An Amalgamation of Conflict of Laws
Conflict of Laws, Winter 2014, BYU Law, Prof. Wardle
I got the 4.0 in this class. I felt like this outline helped. But, with Professor Wardle, you should
always get his past tests from the library and take the time to answer the questions fully because he
repeats about 70% of his questions.
Contents
I. Introduction ............................................................................................................................................... 3
A.
Historical Approaches ...................................................................................................................... 3
B.
Historical Figures .............................................................................................................................. 3
C.
Purposes and Principles of Conflict of Laws ................................................................................ 3
II.
Traditional Choice of Law and Restatement First ............................................................................... 4
A.
Torts .................................................................................................................................................... 4
B.
Contracts ............................................................................................................................................ 4
C.
Escape Hatches ................................................................................................................................. 6
1. Substance v. Procedure .................................................................................................................... 6
2. Characterization ................................................................................................................................. 7
3. Renvoi ................................................................................................................................................. 7
4. Public Policy....................................................................................................................................... 7
5. Domicile ............................................................................................................................................. 8
D.
Property .............................................................................................................................................. 8
E.
Marriage .............................................................................................................................................. 9
III.
Contemporary Choice of Law and Restatement Second ..............................................................10
A.
Center of Gravity/Grouping of Contacts ...................................................................................10
B.
Governmental Interest Analysis....................................................................................................10
1. False Conflicts .................................................................................................................................11
2. Apparent or True Conflict .............................................................................................................11
3. No Interest or Unprovided-For Cases .........................................................................................12
C.
Comparative Impairment ...............................................................................................................12
D.
Better Rule of Law ..........................................................................................................................12
E.
Restatement Second ........................................................................................................................12
1. Torts ..................................................................................................................................................13
Page 1 of 35
2. Contracts ..........................................................................................................................................14
3. Questions of Domicile ...................................................................................................................15
F. Escape Valves ......................................................................................................................................15
1. Substance and Procedure ...............................................................................................................15
2. Characterization ...............................................................................................................................16
3. Renvoi ...............................................................................................................................................16
4. Public Policy.....................................................................................................................................16
5. Statutes of Limitation .....................................................................................................................16
G.
Lex Fori ............................................................................................................................................16
H.
Hybrid Approaches .........................................................................................................................16
IV.
Constitutional Concerns .....................................................................................................................17
A.
DPC & FFC .....................................................................................................................................18
B.
Requirement to Provide Forum ....................................................................................................18
C.
Federal Supremacy and Preemption .............................................................................................18
V.
Judgment Recognition............................................................................................................................19
A.
Full Faith and Credit .......................................................................................................................20
1. Exceptions ........................................................................................................................................20
2. Specialized Tribunals ......................................................................................................................21
3. Divorce .............................................................................................................................................21
4. International Child Abduction ......................................................................................................21
VI.
International Choice of Law ..............................................................................................................21
A.
Act of State Doctrine ......................................................................................................................22
B.
No Extra-Territorial Effect ...........................................................................................................22
VII.
International Jurisdiction ....................................................................................................................23
A.
Minimum Contacts .........................................................................................................................23
B.
Sovereign Immunity Limits ...........................................................................................................26
C.
Forum Selection Agreements ........................................................................................................28
D.
Forum Non Conveniens ................................................................................................................30
E.
Service of Process ...........................................................................................................................32
VIII.
International Judgment Recognition ............................................................................................33
A.
Foreign Arbitral Awards.................................................................................................................33
Page 2 of 35
I.
B.
Uniform Foreign Money Judgments Recognition Act ..............................................................34
C.
Domestic Relations Judgments .....................................................................................................35
Introduction
This course addresses three types of conflicts of law: (1) Choice of law, (2) Judgment
recognition, and (3) Jurisdiction. Disputes in these categories can arise on a horizontal basis
(state to state), vertical basis (state to federal), or diagonally (state or federal to foreign
country).
A.
Historical Approaches
 Territoriality Principle (Basically, law of forum, with maritime law being the
difficult child. Maritime law is incorporated into national law.)
 Substantivism (Subject of dispute)
 Personal Law Principle (who you are/where you are from)
B.
Historical Figures
Pilate & Herod
Ulric Huber, a Dutch thinker identifies sovereign territorial prerogative as the key
concept. There must be comity and voluntary acceptance of another sovereign’s law.
The forum should always retain discretion.
Justice Story—second English treatise on Conflict of Laws— emphasizes mutual
interest and utility, sense of inconveniences that would result, moral necessity to do
justice so that justice may be done in return.
Professor Beale believes in vested rights and incorporates them into the 1934
Restatement First.
Professor Currie was interested in looking to the purpose of relevant laws and asking
whether a jurisdiction has an interest in having its law govern the facts of a dispute.
Most significant relationship.
C.
Purposes and Principles of Conflict of Laws
 Resolve disputes—as in, there is value in ending a dispute, and that value
might higher than the value of getting the answer right.
 Avoid disputes (give a way to structure transactions to avoid disputes by
choosing forums and law)
 Maintain sovereignty (each sovereign needs to feel sovereign)
 Support interstate & international systems
 Protect and vindicate reasonable expectations
Page 3 of 35

II.
Justice
Traditional Choice of Law and Restatement First
The Restatement First focuses on the idea of vested rights. Theoretically, the Restatement
First’s rules always lead to an easy result. However, there are public policy exceptions and
escape valves for particularly heart-wrenching cases.
The Restatement Second or other crazy approaches have largely displaced the Restatement
First, but some states cling to it still. Others merely have opted to replace it piecemeal or
have some divided regime based on characterization.
Avoidance devices: tort v. contract, substantive v. procedural, performance v. obligation.
A.
Torts
§377: Location of wrong is the location of the last event necessary to make actor
liable. Poison? Where person felt ill. Fraud? Where loss is sustained.
§378: Law of place of wrong determines whether a person has sustained a legal
injury.
§380: Forum’s rules determine the standard of care for liability unless the place of
injury has a particular law or judicial decision.
§383: Whether act is legal cause of another’s injury is determined by the law of place
of wrong.
In essence . . . LEX LOCI DELECTI
Alabama GSRR Co. v. Carroll, 1892: Alabama railroad worker has misfortune to be
injured in Mississippi. Alabama has a special worker statute. Mississippi does not.
Plaintiff’s lawyers attempt to characterize as a question of contract, but the court
decides that it is a question of tort and applies LLD.
Laboratory Corp of American v. Hood, Md. 2006: Lap Corp screwed up a genetic
test conducted in North Carolina, though the effects were felt in Maryland. Under
LLD, this is clearly Maryland. However, Lab Corp attempts to invoke 380. Maryland
agrees to follow 380, but concludes that North Carolina has made no specific finding
as to standard of care in genetic tests.
B.
Contracts
Contracts differ from torts in that they are knowing and intentional. There are
different theories as to when the right to sue vests. (1) Presumption of parties as to
which law will govern. (2) Law of the place of performance/failure to perform. (3)
Place of contracting. The Restatement First favors place of contracting as much as
possible. LEX LOCI CONTRACTUS
Page 4 of 35
§311: Place of Contracting. The law of the forum decides in what location the
principal event necessary to create the contract occurred. Such location is
hereby dubbed the "place of contracting." Comment: BUT, this is not a
determination of whether there is a contract. This is a question of where the
event that might be the contract happened. Then, you can look to that state to
determine whether a contract exists.
§332: Law Governing Validity of Contract: The law of the place of contracting
determines the validity and effect of a promise with respect to capacity, necessary
form, mutual assent or consideration, any other requirements for making a promise
binding, fraud, nature and extent of duty for performance, time and place, absolute
or conditional character.
§333: Law of place of contracting determines capacity to enter contract.
§334: Law of place of contracting decides formalities.
§340: Law of place of contracting decides validity of a promise to transfer or convey
land.
§355: Place of Performance: either by specific provision or by interpretation of the
language of the promise, the promise is to be performed.
§358: Law Governing Performance: Duty for performance of which a party to a
contract is bound will be discharged by compliance with the law of the place of
performance of the promise with respect to manner, time/locality, persons to
whom rendered, sufficiency of performance, excuse for non-performance.
Comment: When application of the law of the place of contracting would extend to
the determination of the minute details of the manner, method, time, and sufficiency
of performance so that it would be an unreasonable regulation of acts in the place of
performance, the law of the place of contracting will cease to control and the law of
the place of performance will be applied. On the other hand, when the application of
the law of the place of performance would extend to a regulation of the substance of
the obligation to which the parties purported to bind themselves so that it would
unreasonably determine the effect of an agreement made in the place of contracting,
the law of the place of performance will give way to the law of the place of
contracting.
§360: Illegality of Performance: If it is illegal in place of performance, no obligation
so long as illegality continues. Law of place of performance controls whether must
be performed reasonably after no longer illegal. Comment: If both parties knew
illegal, no contract by law of place. If promisor did fraud or something, that puts
them on line. If it later becomes illegal, duty suspended.
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§361: Law of the place of performance determines details of the manner of
performing the duty imposed by the contract.
§370: Breach of performance: Law of place of performance determines whether
there has been a breach of performance.
Linn v. Employers Reinsurance, Pa. 1958: The Pennsylvania law is favorable, so
plaintiff sues there. The affirmative defense is that New York law applies because it
was the place of contracting. With telephone, the place where acceptance was spoken
is the place of contracting. (This was debated, but the court chose this for sake of
uniformity.) Defendant was unable to prove that NY was the place of contracting, so
the default forum law applied instead.
Moses V. Halstead & Allstate, 10th Cir. 2009: Basically, the court concludes that place
of contracting and place of performance were both in Kansas based on some
technicalities they latched onto. Obviously, the insurance policy was sold in Kansas.
Then, the offer to settle or some such occurred in Kansas, thought the accident and
trial were in Missouri.
Sturiano v. Brooks, Florida 1988: Florida chooses to stick to law of place of
contracting for insurance policies only because insurance companies should have a
measure of predictability when entering a contract with someone.
C.
Escape Hatches
The structure of the Restatement First gives some wiggle room.
1.
Substance v. Procedure
§ 584: Question of whether something is substance or procedure is decided
by law of the forum.
§ 585: All matters of procedure governed by forum law.
§ 588: Law of forum determines who may and must sue and be sued.
Federal courts must apply state substantive law.
Sampson v. Channell, 1st Cir 1940: The trick in this case is that the same law
is substantive for Erie purposes, but procedural for Massachusetts purposes.
Erie applies because if the federal court applies what it would otherwise
apply, the outcome is different. So, that makes the choice of law substantive.
But, in Massachusetts, burden of proof is procedural.
Federal courts sitting in diversity apply law of forum for conflicts.
Page 6 of 35
2.
Characterization
Is it contract, tort, or property? If contract, is it obligation or performance? If
it is obligation, is it capacity to contract or capacity to transfer property?
Forum law decides how to characterize—it is procedural.
Characterizations are often made in conclusory statements. No analysis.
Alabama v. Carroll, above, is an example of tort v. contract characterization.
Levy v. Daniels’ U-Drive Auto Renting Co., Connecticut 1928: Connecticut
law makes car rental companies liable for damages caused by their cars. A car
accident in Massachusetts follows. The question is whether this is tort of
contract. Car rental company is trying to make Massachusetts law apply.
Court concludes that this is contract and backs it up by saying that the statute
puts this in every contract and that the contract clause was for a plaintiff’s
direct, sole, and exclusive benefit.
3.
Renvoi
Literally, to send back unopened. If a court applies that, they bring in the
other states conflict laws, too. Estate of Joseph Damato rejects this, and
imports only the relevant Florida laws. Restatement does not like renvoi
either.
4.
Public Policy
§ 612: No action can be maintained upon a cause of action created in another
state the enforcement of which is contrary to the strong public policy of the
forum. Comment: Mere difference of law does not make something contrary
to public policy. Also, there is a difference between completely denying
access to the courts to enforce the thingy, and merely declining to apply a
foreign law.
Loucks v. Standard Oil Co. of New York, NY 1918: NY resident dies in
Massachusetts. Apparently, Mass. has a law deciding potential recovery.
Cardozo concludes that rights vest and follow people around. There needs to
be a strong public policy for a state to refuse to enforce the right. Similar
legislation in the state proves it is not against public policy, while a lack of
legislation is not significant. The courts are not free to refuse to enforce a
foreign right at the pleasure of the judges, to suit the individual notion of
expediency or fairness They do not close the doors unless help would violate
some fundamental principle of justice, some prevalent conception of good
morals, some deep-rooted tradition of the common weal. Nothing in the law
outrages public policy of NY.
Page 7 of 35
Raskin v. Allison, Kan. 2002: Mexico law applied to parties who are both
Kansas residents okay under LLD. Need a strong public policy, and that is
not here.
Arguably, if a court is accepting another sovereign’s public policy, isn’t it
saying that its own public policy is not as good?
5.
Domicile
Some conflict rules depend on domicile. This can turn into an escape hatch.
In re Dorrance’s Estate, Penn. 1932: Both states claim domicile based on
different reasons.
D.
Property
§214. 1. If words in instrument are operative in state of the property, then such
effect given by any state, regardless of intent. 2. Words in instrument that work
unless contrary intent shown as per law of local state will be given that effect
everywhere. 3. If words are used that don't follow under 1 or 2, then their meaning is
based on domicil of conveyor at time of conveyance.
§215: Validity of conveyance determined by property's state.
§216: Capacity determined by law of state where property is. Comment: Law of
domicil or location of conveyance irrelevant. Vice-versa. State of the property can
refer capacity question to another state via statute.
§217: Formalities for conveyance determined by law of property's location.
§218: Validity of conveyance is determined by law of state where land is.
§220: Effect upon interest in land is determined by law of state where land is.
§221: Nature of the interest created by conveyance is determined by state where land
is.
§225: Validity of mortgage/effect based on law of state where land is.
§235: Power to appoint land by will or deed can be exercised only by a will or deed
valid by the law of the state where the land is.
§237: Effect of marriage on ownership determined by law of state where the land is.
§245: Law of state where land is determined devolution after death.
§247: Law of state where land is determines eligibility of adopted children to inherit
land.
Page 8 of 35
§249: Validity and effect of a will of an interest in land are determined by the law of
the state where the land is.
§250: Revocation of will also determined by law of state where land is.
Hill v. Hill, Del. Ch. 1970: This turns into a characterization question. If it is a
contract that results in an obligation to transfer property, the result is lexi loci
contractus. But if it is something that is recordable at the county courthouse, then
you have a lex rei sitae question.
E.
Marriage
An uneasy compromise between contract (site of marriage) and status (site of
recognition/performance). Generally, marriages are valid if legal where occurred.
Evasion is even okay, sometimes.
§121: Marriage valid everywhere if the requirement of the marriage law of the state
where the contract of marriage takes place are complied with.
§122 Marriage invalid everywhere if mandatory requirement of locality is neglected.
§ 123: Common law marriage valid if valid in state where it allegedly took place.
§129: Evasion of domicile's marriage laws okay.
§131: Even if state of divorce forbad parties to remarry, they can marry in another
state unless the time period they can't marry is for an appeal, statute of domicile
applies ot other marriage, or marriage is invalid under 132.
§132: Marriage against law of state of domicil of either party is invalid even if state of
celebration laws is followed in following cases: polygamy, incest to point of violating
strong public policy, interracial, statute voids.
§133: Must give same effect to marriage of foreign jurisdictions.
In re May’s Estate: Incestuous Jewish marriage allowed because it was legal in state
of marriage. The NY anti-incest statute did not have extra-territorial force. Dissent
claims it is against strong public policy. Just simply was not offensive enough.
Catalano, Conn. 1961: Law of place not allowed. They somehow base this on
capacity to contract?
2nd Restatement: Validity of marriage determined by state of MSR. Also, marriage
will be recognized unless against public policy of state with MSR. Consanguinity and
polygamy are strong public policies.
Page 9 of 35
III.
Contemporary Choice of Law and Restatement Second
People started criticizing the vested rights approach. There are no rights independent of
what the local judge is willing to enforce. Further, despite all of these vested rights, the
escape valves are taking over. There are also situations that do not fit smoothly into the
established rules.
A.
Center of Gravity/Grouping of Contacts
Essentially, it seems like contact counting, with the winner being the jurisdiction with
the most contacts. This is an early stab toward MSR. Does it really eliminate First
Restatement problems?
Haag v. Barnes, N.Y. 1961: Illegitimate baby, contract for support made in Chicago,
other contacts in Chicago, and weak contacts to NY. The number of contacts seems
to favor Illinois, but in addition to pure counting, there is choice of law, and lex loci
contractus.
Babcock v. Jackson, N.Y. 1963: NY joyriders went to Ontario and crashed. One
passenger sues the driver. Ontario bars claims. The court concludes that all these
people are tied to NY. So that is the center of gravity. Additionally, NY has policies,
interests, welfare at stake. Ontario’s only possible interest is regulating operation of
automobiles.
B.
Governmental Interest Analysis
Professor Currie wants courts to weigh political values, policies, and interests. But,
he also wanted courts to be showing some restraint.
 Court should inquire into policies expressed in conflicting laws and into the
circumstances in which it is reasonable for the respective states to assert an
interest in the application of those policies.
 One state only interested? The court should apply that law.
 Conflict? Court should reconsider. Try to avoid conflict. See if this apparent
conflict is a false conflict or an actual conflict. (Maybe the jurisdiction has an
interest in compensating tort victims, but does it have an interest in
compensating the specific tort victim in this case?)
 Unavoidable conflict = law of forum
 Forum has no interest, just apply law of forum anyway (disinterested forum)
 From court viewpoint, different results not a judicial problem
 Unprovided-for case: No state has interest—apply law of forum, or most
enlightened and human law, or law that aids litigant who is forum resident, or
apply law that would treat foreign litigant in same way their home state
would treat them
Page 10 of 35
1.
False Conflicts
Ways to avoid finding a true conflict:
 No extraterritorial reach
 Purpose behind statute intra-state
 Legislature protecting residents only
Schultz v. BSA, N.Y. 1985: Abuse that happened to NJ people on a NY
camp. NJ gives immunity to charitable organization. NY has interest in
regulating conduct. NJ has interest of allocating burdens. This kind of looks
like a conflict, but it seems to ultimately weigh in favor of NJ. Is burden
more important than conduct? Domicile? Forum shopping? It is a tort, so
would it really be conduct regulation by NY?
2.
Apparent or True Conflict
Lilienthal v. Kaufman, Oregon 1964: Spendthrift from Oregon goes to
California and makes a sketchy deal. California would hold the guy to it, but
Oregon would not because he was under guardianship at time. California has
interest in people making legit contracts. Oregon has interest of enforcing
the legislative scheme and protecting the family. The court considered it to
be an impasse and applied forum law. Oregon courts are instruments of state
policy, anyway.
Bernkrant v. Fowler, California 1961: Plaintiffs contracted in Nevada with
guy who later died in California that he would forgive them debt in will. He
did not. California would not allow debt forgiven while Nevada would.
Apparent conflict. But, similarity of policy, just slightly different outcome.
Not really a conflict. Nevada contracts, too. So, Nevada wins.
a)
Pushback
Merely choosing forum law in the case of a true conflict proves
distasteful to the courts. They start to think of balancing interests.
D’Agostino v. Johnson & Johnson, NJ 1993: U.S. Citizen employed
in Swiss subsidiary refused to pay “bribes.” He got fired. Swiss law is
at-will employment. The American company is subject to FCPA,
which would prohibit the termination. This court concludes that NJ
interest is greater in following a federal law, (tenuous link).
Rowe v. Hoffmann-LaRoche, NJ 2007: Michigan drug labelling laws
less strict than NJ, so Michigan resident sues company in NJ. NJ says
it’s interest in allowing this guy to collect is hardly there. NJ interest
not paramount.
Page 11 of 35
3.
C.
No Interest or Unprovided-For Cases
Erwin v. Thomas, Oregon 1973: Accident in Washington to Washington
victim. Oregon defendants. Oregon allows loss of consortium. It has no
interest in providing this claim to Washington residents. Washington gives
no claim. With no interest to the contrary, law of forum will simply apply.
Comparative Impairment
Basically, the law of the state that would be most impaired. Not the most important
purpose at stake, but the most impairment overall.
Offshore Rental Co. v. Continental Oil Co., California 1978: Basically, the court
analyzes how important it was to the state that their law was obeyed. Was this a
current law being strictly enforced? Was this a case where the facts specifically went
to the purpose of the statute? Apparently, Louisiana was committed to not giving an
employer a remedy for injured employees. California’s interest was attenuated and
could be taken care of through insurance.
McCann v. Foster Wheeler LLC, Cal. 2010: California resident is attempting an
asbestos suit against a NY company that did business in Oklahoma. Steps
emphasized—first, is there a conflict? Is it a real conflict? If so, then the court will
analyze the interests. Oklahoma has interest in attracting business, shutting off
liability, etc. California also has interest. The key is that this is totally Oklahoma. This
would be severe impairment on Oklahoma. It’s law would be completely
subordinated.
D.
Better Rule of Law
Courts should just be more upfront about what they are doing.
Drinkwater v. American Family Mutual Insurance Company, Wisconsin 2006: This
court seems to think that there are cases where it should be obvious which state’s law
should apply. When it is not so obvious, the court will rely on five factors to
determine which law it should apply: 1. Predictability of results. 2. Maintenance of
interstate and international order. 3. Simplification of judicial task. 4. Advancement
of the forum governmental interests. 5. Application of the better rule of law. With
the fifth, the court concluded that because it was a Wisconsin court, the Wisconsin
law surely was better.
E.
Restatement Second
It should be noted that the Restatement Second allows depecage, which is cutting up
issues for choice of law purposes.
Section 6:
 A court, subject to constitutional restrictions will follow a statutory directive
of its own state on choice of law.
Page 12 of 35

1.
When there is no such directive, the factors relevant to the choice of the
applicable rule of law include
o Need of interstate and international systems (comity (with Camp
Jaycee, the court argues that they need to let the other state regulate,
as if they didn’t have a penal code) (with Hoiles, California lawyers
need assurance that their law applies)
o Relevant policies of forum (with Hoiles, Colorado can protect its
people, but California needs to protect and protects people from out
of state, so this applies to element below, too)
o Relevant policies of other interested states and the relative interests
of those states in the determination of the particular issue.
o Protection of justified expectations
o Basic policies underlying the particular field of law (giving effect to
intent of parties)
o Certainty, predictability, and uniformity of result (weighing contacts
can achieve this)
o Ease in the determination and application of the law to be applied
Torts
Section 145: State with MSR to occurrence and parties, guided by principles
of Section 6. Contacts include place of injury, conduct causing injury,
domicile/residence of parties, place where the relationship between parties is
centered. Contacts depend on importance to specific issue.
Section 146: Location of injury presumptively controls, unless some other
state has MSR according to Section 6.
Sections 149–50: Defamation is place of publication. Also, place of victim
domicile if the publication was in that state. MSR.
Townsend v. Sears, Illinois 2007: Guy in Michigan had a lawnmower
accident and sued Sears in Illinois. The analysis starts with the presumption
of location of injury. Absent a showing of MSR elsewhere, this court applies
the presumption. Here, it pulls out the relevant contracts and concludes they
are mostly a wash. They take it to section six and just don’t find anything
strong enough to overcome the presumption.
P.V. v. Camp Jaycee, New Jersey 2008: Everybody is in New Jersey, but the
camp is run in Pennsylvania. Both states have significant relationship, so this
court goes with the presumption of place of injury. This case actually applies
the Section 6 stuff, using BS.
Page 13 of 35
2.
Contracts
Section 186: Issues are decided based on choices of law made pursuant to
187. Otherwise, 188 applies.
Section 187: Chosen law applies if the issue is something that could be
resolved by contract. The law chosen by 188 governs whether the issue could
be resolved by contract.
Section 187 continued: For issues you cannot resolve by provision, law of
state chosen applies unless chosen state has no substantial relationship to the
parties or transaction and there is no other reasonable basis for the choice or
if application of law of chosen state would be contrary to a fundamental
policy of a state which has a materially greater interest than the chosen state
on issue, and which would normally qualify under 188. Also, presumption
that choice of a state law does not include the conflicts law of that state.
Section 188: Rights and duties determined by local law of state which, with
respect to issue, has MSR to transaction and the parties under Section 6.
Contacts: Place of contracting, place of negotiations, place of performance,
location of subject matter of contract, domicile.
Hoiles v. Alioto, 10th Cir. 2006: Lawyer hired in California by Colorado guy.
Court analyzes down the Section 6 list, invoking contacts here and there.
Nagihu: This is where the evangelicals go to Africa. The contract seemed to
favor Virginia. As for Zaire, the presumption of forum law where foreign law
unknown kicked in.
Nedlloyd Lines v. Superior Court, California 1992: The multiple companies,
and the one was throwing the other under the bus. They go through 187 in
an attempt to invalidate the choice of law. Domicile of a party is a reasonable
basis for choice. As for fundamental policy, the court did not think there was
anything so importance involved.
1-800-Got Junk? California App. 2010: Franchise lawsuit. Got Junk chose
Washington law, but then later tries to get out when dealing with a California
franchisee. The court thinks a franchisor choosing one state is a good
enough reason. As for policy, Washington is more strict than California, so
California’s interests are more than met if Washington law applies.
Hodas v. Morin, Massachusetts 2004: Contract and desire to have baby in a
Mass. hospital makes application of Mass law a sufficient substantial
relationship where neither the actual parents or birth mother have
connection to Mass. Interests . . . whatever.
Page 14 of 35
3.
Questions of Domicile
§ 11: Domicile is a place, usually a person's home, to which the rules of
Conflict of Laws sometimes accord determinative significance because of the
person's identification with that place.
Every person has a domicile at all times and, at least for the same purpose,
no person has more than one domicile at a time.
§12(?): Home is the place where a person dwells and which is the center of
his domestic, social and civil life.
§13 In apply its rules of Conflict of Laws, the forum determines domicile
according to its own standards.
§ 16: To acquire a domicile of choice in a place, a person must be physically
present there; but the establishment of a home in a particular dwelling is not
necessary for the acquisition of such a domicile.
§ 18: To acquire a domicile of choice in a place ,a person must intend to
make that place his home for the time at least.
Mzamane v. Winfrey, E.D. Pa 2010: Domicile was important in establishing
the plaintiff belonged to Pennsylvania, which had interests that exceeded
Illinois (because defamation likes domicile) and exceeded Africa.
F.
Escape Valves
1.
Substance and Procedure
Remember that horizontal and vertical makes a difference in figuring out
procedural versus substantive.
Forum decides what is procedural and what is substantive because
characterization is procedure.
Section 122: Forum uses its law for conducting litigation.
Section 127: Forum law controls pleading and conduct of proceedings.
Boyd Rosene v. Kansas Mun. Gas, 10th Cir 1999: Attorney fees not covered
in contract. So is that substantive or procedural? Remember, Federal court
must first determine whether it is substantive or procedural under Erie
(effects outcome), and then under law of forum controlling litigation. What is
procedural should be narrow. Substantive should apply, here.
Page 15 of 35
2.
Characterization
Classification is as per forum. But classifying and interpreting local law
concepts is in accordance with law that governs issue.
Waddoups v. Amalgamated Sugar, Utah 2002: Utah characterizes the issue as
one of tort, runs the MSR, applies Idaho law.
3.
Renvoi
When directed to apply “the law” of another state, forum applies local law of
other state unless the objective of the rule was that the forum reach the same
result on the very facts as would the courts of another state. Or, when forum
has no interest/connection and other states would land on a specific state,
that law applies.
4.
Public Policy
Section 90: No action will be entertained on a foreign cause of action the
enforcement of which is contrary to the strong public policy of the forum.
If the only state with an interest has a noxious law, the forum state can
dismiss as forum non conveniens.
5.
Statutes of Limitation
By default, this is a question of procedure, so the law of the forum should
apply. BUT, if the cause of action is unique and a separate SoL is bound up
or part of the scheme, then it might be substantive. OR, it could be that
forum has a borrowing statute, insisting that law of another state includes a
shorter SoL.
Duke v. Housen: Con guy marries woman in NY, ditches her in Wyoming.
Wyoming procedurally applies SoL based on where cause of action applied.
Restatement also was applying place of injury.
Innerlight v. Matrix Group:
G.
Lex Fori
No state is very hardcore.
Sutherland v. Kennington Truck, Michigan 1997: Ohio drive and Ontario driver.
Question of SoLs. This court applies Michigan law unless there is a rational reason to
not apply Michigan law. Here, Michigan wins. This did not seem to be a pure Lex
Fori. It introduced some balancing.
H.
Hybrid Approaches
States can be difficult to pigeonhole.
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Pennsylvania Budget v. Chappell: Boyfriend drives in from Michigan to NY, accident
in Pennsylvania. Plaintiff wants NY law to apply. The court basically weighs that NY
is better, more interested and that Michigan is not impaired in any way whatsoever.
Bakalar v. Vavra: Nazi contraband. NY interest more.
IV.
Constitutional Concerns
General Personal Jurisdiction: A court may also have general jurisdiction over a party if it has
systematic and continuous contracts with the state where the suit is being brought.
Specific Personal Jurisdiction: Certain minimum contacts which give rise to the action in
question in the forum such that the exercise of jurisdiction does not offend traditional
notions of fair play and substantial justice.
EPC: No State shall deny any person within its jurisdiction the equal protection of the laws.
Protects against discrimination targeted at out-of-state residents. Protects corporations.
Stricter on fundamental rights.
P&I Clause: The Citizens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several States. Protects against discrimination targeted at out-of-state
residents. Does not protect corporations. Sometimes more rigorous than EPC, depending
on context. New Hampshire v. Piper sees the U.S. force New Hampshire to give bar
admittance to Vermont resident. Austin v. New Hampshire smacks NH for taxing out of
state people only. Noncitizenship or nonresidence is an improper basis for locating a special
burden. This implies that the government interests test is not legit because it focuses on
residents and advancing interests, etc. No court seems to be willing to go down this path.
Same for EPC.
Commerce Clause: The Congress shall have power To regulate Commerce with foreign
Nations, and among the several States and with Indian Tribes. Dormant Commerce--cannot
discriminate against out of state people. Very stringent test. Cannot interfere with ability of
out of state businesses. Statute must regulate evenhandedly to effectuate a legitimate local
public interest and has only incidental effects on interstate commerce. This makes it work
unless burden imposed on such commerce is clearly excessive in relation to the putative local
benefits.
P&I and EPC pertain to extent to which states can use their choice of law rules to reserve
the benefits of local law for local residents or for local activities.
Commerce, via dormant commerce, Means for assessing validity of state regulation as it
affects multijurisdictional activities.
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A.
DPC & FFC
14: No State shall . . . Deprive any person of life, liberty, or property, without due
process of law.
Full Faith and Credit Clause: Full Faith and Credit shall be given in each State to the
public Acts, Records, and judicial Proceedings of every other State. And the
Congress may by general Laws prescribe the Manner in which such Acts, Records,
and Proceedings shall be proved, and the Effect thereof.
DPC and FFC are conflated now. The analysis is basically starting with choice of law
and then evaluating the result against the Constitution. The rule is “For a State’s
substantive law to be selected in a constitutionally permissible manner, State must
have a significant contact or significant aggregation of contacts creating state
interests such that choice of its law is neither arbitrary nor fundamentally unfair.
Allstate v. Hague, U.S. 1981: Plurality opinion. Widow moves, and her new home
has a favorable law. The court things there is enough contacts to create state interest.
Guy was member of workforce, Allstate was in the State, plaintiff is now a resident.
Stevens argues that FFC goes to invasion of sovereignty while DPC is more about
being arbitrary or unfair to a litigant.
Philips Petroleum v. Shutts: Class action on natural gas. The people not in Kansas
cannot have Kansas choice of law applied to them because they don’t meet the test
so far as choice of law is concerned. (no domicile, no contract, no nothing) The class
action part is okay because of the nature of claims, etc.
B.
Requirement to Provide Forum
Hughes v. Fetter: Wisconsin probate, but guy died in Illinois. Wisconsin’s own
wrongful death statute did not apply. FFC requires acknowledging public Acts of
other states. Cannot deny unless strong public policy.
BUT Wells v. Simonds Abrasive: Action created by Alabama tried in Pennsylvania.
Pennsylvania rightfully applied its own Statute of Limitations. So, it is always
constitutional for a forum to apply its own statute of limitations.
Nevada v. Hall: Nevada has to pay for California accident where Nevada state
employee driving because California has policy of not allowing immunity. I guess this
was in California’s boundary . . .
C.
Federal Supremacy and Preemption
Preemption can be express or implicit. If implicit, it can be conflict where entity
cannot comply with both laws or it can be field preemption where the regulatory
scheme is too pervasive. There is a presumption against preemption, but it seems to
apply regularly.
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Zschernig v. Miller, U.S. 1968: East German heirs to Oregon property. Oregon has
certain reciprocity requirements. The majority seems to take a field preemption route
and says the national government controls stuff. Harlan, in the dissent, wanted more
of a conflict preemption because he thinks some laws can coexist peacefully.
Crosby, U.S. 2000: Mass and Congress doing stuff with Burma. The President has
less to offer because of Mass, so the Court strikes down, kind of claiming we have
conflicts and field preemption happening.
Garamendi, U.S. 2003: California puts a full disclosure act in place on former Nazi
insurance companies. The U.S. has agreed to some other treaty that is more broad in
certain considerations. Court claims to be following Harlan, requiring a conflict,
especially when state is acting in traditional competence. But this feels like field
preemption because it is merely saying the President has less to offer. Dissent
suggests conflict only. Ginsburg is even saying maybe that executive decisions are
less expansive than what Congress has done.
V.
Judgment Recognition
Claim Preclusion (Res Judicata)
1. Re-litigating claims or causes of action that a party advanced in an earlier action
2. Litigating for first time claims or causes of action that a party did not, but should have,
advanced in the first suit.
Issue Preclusion (Collateral Estoppel)
Both Claim and Issue Preclusion require a valid and final judgment.
Valid
1. Adequate notice to parties
2. Personal jurisdiction
3. SMJ
Finality
1. Can be complicated--but basically, an actual final stable judgment.
Claim Preclusion requirements
1. Prior judgment on the merits
a. Dismissal for venue or lack of SMJ not merits.
b. Dismissal on demurrer or failure to comply with procedure are on merits. With
prejudice.
2. Parties same or at least privity
3. Claim in second suit must involve matters properly included (or should have been
included) in the first action.
a. Transaction view. Same transaction factors--time, space, or origin, trial unit. Etc.
b. Transaction might also include counterclaims. This is defense preclusion.
Compulsory counterclaim rules like FRCP 13(a).
Issue Preclusion requirements (also, valid and final)
1. Issue asserted in second action be actually litigated and decided in first action
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2. Issue be necessary to court's judgment in first suit.
a. No dicta allowed
3. Sometimes privity necessary, but jurisdictions abandoning this.
a. Abandonment of principal is non-mutual issue preclusion.
b. Defensive use of non-mutual issue preclusion is totally legit. There is a policy
in favor of joinder.
c. Plaintiff use is not smiled upon usually because second plaintiff could have
joined, but was likely hedging bets. Causes more cases in courts.
Exceptions to judgment recognition: lack of jurisdiction, lack of subject-matter jurisdiction,
lack of notice, etc.
A.
Full Faith and Credit
Full Faith and Credit shall be given to each State to the public Acts, Records, and
judicial Proceedings of every other State. And the Congress may by general Laws
prescribe the Manner in which such Acts, Records and Proceedings shall be proved,
and the Effect thereof.
28 USC 1738
Acts of legislature shall be authenticated by affixing the seal of such State . . .
Records and judicial proceedings shall be proved or admitted in other courts within
the United States by the attestation of the clerk and seal of the court annexed, if a
seal exists, together with a certificate of a judge of the court that the said attestation
is in proper form.
Such Acts, records, and judicial proceedings or copies thereof, so authenticated, shall
have the same full faith and credit in every court within the United States as they
have by law or usage in the courts of such State from which they are taken.
Fauntelroy, U.S. 1908: Judgment of foreign state court must be enforced unless there
was a lack of jurisdiction or something, even if gambling is illegal based on the law
applied.
1.
Exceptions
Durfee v. Duke, 1963: The question of the land on Mississippi river.
Judgment final. Can question the jurisdiction of the other court, unless that
court already took care of that question. Merely a question of title.
Fall v. Eastin, U.S. 1909: Divorce. Court has power over another State’s land
only to extent it can control party who controls land. Equity. Foreign state
cannot quiet title, though can certainly enter a certain judgment.
Page 20 of 35
2.
Specialized Tribunals
Thomas v. Washington Gas Light, U.S. 1980: Guy is trying to claim worker
comp from two states. Magnolia said that one award is res judicata. McCartin
said that Illinois needs to specifically prevent further awards outside. State
has no interest in preventing further award, and would have to explicitly
(extremely explicitly) say that it does. Also, when dealing with commissions
or tribunals with limited authority, there must be authority to make a
judgment before there can be a res judicata effect.
Baker v. General Motors, U.S. 1998: Expert witness barred from testifying.
Arguably, this bar should not even stretch within the state it was given and
certainly not to evidentiary issues in another states or to the rights of
plaintiffs over which Michigan has no authority.
3.
Divorce
Williams and Williams II establish that states can issue ex parte divorces if
they have jurisdiction over a party.
Estin v. Estin: Divisible divorce—Nevada can issue divorce but cannot alter
a property judgment. The support award stands because New York thinks
that it is unaffected by the marriage.
4.
International Child Abduction
Children must be returned to habitual residence unless caretaker had no right
of custody, grave risk of physical or psychological harm, mature child
objects. Also, can conceal child for a year to make them well-settled.
Abbott v. Abbott, U.S.: Right to veto child leaving country is a custodial right
that can be violated.
VI.
International Choice of Law
Most U.S. courts will most of the time be applying the conflict law developed in the United
States. However, this might not always be appropriate. Differences between context should
be considered.
1. For instance, U.S. has full faith and credit clause. That doesn't work with international
2. Next, there are international laws, many of which regulated by Federal government via
treaty or whatever.
3. There are different customs in foreign nations that must be acknowledged.
4. The law of foreign nations can be difficult to determine where it would otherwise be
easy to apply another state's law. The result is default rules that favor forum
sometimes.
5. Constitution mandates substantial deference to Executive branch and federal
government in general.
6. The burdens of foreign jurisdictions might be significantly greater than those in the
U.S.
Page 21 of 35
A.
Act of State Doctrine
At minimum, court must defer to acts of a sovereign done within its own territory.
Banco Nacional de Cuba v. Sabbatino: Apparently, Cuba is allowed to rip off sugar.
B.
No Extra-Territorial Effect
Constitution gives few clues about extraterritorial force. It is the Supreme Law of the
Land. Principles we do know for sure: 1. Aliens in territory protected (including
Gitmo). 2. Aliens outside protected from unconstitutional actions by U.S. officials in
the U.S.. 3. U.S. citizens in foreign lands protected. 4. Non-citizens outside U.S. with
U.S. officials outside U.S.
American Banana: One fruit company steals another fruit company’s plantation. This
was legal in Costa Rica. So, even though it violates U.S. law, there is a presumption
that the law does not apply outside the United States.
EEOC v. Arabian American Oil: Must be a clear, affirmative statement of intent that
a law have extra-territorial effect.
Hartford Fire Insur: Where you can obey law of both, there is no conflict.
Morrison v. National Australia Bank: No extraterritorial effect. No jurisdiction, no
claim, etc.
Charming Betsy: You never presume that Congress intends to violate international
law.
Lauritzen, U.S. 1953: Guy signs onto Danish ship. Brings suit under Jones act in
Cuba. Demands jury trial. Employer defendant argues Danish law applies. Trial gives
plaintiff judgment. Danish sailor, Danish ship, Danish contracts, etc. Cuba harbor.
Did lower courts err in applying U.S. law? Yes. Danish and American law conflict
sharply. Jones Act is broadly worded, but court thinks that applying it that broadly
leads to absurd results. Act to be interpreted in light of American maritime law
generally. Congress was not writing on clean slate. No extra-territorial intent
shown. Language in act applies where it otherwise would under international law.
Congress does not presume to violate law of nations. Presumption that U.S.
law does not apply to non-nationals outside of the United States. Need to
forbear some possible interpretations to fit in with the overall law. The court lists
seven factors to look at: 1) Place of wrongful act. Cuba 2) Law of the flag. Denmark
3) Allegiance or domicile of plaintiff. Denmark 4) Domicile or allegiance of ship
owner. Denmark 5) Place of contracting. New York. 6) Accessibility of forum. 7)
Law of forum.
Page 22 of 35
American Banana is a vested rights approach. What is this? Forecast of MSR?
D’Agostino v. Johnson & Johnson, NJ 1993: U.S. Citizen employed in Swiss
subsidiary refused to pay “bribes.” He got fired. Swiss law is at-will employment. The
American company is subject to FCPA, which would prohibit the termination. This
court concludes that NJ interest is greater in following a federal law, (tenuous
link).
Reid v. Covert, U.S. 1957: Murders husband on U.S. military base. She gets busted.
She alleges that her Constitutional rights violated. After a SCOTUS rehearing and
reversal, the result is that The Constitution has to come on top over treaty.
Government bound by Constitution anytime it is interacting with U.S. citizens.
Boumediene v. Bush, U.S. 2008: Terrorists stuck in Gitmo. People detained at
Gitmo have habeas corpus going for them.
Kiobel v. Royal Dutch, U.S. 2013: Presumption against extraterritoriality.
Nothing rebuts. No wording. No strong effect on the U.S.
The recent cases feel like they hark back to American Banana.
VII.
International Jurisdiction
There is a problem of foreign litigants being excessively attracted to American courts, which
view jurisdiction questions the same way they would view interstate questions. Sources of
law for these questions can come from common law, statute, treaty, and the Constitution.
Courts must have authority to assert jurisdiction and must do so under constitutional
standards of due process and subject matter jurisdiction.
First step: Is jurisdiction authorized by some statute or common law doctrine? Second step:
Does assertion of jurisdiction comport with constitutional standards? Two parts to second
step—minimum contacts and traditional notions of fair play and substantial justice
(inconvenience or foreseeability). For international cases, there is a third step. Assertion of
jurisdiction should not violate international law.
A.
Minimum Contacts
Helicopteros Nacionales v. Hall, U.S. 1984: Helicopteros Nacionales de Colombia
(D), a Colombian corporation, purchased most of its helicopter fleet and obtained
training for some of its pilots from a Texas manufacturer but had no place of
business in Texas. Hall et al. (P) brought suit on behalf of the decedents in Texas
state court against Helicopteros and other parties including Bell Helicopter, the
Texas-based manufacturer of the helicopter. Helicopteros made a special appearance
and moved to quash service for lack of personal jurisdiction on the grounds that it
had very little contact with the state, and that its performance under the service
Page 23 of 35
contract involved no contact with the state. The trial court denied Helicopteros’s
motion and the jury entered a verdict for Hall. The Texas Court of Appeals reversed,
holding that the court did not have personal jurisdiction over Helicopteros. The
Texas Supreme Court reinstated the trial court’s ruling and the jury award. The
Supreme Court of the United States granted cert. In order to exercise general in
personam jurisdiction over a party, the party’s contacts with the forum state
must be of a “continuous and systematic” nature. The court held that the
defendant’s contacts with Texas did not satisfy the requirements of the Due Process
Clause, and the Texas court therefore could not assert in personam jurisdiction over
the corporation.
Asahi Metal Industry v. Superior Court, U.S. 1987: This matter involved an
appeal of the Superior Court’s denial of Asahi Metal’s motion to quash service of
summons (i.e. service of process). Asahi Metal sought a writ of mandate (i.e. writ of
mandamus) from the Court of Appeal of the State of California to compel the
Superior Court to quash service of summons. Mr. Zurcher lost control of his
motorcycle and collided with a tractor. He was seriously injured and his passenger,
Mrs. Zurcher, was killed. Zurcher alleged that the accident was the result of a
defective tire tube which caused his rear wheel to lose air rapidly and explode.
Zurcher brought suit and named as defendants Cheng Shin, the Taiwanese
manufacturer of the tire tube, and Asahi Metal Industry Co., the Japanese tire valve
assembly manufacturer. Asahi Metal had sold tire valve assemblies directly to Cheng
Shin in Taiwan and Cheng Shin then incorporated the valves into motorcycle tires.
Cheng Shin sought indemnity from Asahi Metal in the Zurcher suit and filed a cross
claim against Asahi and the other defendants. Zurcher eventually settled out of court
with all of the defendants leaving Cheng Shin’s cross claim as the only remaining
issue to be decided.
Asahi Metal moved to quash the service of summons, claiming that California could
not exercise jurisdiction over it because sales to Cheng Shin took place in Taiwan
and shipments were sent from Japan to Taiwan. Asahi Metal did no business in
California and did not directly import any products to California. Only 1.24% of the
company’s income came from sales to Cheng Shin and only 20% of Cheng Shin’s
sales in the United States were in California. Cheng Shin testified that that Asahi
Metal was told and knew that its products were being sold in California.
The Superior Court found it fair to require Asahi to defend in California and denied
Asahi Metal’s motion to quash service of summons.
Court of Appeals
Page 24 of 35
The Court of Appeals reversed and issued a writ of mandate to compel the Superior
Court to grant the motion to quash.
California Supreme Court
On appeal the California Supreme Court reversed again, finding that Asahi Metal’s
intentional act of placing its assemblies into the stream of commerce, together with
its awareness that some of them would eventually reach California, were sufficient to
support state court jurisdiction under the Due Process Clause. Asahi Metal appealed
and the United States Supreme Court granted certiorari.
Issue
Is the mere awareness that a product may reach a remote jurisdiction when put in
the stream of commerce sufficient to satisfy the requirement for minimum contacts
under the Due Process Clause?
Holding and Rule (O’Connor) Plurality craziness. Four justices say contacts not
enough. Four justices say there are enough contacts.
No. The mere awareness that a product may reach a remote jurisdiction when
put in the stream of commerce is not sufficient to satisfy the requirement for
minimum contacts under the Due Process Clause. Asahi Metal has not
purposefully availed itself of the California market. Asahi’s actions could
constitute sufficient minimum contacts if it advertised or marketed its products in
California or deliberately designed them to conform to unique California regulations.
Asahi however has not engaged in these activities and has done nothing to indicate
that it deliberately wants to see its products used in California.
Even if minimum contacts were to be found, traditional notions of fair play and
substantial justice must be examined. Under these facts it would be fundamentally
unfair to require Asahi Metal to defend after California’s interest in the suit has been
terminated. Zurcher settled the suit and the dispute is now between two nonresident
defendants. Jurisdiction is therefore unreasonable.
Concurrence (Brennan)
It is sufficient to establish minimum contacts to show that Asahi Metal has
intentionally placed products into the “stream of commerce.” However, it would be
fundamentally unfair and unreasonable to require it to defend this suit in California. I
do not agree with the interpretation of the stream of commerce theory but I do agree
that the exercise of personal jurisdiction would not comport with fair play and
substantial justice.
Concurrence (Stevens)
Page 25 of 35
This case fits within the rule that minimum requirements inherent in the concept of
fair play and substantial justice may defeat the reasonableness of jurisdiction even if
the defendant has purposefully engaged in forum activities. A regular course of
dealing resulting in deliveries of over 100,000 units annually over a period of several
years constitutes purposeful availment. It would not be fair however to require Asahi
to defend in California when there are no American parties left in the case.
ASAHI BOTTOM LINE: A good number think that mere stream of commerce in
this case not enough. It requires some purposeful targeting. A lot more are
thinking that this is not substantial justice/fair play.
Barone v. Rich Brothers, 8th Cir. 1994: Can the court assert jurisdiction over a
Japanese fireworks manufacturer? The company doesn’t advertise, etc. But it has
distributors, and in this case, the distribution was through mail order. Sufficient
contacts exist when person can expect to be haled into court. Such anticipation
requires availment. Gets around Asahi by saying five justices didn’t say no to this
type of stream of commerce.
B.
Sovereign Immunity Limits
Foreign Sovereign Immunities Act basically makes sovereigns (if they are the
sovereign) immune unless they fit within an exception to the statute. The exceptions
basically are torts with a direct effect in the U.S. or commercial activities.
Schooner Exchange v. McFaddon: U.S. 1812: Procedural History:
Appeal from reversal of dismissal of claim of ownership.
Overview:
-Two Americans (Pl claimed that they owned and were entitled to possession of the
schooner Exchange. They claimed they had seized the schooner Exchange on the
high seas and that they now owned it and were entitled to possession of the ship.
-The United States Attorney (D) claimed that the United States and France were at
peace and that a public ship of the Emperor of France had been compelled by bad
weather to enter the port of Philadelphia and was prevented by leaving by process of
the court.
-The district court granted the United States' (D) request to dismiss the claims of
ownership and ordered that the ship be released. The circuit court reversed, and the
United States (D) appealed to the U.S. Supreme Court.
Issue:
Page 26 of 35
Are national ships of war entering the port of a friendly power to be considered as
exempted by the consent of that power from its jurisdiction?
Rule:
National ships of war entering the port of a friendly power are to be considered as
exempted by the consent of that power from its jurisdiction.
Analysis:
-This case implicated the absolute form of sovereign immunity from judicial
jurisdiction.
-The Court highlighted three principles: the exemption of the person of the
sovereign from arrest or detention within a foreign country; the immunity that
all civilized nations allow to foreign ministers; that a sovereign is understood
to cede a portion of his territorial jurisdiction when he allows troops of a
foreign prince to pass through his dominions.
Outcome:
(Marshall, C.J.l Yes. National ships of war entering the port of a friendly power are
to be considered as exempted by the consent of that power from its jurisdiction.
-The jurisdiction of the nation within its own territory is exclusive and absolute.
-The Exchange, a public armed ship, in the service of a foreign sovereign, with
whom the United States is at peace, and having entered an American port open for
her reception, must be considered to have come into the American territory, under
an implied promise, that while necessarily within it, and demeaning herself in a
friendly manner, she should be exempt from the jurisdiction of the country.
Reversed.
More appropriate question would have been whether the ship was actually owned by
a French.
Lafontant, ED NY 1994: The question posed by this case is whether the recognized
head of a state who has violated the civil rights of a person by having him killed can
avoid civil prosecution in this country by virtue of his status. The answer is yes.
Plaintiff, a resident of Queens, New York, seeks compensation in money damages
for the killing of her husband, Dr. Roger Lafontant, by Haitian soldiers acting on the
specific order of the then and present President of Haiti, Jean-Bertrand Aristide. A
head-of-state recognized by the United States government is absolutely immune
from personal jurisdiction in United States courts unless that immunity has been
waived by statute or by the foreign government recognized by the United States. A
Page 27 of 35
visiting head-of-state is generally immune from the jurisdiction of a foreign state's
courts. Like the related doctrine of diplomatic immunity, head-of-state immunity is
required to safeguard mutual respect among nations. The immunity extends only to
the person the United States government acknowledges as the official head-of-state.
Recognition of a government and its officers is the exclusive function of the
Executive Branch. Whether the recognized head-of-state has de facto control of the
government is irrelevant; the courts must defer to the Executive determination. Key
is head of state immunity. The statutes cited do not abridge that. (Foreign Service
Immunities Act, Torture Victims Act)
Martin v. South Africa, 2d Cir 1987: Is there a direct effect in the United States?
That is the standard for the Foreign Service Immunities Act. Here, the guy went to
South Africa and was mistreated because of his race .This was not a direct effect in
the United States. Direct effects means that something happens on U.S. soil.
Only acts that have direct effects on the U.S. are allowed to stick to a foreign
country.
Republic of Austria v. Altman, U.S. 2004: The heiress asserted that her father's will
bequeathed to her certain valuable paintings which were confiscated by the Nazis
during World War II and subsequently expropriated by Austria. The heiress
contended that United States jurisdiction was proper under the FSIA exemption
from sovereign immunity of claims for wrongful expropriation of property, but
Austria argued that the FSIA did not apply to its conduct which occurred prior to
the FSIA's enactment. The United States Supreme Court held that the FSIA
applied to conduct occurring before the enactment of the FSIA, and even
before the United States adopted its restrictive theory of limited sovereign immunity.
The presumption against the retroactive application of statutes did not apply
since sovereign immunity involved political realities and relationships rather
than reliance on existing immunity rules. Thus, in the absence of the antiretroactivity presumption, deference to the political decision concerning jurisdiction
over foreign sovereigns, as expressed in the FSIA, warranted giving effect to the
congressional intent that the FSIA established the extent of sovereign immunity,
regardless of when the conduct at issue occurred.
Special Deference to Executive Branch. Congress should be saying whether it is
retroactive. Court is having trouble characterizing whether FSIA is substantive or
procedural. Evidence that Congress intended it to apply.
C.
Forum Selection Agreements
M/S Bremen v. Zapata Off-Shore Co. 407 U.S. 1
SYNOPSIS: Petitioner sought review by certiorari of the judgment entered by the
United States Court of Appeals for the Fifth Circuit in which a forum-selection
Page 28 of 35
clause in a contract between petitioner German corporation and respondent United
States corporation was held invalid.
FACTS:
-The German corporation contracted with the United States corporation to transport
an oil rig from Louisiana to the Adriatic Sea. During transportation, the rig was
damaged and was towed to Tampa, Florida, where the United States corporation
filed suit.
-The German corporation, however, asked the district court to enforce the forumselection clause contained in the contract placing jurisdiction in England.
-The district court refused to enforce the clause and the lower appellate court
affirmed.
HOLDING:
-The court held that the forum-selection clause should be enforced unless the party
resisting the clause could show that enforcement would be unreasonable.
ANALYSIS:
-The argument that such clauses ousted a court of jurisdiction was not valid, and the
German corporation did not waive operation of the clause by appearing in the
federal court.
-As a result, the court stated that the forum-selection clause was valid and the case
was remanded for a determination of whether enforcement was unreasonable.
RULES: Forum-selection clauses are prima facie valid and should be enforced unless
enforcement is shown by the resisting party to be unreasonable under the
circumstances. This is the correct doctrine to be followed by federal district courts
sitting in admiralty
OUTCOME: The court vacated the lower appellate court's judgment and remanded
the case for a determination of whether enforcement of the forum-selection clause
was unreasonable.
McDonnell Douglas Corp v. Iran, 8th Cir. 1985
MDC sues Iran for declaratory relief and wins on summary judgment. Iran now
argues that there was a forum selection clause that said disputes “should” be resolved
through Iranian courts. Iran also argues for sovereign immunity. Basically, MDC had
contracted with Iran’s air force. But then the Iranian government was overthrown
and replaced. Further problems made it so that Iran and the United States were not
Page 29 of 35
getting along. The contract provided a forum selection (or rather, preference) clause,
but the contract was also completely subject to U.S. law, especially concerning arms
sales. Iran starts a lawsuit in Iran, but MDC goes for declaratory relief. Iran claims
lack of jurisdiction and sovereign immunity.
Even if the forum selection clause was mandatory, we see a compelling and
countervailing reason why it should not be enforced. Trial in the contractual forum
will be so gravely difficult and inconvenient that party will be deprived of day in
court. Let us not forget that in addition to Iranian courts being unfair, the entire
country is currently a war zone. Also, need a shall instead of a should in the clause.
Foreign sovereign immunities act not applicable here. This is a commercial activity.
It needs to be a truly governmental act.
Emphasis that the court had evidence.
Test for whether it is commercial is nature of transaction.
D.
Forum Non Conveniens
Summary of Piper Aircraft v. Reyno, 454 U.S. 235 (1981).
Facts
A plane manufactured by Piper Aircraft (D1), a Pennsylvania corporation, crashed in
Scotland. Parts of the airplane were manufactured by Hartzell (D2), an Ohio
corporation. Reyno (P) was appointed administrator for the families of five UK
citizens involved in a plane crash in their suit against the defendants for negligence
and strict liability. The families of the dead passengers sued Air Navigation, the
operator of the plane (McDonald), and the estate of the deceased pilot in a separate
action in the UK.
Procedural History
The complaint was filed in California by Reyno. The defendants removed to federal
district court in California and then successfully sought transfer to Pennsylvania
district court. The defendants’ motion to dismiss on forum non conveniens grounds
was granted and Reyno appealed. The court of appeals reversed and remanded.
Issues
Can Reyno prevail on the defendants’ motion to dismiss on the grounds of forum
non conveniens by showing that the substantive law that would be applied in the
alternative forum is less favorable to Reyno than that of the chosen forum?
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Did the district court act unreasonably in concluding that fewer evidentiary problems
would arise if the trial were held in Scotland, and in determining that the public
interest factors favored trial in Scotland?
Holding and Rule
1) No. 2) No.
When an alternative forum has jurisdiction to hear a case and when trial in the
chosen forum would establish oppressiveness and vexation to a defendant out of
proportion to the plaintiff’s convenience, or when the chosen forum is inappropriate
because of considerations affecting the court’s own administrative and legal
concerns, the court may in the exercise of sound discretion dismiss the case by
applying the list of private and public interest factors. But first, it must conclude
that the alternative forum is adequate.
In a motion to dismiss for forum non conveniens, a court should consider both
private and public interest factors.
Private factors include the relative ease of access to sources of proof, availability of
compulsory process for the attendance of unwilling witnesses, the cost of attendance
of witnesses, the possibility of viewing the scene if appropriate to the action, and
other practical matters related to making the trial easy, expeditious, and inexpensive.
Public factors include administrative difficulties of the courts, interest in having local
controversies adjudicated at home, the interest in having the trial in a forum that is
familiar with the law governing the action, the avoidance of unnecessary problems in
conflict of laws or the application of foreign law, and the unfairness of burdening
citizens in an unrelated forum with jury duty.
The court held that private factors favored Scotland because the wreckage of the
plane and witnesses were there. The court also held that public factors favored
Scotland because Scotland had a greater interesting in hearing a case that concerned
Scottish citizens. The court also held that the fact that Scotland might have been less
favorable to Reyno did not provide a reason to dismiss the defendants’ motion.
Disposition
Reversed in favor of the defendants.
If a case is transferred to a different federal forum, the law of the original
forum still applies.
If change of forum leaves plaintiff with no adequate remedy, cannot do forum
non conveniens.
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Court should defer to plaintiff’s forum choice if that is plaintiff’s domicile.
Little deference to bringing suit in other forum.
Also substantial deference to trial court in balancing of interests.
Union Carbide, SDNY 1986: Industrial disaster in India. Lots of lawsuits filed in
U.S. Indian government comes up with some scheme. Union Carbide is looking to
dismiss some of these actions for forum non conveniens. Follow the Piper rule. We
believe India is adequate, even if judges are allegedly immature because of British
imperialism. We’re not going to extend the imperialism. Moreover, all factors weigh
toward India.
E.
Service of Process
Volkswagenwerk, U.S. 1988
Procedural Posture
Petitioner foreign car manufacturer filed a writ of certiorari to review the
determination by the Appellate Court of Illinois, First Division, that service of
process on the manufacturer's domestic agent did not violate the Hague Service
Convention, 20 U.S.T. 361.
Overview
On writ of certiorari from a state court decision, the court affirmed the holding that
the Hague Service Convention, 20 U.S.T. 361, applied only to transmittal of service
abroad that was required as a necessary part of service. Respondent filed the
amended complaint herein for wrongful death in the state court adding petitioner, a
corporation established under the laws of the Federal Republic of Germany, as a
defendant. Respondent attempted to serve his amended complaint on petitioner by
serving a wholly owned domestic corporation as defendant's agent. Petitioner filed a
special and limited appearance for the purpose of quashing service, asserting that
service was proper only in accordance with the convention, and that respondent had
not complied with the requirements. The court agreed with the lower court's
conclusion that because service was accomplished within the United States, the
Hague Service Convention did not apply.
Outcome
The judgment of the appellate court was affirmed. The court concluded that the case
herein did not present an occasion to transmit a judicial document for service abroad
within the meaning of the Hague Service Convention. The court found that the
Hague Service Convention did not apply; therefore, service was proper.
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VIII.
International Judgment Recognition
Hilton v. Guyout, U.S. 1895: Plaintiffs sued defendants in a French court under a contract
claim. Defendants alleged fraud on the part of plaintiffs, and sought an injunction from
bringing suit, but the court would not admit evidence and entered a directed verdict for
plaintiff. The judgment was affirmed in a French appeals court. Defendants then sought
review in the United States. The court found that comity was reciprocal. Because France did
not recognize final judgments of the United States, and would try such judgments anew,
French judgments would be given the same treatment. Thus, the comity of the United States
did not require the court to give conclusive effect to the judgments of the courts of France.
Defendants could receive a new trial.
Different procedure (okay if a fair trial standard), fraud (intrinsic/extrinsic fraud, but not
necessary to decide here because something else dispositive, but would otherwise implicate
due process), no reciprocity. Nothing personal, but it’s a duty to pretty much stick to
reciprocity.
A.
Foreign Arbitral Awards
Parsons & Whittemore Overseas Co. v. Societe Generale de L'Industrie du Papier
(RAKTA), 508 F.2d 969 (2d Cir. N.Y. 1974): The American corporation entered into
an agreement with the Egyptian corporation to construct a paperboard mill in Egypt.
The agreement contained an arbitration clause and a force majeure clause that
excused delay in performance due to causes beyond the American corporation's
control. The government of Egypt ordered all Americans from its borders unless
they applied for special visas during the Six-Day War, so many of the American
construction crew left. The Agency for International Development (AID), a branch
of the U.S. State Department, withdrew funds from the project. The Egyptian
corporation sought damages for breach and invoked arbitration. An arbitral board of
the International Chamber of Commerce ruled that the force majeure clause was
only valid during hostilities, the American corporation made only perfunctory
attempts to obtain special visas, and that AID withdrawal did not justify
abandonment of the project. The court affirmed the district court's confirmation of
the foreign arbitral award. The court held that enforcement of the award did not
conflict with American Law nor the United Nations Convention on the Recognition
and Enforcement of Foreign Arbitral Awards.
Convention puts burden of proof on defendant and limits defenses. Forum can
refuse to enforce because of public policy, but this is construed narrowly.
Public policy claim fails. Claim that forum will not allow arbitration of this
fails—not special national interest vested in their resolution. Claim of lack of
proper notice or inability to present case fails. Claim that subject beyond
scope also fails.
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B.
Uniform Foreign Money Judgments Recognition Act
If the judgment meets the statutory standards, the state court will recognize it. It
then may be enforced as if it is a judgment of another state of the United States.
Enforcement may then proceed, which means the judgment creditor may proceed
against the property of the judgment debtor to satisfy the judgment amount.
First, it must be shown that the judgment is conclusive, final and enforceable in
the country of origin. Certain money judgments are excluded, such as judgments on
taxes, fines or criminal-like penalties and judgments relating to domestic relations.
Domestic relations judgments are enforced under other statutes, already existing in
every state. A foreign-country judgment must not be recognized if it comes
from a court system that is not impartial or that dishonors due process, or
there is no personal jurisdiction over the defendant or over the subject matter
of the litigation. There are a number of grounds that may make a U.S. court deny
recognition, i.e., the defendant did not receive notice of the proceeding or the
claim is repugnant to American public policy. A final, conclusive judgment
enforceable in the country of origin, if it is not excluded for one of the enumerated
reasons, must be recognized and enforced. The 1962 Act and the 2005 Act generally
operate the same.
Bank of Montreal v. Kough, 9th Cir. 1980: Defendant guarantor appealed a decision
recognizing and enforcing a money judgment obtained against him by default in
British Columbia by plaintiff bank and dismissing defendant's counterclaims as res
judicata. The court held that the district court did not err in determining that the
personal jurisdiction requirements of the Uniform Foreign Money Judgments
Recognition Act (the Act), Cal. Civ. Proc. Code §§ 1713 et seq. for the enforcement
of a foreign money judgment were satisfied by defendant's contacts with British
Columbia. While none of the provisions specifically addressed personal jurisdiction
over defendant premised upon a long-arm principle, the court applied a provision in
the Act found in Cal. Civ. Proc. Code § 1713.5(b) wherein the district court could
recognize other bases of jurisdiction. The judgment was entitled to full faith and
credit because defendant's due process rights were not violated and the doctrine
of reciprocity did not defeat the judgment's recognition. Finally, defendant's
counterclaims were so intertwined with plaintiff's foreign action that the default
judgment rendered them res judicata. The district court's judgment was affirmed.
Uniform Act makes no reciprocity claims, or rather, the reciprocity thing is an
option that some states use or don’t use.
Banque Liabanaise v. Khreich, 5th Cir. 1990: After defendant contractor was exiled
from Abu Dhabi, he executed documents allowing plaintiff bank to finance a third
party's completion of defense contracts so the attendant payments could be used to
satisfy debts owed to both plaintiff and defendant. Plaintiff never applied any
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payments to defendant's debt and did not compensate defendant for its unwitting
guarantee of funds loaned to the third party. Judgment was entered against defendant
in its Abu Dhabi breach of contract action, and judgment was entered against
plaintiff in its Texas collection action. On review, plaintiff argued that the Abu
Dhabi judgment should have been recognized and that the law of Texas was
erroneously applied. The court affirmed the district court's refusal to recognize the
foreign judgment and its application of Texas law. The court concluded that the
Uniform Foreign Country Money-Judgment Recognition Act, Tex. Civ. Prac.
& Rem. Code Ann. §§ 36.001-36.008 (1986 & Supp. 1990) specifically gave
judges discretion to refuse to recognize a foreign country money-judgment for
lack of reciprocity. The court determined that plaintiff's burden of proving that the
law of Abu Dhabi applied was not satisfied.
C.
Domestic Relations Judgments
Sheikh v. Cahill, The father and mother shared joint custody of the child. The
mother reopened the proceedings and the child was ordered to live with her and the
father was given limited supervised visitation. Later, without consent or knowledge
of the father, the mother took to child to England to live. The father went to
England and commenced a wardship proceeding. He was granted extensive
visitation. After a visitation, the father refused to return the child and applied for
custody in the court. The court denied the father's request and ordered that the child
be returned to England for the English courts to decide custody. The court held
that the father submitted himself to the jurisdiction of England so that it
could make a de novo custody award in part based upon the father's actions
in New York. Not being satisfied with the results of that strategy, the court
held that the father could not come back to the court to ask it to ignore the
custody and visitation decision of the English court. The court held that the
English decree was viable. The court held that the pursuant to the Hague
Convention the child must be returned because none of the exceptions to mandatory
return applied.
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