Whose Law of Personal Jurisdiction? the Choice of Law Problem in the Recognition of Foreign Judgments
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Adams V. Alliant Techsystems, Inc
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION HARRY ADAMS, et al., ) ) Plaintiffs, ) Civil Action No. 7:99CV00813 ) v. ) MEMORANDUM OPINION ) ALLIANT TECHSYSTEMS INC., and ) By: Samuel G. Wilson HERCULES INCORPORATED, ) Chief United States District Judge ) Defendants. ) This is a personal injury action brought by plaintiffs, employees or former employees at the Radford Army Ammunition Plant (“Arsenal”), against defendants, Alliant Techsystems, Inc. and Hercules Incorporated, for hearing loss plaintiffs allegedly suffered while working at the Plant. On May 7, 2002, this court entered a memorandum opinion granting in part and denying in part defendants’ first motion for summary judgment. This matter is before the court on plaintiffs’ motion for reconsideration. Plaintiffs argue that the court erroneously decided that Virginia’s statute of limitation applied to their claims because: (1) not all of the Arsenal is a federal enclave under the exclusive jurisdiction of the United States and governed by 16 U.S.C. § 457, (2) the defendants agreed not to assert Virginia’s statute of limitations, (3) 16 U.S.C. § 457 does not make Virginia’s statute of limitations applicable to these claims, and (4) even if Virginia’s statute of limitations applies, there are questions of fact for the jury regarding fraudulent concealment that would toll Virginia’s statute of limitations. For the reasons stated below the court will not reconsider its summary judgment opinion. I. Plaintiffs’ argument that part of the Arsenal is not on a federal enclave subject to the National Parks Act, 16 U.S.C. § 457, is a new one, not raised while the summary judgment motion was pending. -
LAW GOVERNING INVESTMENT TREATY ARBITRATION Veijo Heiskanen*
FORBIDDING DÉPEÇAGE: LAW GOVERNING INVESTMENT TREATY ARBITRATION Veijo Heiskanen* 1. INTRODUCTION The law governing international arbitration has been a field of considerable conceptual controversy. The debate goes back to the 1960's and 1970's, when distinguished scholars such as F .A. Mann, Berthold Goldman, Philippe Fouchard and others argued whether international arbitration should be considered an autonomous system of law, a new lex mercatoria, or whether it ultimately remained subject to the applicable local legal sys- tem. i As is well known, the former view was shared by many * Partner, LALIVE, Geneva. 1 would like to thank David Bonifacio of LALIVE for effective and efficient research assistance. 1. For an overview of this discussion see, e.g., Berthold Goldman, Les conflits de lois dans l'arbitrage international de droit privé, 109 bk. II RECUEIL DES COÙRS 347 (1964) (hereinafter Goldman, Les conflits de lois); Berthold Goldman, Frontières du droit et lex mercatoria, 9 ARCHIVES DE PHILOSOPHIE DU DROIT 177 (1964) (hereinaf- ter Goldman, Frontières du droit et lex mercatoria); PHILIPPE FOUCHARD, L'ARBITRAGE COMMERCIAL INTERNATIONAL 351-457 (1965); F.A. Mann, Lex Facit Arbitrum, in INTERNATIONAL ARBITRATION LIBER AMICORUM FOR MARTIN DOMKE 157 (Pieter Sanders ed., 1967); Pierre Lalive, Problèmes rélatifs à l'arbitrage interna- tional commercial, 120 bk. 1 RECUEIL DES COURS 569, 597-663 (1968); Pieter Sanders, Trends in the Field of International Commercial Arbitration, 145 bk. II RECUEIL DES COURS 205, 238-65 (1976); Pierre Lalive, Les règles de conflit de lois appliquées au fond du litige par l'arbitre international siègeant en Suisse, 145 RECUEIL DES COURS 2 (1976) (hereinafter Lalive, Les règles de conflit de lois appliquées); Harold J. -
109 . IMMOVABLES It the CONFLICT of LAWS 4. the DOCTRINE
109 . IMMOVABLES It THE CONFLICT OF LAWS 4. THE DOCTRINE OF THE RENVOI At this point,,before the discussion passes from the topic of succession on death to that of transfer inter vivos, it seems appropriate to mention the doctrine of the renvoi, which has been invoked most frequently, though not exclusively, in Con- nection with succession. The problem arises from the fact that in a given situation connected with two or. more countries, the laws of those countries may be different not only as regards their. domestic rules,; but 'Also -as regards their conflict rules. If a. court in X, in accordance with a conflict rule' -of the forum, has selected the law of some other country, Y, as . the proper law with regard to a particular juridical question arising from the factual situation, and arrives at the stage of applying the law of Y,2 the court might do any one of three things. Firstly, it might reject or ignore the doctrine of the renvoi and apply simply the domestic rulee3 of the law of Y, without regard to the conflict rules of that law, that is, without regard to any possible reference back (renvoi) from the law of Y to the law of X or forward to the law of a third country, .Z. Secondly, it might adopt a theory of partial renvoi, that is, it might apply the conflict rules of the law, of Y to the extent of accepting a reference back from .the law of Y, and consequently apply the domestic rules of the law of X, without considering what, if any, theory of the renvoi prevails in the law of Y. -
Personal Jurisdiction and Aggregation Scott Od Dson UC Hastings College of the Law, [email protected]
University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 2018 Personal Jurisdiction and Aggregation Scott oD dson UC Hastings College of the Law, [email protected] Follow this and additional works at: https://repository.uchastings.edu/faculty_scholarship Recommended Citation Scott odD son, Personal Jurisdiction and Aggregation, 113 Nw. U. L. Rev. 1 (2018). Available at: https://repository.uchastings.edu/faculty_scholarship/1676 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Copyright 2018 by Scott Dodson Printed in U.S.A. Vol. 113, No. I Articles PERSONAL JURISDICTION AND AGGREGATION Scott Dodson ABSTRACT-Aggregation-the ability to join parties or claims in a federal civil lawsuit-has usually been governed by subject matter jurisdiction, claim and issue preclusion, and the joinder rules. These doctrines have tended to favor aggregation for its efficiency, consistency, and predictability. Yet aggregation is suddenly under attack from a new threat, one that has little to do with aggregation directly: personal jurisdiction. In this Article, I chronicle how a recent restrictive turn in personal jurisdiction-seen in modern cases narrowing general jurisdiction and October Term 2016's blockbuster case Bristol-Myers Squibb-threatens the salutary benefits of aggregation across a number of areas, including simple joinder of parties and claims, representative actions, and multidistrict litigation. I offer a solution for preserving aggregation's advantages in the face of this trend in personal jurisdiction: authorize a broader scope of personal jurisdiction in federal court for multiparty and multiclaim cases. -
Initial Stages of Federal Litigation: Overview
Initial Stages of Federal Litigation: Overview MARCELLUS MCRAE AND ROXANNA IRAN, GIBSON DUNN & CRUTCHER LLP WITH HOLLY B. BIONDO AND ELIZABETH RICHARDSON-ROYER, WITH PRACTICAL LAW LITIGATION A Practice Note explaining the initial steps of a For more information on commencing a lawsuit in federal court, including initial considerations and drafting the case initiating civil lawsuit in US district courts and the major documents, see Practice Notes, Commencing a Federal Lawsuit: procedural and practical considerations counsel Initial Considerations (http://us.practicallaw.com/3-504-0061) and Commencing a Federal Lawsuit: Drafting the Complaint (http:// face during a lawsuit's early stages. Specifically, us.practicallaw.com/5-506-8600); see also Standard Document, this Note explains how to begin a lawsuit, Complaint (Federal) (http://us.practicallaw.com/9-507-9951). respond to a complaint, prepare to defend a The plaintiff must include with the complaint: lawsuit and comply with discovery obligations The $400 filing fee. early in the litigation. Two copies of a corporate disclosure statement, if required (FRCP 7.1). A civil cover sheet, if required by the court's local rules. This Note explains the initial steps of a civil lawsuit in US district For more information on filing procedures in federal court, see courts (the trial courts of the federal court system) and the major Practice Note, Commencing a Federal Lawsuit: Filing and Serving the procedural and practical considerations counsel face during a Complaint (http://us.practicallaw.com/9-506-3484). lawsuit's early stages. It covers the steps from filing a complaint through the initial disclosures litigants must make in connection with SERVICE OF PROCESS discovery. -
Introduction to Law and Legal Reasoning Law Is
CHAPTER 1: INTRODUCTION TO LAW AND LEGAL REASONING LAW IS "MAN MADE" IT CHANGES OVER TIME TO ACCOMMODATE SOCIETY'S NEEDS LAW IS MADE BY LEGISLATURE LAW IS INTERPRETED BY COURTS TO DETERMINE 1)WHETHER IT IS "CONSTITUTIONAL" 2)WHO IS RIGHT OR WRONG THERE IS A PROCESS WHICH MUST BE FOLLOWED (CALLED "PROCEDURAL LAW") I. Thomas Jefferson: "The study of the law qualifies a man to be useful to himself, to his neighbors, and to the public." II. Ask Several Students to give their definition of "Law." A. Even after years and thousands of dollars, "LAW" still is not easy to define B. What does law Consist of ? Law consists of enforceable rule governing relationships among individuals and between individuals and their society. 1. Students Need to Understand. a. The law is a set of general ideas b. When these general ideas are applied, a judge cannot fit a case to suit a rule; he must fit (or find) a rule to suit the unique case at hand. c. The judge must also supply legitimate reasons for his decisions. C. So, How was the Law Created. The law considered in this text are "man made" law. This law can (and will) change over time in response to the changes and needs of society. D. Example. Grandma, who is 87 years old, walks into a pawn shop. She wants to sell her ring that has been in the family for 200 years. Grandma asks the dealer, "how much will you give me for this ring." The dealer, in good faith, tells Grandma he doesn't know what kind of metal is in the ring, but he will give her $150. -
The Supreme Court's New Notice Pleading Requirements
MICHAEL (FORMATTED).DOC 5/13/2016 4:57 PM THE SUPREME COURT’S NEW NOTICE PLEADING REQUIREMENTS: REVOLUTIONARY OR EVOLUTIONARY RICHARD A. MICHAEL* The Roberts Court’s decisions about the requirements of federal pleading have engendered significant controversy in the literature. These cases, Bell Atlantic Corp. v. Twombly1 and Ashcroft v. Iqbal,2 have been said by some to have destroyed the federal notice-pleading system and “radically tipped the balance in favor of defendants.”3 It is the position of this article that these cases do not “radically” change federal pleading but merely modify it in a reasonable manner to correct past errors in the interpretation of its rules and address problems that have troubled courts and legal scholars since the adoption of the federal rules. It is further believed that recent decisions from modern fact-pleading jurisdictions provide a roadmap for the proper interpretation of the “facial plausibility” now required in federal pleadings. TABLE OF CONTENTS I.THE EARLY DEVELOPMENT OF NOTICE PLEADING..........................268 II.THE INTERRELATIONSHIP OF DISCOVERY AND PLEADING ..............272 III.TWOMBLY AND IQBAL..................................................................277 *Professor Emeritus, Loyola University of Chicago School of Law. J.D. 1958, Loyola of Chicago; LL.M. 1960 University of Illinois. Member, American Law Institute. Special thanks are expressed to Professor Locke for reviewing a draft of this article and to Brendan Kottenstette and Chantel Boctor for their able research assistance. The views expressed herein are solely those of the author. 1. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). 2. Ashcroft v. Iqbal, 556 U.S. 662 (2009). -
Result-Selectivism in Conflicts Law* Symeon C. Symeonides
WLR46-1_FINAL_SYMEONIDES FIX 12/16/2009 9:38 AM RESULT-SELECTIVISM IN CONFLICTS LAW* SYMEON C. SYMEONIDES** I. INTRODUCTION A. The Classical View: “Conflicts Justice” The classical, traditional view of the law of conflict of laws, going at least as far back as Savigny and Story,1 is grounded on the basic premise that the function of conflicts law is to ensure that each multistate legal dispute is resolved according to the law of the state that has the closest or otherwise most ―appropriate‖ relationship with that dispute. Opinions on defining and especially measuring the ―propriety‖ of such a relationship have differed over the years from one legal system to another and from one subject to the next. Despite such differences, however, all versions of the classical school have remained preoccupied with choosing the proper state to supply the applicable law, rather than directly searching for the proper law, much less the proper result. Indeed, the implicit—if not explicit—assumption of the classical school is that, in the great majority of cases, the law of the proper state is the proper law. But in this context, propriety is defined not in * Copyright 2009 by Symeon C. Symeonides. ** Dean and Alex L. Parks Distinguished Professor of Law, Willamette University College of Law; LL.B. (Priv. L.), LL.B. (Publ. L.) Univ. of Thessaloniki; LL.M., S.J.D. Harvard University. 1. See 8 FRIEDRICH CARL VON SAVIGNY, SYSTEM DES HEUTIGEN RÖMISCHEN RECHTS (1849), translated in WILLIAM GUTHRIE, PRIVATE INTERNATIONAL LAW, A TREATISE ON THE CONFLICT OF LAWS AND THE LIMITS OF THEIR OPERATION IN RESPECT OF PLACE AND TIME (1st ed. -
Stare Decisis
1974] A PROPER LAW OF TORTS 101 A. PROPER LAW OF TORTS IN THE CONFLICT OF LAWS* PETER J. M. LOWN** The subfect examined by this thesis is the conflicts rules which should be applied to determine liability in tort actions, and the question of whether or not a "proper law" approach could be adopted in this particular area. It is submitted, in Section I, that changing circumstances and changing theoretical bases for conflict of laws, are reasons for a fresh look at the area of torts in the conflict of laws. Moreover it is submitted, in Section II, that such a fresh look should be firmly based on funda mental policies of conflict of laws generally, such as the absence of forum-shopping, the convenience of the parties and the achieving of a uniform result whatever the forum of a particular action, The existing rules are examined in the light of their application to the varying circumstances which can arise in tort actions. In addition a critical examination of the existing rules is attempted, in respect of the require ments of identifying the locus delicti, and whether the existing rules relate to choice of law or furisdictional questions. The "prorer law" concept is suggested as a solution to the problems arising from this critica examination, and is buttressed by the operation and use of such a concept in other areas of the law, such as contracts and recognition of foreign divorce decrees. Since the "proper law" approach has been adopted in the United States, it is necessary to examine the experience in those jurisdictions. -
Minimum Contacts in Cyberspace: the Classic Jurisdiction Analysis in a New Setting
Minimum Contacts in Cyberspace: The Classic Jurisdiction Analysis in a New Setting Tricia Leigh Gray I. INTRODUCTION Because no special law yet exits to address jurisdiction issues on the Internet, courts have been forced to apply traditional analyses of jurisdiction to cases in this new environment. Our traditional notions of jurisdiction have made a relatively smooth transition into cyberspace. Historically, jurisdictional requirements have centered on the locus and the activity of the parties as a means of determining which state’s law to apply.1 With the advent of the Internet and the new frontier of cyberspace, established ideas about where and how interactions take place must be re-considered in this unconventional, on- line environment. These sorts of issues affect a court’s jurisdiction over parties interacting in cyberspace. Surprisingly, our conventional notions of jurisdiction have adapted well to this new cyber-environment. This is illustrated by the report of the American Bar Association, which extends support to the minimum contacts analysis to determine jurisdiction over on-line parties.2 Cyberspace has expanded the arena for interactions of all sorts,3 and has provided another forum in which parties can reach out to each other from different locations, and possibly create the minimum contacts necessary for personal jurisdiction.4 Traditional principles of jurisdiction are adaptable to cyberspace because they consider the 1.See RICHARD D. FREER & WENDY COLLINS PERDUE, CIVIL PROCEDURE, CASES, MATERIALS AND QUESTIONS 70-71 (2d ed. 1997). The place of litigation is significant for several reasons. Id. at 70. First, parties want to avoid inconvenience. Id. -
The Dimensions of Public Policy in Private International Law
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by UCL Discovery The Dimensions of Public Policy in Private International Law Alex Mills* Accepted version: Published in (2008) 4 Journal of Private International Law 201 1 The problem of public policy in private international law National courts always retain the power to refuse to apply a foreign law or recognise or enforce a foreign judgment on the grounds of inconsistency with public policy. The law which would ordinarily be applicable under choice of law rules may, for example, be denied application where it is “manifestly incompatible with the public policy (‘ordre public’) of the forum”1, and a foreign judgment may be refused recognition on the grounds that, for example, “such recognition is manifestly contrary to public policy in the [state] in which recognition is sought”2. The existence of such a discretion is recognised in common law rules, embodied in statutory codifications of private international law3, including those operating between European states otherwise bound by principles of mutual trust, and is a standard feature of international conventions on private international law4. It has even been suggested that it is a general principle of law which can thus be implied in private international law treaties which are silent on the issue5. The public policy exception is not only ubiquitous6, but also a fundamentally important element of modern private international law. As a ‘safety net’ to choice of law rules and rules governing the recognition and enforcement of foreign judgments, it is a doctrine which crucially defines the outer limits of the ‘tolerance of difference’ implicit in those rules7. -
Rule Interpleader, the Anti-Injunction Act, in Personam Jurisdiction, and M.C
Pace University DigitalCommons@Pace Pace Law Faculty Publications School of Law 1-1-1996 What's Wrong with This Picture?: Rule Interpleader, the Anti- Injunction Act, In Personam Jurisdiction, and M.C. Escher Donald L. Doernberg Elisabeth Haub School of Law at Pace University Follow this and additional works at: https://digitalcommons.pace.edu/lawfaculty Part of the Civil Procedure Commons, Jurisdiction Commons, and the Litigation Commons Recommended Citation Donald L. Doernberg, What's Wrong with This Picture?: Rule Interpleader, the Anti-Injunction Act, in Personam Jurisdiction, and M.C. Escher, 67 U. Colo. L. Rev. 551 (1996), http://digitalcommons.pace.edu/ lawfaculty/45/. This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Faculty Publications by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. WHAT'S WRONG WITH THIS PICTURE?: RULE INTERPLEADER, THE ANTI- INJUNCTION ACT, IN PERSONAIM JURISDICTION, AND M.C. ESCHER Plate 'Waterfall" O 1995 M.C. EscherICordon Art-Baarn-Holland. All rights reserved. Reprinted by permission. - At first glance, the picture above may seem unremarkable; the eye is apt to brush over the image uncritically, taking in the whole without focusing on the details. On closer examination, * Charles A. Frueauff Research Professor of Law, Pace University. B.A., Yale University; J.D.,Columbia University. Heinonline -- 67 U. Colo. L. Rev. 551 1996 552 UNIVERSITY OF COLORADO LAW REVIEW vol. 67 one notices that the structure is physically impossible, pleasing to the eye but not of the real world-unless, of course, there is some undiscovered place where water spontaneously recycles itself from the bottom of a waterfall to the top.