International Sale of Goods (Cisg)

Prof. Dr. Volker Behr Summer Course 2013

TRANSNATIONAL LITIGATION

Table of Contents

World-wide Volkswagen Corp. v. Woodson

TRANSNATIONAL LITIGATION - Warm-up Paper

I look forward to seeing you and to discovering with you the ins and outs of transnational litigation. From the American system of legal education law of civil procedure is a first year or at least second year topic. Hence, American students should have substantial knowledge of civil procedure problems in general – but probably no specific expertise in transnational litigation. From the German system of legal education law of civil procedure is a third year topic. Hence, the average Law School student might not have specific knowledge of problems of civil procedure at all. However, German students preparing for the second State’s Exam should have profound knowledge of civil procedure – although not necessarily international civil procedure. As to students from other countries, I do have little knowledge about how law of civil procedure and notably international civil procedure affects their curriculum. But my guess is it is somehow similar to either of the aforementioned systems. In sum, this is a somehow heterogeneous group and everybody has the opportunity to learn something knew and to transfer something to his or her fellow students.

Based on such knowledge and presumptions in the course of the next weeks we shall try to find out what are the specific procedural problems and solutions in transnational litigation focusing on recent European Community legislation and specifically addressing U.S. – German transnational litigation.

We will have a two hours class session per week. The classroom sessions will consist of a mixture of lectures, mandatory discussions, and voluntary discussions. Everybody should participate in the discussion. In addition, in each session some students should be prepared to present a short statement addressing specific questions related to the main topic of the session.

As you will see, in a wide range of situations European law of transnational litigation is based on EC- Regulations. Such Regulations are statutory law. Hence, emphasize will be laid on the interpretation of the Regulations. We will consider how to interpret and apply the Regulations based on cases most of which have been decided up to now under an EC-Convention, the so-called Brussels Convention. This Convention has been superseded by one of the Regulations (Brussels I Regulation) – except for litigation which had been instituted before the Regulation came into force, and in relation to Denmark. But as the substance of the Regulation predominantly is identical with the Brussels Convention, cases decided under the Convention have maintained relevance under the Regulation. In the attached materials I shall add such parts of the Brussels Convention which have been altered by the Brussels Regulation.

Reading assignments should be completed before the respective class sessions. If you don’t, you will not be able to follow the class discussions, and the discussions themselves will falter in case many of you are unprepared. I shall indicate which sections of the reading assignments should be prepared to which session. To this end, the Topic Outline will start with a plan of the course, which at the same time will address reading assignments.

It will be a lot of reading. But this is the minimum necessary to give you a good sense of the basic problems of transnational litigation, and will provide the means necessary to handle those problems, which is my goal.

Thanks, and I am looking forward to the beginning of the class.

TRANSNATIONAL LITIGATION – Topic Outline

1st Session

In our first session we shall try to explore the scope of the law of international civil procedure, the practical relevance of the forum, and the legal bases of the law of civil procedure in the European Union and in Member States of the European Union on the one hand and in the United States of America on the other hand.

1.1. 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

1.2. Practical Relevance

Applicable Law and Consequences of Application of Domestic Conflict of Laws Rules

Practical Advantages and Disadvantages of Suing or Being Sued in Domestic and Foreign Courts

1.3. Legal Bases

Jurisdictional Bases in the U.S.

International Jurisdiction in Europe: Regulations (EC) – Conventions – Domestic Law

1.4. Immunity

Immunity of States, Public Organizations and States Enterprises

Immunity from Jurisdiction to Adjudicate and from Execution

Please, start reading either World-Wide Volkswagen or Helicopteros

Council Regulation (EC) No. 44/2001 (Brussels I Regulation) Articles 1 – 4

Basle Convention; either Basle Convention, UN Convention or FSIA

Questions as to a prospective German – U.S. transnational litigation case:

Why would you prefer to sue the defendant in your home country and under which conditions you would sue defendant abroad?

2nd Session

2nd and 3rd session will focus on jurisdiction to adjudicate in civil and commercial matters. We shall discuss in general the systems of general and specific jurisdiction in Europe on the one hand and in personam and in rem jurisdiction in the U.S: on the other hand. We shall determine the scope of Council Regulation (EC) No. 44/2001, and than turn to the different bases of jurisdiction starting with general jurisdiction based on domicile, exclusive jurisdiction, jurisdicion by appearance and prorogation of forum.

2.1. General and Specific Jurisdiction

2.2. In personam and In rem Jurisdiction

2.3. Scope of Council Regulation (EC) No. 44/2001

2.3. General Jurisdiction in the European Union, Article 2 Brussels I Regulation

2.4. Exclusive Jurisdiction, Article 22 Brussels I Regulation

2.5. Jurisdiction by Appearance 24 Brussels I Regulation

2.6. Prorogation and Derogation of Forum, Article 23 Brussels I Regulation

Please, read Articles 1 – 4, 22 – 24 Brussels I Regulation

LTU v. Eurocontrol

Josi Reinsurance Company SA v. Universal General Insurance Company (UGIC)

Students are asked to volunteer for:

The system of general and specific jurisdiction in Europe

In personam and In rem jurisdiction in the U.S.

The notion of domicile in Brussels I Regulation and in the U.S.

3rd Session

3rd session will continue discussion of bases of jurisdiction, now focusing on specific jurisdiction and notably jurisdiction of the place of performance of an obligation and the place of the tort.

4th Session

4th session again will address bases of jurisdiction. But we now shall focus on jurisdiction in matrimonial matters and in matters of parental responsibility. In addition, we shall discuss Brussels and Lugano Convention and provisions for jurisdiction in specific international conventions.

5th Session

5th session will focus on procedural specialties in relation to transnational litigation, notably service abroad and taking evidence abroad

6th Session

The 6th and final session addresses recognition and enforcement of foreign judgments under EC regulations and under domestic law. We shall try to figure out what are the requirements of enforcement according to the different systems. We shall the “technical” procedure in case of enforcement of foreign judgements. And we shall consider to what extent the enforcing state is entitled to review the foreign judgment.

6.1.  Grounds for non-recognistion and enfordement

6.2.  “Full Faith and Credit” in the U.S. and in Europe?

6.3.  Review of the Foreign Judgment

6.4. Enforcement like in Domestic Judgments or Judgment upon the Judgment

European Convention on State Immunity Basle Convention)

Basel, 16 May 1972

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:

Chapter I – Immunity from jurisdiction

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.

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.

Article 3

1. A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting

State if, before claiming immunity, it takes any step in the proceedings relating to the merits. However, if

the State satisfies the Court that it could not have acquired knowledge of facts on which a claim to

immunity can be based until after it has taken such a step, it can claim immunity based on these facts if it does so at the earliest possible moment.

2. A Contracting State is not deemed to have waived immunity if it appears before a court of

another Contracting State in order to assert immunity.

Article 4

1. Subject to the provisions of Article 5, a Contracting State cannot claim immunity from the jurisdiction of the courts of another Contracting State if the proceedings relate to an obligation of the State, which, by virtue of a contract, falls to be discharged in the territory of the State of the forum.

2. Paragraph 1 shall not apply:

a. in the case of a contract concluded between States;

b. if the parties to the contract have otherwise agreed in writing;

c. if the State is party to a contract concluded on its territory and the obligation of the State is governed by its administrative law.

Article 5

1. A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate to a contract of employment between the State and an individual where the work has to be performed on the territory of the State of the forum.

2. Paragraph 1 shall not apply where:

a. the individual is a national of the employing State at the time when the proceedings are brought;

b. at the time when the contract was entered into the individual was neither a national of the State

of the forum nor habitually resident in that State; or

c. the parties to the contract have otherwise agreed in writing, unless, in accordance with the law of the State of the forum, the courts of that State have exclusive jurisdiction by reason of the

subject-matter.

3. Where the work is done for an office, agency or other establishment referred to in Article 7,

paragraphs 2.a and b of the present article apply only if, at the time the contract was entered into, the individual had his habitual residence in the Contracting State which employs him.

Article 6

1. A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if it participates with one or more private persons in a company, association or other legal entity having its seat, registered office or principal place of business on the territory of the State of the forum, and the proceedings concern the relationship, in matters arising out of that participation, between the State on the one hand and the entity or any other participant on the other hand.