise it, is not
universally true; else the admiralty court could never decline jurisdiction on
the ground that the litigation is between foreigners. Nor is it true of courts
administering other systems of our law. Courts of equity and of law also
occasionally decline, in the interest of justice, to exercise jurisdiction,
where the suit is between aliens or nonresidents, or where for kindred
reasons the litigation can more appropriately be conducted in a foreign
tribunal.' Canada Malting Co., Ltd., v. Paterson Steamships, Ltd., 285 U.S.
413 422, 423, 52 S.Ct. 413, 415.
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Forum shopping
The European Approach (1)
England
Spiliada Maritime Corp v Cansulex Ltd – The Spiliada -,
1986 3 All ER 843
The Atlantic Star 1972 3 All ER 705, 709 (CA)
“No one who comes to these courts asking for justice should
come in vain. He must, of course, come in good faith. ... This
right to come here is not confined to Englishmen. It extends to
any freindly foreigner. He can seek the aid of our courts if he
desires to do so. You may call this ‘forum shopping’ if you please,
but if the forum is England, it is a good place to shpo in, both for
the quality of the goods and the speed of service.”
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Forum shopping
The European Approach (2)
Switzerland
Art. 5 Law on private international law
(1) As to an existing or future law suit concerning ….claims out of a
distinctive relationship parties may agree upon the forum. Agreement
may be done in writing, by telegram, telex, telefax or in any other form of
transmission enabling proof of agreement by text. In case the agreement
does not say otherwise, the prorogated court has exclusive jurisdiction.
(2) Agreement on the forum is invalid in case it abusively deprives one
party of a given Swiss forum.
(3) The agreed forum must not deny jurisdiction:
Where one of the parties has his domicile, residence, or agency in the
Kanton (sisterstate within the Swiss Federation) of the agreed court, or
b. Where according to this las Swiss law is applicable to the case.
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Forum shopping
The European Approach (3)
Germany
Doctrine of forum non conveniens is not accepted in Germany.
Once jurisdiction of German courts being established, there is a
constitutional problem in refusing jurisdiction on discretionary
grounds. Under Art. 101 § 1 S. 2 of the German Grundgesetz
(Constitution) nobody may be deprived of his judge. Put it the
other way round, the plaintiff is entitled to have the case decided
by a court whenever jurisdiction of the court is once established.
The only thing German courts can do – and occasionally did – is
denying jurisdiction at all by interpreting jurisdictional bases in a
restricted way.
Cyprus Case on § 23 Code of Civil Procedure
Transnational Litigation
Jurisdiction
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Regulation 44/2001 and domestic bases of
jurisdiction
 Article 3
 1. Persons domiciled in a Member State may
be sued in the courts of another Member State
only by virtue of the rules set out in Sections 2
to 7 of this Chapter.
 2. In particular the rules of national jurisdiction
set out in Annex I shall not be applicable as
against them.
Transnational Litigation
Jurisdiction
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Special jurisdiction
Article 5
 A person domiciled in a Member State may, in
another Member State, be sued: …
 1. (a) in matters relating to a contract, in the
courts for the place of performance of the
obligation in question; …..
Transnational Litigation
Jurisdiction
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Special jurisdiction
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Article 5 (1) (actual version):
A person domiciled in a Member State may, in another Member State, be sued:
1. (a) in matters relating to a contract, in the courts for the place of performance of
the obligation in question;
(b) for the purpose of this provision and unless otherwise agreed, the place of
performance of the obligation in question shall be:
. in the case of the sale of goods, the place in a Member State where, under the
contract, the goods were delivered or should have been delivered,
. in the case of the provision of services, the place in a Member State where,
under the contract, the services were provided or should have been provided,
(c) if subparagraph (b) does not apply then subparagraph (a) applies;
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Transnational Litigation
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Special Jurisdiction, Article 5
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No. 1: Jurisdiction in the Member State of the place of performance
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COURT OF JUSTICE
Judgment of the Court of 6 October 1976. Industrie Tessili Italiana Como v Dunlop AG. Reference for a preliminary ruling:
Oberlandesgericht Frankfurt am Main - Germany. Brussels Convention on Jurisdiction and the Enforcement of Judgments
in Civil and Commercial Matters, Article 5 (1). Case 12/76. (Date of judgment 1976/10/06) - European Court Reports 1976
page 1473
…
10 The convention frequently uses words and legal concepts drawn from civil, commercial and procedural law and capable of a
different meaning from one Member State to another. The question therefore arises whether these words and concepts must be
regarded as having their own independent meaning and as being thus common to all the Member States or as referring to
substantive rules of the law applicable in each case under the rules of conflict of laws of the court before which the matter is first
brought.
…
13 This freedom of choice was introduced in view of the existence in certain well-defined cases of a particularly close relationship
between a dispute and the court which may be most conveniently called upon to take cognizance of the matter. Thus in the case of
an action relating to contractual obligations Article 5 (1) allows a plaintiff to bring the matter before the court for the place ' of
performance ' of the obligation in question. It is for the court before which the matter is brought to establish under the convention
whether the place of performance is situate within its territorial jurisdiction. For this purpose it must determine in accordance with its
own rules of conflict of laws what is the law applicable to the legal relationship in question and define in accordance with that law the
place of performance of the contractual obligation in question.
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RULING
In answer to the question referred to it by the oberlandesgericht frankfurt am main by order dated 14 January 1976, hereby
rules: The ' place of performance of the obligation in question ' within the meaning of Article 5 (1) of the convention of 27
September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters is to be determined in
accordance with the law which governs the obligations in question according to the rules of conflict of laws of the court
before which the matter is brought.
Transnational Litigation
Jurisdiction
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Special Jurisdiction, Article 5
 No. 1: Jurisdiction in the Member State of the place of performance
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COURT OF JUSTICE
Judgment of the Court of 6 October 1976. Industrie Tessili Italiana
Como v Dunlop AG. Reference for a preliminary ruling:
Oberlandesgericht Frankfurt am Main - Germany. Brussels
Convention on Jurisdiction and the Enforcement of Judgments in
Civil and Commercial Matters, Article 5 (1). Case 12/76. (Date of
judgment 1976/10/06) - European Court Reports 1976 page 1473
…
As to Article 5 no. 1 the Court relies on the obligation in question
The Court exceptionally denies autonomous interpretation and instead
relies on the law applicable by PIL od the national court
Transnational Litigation
Jurisdiction
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Special Jurisdiction, Article 5
No. 1: Jurisdiction in the Member State of the place of performance
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Judgment of the Court of 15 January 1987. Hassan Shenavai v Klaus Kreischer.
Reference for a preliminary ruling: Landgericht Kaiserslautern - Germany. Brussels
Convention - Place of performance of an obligation. Case 266/85.
European Court Reports 1987 page 0239
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RULING
On those grounds,
The court
In answer to the question referred to it by the landgericht kaiserslautern by order of 5
March 1985, hereby rules:
For the purposes of determining the place of performance within the meaning of Article
5 (1) of the convention of 27 September 1968 on jurisdiction and the enforcement of
judgments in civil and commercial matters, the obligation to be taken into
consideration in a dispute concerning proceedings for the recovery of fees commenced
by an architect Commissioned to draw up plans for the building of houses is the
contractual obligation which forms the actual basis of legal proceedings.
Transnational Litigation
Jurisdiction
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Special Jurisdiction, Article 5
 Jurisdiction in Member State of
establishment
 Article 5 (5)
 A defendant domiciled in a Member State may
be sued as regards a dispute arising out of the
operations of a branch, agency or other
establishment, in the courts for the place in
which the branch, agency or other
establishment is situated.
Transnational Litigation
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Special Jurisdiction, Article 5
Jurisdiction in Member State of establishment,
Article 5 (5)
Case 33/78 Somafer
“that the essential characteristic of a branch or an agency is 'the fact of
being subject to the direction and control of the parent body'”
In addition the court – as in earlier decisions relies on the fact that ['the concept
of a branch, agency or other establishment implies a place of business
which has the appearance of permanency, such as the extension of a parent
body, has a management and is materially equipped to negotiate business
with third parties so that the latter, although knowing that there will if
necessary be a legal link with the parent body, the head office of which is
abroad, do not have to deal directly with such parent body but may transact
business at the place of business constituting the extension.'
Transnational Litigation
Jurisdiction
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Special Jurisdiction, Article 5
No. 5: Jurisdiction of establishment
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Blanckaert and Willems PVBA v. Luise Trost, (Case 139/80), [1982] 2 C.M.L.R. 1

Order
On those grounds, THE COURT (Third Chamber), in answer to the questions referred to it by
the Bundesgerichtshof by an order of 21 March 1980
HEREBY RULES:
An independent commercial agent who merely negotiates business (Handelsvertreter
(Vermittlungsvertreter)), inasmuch as his legal status leaves him basically free to arrange his
own work and decide what proportion of his time to devote to the interests of the undertaking
which he agrees to represent and whom that undertaking may not prevent from representing
at the same time several firms competing in the same manufacturing or marketing sector, and
who, moreover, merely transmits orders to the parent undertaking without being involved in
either their terms or their execution, does not have the character of a branch, agency or other
establishment within the meaning of Article 5 (5) of the Convention of 27 September 1968 on
Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.
Transnational Litigation
Jurisdiction
 Special
Jurisdiction, Article 5 No.
3: Tort jurisdiction
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Article 5
A person domiciled in a Member State may, in
another Member State, be sued:
 …
 3. in matters relating to tort, delict or quasidelict, in the courts for the place where the
harmful event occurred or may occur;
Transnational Litigation
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Special Jurisdiction, Article 5
No. 3: Tort jurisdiction
COURT OF JUSTICE
Judgment of the Court of 30 November 1976. Handelskwekerij G. J. Bier BV v Mines de potasse
d'Alsace SA. Reference for a preliminary ruling: Gerechtshof ' s-Gravenhage - Netherlands. Brussels
Convention on jurisdiction and the enforcement of Judgment, article 5 (3) (liability in tort, delict or
quasi-delict). Case 21-76 - European Court Reports 1976 page 1735
RULING
The court
In answer to the question referred to it by the gerechtshof, the hague, by judgment of 27 February
1976, hereby rules:
Where the place of the happening of the event which may give rise to liability in tort, delict or
quasidelict and the place where that event results in damage are not identical, the expression ' place
where the harmful event occurred ' , in Article 5 (3) of the convention of 27 September 1968 on
jurisdiction and the enforcement of judgments in civil and commercial matters, must be understood
as being intended to cover both the place where the damage occurred and the place of the event
giving rise to it.
The result is that the defendant may be sued, at the option of the plaintiff, either in the courts for the
place where the damage occurred or in the courts for the place of the event which gives rise to and is
at the origin of that damage.
Transnational Litigation
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Special Jurisdiction, Article 5
No 3: Tort jurisdiction
Shevill and Others v. Presse Alliance SA - (CASE C-68/93)
52. In the present case, the situation is more complex, involving as it does a causal event
giving rise to more than one instance of damage. The harm occurs in the place of the final
element making up the tort, that is to say, in the case of torts committed in a newspaper or in
radio or television programmes, in each State where the newspaper is distributed or the
broadcast programme is received. In objective terms, the place in which the causal event
directly giving rise to such damage occurs is that in which the newspaper is published or the
programme is broadcast.
53. Damage to a person' s reputation and/or honour arises in the various places where a
defamatory remark is revealed to third parties. Consequently, the damage becomes apparent
when that 'information' is brought into public knowledge the publication of the newspaper at
issue constitutes the vehicle by which it is transmitted. Thus there is clearly a geographical
separation between the causal event and the damage.
71. Consequently, the courts of one of the places where damage arose cannot hear
proceedings for compensation for damage arising in other Contracting States, inasmuch as
there is no element of proximity connecting the forum with the dispute.
Transnational Litigation
Jurisdiction
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Position of Defendants not Domiciled in a Member State
Article 4
1. If the defendant is not domiciled in a Member State, the
jurisdiction of the courts of each Member State shall, subject to
Articles 22 and 23, be determined by the law of that Member
State.
2. As against such a defendant, any person domiciled in a
Member State may, whatever his nationality, avail himself in that
State of the rules of jurisdiction there in force, and in particular
those specified in Annex I, in the same way as the nationals of
that State.
Transnational Litigation
Jurisdiction
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Protection of weaker parties
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Section 3
Jurisdiction in matters relating to insurance
Article 8
In matters relating to insurance, jurisdiction shall be determined by this Section,
without prejudice to Article 4 and point 5 of Article 5.
Article 9
1. An insurer domiciled in a Member State may be sued:
(a) in the courts of the Member State where he is domiciled, or
(b) in another Member State, in the case of actions brought by the policyholder,
the insured or a beneficiary, in the courts for the place where the plaintiff is
domiciled,
(c) if he is a co-insurer, in the courts of a Member State in which proceedings are
brought against the leading insurer.
2. An insurer who is not domiciled in a Member State but has a branch, agency or
other establishment in one of the Member States shall, in disputes arising out of
the operations of the branch, agency or establishment, be deemed to be
domiciled in that Member State.
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Transnational Litigation
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Protection of weaker parties
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Section 3
Jurisdiction in matters relating to insurance
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Article 12
1. Without prejudice to Article 11(3), an insurer may bring proceedings only in the courts of the Member
State in which the defendant is domiciled, irrespective of whether he is the policyholder, the insured or a
beneficiary.
2. The provisions of this Section shall not affect the right to bring a counter-claim in the court in which, in
accordance with this Section, the original claim is pending.
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Article 13
The provisions of this Section may be departed from only by an agreement:
1. which is entered into after the dispute has arisen, or
2. which allows the policyholder, the insured or a beneficiary to bring proceedings in courts other than those
indicated in this Section, or
3. which is concluded between a policyholder and an insurer, both of whom are at the time of conclusion of
the contract domiciled or habitually resident in the same Member State, and which has the effect of conferring
jurisdiction on the courts of that State even if the harmful event were to occur abroad, provided that such an
agreement is not contrary to the law of that State, or
4. which is concluded with a policyholder who is not domiciled in a Member State, except in so far as the
insurance is compulsory or relates to immovable property in a Member State, or
5. which relates to a contract of insurance in so far as it covers one or more of the risks set out in Article 14.
Transnational Litigation
Jurisdiction
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Protection of weaker parties
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Consumers
Section 4
Jurisdiction over consumer contracts
Article 15
1. In matters relating to a contract concluded by a person, the consumer, for a purpose which
can be regarded as being outside his trade or profession, jurisdiction shall be determined by
this Section, without prejudice to Article 4 and point 5 of Article 5, if:
(a) it is a contract for the sale of goods on instalment credit terms; or
(b) it is a contract for a loan repayable by instalments, or for any other form of credit, made to
finance the sale of goods; or
(c) in all other cases, the contract has been concluded with a person who pursues commercial
or professional activities in the Member State of the consumer's domicile or, by any means,
directs such activities to that Member State or to several States including that Member State,
and the contract falls within the scope of such activities.
2. Where a consumer enters into a contract with a party who is not domiciled in the Member
State but has a branch, agency or other establishment in one of the Member States, that party
shall, in disputes arising out of the operations of the branch, agency or establishment, be
deemed to be domiciled in that State.
3. This Section shall not apply to a contract of transport other than a contract which, for an
inclusive price, provides for a combination of travel and accommodation.
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Transnational Litigation
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Protection of weaker parties
Consumers
Section 4
Jurisdiction over consumer contracts
Article 16
1. A consumer may bring proceedings against the other party to a contract either in the
courts of the Member State in which that party is domiciled or in the courts for the place where
the consumer is domiciled.
2. Proceedings may be brought against a consumer by the other party to the contract only
in the courts of the Member State in which the consumer is domiciled.
3. This Article shall not affect the right to bring a counter-claim in the court in which, in
accordance with this Section, the original claim is pending.
Article 17
The provisions of this Section may be departed from only by an agreement:
1. which is entered into after the dispute has arisen; or
2. which allows the consumer to bring proceedings in courts other than those indicated in this
Section; or
3. which is entered into by the consumer and the other party to the contract, both of whom are
at the time of conclusion of the contract domiciled or habitually resident in the same Member
State, and which confers jurisdiction on the courts of that Member State, provided that such an
agreement is not contrary to the law of that Member State.
Transnational Litigation
Jurisdiction
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Protection of weaker parties
Individual employment
Section 5
Jurisdiction over individual contracts of employment
Article 18
1. In matters relating to individual contracts of employment,
jurisdiction shall be determined by this Section, without prejudice
to Article 4 and point 5 of Article 5.
2. Where an employee enters into an individual contract of
employment with an employer who is not domiciled in a Member
State but has a branch, agency or other establishment in one of
the Member States, the employer shall, in disputes arising out of
the operations of the branch, agency or establishment, be
deemed to be domiciled in that Member State.
Transnational Litigation
Jurisdiction
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Protection of weaker parties
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Individual employment

Section 5
Jurisdiction over individual contracts of employment
Article 19
An employer domiciled in a Member State may be sued:
1. in the courts of the Member State where he is domiciled; or
2. in another Member State:
(a) in the courts for the place where the employee habitually carries out his work or in the courts for the last
place where he did so, or
(b) if the employee does not or did not habitually carry out his work in any one country, in the courts for the
place where the business which engaged the employee is or was situated.
Article 20
1. An employer may bring proceedings only in the courts of the Member State in which the employee is
domiciled.
2. The provisions of this Section shall not affect the right to bring a counter-claim in the court in which, in
accordance with this Section, the original claim is pending.
Article 21
The provisions of this Section may be departed from only by an agreement on jurisdiction:
1. which is entered into after the dispute has arisen; or 2. which allows the employee to bring proceedings in
courts other than those indicated in this Section.
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Transnational Litigation
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Jurisdiction beyond Brussels I Regulation
Council Regulation (EC) NO. 1347/2000
replaced by Council Regulation 2201/2003
 Brussels and Lugano Conventions
 Jurisdiction under Specific Conventions
 Jurisdicrion under Domestic Law of Civil
Procedure
Transnational Litigation
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Jurisdiction beyond Brussels I Regulation

COUNCIL REGULATION (EC) No 2201/2003
 of 27 November 2003 concerning
jurisdiction and the recognition and
enforcement of judgments in matrimonial
matters and the matters of parental
responsibility, repealing Regulation (EC)
No 1347/2000

L 338/2 EN Official Journal of the European Union 23.12.2003
Transnational Litigation
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Jurisdiction beyond Brussels I Regulation
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COUNCIL REGULATION (EC) No 2201/2003

Article 1
Scope
1. This Regulation shall apply, whatever the nature of the
court or tribunal, in civil matters relating to:
(a) divorce, legal separation or marriage annulment;
(b) the attribution, exercise, delegation, restriction or
termination of parental responsibility.
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Transnational Litigation

Jurisdiction beyond Brussels I Regulation

COUNCIL REGULATION (EC) No 2201/2003
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Article 2
Definitions
…
3. the term ‘Member State' shall mean all
Member States with the exception of
Denmark;
Transnational Litigation
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Jurisdiction beyond Brussels I Regulation
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COUNCIL REGULATION (EC) No 2201/2003

Article 60
Relations with certain multilateral conventions In relations
between Member States, this Regulation shall take
precedence over the following Conventions in so far as they
concern matters governed by this Regulation:…
Article 61
Relation with the Hague Convention of 19 October 1996
on Jurisdiction, Applicable law, Recognition, Enforcement
and Cooperation in Respect of Parental Responsibility and
Measures for the Protection of Children …
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Transnational Litigation

Jurisdiction beyond Brussels I Regulation
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COUNCIL REGULATION (EC) No 2201/2003


Article 64
1. The provisions of this Regulation shall apply only to legal proceedings
instituted, to documents formally drawn up or registered as authentic
instruments and to agreements concluded between the parties after its date
of application in accordance with Article 72.
2. Judgments given after the date of application of this Regulation in
proceedings instituted before that date but after the date of entry into force
of Regulation (EC) No 1347/2000 shall be recognised and enforced in
accordance with the provisions of Chapter III of this Regulation if
jurisdiction was founded on rules which accorded with those provided for
either in Chapter II or in Regulation (EC) No 1347/2000 or in a convention
concluded between the Member State of origin and the Member State
addressed which was in force when the proceedings were instituted. …

Transnational Litigation

Jurisdiction beyond Brussels I
Regulation

COUNCIL REGULATION (EC) No 2201/2003

Entry into force
This Regulation shall enter into force on 1 August 2004.
The Regulation shall apply from 1 March 2005, with the
exception of Articles 67, 68, 69 and 70, which shall apply
from 1 August 2004.
This Regulation shall be binding in its entirety and directly
applicable in the Member States
in accordance with the Treaty establishing the European
Community.
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Transnational Litigation

Jurisdiction beyond Brussels I Regulation

COUNCIL REGULATION (EC) No 2201/2003

Article 3
General jurisdiction
1. In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the
courts of
the Member State
(a) in whose territory:
— the spouses are habitually resident, or
— the spouses were last habitually resident, insofar as one of them still resides there, or
— the respondent is habitually resident, or
— in the event of a joint application, either of the spouses is habitually resident, or
— the applicant is habitually resident if he or she resided there for at least a year immediately before
the application was made, or
— the applicant is habitually resident if he or she resided there for at least six months immediately
before the application was made and is either a national of the Member State in question or, in the
case of the United Kingdom and Ireland, has his or her ‘domicile' there;
(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the
‘domicile' of both spouses.
2. For the purpose of this Regulation, ‘domicile' shall have the same meaning as it has under the legal
systems of the United Kingdom and Ireland.
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Transnational Litigation
 Jurisdiction
beyond Brussels I
Regulation

COUNCIL REGULATION (EC) No 2201/2003

Parental responsibility
Article 8
General jurisdiction
1. The courts of a Member State shall have jurisdiction in
matters of parental responsibility over a child who is
habitually resident in that Member State at the time the court
is seised.
2. Paragraph 1 shall be subject to the provisions of Articles
9, 10 and 12.
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Transnational Litigation

Jurisdiction beyond Brussels I
Regulation

COUNCIL REGULATION (EC) No 2201/2003

Article 9
Continuing jurisdiction of the child's former habitual residence
1. Where a child moves lawfully from one Member State to another
and acquires a new habitual residence there, the courts of the
Member State of the child's former habitual residence shall, by way
of exception to Article 8, retain jurisdiction during a three-month
period following the move for the purpose of modifying a judgment
on access rights issued in that Member State before the child
moved, where the holder of …
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Transnational Litigation

Jurisdiction beyond Brussels I
Regulation

COUNCIL REGULATION (EC) No 2201/2003

Article 10
 Jurisdiction in cases of child abduction
 In case of wrongful removal or retention of the child, the
 courts of the Member State where the child was habitually
 resident immediately before the wrongful removal or retention
 shall retain their jurisdiction until the child has acquired a
 habitual residence in another Member State and: …
Transnational Litigation

Jurisdiction beyond Brussels I Regulation

COUNCIL REGULATION (EC) No 2201/2003



Article 12
Prorogation of jurisdiction
1. The courts of a Member State exercising jurisdiction by virtue of Article 3
on an application for divorce, legal separation or marriage annulment shall
have jurisdiction in any matter relating to parental responsibility connected
with that application where:
(a) at least one of the spouses has parental responsibility in relation to the
child;
and
(b) the jurisdiction of the courts has been accepted expressly or otherwise
in an unequivocal manner by the spouses and by the holders of parental
responsibility, at the time the court is seised, and is in the superior interests
of the child. …
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Transnational Litigation

Jurisdiction beyond Brussels I
Regulation

Brussels and Lugano Conventions
Brussels Convention in Denmark
 Lugano Convention and relationship
with Member States to that convention

Transnational Litigation

Jurisdiction beyond Brussels I Regulation

Jurisdiction under Specific Conventions

Convention for the Unification of Certain
Rules Relating to International Carriage by
Air, Signed at Warsaw on 12 October 1929 Warsaw Convention 1929
Transnational Litigation
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Jurisdiction beyond Brussels I Regulation

Jurisdiction under Specific Conventions
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
Warsaw Convention 1929
Article 1
1. This Convention applies to all international
carriage of persons, luggage or goods
performed by aircraft for reward. It applies
equally to gratuitous carriage by aircraft
performed by an air transport undertaking.
Transnational Litigation

Jurisdiction beyond Brussels I Regulation
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Jurisdiction under Specific Conventions

Warsaw Convention 1929
Article 18
1. The carrier is liable for damage sustained in the
event of the destruction or loss of, or of damage to,
any registered luggage or any goods, if the occurrence
which caused the damage so sustained took place
during the carriage by air. …
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Transnational Litigation

Jurisdiction beyond Brussels I Regulation

Jurisdiction under Specific Conventions

Warsaw Convention 1929
Article 28
1. An action for damages must be brought, at the option of the
plaintiff, in the territory of one of the High Contracting Parties,
either before the Court having jurisdiction where the carrier is
ordinarily resident, or has his principal place of business, or has
an establishment by which the contract has been made or before
the Court having jurisdiction at the place of destination.
2. Questions of procedure shall be governed by the law of the
Court seised of the case.
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Transnational Litigation

Jurisdiction beyond Brussels I
Regulation

Jurisdicrion under Domestic Law of
Civil Procedure
Transnational Litigation
Service abroad
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
Hypo:
Ben sues Chris, who lives in Germany, in the U.S.
for personal injury.
How would service be performed in the U.S., or, in
the language of the Federal Rules of Civil
Procedure: How would the summons and the
complaint be served?
How can service on Chris in Germany be
performed?
Transnational Litigation
Service abroad
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
Hypo:
Chris sues Ben, who lives in the U.S., in a German
court.
How would service be performed in Germany?
How can Ben in the U.S. be served? What about
Ben living permanently in France?
Transnational Litigation
Service abroad
FEDERAL RULES OF CIVIL PROCEDURE FOR THE
UNITED STATES DISTRICT COURTS
Rule 4. Summons
 C) Service with Complaint; by Whom
Made.

(1) A summons shall be served together with a copy of the
complaint. The plaintiff is responsible for service of a
summons and complaint within the time allowed under
subdivision (m) and shall furnish the person effecting
service with the necessary copies of the summons and
complaint.
Transnational Litigation
Service abroad


§ 266 German Code of Civil Procedure
Service means giving information of a document
to a person in a way laid down in this title of the
code.
 Where service is prescribed by law or by order of a
court, documents are to be served ex officio
unless otherwise ordered.
 § 253 German Code of Civil Procedure
 Filing of a suit is effectuated by service of a writ of
summons.
Transnational Litigation
Service abroad
Council regulation (EC) No 1348/2000
(Service Regulation)
 Council regulation (EC) No 1348/2000 of
29 May 2000 on the service in the
Member States of judicial and
extrajudicial documents in civil or
commercial matters


Official Journal L 160 , 30/06/2000 p. 0037 – 0043
Transnational Litigation
Service abroad

Council regulation (EC) No 1348/2000 (Service
Regulation)

Article 1 Scope
1. This Regulation shall apply in civil and
commercial matters where a judicial or
extrajudicial document has to be transmitted from
one Member State to another for service there.
2. This Regulation shall not apply where the
address of the person to be served with the
document is not known.
Transnational Litigation
Service abroad

Council regulation (EC) No 1348/2000 (Service
Regulation)

Article 2 Transmitting and receiving agencies
1. Each Member State shall designate the public officers,
authorities or other persons, hereinafter referred to as
"transmitting agencies", competent for the transmission of
judicial or extrajudicial documents to be served in another
Member State.
2. Each Member State shall designate the public officers,
authorities or other persons, hereinafter referred to as
"receiving agencies", competent for the receipt of judicial or
extrajudicial documents from another Member State.
Transnational Litigation
Service abroad

Council regulation (EC) No 1348/2000 (Service Regulation)

Article 3 Central body

Each Member State shall designate a central body responsible for:
(a) supplying information to the transmitting agencies;
(b) seeking solutions to any difficulties which may arise during
transmission of documents for service;
(c) forwarding, in exceptional cases, at the request of a transmitting
agency, a request for service to the competent receiving agency.
A federal State, a State in which several legal systems apply or a State
with autonomous territorial units shall be free to designate more than one
central body.
Transnational Litigation
Service abroad

Council regulation (EC) No 1348/2000 (Service Regulation)

Article 4 Transmission of documents
1. Judicial documents shall be transmitted directly and as soon as possible between the agencies designated
on the basis of Article 2.
2. The transmission of documents, requests, confirmations, receipts, certificates and any other papers
between transmitting agencies and receiving agencies may be carried out by any appropriate means,
provided that the content of the document received is true and faithful to that of the document forwarded and
that all information in it is easily legible.
3. The document to be transmitted shall be accompanied by a request drawn up using the standard form in
the Annex. The form shall be completed in the official language of the Member State addressed or, if there
are several official languages in that Member State, the official language or one of the official languages of the
place where service is to be effected, or in another language which that Member State has indicated it can
accept. Each Member State shall indicate the official language or languages of the European Union other than
its own which is or are acceptable to it for completion of the form.
4. The documents and all papers that are transmitted shall be exempted from legalisation or any equivalent
formality.
5. When the transmitting agency wishes a copy of the document to be returned together with the certificate
referred to in Article 10, it shall send the document in duplicate.
Transnational Litigation
Service abroad

Council regulation (EC) No 1348/2000
(Service Regulation)

Article 7 Service of documents
1. The receiving agency shall itself serve the document or have it served,
either in accordance with the law of the Member State addressed or by a
particular form requested by the transmitting agency, unless such a method
is incompatible with the law of that Member State.
2. All steps required for service of the document shall be effected as soon
as possible. In any event, if it has not been possible to effect service within
one month of receipt, the receiving agency shall inform the transmitting
agency by means of the certificate in the standard form in the Annex, which
shall be drawn up under the conditions referred to in Article 10(2). The
period shall be calculated in accordance with the law of the Member State
addressed.
Transnational Litigation
Service abroad
 Council
regulation (EC) No
1348/2000 (Service Regulation)

Article 12 Transmission by consular or diplomatic channels

Each Member State shall be free, in exceptional
circumstances, to use consular or diplomatic channels to
forward judicial documents, for the purpose of service, to
those agencies of another Member State which are
designated pursuant to Article 2 or 3.
Transnational Litigation
Service abroad

Council regulation (EC) No 1348/2000
(Service Regulation)

Article 13 Service by diplomatic or consular agents

1. Each Member State shall be free to effect service of judicial
documents on persons residing in another Member State, without
application of any compulsion, directly through its diplomatic or
consular agents.
2. Any Member State may make it known, in accordance with Article
23(1), that it is opposed to such service within its territory, unless
the documents are to be served on nationals of the Member State in
which the documents originate.
Transnational Litigation
Service abroad
 Council
regulation (EC) No
1348/2000 (Service Regulation)

Article 14 Service by post

1. Each Member State shall be free to effect service of
judicial documents directly by post to persons residing in
another Member State.
2. Any Member State may specify, in accordance with Article
23(1), the conditions under which it will accept service of
judicial documents by post.
Transnational Litigation
Service abroad
 Council
regulation (EC) No
1348/2000 (Service Regulation)

Article 15 Direct service
1. This Regulation shall not interfere with the freedom of any
person interested in a judicial proceeding to effect service of
judicial documents directly through the judicial officers,
officials or other competent persons of the Member State
addressed.
2. Any Member State may make it known, in accordance with
Article 23(1), that it is opposed to the service of judicial
documents in its territory pursuant to paragraph 1.
Transnational Litigation
Service abroad

Council regulation (EC) No 1348/2000
(Service Regulation)

Article 19 Defendant not entering an appearance

1. Where a writ of summons or an equivalent document has had to be
transmitted to another Member State for the purpose of service, under the
provisions of this Regulation, and the defendant has not appeared,
judgment shall not be given until it is established that:
(a) the document was served by a method prescribed by the internal law of
the Member State addressed for the service of documents in domestic
actions upon persons who are within its territory; or
(b) the document was actually delivered to the defendant or to his residence
by another method provided for by this Regulation;
and that in either of these cases the service or the delivery was effected in
sufficient time to enable the defendant to defend.
Transnational Litigation
Service abroad

Council regulation (EC) No 1348/2000
(Service Regulation)

Article 20 Relationship with agreements or arrangements to which
Member States are Parties
1. This Regulation shall, in relation to matters to which it applies,
prevail over other provisions contained in bilateral or multilateral
agreements or arrangements concluded by the Member States, and
in particular Article IV of the Protocol to the Brussels Convention of
1968 and the Hague Convention of 15 November 1965.
2. This Regulation shall not preclude individual Member States from
maintaining or concluding agreements or arrangements to expedite
further or simplify the transmission of documents, provided that
they are compatible with this Regulation.
Transnational Litigation
Service abroad

Service abroad

CONVENTION ON THE SERVICE ABROAD OF JUDICIAL AND
EXTRAJUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL
MATTERS (Concluded November 15, 1965)

Article 2
 Each Contracting State shall designate a Central Authority which will
undertake to receive requests for service coming from other Contracting
States and to proceed in conformity with the provisions of Articles 3 to 6.
 Each State shall organise the Central Authority in conformity with its own
law.
Transnational Litigation
Service abroad

CONVENTION ON THE SERVICE ABROAD OF JUDICIAL AND
EXTRAJUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL
MATTERS (Concluded November 15, 1965)
 Article 3
 The authority or judicial officer competent under the law of the State in
which the documents originate shall forward to the Central Authority of
the State addressed a request conforming to the model annexed to the
present Convention, without any requirement of legalisation or other
equivalent formality.
 The document to be served or a copy thereof shall be annexed to the
request. The request and the document shall both be furnished in
duplicate.
Transnational Litigation
Service abroad

Article 5

The Central Authority of the State addressed shall itself serve the
document or shall arrange to have it served by an appropriate agency,
either –
a) by a method prescribed by its internal law for the service of
documents in domestic actions upon persons who are within its territory,
or
b) by a particular method requested by the applicant, unless such a
method is incompatible with the law of the State addressed.
Article 6
The Central Authority of the State addressed or any authority which it
may have designated for that purpose shall complete a certificate in the
form of the model annexed to the present Convention.
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Transnational Litigation
Service abroad

CONVENTION ON THE SERVICE ABROAD OF JUDICIAL AND
EXTRAJUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL
MATTERS (Concluded November 15, 1965)
 Article 8
 Each Contracting State shall be free to effect service of judicial
documents upon persons abroad, without application of any
compulsion, directly through its diplomatic or consular agents.
 Any State may declare that it is opposed to such service within its
territory, unless the document is to be served upon a national of the
State in which the documents originate.
Transnational Litigation
Service abroad
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CONVENTION ON THE SERVICE ABROAD OF JUDICIAL AND
EXTRAJUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL
MATTERS (Concluded November 15, 1965)
Article 10
Provided the State of destination does not object, the present
Convention shall not interfere with –
a) the freedom to send judicial documents, by postal channels,
directly to persons abroad,
b) the freedom of judicial officers, officials or other competent
persons of the State of origin to effect service of judicial documents
directly through the judicial officers, officials or other competent
persons of the State of destination,
c) the freedom of any person interested in a judicial proceeding to
effect service of judicial documents directly through the judicial
officers, officials or other competent persons of the State of
destination.
Transnational Litigation
Service abroad



Convention v. Domestic Law
U.S. Supreme Court, Volkswagen Aktiengesellschaft v. Schlunk,
486 U.S. 694 (1988)
The Convention does not specify the circumstances in which
there is "occasion to transmit" a complaint "for service abroad."
But at least the term "service of process" has a well established
technical meaning. Service of process refers to a formal delivery
of documents that is legally sufficient to charge the defendant
with notice of a pending action.
Transnational Litigation
Service abroad



Convention v. Domestic Law
U.S. Supreme Court, Volkswagen Aktiengesellschaft v. Schlunk,
486 U.S. 694 (1988)
VWAG protests that it is inconsistent with the purpose of the
Convention to interpret it as applying only when the internal law of
the forum requires service abroad. One of the two stated
objectives of the Convention is "to create appropriate means to
ensure that judicial and extrajudicial documents to be served
abroad shall be brought to the notice of the addressee in
sufficient time."
Transnational Litigation
Service abroad


Convention v. Domestic Law
There is no question but that the Conference wanted to
eliminate notification au parquet. Id. at 75-77. It included in
the Convention two provisions that address the problem.
Article 15 says that a judgment may not be entered unless a
foreign defendant received adequate and timely notice of the
lawsuit.
Transnational Litigation
Service abroad

Convention v. Domestic Law

VWAG explains that, as a practical matter, VWoA was certain to transmit the complaint
to Germany to notify VWAG of the litigation. Indeed, as a legal matter, the Due Process
Clause requires every method of service to provide "notice reasonably calculated,
under all the circumstances, to apprise interested parties of the pendency of the action
and afford them an opportunity to present their objections."
Mullane v. Central Hanover Bank & Trust Co., supra, at 339 U. S. 314. VWAG argues
that, because of this notice requirement, every case involving service on a foreign
national will present an "occasion to transmit a judicial . . . document for service
abroad" within the meaning of Article 1. Tr. of Oral Arg. 8. VWAG emphasizes that, in
this case, the Appellate Court upheld service only after determining that "the
relationship between VWAG and VWoA is so close that it is certain that VWAG 'was
fully apprised of the pendency of the action' by delivery of the summons to VWoA."

Transnational Litigation
Service abroad

Convention v. Domestic Law

We reject this argument. Where service on a domestic agent is valid and
complete under both state law and the Due Process Clause, our inquiry
ends and the Convention has no further implications. Whatever internal,
private communications take place between the agent and a foreign
principal are beyond the concerns of this case. The only transmittal to
which the Convention applies is a transmittal abroad that is required as a
necessary part of service. And, contrary to VWAG's assertion, the Due
Process Clause does not require an official transmittal of documents abroad
every time there is service on a foreign national. Applying this analysis, we
conclude that this case does not present an occasion to transmit a judicial
document for service abroad within the meaning of Article 1. Therefore the
Hague Service Convention does not apply, and service was proper. The
judgment of the Appellate Court is
Affirmed.
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Transnational Litigation
Service abroad




Convention v. Domestic Law
Service by mail
The other important question was whether service
of process was available by mail under Article 10
of the Convention.
This question was decided in the negative in
Bankston v. Toyota, 889 F.2d 172
Transnational Litigation
Taking evidence abroad

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
Hypo:
Ben sues Chris in the U.S. for personal injury.
Witnesses and pieces of evidence are in
Germany.
How can evidence been produced in the U.S.
court?
Chris sues Ben in a German court. Witnesses
are in the U.S. and in France.
How can evidence been produced in the
German court?
Transnational Litigation
Taking evidence abroad


Among EU Member States:
COUNCIL REGULATION (EC) No 1206/2001
of 28 May 2001 on cooperation between the
courts of the Member States in the taking
of evidence in civil or commercial matters

Official Journal of the European Communities L 174/1 of
27.6.2001

Otherwise:

CONVENTION ON THE TAKING OF EVIDENCE ABROAD IN
CIVIL OR COMMERCIAL MATTERS

(Concluded March 18, 1970)

Or: Addressing the host state
Transnational Litigation
Taking evidence abroad

COUNCIL REGULATION (EC) No 1206/2001 of 28 May 2001
on cooperation between the courts of the Member States in
the taking of evidence in civil or commercial matters

Article 1
Scope
1. This Regulation shall apply in civil or commercial matters
where the court of a Member State, in accordance with the
provisions of the law of that State, requests:
a) the competent court of another Member State to take
evidence; or
b) to take evidence directly in another Member State.
…
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Transnational Litigation
Taking evidence abroad

COUNCIL REGULATION (EC) No 1206/2001 of 28 May 2001
on cooperation between the courts of the Member States in
the taking of evidence in civil or commercial matters

Article 2
Direct transmission between the courts
1. Requests pursuant to Article 1(1)(a), hereinafter referred to
as "requests", shall be transmitted by the court before which
the proceedings are commenced or contemplated,
hereinafter referred to as the "requesting court", directly to
the competent court of another Member State, hereinafter
referred to as the "requested court", for the performance of
the taking of evidence.
…
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
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Transnational Litigation
Taking evidence abroad

COUNCIL REGULATION (EC) No 1206/2001 of 28 May 2001
on cooperation between the courts of the Member States in
the taking of evidence in civil or commercial matters

Article 3
Central Body
1. Each Member State shall designate a central body
responsible for:
a) supplying information to the courts;
b) seeking solutions to any difficulties which may arise in
respect of a request;
c) forwarding, in exceptional cases, at the request of a
requesting court, a request to the competent court.
…
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Transnational Litigation
Taking evidence abroad

COUNCIL REGULATION (EC) No 1206/2001 of 28 May 2001
on cooperation between the courts of the Member States in
the taking of evidence in civil or commercial matters

Article 4
Form and content of the request
1. The request shall be made using form A or, where
appropriate, form I in the Annex. It shall contain the following
details:
a) the requesting and, where appropriate, the requested
court;
b) the names and addresses of the parties to the
proceedings and their representatives, if any;
…





Transnational Litigation
Taking evidence abroad

COUNCIL REGULATION (EC) No 1206/2001 of 28 May 2001
on cooperation between the courts of the Member States in
the taking of evidence in civil or commercial matters

Article 6
Transmission of requests and other communications
Requests and communications pursuant to this Regulation
shall be transmitted by the swiftest possible means, which
the requested Member State has indicated it can accept. The
transmission may be carried out by any appropriate means,
provided that the document received accurately reflects the
content of the document forwarded and that all information
in it is legible.


Transnational Litigation
Taking evidence abroad

COUNCIL REGULATION (EC) No 1206/2001 of 28 May 2001
on cooperation between the courts of the Member States in
the taking of evidence in civil or commercial matters

Article 7
Receipt of request
1. Within seven days of receipt of the request, the requested
competent court shall send an acknowledgement of receipt
to the requesting court using form B in the Annex. Where the
request does not comply with the conditions laid down in
Articles 5 and 6, the requested court shall enter a note to that
effect in the acknowledgement of receipt.
…



Transnational Litigation
Taking evidence abroad

COUNCIL REGULATION (EC) No 1206/2001 of 28 May 2001 on cooperation
between the courts of the Member States in the taking of evidence in civil or
commercial matters

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
Article 10
General provisions on the execution of the request
1. The requested court shall execute the request without delay and, at the
latest, within 90 days of receipt of the request.
2. The requested court shall execute the request in accordance with the law
of its Member State.
3, The requesting court may call for the request to be executed in
accordance with a special procedure provided for by the law of its Member
State, using form A in the Annex. The requested court shall comply with
such a requirement unless this procedure is incompatible with the law of
the Member State of the requested court or by reason of major practical
difficulties. If the requested court does not comply with the requirement for
one of these reasons it shall inform the requesting court using form E in the
Annex.
…
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Transnational Litigation
Taking evidence abroad

COUNCIL REGULATION (EC) No 1206/2001 of 28 May 2001
on cooperation between the courts of the Member States in
the taking of evidence in civil or commercial matters

Article 11
Performance with the presence and participation of the
parties
1. If it is provided for by the law of the Member State of the
requesting court, the parties and, if any, their
representatives, have the right to be present at the
performance of the taking of evidence by the requested
court.
…
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Transnational Litigation
Taking evidence abroad

COUNCIL REGULATION (EC) No 1206/2001 of 28 May 2001 on
cooperation between the courts of the Member States in the taking
of evidence in civil or commercial matters

Article 14
Refusal to execute
1. A request for the hearing of a person shall not be executed when
the person concerned claims the right to refuse to give evidence or
to be prohibited from giving evidence,
a) under the law of the Member State of the requested court; or
b) under the law of the Member State of the requesting court, and
such right has been specified in the request, or, if need be, at the
instance of the requested court, has been confirmed by the
requesting court.
2. In addition to the grounds referred to in paragraph 1, the
execution of a request may be refused only if:
…
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Transnational Litigation
Taking evidence abroad

COUNCIL REGULATION (EC) No 1206/2001 of 28 May 2001
on cooperation between the courts of the Member States in
the taking of evidence in civil or commercial matters

Article 17
1. Where a court requests to take evidence directly in
another Member State, it shall submit a request to the central
body or the competent authority referred to in Article 3(3) in
that State, using form I in the Annex.
2. Direct taking of evidence may only take place if it can be
performed on a voluntary basis without the need for coercive
measures.
Where the direct taking of evidence implies that a person
shall be heard, the requesting court shall inform that person
that the performance shall take place on a voluntary basis.
…
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Transnational Litigation
Taking evidence abroad

CONVENTION ON THE TAKING OF
EVIDENCE ABROAD IN CIVIL OR
COMMERCIAL MATTERS

(Concluded March 18, 1970)

Transnational Litigation
Taking evidence abroad

CONVENTION ON THE TAKING OF EVIDENCE
ABROAD IN CIVIL OR COMMERCIAL MATTERS

(Concluded March 18, 1970)
Article 1
 In civil or commercial matters a judicial
authority of a Contracting State may, in
accordance with the provisions of the law of
that State, request the competent authority of
another Contracting State, by means of a
Letter of Request, to obtain evidence, or to
perform some other judicial act.

Transnational Litigation
Taking evidence abroad

CONVENTION ON THE TAKING OF EVIDENCE
ABROAD IN CIVIL OR COMMERCIAL MATTERS

(Concluded March 18, 1970)

Article 2
A Contracting State shall designate a Central Authority
which will undertake to receive Letters of Request
coming from a judicial authority of another Contracting
State and to transmit them to the authority competent
to execute them. Each State shall organize the Central
Authority in accordance with its own law.
Letters shall be sent to the Central Authority of the
State of execution without being transmitted through
any other authority of that State.
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Transnational Litigation
Taking evidence abroad

CONVENTION ON THE TAKING OF EVIDENCE
ABROAD IN CIVIL OR COMMERCIAL MATTERS

(Concluded March 18, 1970)

Article 3
A Letter of Request shall specifya) the authority requesting its execution and the authority
requested to execute it, if known to the requesting authority;
b) the names and addresses of the parties to the proceedings
and their representatives, if any;
c) the nature of the proceedings for which the evidence is
required, giving all necessary information in regard thereto;
d) the evidence to be obtained or other judicial act to be
performed. …
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Transnational Litigation
Taking evidence abroad

CONVENTION ON THE TAKING OF
EVIDENCE ABROAD IN CIVIL OR
COMMERCIAL MATTERS

(Concluded March 18, 1970)

Article 6
If the authority to whom a Letter of Request has been
transmitted is not competent to execute it, the Letter
shall be sent forthwith to the authority in the same
State which is competent to execute it in accordance
with the provisions of its own law.
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Transnational Litigation
Taking evidence abroad

CONVENTION ON THE TAKING OF EVIDENCE
ABROAD IN CIVIL OR COMMERCIAL MATTERS

(Concluded March 18, 1970)

Article 9
The judicial authority which executes a Letter of Request shall
apply its own law as to the methods and procedures to be
followed.
However, it will follow a request of the requesting authority that a
special method or procedure be followed, unless this is
incompatible with the internal law of the State of execution or is
impossible of performance by reason of its internal practice and
procedure or by reason of practical difficulties.
A Letter of Request shall be executed expeditiously.
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Transnational Litigation
Taking evidence abroad

CONVENTION ON THE TAKING OF
EVIDENCE ABROAD IN CIVIL OR
COMMERCIAL MATTERS

(Concluded March 18, 1970)


Article 10
In executing a Letter of Request the requested
authority shall apply the appropriate measures of
compulsion in the instances and to the same extent as
are provided by its internal law for the execution of
orders issued by the authorities of its own country or of
requests made by parties in internal proceedings.
Transnational Litigation
Taking evidence abroad

CONVENTION ON THE TAKING OF EVIDENCE
ABROAD IN CIVIL OR COMMERCIAL MATTERS

(Concluded March 18, 1970)


Article 11
In the execution of a Letter of Request the person concerned may refuse
to give evidence in so far as he has a privilege or duty to refuse to give
the evidence –
 a) under the law of the State of execution; or
 b) under the law of the State of origin, and the privilege or duty has been
specified in the Letter, or, at the instance of the requested authority, has
been otherwise confirmed to that authority by the requesting authority.
 A Contracting State may declare that, in addition, it will respect privileges
and duties existing under the law of States other than the State of origin
and the State of execution, to the extent specified in that declaration.
Transnational Litigation
Taking evidence abroad

CONVENTION ON THE TAKING OF
EVIDENCE ABROAD IN CIVIL OR
COMMERCIAL MATTERS

(Concluded March 18, 1970)


Article 15
In civil or commercial matters, a diplomatic officer or
consular agent of a Contracting State may, in the
territory of another Contracting State and within the
area where he exercises his functions, take the
evidence without compulsion of nationals of a State
which he represents in aid of proceedings commenced
in the courts of a State which he represents.
Transnational Litigation
Taking evidence abroad

CONVENTION ON THE TAKING OF
EVIDENCE ABROAD IN CIVIL OR
COMMERCIAL MATTERS

(Concluded March 18, 1970)


Article 23
A Contracting State may at the time of
signature, ratification or accession, declare
that it will not execute Letters of Request
issued for the purpose of obtaining pre-trial
discovery of documents as known in Common
Law countries.
Transnational Litigation
Taking evidence abroad
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Blocking Statutes
Law enacted in one jurisdiction to
obstruct the local (extra jurisdictional)
application of a law enacted in another
jurisdiction.
Transnational Litigation
Taking evidence abroad

Blocking Statutes

In Accessdata Corp. v. Alste Techs. Gmbh, 2010 U.S. Dist.
LEXIS 4566 (D. Utah Jan. 21, 2010), a United States based
company entered into a contract with a German company to sell
electronic discovery forensic software in Germany. Litigation
followed after the German Defendant failed to pay the Plaintiff for
software sales. The Defendant objected to producing electronic
discovery of third parties based on German law and the Hague
Convention.
The Court quickly defeated the Defendant’s objections based on
German law and the Hagee Convention, citing the US Supreme
Court case Societe Nationale Industrielle Aerospatiale v. United
States District Court, 482 U.S. 522, 544 (1987).
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Transnational Litigation
Taking evidence abroad

Blocking Statutes

The French blocking statute is the amended version of a 1968
statute which, at the time, prohibited communication to “foreign
authorities” of any document or information relating to carriage by
sea if such communication would have been contrary to “the rules
of international law or likely to hurt the sovereignty of the French
state”. In 1980, this provision (art. 1) was amended, and another
one (art. 1bis) was added, which prohibits any person from
seeking to obtain or communicating documents or information for
the purpose of constituting evidence in foreign judicial or
administrative proceedings. The new art. 1bis applies to
documents or information of almost any kind (i.e. of economic,
commercial, industrial, financial or technical kind). The statute
imposes criminal penalties, which can go up to 6 months of
prison, and a fine up to €18,000.
Transnational Litigation
Taking evidence abroad
 CONVENTION
ON THE
TAKING OF EVIDENCE
ABROAD IN CIVIL OR
COMMERCIAL MATTERS

(Concluded March 18, 1970)
Transnational Litigation
Recognition and Enforcement

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Hypo:
While Chris was on vacation in Florida, where at the same time he
opened a small account with an American Bank, Ben had him tagged
and then sued in an U.S. Court.
Ben duly served the writ of summons accompanied by the complained
based on the Hague Service Convention. Chris did not appear in the
U.S. Court. Ben got a default judgment ordering Chris to pay
$ 50,000 for medical expenses, which he had when having his teeth
repaired
$ 200,000 for pain and suffering
$ 800,000 in punitive damages because Chris had recklessly harmed
him.
The judgment has become final. Ben now wants to enforce the judgment
in the Florida. However, as Chris’s account over there is relatively small,
Ben wants to enforce the judgment as well in Augsburg, where Chris
owns real property
Transnational Litigation
Recognition and Enforcement
Vice versa:
 Chris sues Ben in Augsburg, where Ben
had forgotten his suitcase full of dirty
laundry.
 Chris is awarded a final judgment, which
he wants to enforce in part in France,
where Ben has some property, and for
the rest in the U.S.
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Transnational Litigation
Recognition and Enforcement
What is a judgment?
 A judgment is an official document
expressing the power of the state and
enforced by the state
 The power of the state ends at ist border
lines
 Outside the state a judgment is just qa
piece of paper

Transnational Litigation
Recognition and Enforcement

Regulation Brussels I

Article 33
1. A judgment given in a Member State shall be recognised in the
other Member States without any special procedure being
required.
2. Any interested party who raises the recognition of a judgment
as the principal issue in a dispute may, in accordance with the
procedures provided for in Sections 2 and 3 of this Chapter, apply
for a decision that the judgment be recognised.
3. If the outcome of proceedings in a court of a Member State
depends on the determination of an incidental question of
recognition that court shall have jurisdiction over that question.
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Transnational Litigation
Recognition and Enforcement

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Regulation Brussels I
Article 34
A judgment shall not be recognised:
 1. if such recognition is manifestly contrary to public policy in the Member
State in which recognition is sought; 2. where it was given in default of
appearance, if the defendant was not served with the document which
instituted the proceedings or with an equivalent document in sufficient
time and in such a way as to enable him to arrange for his defence,
unless the defendant failed to commence proceedings to challenge the
judgment when it was possible for him to do so;
 3. if it is irreconcilable with a judgment given in a dispute between the
same parties in the Member State in which recognition is sought;
 4. if it is irreconcilable with an earlier judgment given in another Member
State or in a third State involving the same cause of action and between
the same parties, provided that the earlier judgment fulfils the conditions
necessary for its recognition in the Member State addressed.
Transnational Litigation
Recognition and Enforcement

Regulation Brussels I
Article 35
 1. Moreover, a judgment shall not be
recognised if it conflicts with Sections 3,
4 or 6 of Chapter II, or in a case provided
for in Article 72.
…
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Transnational Litigation
Recognition and Enforcement

Regulation Brussels I
Article 36
 Under no circumstances may a foreign
judgment be reviewed as to its
substance.

Transnational Litigation
Recognition and Enforcement

Regulation Brussels I

Enforcement
Article 38
1. A judgment given in a Member State and enforceable in that
State shall be enforced in another Member State when, on the
application of any interested party, it has been declared
enforceable there.
2. However, in the United Kingdom, such a judgment shall be
enforced in England and Wales, in Scotland, or in Northern
Ireland when, on the application of any interested party, it has
been registered for enforcement in that part of the United
Kingdom.
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Transnational Litigation
Recognition and Enforcement

Regulation Brussels I



Enforcement
Article 41
The judgment shall be declared enforceable
immediately on completion of the formalities in
Article 53 without any review under Articles 34
and 35. The party against whom enforcement
is sought shall not at this stage of the
proceedings be entitled to make any
submissions on the application.
Transnational Litigation
Recognition and Enforcement

Regulation Brussels I

Enforcement
Article 43
1. The decision on the application for a declaration of
enforceability may be appealed against by either party.
2. The appeal is to be lodged with the court indicated
in the list in Annex III.
3. The appeal shall be dealt with in accordance with
the rules governing procedure in contradictory matters.
…
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Transnational Litigation
Recognition and Enforcement

Regulation Brussels I

Enforcement
Article 47
1. When a judgment must be recognised in
accordance with this Regulation, nothing shall prevent
the applicant from availing himself of provisional,
including protective, measures in accordance with the
law of the Member State requested without a
declaration of enforceability under Article 41 being
required.
…
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Transnational Litigation
Recognition and Enforcement

Hilton v. Guyot

Mr. Justice GRAY, after stating the case, delivered the opinion of
the court.
These two cases-the one at law and the other in equity-of Hilton
v. Guyot, and the case of Ritchie v. McMullen, 16 Sup. Ct. 171,
which has been under advisement at the same time, present
important questions relating to the force and effect of foreign
judgments, not hitherto adjudicated by this court, which have
been argued [159 U.S. 113, 163] with great learning and ability,
and which require for their satisfactory determination a full
consideration of the authorities. To avoid confusion in indicating
the parties, it will be convenient first to take the case at law of
Hilton v. Guyot.
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Transnational Litigation
Recognition and Enforcement

Hilton v. Guyot
 The most certain guide, no doubt, for the
decision of such questions is a treaty or a
statute of this country. But when, as is the
case here, there is no written law upon the
subject, the duty still rests upon the judicial
tribunals of ascertaining and declaring what
the law is, whenever it becomes necessary to
do so, in order to determine the rights of
parties to suits regularly broght before them.
Transnational Litigation
Recognition and Enforcement


Hilton v. Guyot
No law has any effect, of its own force, beyond the
limits of the sovereignty from which its authority is
derived. The extent to which the law of one nation, as
put in force within its territory, whether by executive
order, by legislative act, or by judicial decree, shall be
allowed to operate within the dominion of another
nation, depends upon what our greatest jurists have
been content to call 'the comity of nations.' Although
the phrase has been often criticised, no satisfactory
substitute has been suggested.
Transnational Litigation
Recognition and Enforcement

Hilton v. Guyot
 'Comity,' in the legal sense, is neither a matter
of absolute [159 U.S. 113, 164] obligation, on
the one hand, nor of mere courtesy and good
will, upon the other. But it is the recognition
which one nation allows within its territory to
the legislative, executive, or judicial acts of
another nation, having due regard both to
international duty and convenience, and to the
rights of its own citizens, or of other persons
was are under the protection of its laws.
Transnational Litigation
Recognition and Enforcement

Hilton v. Guyot

Mr. Wheaton says: 'All the effect which foreign laws can have
in the territory of a state depends absolutely on the express
or tacit consent of that state.' 'The express consent of a state
to the application of foreign laws within its territory is given
by acts passed by its legislative authority, or by treaties
concluded with other states. Its tacit consent is manifested
by the decisions of its judicial and administrative authorities,
as well as by the writings of its publicists. There is no
obligation recognized by legislators, public authorities, and
publicists to regard foreign laws; but their application is
admitted only from considerations of utility and the mutual
convenience of states,-'ex comitate, ob reciprocam
utilitatem." Wheat. Int. Law (8th Ed.) 78, 79.
Transnational Litigation
Recognition and Enforcement

UNIFORM FOREIGN MONEY-JUDGMENTS
RECOGNITION ACT
 SECTION 3. [Recognition and
Enforcement.]
 Except as provided in section 4, a foreign
judgment meeting the requirements of section
2 is conclusive between the parties to the
extent that it grants or denies recovery of a
sum of money. The foreign judgment is
enforceable in the same manner as the
judgment of a sister state which is entitled to
full faith and credit.
Transnational Litigation
Recognition and Enforcement

German Code of Civil Procedure
 § 722:
 (1) The judgment of a foreign court shall not be
enforced except by virtue of a judgment for
enforcement.
 (2) Jurisdiction to pronounce such a judgment for
enforcement shall be exercised by the Amtsgericht
(County Court) or Landgericht (District Court)
respectively, having general jurisdiction over the
debtor, or otherwise by the Amtsgericht or Landgericht
respectively, before which an action may be brought
against the debtor under § 723.
Transnational Litigation
Recognition and Enforcement

German Code of Civil Procedure



§ 328:
The judgment of a foreign court shall not be recognized:
(1) where the courts of the country to which the foreign court belongs have no
jurisdiction under German law;
(2) where the documents instigating the proceedings were not served on the
defendant in accordance with law or in such a timely manner that he could defend
himself and he made no appearance and he pleads this fact;
(3) where the judgment conflicts with a German judgment or with an earlier
recognizable foreign judgment or where the proceedings underlying the foreign
judgment conflict with a German proceeding that began before the foreign
proceeding;
(4) where recognition of the judgment would lead to a result that would clearly
conflict with essential principles of German law, in particular where recognition
would conflict with the German constitution (Basic Law: Grundgesetz);
(5) where reciprocity is not guaranteed.
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Transnational Litigation
Recognition and Enforcement



Bundesgerichtshof (Federal Supreme Court)
On June 4, 1992, the Federal Supreme Court
reviewed the Duesseldorf judgment on further appeal
of both parties. [FN82] The Federal Supreme Court's
perspective of the public policy requirement differed
somewhat from the Duesseldorf court. The Federal
Supreme Court held the following:
(a) The fact that evidence was collected during pretrial
discovery in a U.S. proceeding does not by itself
constitute grounds for denying enforcement due to a
violation of German public policy, even though this
method of collecting evidence differs from the German
notion of a fair trial.
Transnational Litigation
Recognition and Enforcement

Bundesgerichtshof (Federal Supreme
Court)
 (b) Although the U.S. adjudication of damages
differs from German judicial practice, the fact
that a U.S. judgment grants damages for
prospective medical expenses, regardless of
whether or not the victim purchases, or is
willing to purchase, medical treatment with the
amount of damages awarded, does not
prevent a German court from enforcing the
U.S. judgment due to a violation of German
public policy.
Transnational Litigation
Recognition and Enforcement

Bundesgerichtshof (Federal Supreme
Court)
 (c) The fact that a U.S. judgment award
includes a contingency fee, even in the
amount of 40% of the total damage award,
does not prevent a German court from
enforcing the judgment based on public policy
grounds, even though contingency fees are
forbidden under German law.
Transnational Litigation
Recognition and Enforcement


Bundesgerichtshof (Federal Supreme Court)
(d) Even if the U.S. judgment conflicts with
fundamental principles of German law by granting
damages for anxiety, pain and suffering in an amount
in excess of the amount that would be granted by a
German court in similar circumstances, the German
court shall not deny enforcement based on public
policy grounds. The German court is not required to
decide the issue of awarding damages. In cases in
which the action is totally embedded in the foreign
jurisdiction aside from the fact that the judgment
debtor's assets are located in Germany, the German
court need only decide whether to enforce the foreign
judgment.
Transnational Litigation
Recognition and Enforcement



Bundesgerichtshof (Federal Supreme Court)
(e) Although punitive and exemplary damages are an aspect of
private law, and not criminal law, an award of punitive and
exemplary damages is fundamentally contrary to German public
policy even in enforcement cases. In
the past, German law has adhered to a theory of awarding
damages in which awards are exclusively restricted to
reimbursing the victim for what he has lost. This theory is a
fundamental principle of German law. Therefore, insofar as the
U.S. judgment states that the punitive damage award
compensates the plaintiff only for what he has lost or will lose,
which in this case has not been evidenced, the Federal Supreme
Court is willing to enforce a U.S. judgment awarding punitive
damages.
Transnational Litigation
Recognition and Enforcement
Bundesgerichtshof (Federal Supreme
Court)
 The fundamental principle of the German
law of damages is compensation and
nothing but compensation for loss
 Punitive damages as such are contrary
to German public policy
