1) Personal Jurisdiction ? Power of Court to Issue Binding Default Judgment Against Def

Agreement/Dispute Private or Public? Private 1) Personal Jurisdiction? Power of court to issue binding default judgment against Def Exclusive or Non-Exclusive (Nedlloyd: parties agreed to always be under at least HK jurdict) Long-Arm Statute (5th/14th Amendment, typically) Does Def’s contacts with forum arise/relate to P’s cause of action? Yes (Spec jurdict) or No (Gen Jurdict) Specific Jurdict: Test from Sandy Lane for determining D’s connexion to the Cause of Action: 1) is there Minimum Contacts: “purposely directed its activities to the forum” a. Volkswagen b. Burger King: K negotiations sufficient c. Asahi: mere “stream of commerce” isn’t 2) Litigation must asrise out of or relate to on of those activities a. Substantive Relevance: Are D’s contacts legally related to P’s cause of action? b. But-For Causation: easier than #1, was used in Sandy Lane c. Substantial Relationship: A continuum depicting the totality of circumstances; blurs specific and gen. jurdict; not used (or favored) in Sandy Lane (probably shouldn’t be used ever) 3) Fair Play and Substantial Justice -Weigh every factor to determine if it is “fair” to exercise jurdict -Doesn’t have much bite actually General Jurdict: 1) traditional Bases for jurdict a. Domicile b. Service of Process in the State (tag~Burnham) c. Consent 2) Continuous and Systematic Contacts --Always follow with a Reasonableness Test (Multidata, 3.8) -Forum’s interest in the litigation -Weigh every factor/issue presented -“Gen.jurdic is very dangerous” (WIWA, brings social responsibility to corps) ***2) Does K cover the dispute: -Broad/Narrow contract language (arising out of, arising and relating to) and… -Cause of Action: Is it a fed. law w/ an unwaivable cause of action (ex SEC’34 law) 3) Choice of Law (Clauses) -Party seeking to use foreign law has burden of pleading/proving it (Nedlloyd) -Has moved from rules (1st Rest) to Standards now (2nd Rest., weigh all factors) -Choose law with the greatest interest in the case, which state’s law would be best served (Spink v General Atlantic), Sup.Ct. NY)add up all the factors and choose -By Contract: Provision within/without K? Without: Always use forum’s procedural CoL rules [Milliken v Prat]

Look to §188-Rest1. Conflict of Laws test: Use §6 for extra

1 1) the rights/duties of the parties wrt the K are determined by the local law of the state which as the most significant relationship to the transaction and parties under the principles of §6 1 i) FIRST, Which law chosen by §188—by looking at §62 elements Within: ii) ASK: Does this law allow parties to select law re: issue in question? (i.e. default or mandatory law) iii) if so (read, default law), enforce CoL clause iv) if mandatory, THEN look to §187(2) to see if mandatory restriction can be circumvented (note: regulatory laws are mandatory) §187(2) allows circumvention unless: a) chosen law has no “substantial relationship” or b) Chosen law is contrary to “fundamental policy” (super pub.pol) of §188 state and §188 state has materially greater interest (Re: Nedlloyd, GFFD wasn’t fundamental policy) §187(1): allows you to choose what law governs when K doesn’t deal with mandatory law --If there’s party choice in K, look to 187(2) --Pub.pol exception always applies, so always check the forum’s pub.pol issue Scope?? How broad/narrow is the CoL clause; does it only deal with contractual claims, etc? By treaty: By Supremacy clause, treaties are controlling law CISG: A completely different body of law When/How to apply (Packet 2): 1) Is forum a CISG state? If Yes2 2) Ar. 1(1)(a) “the States are Contracting States or” 1(1)(b) “the rules of private int’l law lead to the app. of the law of a Contracting State”? if yes3 3) have the parties excluded CISG? Art 94-5. 1(1)(b) may be excepted to by Art. 95 -If any step leads to not applying CISG, court goes to its own CoL Art 2: Specifies to what goods CISG applies -Aside—CISG can be contracted into in 3 ways3 Allows reliance on subjective intent//no PER (MCC-Ceramica) (Art. 8(3) & 11) Has lots of standards (“reasonable”) & not good for protecting parties’ ex ante expectations Not binding precedents on other courts -Art. 10: place of business most closely related to the K, not the principal place of business 4) Choice of Forum Clause Fed. courts are in favor of honoring them, for purposes of int’l commerce (The Bremen); state courts, not so sure

2) in absence of CoL by parties (§187) the contacts to be taken into account in applying §6 principles include: (a) place of contracting, (b) place of negotiation of K, (c) place of performance, (d) location of the subject matter of K 2 1) courts, subject to constitutional restrictions, will follow statutory directive of its own state on choice of law 2) when there is no such directive, factors relevant to choice of law include: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states, (d) the protection of justified expectations (e)the basic policies underlying the partcular field of law (f) certainty, predictability, and uniformity of result (g) ease in the determination and application of the law to be applied 3 1) cut and paste into K 2) CoL of forum lead it to apply contracting state’s law3)referencing CISG in the K 2 -also when they are of intrinsic value in the K and outcome determinative -Fed courts have CL creating power in admiralty (and other fed.Q??) cases -No Erie issue in The Bremen because it was a fed.Q, not K claim (so not vertical CoL) Test for honoring Forum-Selection Clause (and how its examined) from Pete Rock case 1) Was clause reasonably communicated (skip/gloss over) 2) Is the clause mandatory or permissive ( by the CoL’s law) 3) Scope: does the clause cover the claims/parties (by the CoL’s law) a. Read according to the CoL (if plead), the forum (NY v Cal, etc), or THE FAA BECAUSE FED LAW CONTROLS 4) Arbitrability/Legality of the clause (by the Forum’s law) Limited by: pub.pol (always) // pseudo-forum non conveniens // unjust or unreasonable // fraud -must check if other forum will honor mandatory US law or take away cause of action (cf. Lloyds of London and fed. sec. law that doesn’t allow certain waivers vs Japanese arbitration in Vimar-Seguros) -but consider who eager courts are to impose extra-territorially our US laws -CoF can apply to only certain parts of a multi-claim action (Pete Rock)Scope questions Arbitration Agreement: seen as ~ to forum selection clause Strong fed. policy in favor of honoring arbitration (Scherk, 3.30; Rhone Mediterranee, procedural problems aren’t enough) esp. for int’l agreements -Fed. court has allowed foreign arbitration even when federal statute was in play (Scherk, allowing Paris forum even though SEC law would be tried; Mistubishi4 allowing Japanese arbitration despite Sherman Act being tried) FAA: applies to both dom/int’l K, eliminates state statutes against arbitration (Ledee v Ceramiche). Can be challenged on same grounds as you challenge any K provision Test if FAA Applies (Ledee, 3.39) 1) Is there agreement in writing to arbitrate the subject of the dispute a. Agreement must actually be signed and in force, though it can be severable (Sandvik) 2) Does agreement provide for arbitration in a territory of a signatory of the FAA? 3) Does the agreement arise out of a legal, commercial relationship?5 4) Is a party to the agreement not an American, or is the relationship to some extent int’l? Scope of Arbitration Agreement: Read broadly if at all possible (Mistubishi, FAA) DAMAGES Ranked: Domestic Award > Foreign Arbitration Award > Foreign Judgment Interstate (Domestic) Judgements: Essentially no review (tiny exception for no PJ) and no pub.pol exception for domestic judgements (Fauntleroy) CREFAA: treaty req’ing contracting states to honor foreign arbitral awards -need a major pub.pol issue to avoid Foreign Arbit-Award (FAA Ar. 5almost No appellate review; review is only procedural or for “clearly erroneous & manifest disregard of the law”) There aren’t int’l treaty obligations to honor foreign judgments, so pub.pol exception is broader (Matusevitch, US constitutional rights vs. foreign defamation) Public Agreements 1) Hard or Soft? Soft: No intent to be bound 4 Mitsubishi conceded that the Japanese arbitrators would have to try the Sherman Actprobably won the case for them. Still, this was a “leap of faith” by the court the American laws would still be honored 5 doesn’t necessarily have to be a contractual relationship. Merely commercial 3 Hard: Treaties Judicial enforcement 2) Multilateral or bi-lateral 3) Self-executing or Not? Look to the language (“shall”, who it is directed to, who gets cause of action). Not negotiated between nations Not self-executing: addressed to legislature; makes future promises (Foster v Neilsen, 2.4) -If it doesn’t create a domestic law, it isn’t to be enforced by courts unless Legislature passes a statute (Medellin) Self-Executing: Asakura -gives individs cause of action, -is enforced by/addressed to judiciary—No need for legislation, bc Supremacy clause (Art. VI of constitution) -Mandatory language -“provides constraint on government action” 4) RUDs  Reservations are generally allowed except when (check these): o Theres a no-reservation clause in the treaty o The reservation goes to the object and purpose of the treatyif so, NO treaty o It’s a multilateral treaty?? Protect against having the “Last Rule Doctrine” changing our domestic laws via Treaties  Understandings: interpretative statements  Declaration: statement of purpose or policy o Look for “non-self-executing” declaration ICCPR: wasn’t ratified for 12 years until Congress put some RUDs in it. Some articles conflicted with our domestic law: Reservations included (2.71)  Reservation: right to capital punishment, even of minors  Understanding: The US Constitution determines equal protection of the law and protects against discriminationallows for affirmative action  Declaration: not self-executing

4 POLICING (the MNC) Internationally Corporate Form(s): Which kind? Probably compare both… Joint-Venture (Itel Containers, 5.2): Term of art, legally equal to a partnership in NY law; req’s a test where all must be found 1. ≥2 people enter into specific agreement to carry on an enterprise for profit 2. the agreement must evidence their intent to be joint vernturers 3. each must make a contribution of property/financing/skill/knowledge/effort 4. each must have some degree of joint control over the venture 5. there must be a provision for the sharing of both profits & losses Corporate Subisidiaries— agency Express agency: created “by written or spoken words or other conduct of the principal which, reasonably interpreted, causes the agent to believe” the principal wants him to act as his agent. Rest. 2d Agency §26. Depends on the interaction b/w P&A, not any 3rd-P Implied Agency: depends on the reasonable conclusion of the 3rd-P, “derived from actions of the P, that the person acting has authority to do so from the P. Rest 27 Alien Tort Claims Act Wiwa: court ignores all Helicopteros/Asahi/BK factors, and reduces it to convenience. Why?? -Severe human rights abusesdefy cost-benefit analysis -US obligation/ability (under ATCA) to police foreign states and multi-national companies for “severe human rights abuses” Result: Court has PJ over Shell parent because of IRO in New York Long-Arm Statutes: 1) Statutory Test 2) Constitutional Test Factorts Against Int’l Policing in US courts Forum non Conveniens dismissal (Piper): 4 part test 1) Is there and adequate (read: democratic or not) alternate forum? If nono dismissal 2) Balance of (private and public) considerations on the parties 3) Presumption in favor of Pl’s choice of forum (but foreign Pl deserves less deference) 4) .unfavorable law is not a reason to not dismiss note: change in law should not be taken into account In re Union Carbide Disaster: they were already subject to PJ in India, so why try them in USA?  Don’t do it; judicial imperialism is bad  Most evidence, witnesses, documents in India or in Indian  Case will turn on India’s domestic industrial regulation, which is very difficult for us to adjudge and will be bad if we find their domestic laws suboptimal  Court looked at all CoL analyses (lex loci delicti, weight of contacts, state with most compelling interest, looked at them in toto) Bi v Union Carbide: court said Pl didn’t have standing because it determined that the Indian law that gave the Indian gov’t exclusive standing was a (presumed) valid domestic law that barred this action -analogized to act of state doctrine; foreign democratic gov’t presumed legit -judicial branch is loath to rule on foreign laws, out of reluctance to disturb foreign relations (it is the proper realm of the executive) Extraterritorial Regulation Default presumption (canon) against, but can be overcome by Congress (infra) Reasons: 1) avoid int’l discord 2)separation of powers 3) assumption abouse general legislative intent 4) law is territorial 5) DP concerns for Defendant 5 -only fed. law (antitrust, securities) can be exercised XT’ally; state law (K, tort) done by CoL

1) Must determine what kind of question of law it is. Multilateral: (K, tort) ask, which state’s law, A or B? Run the §187 and §6 tests Unilateral: (fed) ask, “does our law apply?” if answer is noDismiss (note, there is no Rest. test)

2) Overcoming the presumption against Extraterritoriality “Plain statement rule:” new req’t imposed by S.Ct in 1991 (Aramco); typically, preponderance of evidence would suffice  Majority wants Congress to be explicit in the law-making  But this rule ignores Congressional inertia/difficulty for Congress to amend the law (as majority wants). Still Congress did amend it  Minority wants to look at statute as a whole (here, there was an exception for aliens, so Congress was pretty clear that it wanted XT enforcement) Hartford Fire Ins: court limits comity analysis to only situations where foreign and US law compel completely inconsistent/opposite results broad int’l enforcement of US Antitrust law (was already est. practice) -Scalia says to use Charming-Betsy canon (Act of Congress not to be construed to violate int’l law if at all possible) -also says to use Rest. 3rd factors (5.82) and do a balancing testdo not exercise extraterritorial jurisdiction when that exercise is “unreasonable”6 Customary Int’l Law Ar. 1 §8 of constitution… CIL is part of federal C-L (The Paquete Habana, widespread ban on seizing coastal fishing vessels) -Erie questionwhat to do if state law in opposition? -CIL trumps state law; remains part of the “federal C-L” even post-Erie (w/ no sovereign source) -domestic law supersedes CIL, if actually reduced to writing but must be settled rule of int’l law to have effect (Filartiga/torture cf. Sabbatino/expropriation) -difference between settled in principle and in practice (in Filartiga, court loosened, allowed it to be only settled in principle, unlike Paquete Habana, which looked to practice, b/c otherwise case fails) Act of State doctrine: part of the CIL Alien Tort Statute: is jurisdictional only (Filartiga, Sosa) -originally created by Framers to police the US, not to create private causes of action -from Kadic v Karadzic “the Alien Tort Act…validly creates fed. court jurdict for suits alleging torts committed anywhere in the world against aliens in violation of the law of nations” Sosa v Alvarez-Machain: changed the “jurdict only” holding, allowed judges to recognize private causes of action on their own authority in ATS cases. But Souter also sets rules so that the possible claims are very limited and caution is taken. Why? 1) gen. C-L changed a lot since 1789, which counsels restraint in applying internationally generated norms

6 turns on (a) extent to which the activity takes place in the regulating state, (b) the connexions, such as nationality, residence, or economic activity, between the regulating state and the person responsible for the active, (c) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities (d) the extent to which another state may have an interest in regulating the activity (e) the liklihood of conflict with regulation by another state 6 2) there’s canon of construction against finding private causes of action unless clearly expressed 3) fed. courts play much smaller role today then past in creating substantive law 4) possible effect on US foreign relations and impinging on Exectuive/Legislative branches 5) there’s no “congressional mandate to seek out and define new and debatable violations of the law of nations” Scalia just says that since we’re post-Erie, they should require a act from Congress Test for using ATS 1) Is there statutory SMJ ? i. Was it a tort? ii. Was it in violation of settled CIL? iii. Was suit brought by an alien? 2) Is it constitutional? (Read, does it come under an Ar. 3 fed. court jurdict) 3) Is there a cause of action? i. Can be created affirmatively by Congress (TVPA for torture)… ii. …or satisfy the Sosa reqs for fed. C-L cause of action, meaning the claim, based on the present-day law of nations 1. Rests on a norm of int’l character 2. That enjoys widespread acceptance (by the civilized world) 3. and is defined with specificity comparable to the 1789 original causes of action (ltd. to piracy, the rights of ambassadors, etc) 4. Note, this is against Erie, which reqs law to be grounded in some sovereign source… 5. This is also stricter than the “arising under” formula of §1331 Private actor LiabilityKadic v Karadzic: extends ATS actions to cover the activities of private actors (not only state actors); though they did try to reconcile the state actor req’t by loosening it to “color of law” and “unrecognized state” -jus ad bellum: outlaws use of force except for (1) to keep the peace and (2) self-defence -Jus in bello: (Geneva convention) req’s “persons taking no active part in hostilities” be treated humanely and prohibits, of the above mentioned persons  Violence to life and person, in particular murder, mutilation and cruel treatment/torture  Taking of hostages  Outrages upon personal dignity  Passing of sentences and carrying out executions w/out actual court process >>ATS lawsuits against corps typically focus on aiding & abetting, or on actions that don’t need state actors<< Corporate Liability: Khulamani (5.152): extends ATS to corportate Liability for aiding and abetting Katzman: says to look to int’l law to see “whether aiding and abetting int’l law violations is a violatin of the law of nations”found it was (Nuremberg trials, Int’l Courts of Rwanda/Yugoslavia) -his test: Def is liable when he (1) “provides practical assistance to the principal which has a substantial effect on the perpetration of the crime and (2) does so with the purpose of facilitating the commission of that crime Hall, J looks to domestic fed. C-L to determine violation, uses Rest. Test, as applied in Halberstam: (1) the party whom D aids must perform a wrongful act that causes injury (2) D must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance (3) D must knowingly and substantially assist the principal violation

7 -Note: was this right? FN. 20/1 in Sosa was unclear about corportate L, and the rule in Sosa called for vigilant door-keeping -the holding went against the Executive Branch; court could’ve used the “political question” doctrine and followed the Executive’s advice -the amici of other countries wanted opposite holding as well, court should’ve exercised “int’l comity”

Corruption and BRIBERY FCPA: §78dd-2(a) “It shall be unlawful for any domestic concern7…or for any officer/director/agent… to make use of the mails or any instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay…or gift or promise to give…of anything of value to—(1)any foreign official8 for purposes of: (i) influencing any act of that foreign official in his official capacity (ii) inducing such foreign official to do/omit to do any act in violation of the lawful duty of such official (iii) securing any improper advantag B: inducing such foreign official to use his influence with the foreign gov’t to affect/influence any act or decision of such gov’t …in order to assist that domestic concern in obtaining or retaining bueiness -exception for “grease payments” (ie. ministerial action) US v Kay (5.182): Court finds the FCPA to be “ambiguous as matter of law,” reads the business nexus element (…in order to assist…in obtaining or retaining business) broadlyfinds tax/customs evasions counts -Why? Because paying less taxes was “something [Def] was clearly not entitled to…” -“legislative history,” they look to see if anything “assisted” the domestic concern obtain some advantage Convention on Combating Bribery: Not self-executing Ar. 1(1):”…shall take such measures as may be necessary to est. that it is a criminal offense under its law…” >>Nat’l Security Exception (BAE)

INVESTMENT CIL prohibited expropriation, prior to WWI -but this wasn’t actually settled, it was just the dominant view of the rich/Western nations, not the world Western Position: (1) no discriminatory expropriation (kinda settled maybe) (2) must be for public use (3) Hull Formula (prompt, adequate and effective relief) Calvo Doctrine: “under int’l law aliens had no rights greater than citizens of the host country” Banco Nacional de Cuba v Sabbatino: Pl wants to—and court agrees—to use Act of State doctrine to legitimate the expropriation of CAV’s sugarFarr Whitlock must pay Cuba

7 any citizen, national or resident of the US and any corp., partnership or association w/ its principal place of business in the US, or which is organized under the laws of a State of the US 8 any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public int’l organization 8 act of state doctrine barred consideration of whether the expropriation violated CIL -even though CIL is part of fed. C-L, court chose not to examine the validity of an act of state Issues: (a)separation of powers, judicial deference to the Executive Branch, simple avoidance of of entering foreign relations (b) act of state doctrine is “uniquely federal issue,” state courts (exercising state law) should not decide these issues (c) expropriation was unsettled CIL, whereas ATS cases are settled int’l law

9 Piracy Definied: any illegal act of (1) violence or depredation, (2) committed on the High Seas9 (3) for private ends -widely settled in modern Law of Nations; also in 18 USC. 1651 (almost same statute as in 1790) -USC 1651: does not req. American victim, but does req. act on the High seas -some of Gulf of Aden is in Somali territorial waters -Somali pirates are not state actors; we cannot “go to war against them.” Result: 1) law against targeted killings and assassinations cannot be violated; we can’t attack 2) jus in bello: cannot attack civilians in war and cannot use disproportionate force

9 Outside of the coastal territorial waters of every nation; beyond the 3/12mi band surrounding every nation 10