Part Two: Professor Schaefer

Big 10 (12) Goals:

(1) Power to Negotiate
(2) Power to Sign/Initial
(3) Power to Approve
(4) Power to Ratify
(5) Otherwise Valid
(6) Power to Implement
(7) Self-Executing v. Non-Self Executing
(8) Private Right of Action
(9) Charming Betsy
(10) Hierarchy of Norms
(11) Power to Terminate
(12) Power to Administer (interpret, vote in IO,
amend)
(1) Power to Negotiate
President/Executive Branch
US v Curtis-Wright
If the President finds x, then he may do y
If the President finds there is hostility, he may prohibit arms sales
Whether Congress can delegate foreign powers to the president
Must know the difference btw internal and external powers of the
federal gov't
Doctrine of enumerated powers applies only to internal matters
This has been largely discredited
Foreign relations powers of the federal government flow from
the constitution (and are subject to the doctrine of enumerated
powers
The President maintains the foreign affairs powers of the US
President has the power to negotiate (communication)
Sutherland believes the President is the sole organ of foreign
relations
In reality there are divided (shared) powers between the
President and congress in policy matters of making foreign
policy
What if congress had specifically authorized the sale of arms? Would
the proclamation by the president be valid?
No. The President cannot take an action in violation of the law.
Takeaways from this case
President has power to negotiate (sole organ for the
communication/negotiation function)
Congress can paint with a broad brush when delegating power in
the foreign affairs realm (and this is really saying something

because few, if any, delegations even in domestic matters ever

struck down)
President is NOT the sole organ in foreign policy making (its shared
with Congress) but does have substantial powers in the realm (short
constitution, lots of grey area)
Foreign relations powers of the federal government do flow from the
constitution (and are subject to doctrine of enumerated powers)
(2) Power to Sign/Initial
Executive Branch
Once a treaty is signed, there is a minimal legal obligation not to defeat
the purpose of the agreement
The ability to unsign or cancel a treaty exists before it is ratified, thus
eliminating any legal obligation
(3) Power to Approve
(1) Treaty Method
Constitution, Art. 2, Sec. 2
2/3 approval from Senate
(2) CEA (Congressional Executive Agreement)
Power originates from Congressional Clause
Majority approval by both houses
(3) PEA (Presidential Executive Agreement)- (rare)
Congress has pre-approved the agreement
May be regarding executive powers and may not need approval as
Commander in Chief
The President determines what way to achieve approval
Pre-approval: President may already have approval from Congress
Constitutional Power- Commander in Chief
Determining which method to use
Mostly determined by past practice
Trade agreements (CEA); Investment agreements and Human
Rights agreements (Treaty method)
Both the Treaty Method and CEA are equally constitutional, but CEA
is easier
Dames & Moore v Regan
Historical backdrop- Iran hostage crisis
Executive order and part of the agreement (Algiers accords) with Iran:
Nullifies attachment orders
Transfers Iranian assets from Iranian hands to Int'l banks
Suspends claims that an American national has in US courts against
the Iranian gov't (bulk of the case)
First two issues are easily upheld
IEPA allows President to do those
Congress has expressly allowed those actions
Third action is tougher to resolve
Claims are not property and no mention of suspension in IEPA

J. Jackson (Jackson Categories) (CAN THE PRESIDENT DO X? must

analyze through Jackson concurrence and rhenquist spectrum).
Presidential powers aren't fixed- There are three categories under
which the President's powers interact with Congress
(1) Congress expressly approved
(2) Congress is silent
(3) Congress is disapproving (disapproval does not automatically
strike down President's powers)
Rehnquist argues the categories are likely too rigid or over
simplified- should be a spectrum
Where does Congress stand on the third action?
Congress is silent.
Where Congress acquiesces to the President, it can been seen as
implicitly allowing it
Why can't the president use the Hostage Act for its authority?
Need to look at the origin of the hostages act and the purpose of its
creation
Worried about US citizens going back to home countries and
having those countries not recognize their US citizenship and not
allowing them to return
Could argue implied approval because it wanted to expand the
President's power
International Claims Settlements Act
Implied approval
Set up a system to settle claims with foreign gov'ts
Failure to disapprove indicates approval
Congress held hearings on Algiers Accords and did not object
Takeaways
Presidents authority to take any action must come from the
Constitution and/or Act of Congress (lawful delegation)
Jackson Categories: Analytical framework for judging validity of any
action of President (Presidents powers are not fixed, they fluctuate
according to action of Congress)
(1) President + Congress (express or implied)
(2) President (Congress silent)
(3) President C (express or implied)
Rehnquist says view as spectrum, rather than rigid categories
(4) Power to Ratify
The President
Last step of the agreement; Final consent to be bound
Bilateral agreements- exchange of ratification documents
Multi-lateral agreements- The agreement will specify where the ratification
documents are deposited. Usually the UN.
Brings the treaty into force

The President can decline this power with congressional approval (wont
happen)
(5) Otherwise Valid
Does the agreement conflict with the Constitution/Bill of Rights?
Impacts on US law
One side can take sue the other for violation in International Court
Made in USA Foundation v US A challenge to NAFTA.
Are CEAs constitutional? Yes.
Congress gave approval (simple majority of both houses)
The President is authorized to exchange notes for providing entry
into force.
Are CEAs completely interchangeable with the treaty method?
Mostly. If there is one which is not interchangeable, it is the PEA
method.
Murky or contested approval- Did Congress really approve of the
agreement? ACTA
US ratified the agreement, but did not give it to Congress for approval
Sen. Wyden was extremely disturbed- wanted to know what the
authority was
White House response: Congress approved it in advance, by
authorizing them to work with foreign countries on the issue
Does this mean that the President has authority to ratify whenever
Congress suggests negotiations to work out solutions with other
nations?
Demonstrates that implied approval of Congress might be used to
as justification to ratify agreements
(6) Power to Implement
If an agreement is non-self executing and in conflict with current US law,
Congress may have to enact new legislation in order for the agreement to
take effect
Could also be remedied by President via executive order (if he has the
power to do so)
Presidential Proclamation: Does not have force of law unless If
Congress were to pass an act, which would take effect upon the
happening of a contingent event, and subsequently the President
proclaimed that the event happened, then the proclamation would
have the force of law.
(7) Self-Executing v. Non-Self Executing
Self-executing
Immediate effect on US domestic law
Non-Self Executing
No immediate effect on US domestic law. Does not allow for a private
right of action.

For some countries (Canada, Australia, UK) all treaties are not selfexecuting (dualist)
The crux of what determines if a treaty is self-executing or non selfexecuting is US political branch intent
In re Collins
Collins is attempting to sue to get into the bar without taking the bar
exam. She believes NAFTA should apply to her, due to her training and
education in Canada. Nebraska does have the possibility of being
admitted without the exam (Practicing in the US for 5-7 years;
graduated from ABA approved law school). Her argument is that
NAFTA provides one cannot discriminate against foreign service
providers.
The Court concludes that NAFTA doesn't provide a private remedy
(non-self executing)
No individuals are able to sue under NAFTA
(8) Private Right of Action
Different than self-executing
Often courts speak of SE and PRA as the same thing but they are not
(SE is necessary condition though). Private right of action is
determined by US political branch intent AND?
Where to look to determine if an agreement is non/self-executing?
Senate Resolution of Consent
Congress approval
Presidents transmittal letter
House/Senate Committee reports
The text of the agreement itself
Medellin v Texas Whether a determination of the ICJ is self executing or not
Need to look at surrounding treaties for evidence of US intent
Optional Protocol to VCCR
Separate int'l agreement gave acceptance to jurisdiction
UN Charter Art. 94
Paragraph 1: UN members "undertake to comply" with ICJ
judgments
The court takes this to mean that it is NSE- "undertake" means
you must take future action to bring it into force
Paragraph 2: The Security Council may take action to enforce an ICJ
judgment
The US has veto power
The Court argues that because we can veto any ICJ judgment, it
indicates we never intended it to be self executing
ICJ Statute Art. 59
Judgments of the ICJ only bind the parties of the case (States) to
the facts of the case

As between US gov't and Medellin, there is no binding effect,

because he is not a state
The majority also argues that no other nation is giving automatic legal
effect to ICJ judgments
Reciprocity argument- would be unfair if other countries did not
give automatic effect, but we were required to. It would create an
imbalance that is unlikely to have been intended by the US
Takeaways:
Looks at the text of the agreement to determine self-executing/NSE
Most times, these terms won't be present in the agreement
Each country has their own way to determine this
Also these are US legal terms that may or may not be relevant
Looking at the language of the treaty to determine intent to be
SE/NSE
FN3. Even when treaties are self-executing in the sense that they create
federal law, the background presumption is that [i]nternational
agreements, even those directly benefiting private persons, generally do
not create private rights or provide for a private cause of action
in domestic courts. 2 Restatement (Third) of Foreign Relations Law of
the United States 907, Comment a, p. 395 (1986) (hereinafter
Restatement). Accordingly, a number of the Courts of Appeals have
presumed that treaties do not create privately enforceable rights
in the absence of express language to the contrary.
Baah v Virgin Atlantic Plaintiff seeking monetary damages and needs to show that the
Montreal Convention is self-executing with a PRA.
How do we know this is a SE with a PRA?
Intention of the United States
Senate Foreign Relations Committee
The Montreal Convention, like the Warsaw Convention, will
provide the basis for a private right of action in U.S. courts in
matters covered by the Convention. No separate
implementing legislation is necessary for this purpose.
Under the Warsaw Convention, place of destination meant the
final destination. This was the determining factor, because in the
Senate Foreign Relations report it states that the Montreal
Convention was meant to be the successor to the Warsaw
Convention and issues that were already decided under the Warsaw
Convention would apply.
What happens if a treaty is NSE and current US law is inconsistent with the
treaty and Congress does not pass implementing legislation?
Domestically: Its the current US law that is inconsistent with the treaty
that will govern within the US legal system

Internationally: Therefore, the US will be in violation of the treaty and

the foreign country party to treaty can
(a) Bring claim under dispute settlement mechanism provided by
the treaty
(b) Claim a material breach under VCLT Art. 60 and seek to suspend
or terminate their obligations under treaty in some cases
(c) If not material breach, take proportionate countermeasures
So a good way to take care of that problem if the CEA method is being
used is to have Congress in the same act approve the international
agreement, declare it in essence non-self-executing and make any
necessary changes to US law to implement the agreement?
Yes, thats what we do with trade agreements.NAFTA, WTO, etc.
Summary: To know whether a treaty is part of the US legal system, we
need to know if it is SE/NSE
US intent is what determines SE/NSE
Could be straight forward (NAFTA)
May have to glean it from textual interpretations of the treaty
Keep an eye out for the reciprocity factor
Judiciary interprets treaties, but courts give great weight to executive
views of treaty interpretation
(9) Charming Betsy
US Courts are to construe US statutes as consistent with treaties and
customary international law
Keeps the US from violating international agreements
US v PLO US has a statute which bans PLO activity in the United States. US
wants to close down UN PLO permanent observer mission. The
Headquarters Act requires the United States to allow free transit (entry,
transit and residence) of invitees of the UN regardless of their status
with the US. The Court wants to apply both rules consistently if
possible.
Constitution does not create a hierarchy in the Supremacy clause
between treaties and federal laws
Post ratification understanding (practice) of the treaty also requires the
establishment of an Office
The Court attempts to determine the intent of the Congress
Congress had not said anything about it, despite knowing that it
would be an issue. Therefore congress did not make it explicitly
clear that it wanted the PLO Office shut down
No mention of interaction/exclusion of treaty
Therefore the Court interprets the statute such that it will
not interfere with the Headquarters agreement
In Re Rath

Rath is suing to keep his trademark in the US. The Langham Act does
not allow for surnames as trademarks. Rath looks to the Paris
Convention (whose language is non self-executing) and claims that the
Langham Act implements the Paris Convention and needs to be
interpreted consistently under Charming Betsy.
Specifically he is looking at Langham Act sec. 44
Sec. 44(e) Registration on principal or supplemental register; copy
of foreign registration. A mark duly registered in the country of
origin of the foreign applicant may be registered on the principal
register if eligible, otherwise on the supplemental register herein
provided.
Rath claims if eligible refers to the Paris Convention. The Court
finds it refers to Sec. 2 of the Langham Act.
The concurring opinion of the court points to a part of the Paris
Convention indicating trademarks devoid of any distinctive
character and determines that the Langham Act is in accord with
the Paris Convention and that the Paris Convention would prevent
the use of surnames as a trademark.
(10) Hierarchy of Norms
If there is a non-self executing agreement in conflict with a US statute, the
US statute prevails
All self-executing PEA, CEA and Treaties will preempt state law
(11) Power to Terminate
The President (Goldwater v Carter)
Essentially a reverse ratification
The President does not require Congressional approval to terminate
(12) Power to Administer (interpret, vote in IO, amend)
Courts are the ultimate interpreters
Courts give great weight to executive branch opinions
Executive officers have greater knowledge about the nature of the
agreement, negotiation, etc.
Executive branch has the power to vote in international organizations (IO)
for the US
Amended treaties are similar to new treaties
Other Major Goals:
Learn a Little Statutory Interpretation
Learn a Little Constitutional Law
Doctrine of enumerated powers
Separation of Powers (P v. C)
Federalism
Challenging State Government Actions Impacting Foreign
Commerce and/or Foreign Relations
Three types of claims:
Preemption (Art. VI): express, implied (or field), conflict (either
direct or obstacles)

Dormant Foreign Commerce Clause: facially discriminatory? If

so virtually per se illegal; otherwise balancing (effect on commerce
v. achievement of legitimate local purpose); when foreign
commerce extra prong interfere with federal govts once voice;
MPE may not be available with foreign commerce
Keeps states from making protectionist actions against one
another
Schaefer finds this the most important piece of the constitution:
Essentially creates a free trade agreement with 33 of the largest
economies in the world
Dormant Foreign Affairs Doctrine:
When the foreign affairs powers are unused or "dormant", there
still exist limits on state powers to exert influence on foreign
affairs
Three tests for the doctrine
Threshold effects test: more than some incidental or
indirect effect on US foreign relations or foreign country
Purpose-based test: is the goal of the state law to change or
criticize behavior of foreign government
MPE (Market Participant Exception)? Lower courts split
NFTC case
Illinois creates a statute designed to sanction Sudan
Preemption
No express preemption- Congress did not specifically prohibit
states from sanctioning Sudan
Conflict preemption
Direct conflict: Impossible to comply with both (fed and
state) laws
Obstacles Conflict: Makes it difficult; stands as an obstacle to
federal law
In this case the US law only targets US corp., whereas the
Illinois law targets foreign entities . The US also exempted
certain regions that the IL act did not
Fed gov't must be presumed to have carefully decided the
extent of their foreign policy
Lack of flexibility
The IL act Interferes with Congress' desire to ratchet
up/down sanctions depending on circumstances
Field preemption- (not relied on by the court) Congress is so
involved in a field that it must exclude state actions
Dormant Foreign Affairs Doctrine
The impact of the measure on foreign affairs is the major issue
More than incidental or indirect effect. IL had withdrawn
$275,000,000. This increases pressure on companies to stop
doing business with Sudan. In the pension portion there was not

enough evidence (Conceivably it could affect share price, but

that is not certain).
Dormant Foreign Commerce Clause
Facially discriminatory with state law or international commerce?
Telling banks to implement a policy against banks doing
business with Sudan
On the pension part of the law, the Plaintiffs argued
exception with the Market Participant Exception (MPE), which
exempts the state (as a buyer or seller) from Dormant
Commerce Clause scrutiny. The Court determines that does
not apply here
If not facial discriminatory, Balance Effect on commerce vs.
legitimate local purpose (consumer protection, environmental
protection ect.)
If law survives balancing, then ask does it risk foreign
countries retaliating against the US?

Part 3: Professor Lepard

Customary Law and the Alien Tort Statute

o Customary International Law Revisited
Sources of International Human Rights Law (Article 38 of the ICJ
Statute)
The Court decides cases in accordance with:
international treaties and conventions in force,
international custom, as evidence of a general
practice accepted as law (customary international
law),
general principles of law, and,
as subsidiary means, judicial decisions and the teachings
of the most highly qualified publicists.
Examples of Customary Norms Recognized by the ICJ
Human rights norms, such as:
o The prohibition of genocide
o The prohibition of torture
o The prohibition of slavery
o The prohibition of racial discrimination
International criminal law norms, such as:
o The prohibition of genocide,
o The prohibition of war crimes
o The prohibition of crimes against humanity
Norms on the use of force under international
humanitarian law, including:
o The prohibition of the use of force by states except
in self-defense or with U.N. Security Council
authorization
o Requirements of necessity and proportionality
o Many norms in the 1949 Geneva Conventions
Norms involving the seas and water resources
Norms relating to treaties, including treaty interpretation
(like Article 31 of the Vienna Convention)
The Traditional Definition of Customary International Law
Two main requirements: uniform state practice and a
sense of legal obligation (opinio juris). (One believes it
to be the law)
The concept of customary law has origins in civil law
systems, as exemplified in the Louisiana Civil Code.
The persistent objector doctrine.
o If a govt has persistently objected to a norm from
the very beginning, it can exempt itself from the
norm
Peremptory (jus cogens) customary norms.
o So important they can never be violated

Some problems with ascertaining customary international law

The paradox of opinio juris (an actual belief or simply an
act of grace?)
What is the function of the state practice requirement?
The role of ethics
What are sources of evidence of opinio juris? What is the
role of U.N. resolutions?
What are sources of state practice?
My (Leaprds) new theory but it is not the law
Re-Reading The Paquete Habana
The Supreme Court establishes customary international law as
part of our law
Looked to past state practice, treaties, executive orders (there
doesnt have to unanimity in practice, just consistency)
Opininio Juris- the belief held by other nations vessels that one
should refrain from capturing civilian vessels because they
believe it is the law; the dissent believes no opiniono juris, but
merely acts of grace
Ethics may tip the balance in favor of a particular ruling
The Alien Tort Statute
28 U.S.C. 1350 establishes original district court jurisdiction
over any civil action by an alien for a tort only, committed in
violation of the law of nations or a treaty of the United States.
Debate over the origins of the ATS, including the Marbois
Incident.
The Filartiga Case
Family of man tortured and killed in Paraguay sues the torturer
who now lives in the US.
Question of whether the court has subject matter jurisdiction
The court found that it had jurisdiction under the Alien Tort
Statute
Evidence of opiniono juris
1945: Adoption of the UN Charter
o It is a treaty; Not wholly SE
1948: Universal Declaration of Human Rights
o Freedom from torture or other cruel, inhuman, or
degrading treatment or punishment;
o The right to recognition before ad equal protection
of the law;
o The righ to an effective remedy for human rghts
violations
o Freedom from arbitrary arress, detention or exile;
o The right to a fair hearing by an independent and
public tribunal

The fact that some countries participate in torture, represents a

violation of the international customary law and does not
amount to evidence against opiniono juris
o The Aftermath of Filartiga
Does the ATS create a cause of action in addition to granting
jurisdiction to federal courts?
Sosa v. Alvarez-Machain (U.S. 2004)
Did not strike down Filartiga, but said that a human rights
violation must be widely recognized and defined with
great precision to be a violation of customary
international law
Recent ATS cases
Kiobel v Royal Dutch Petroleum
o Whether a corporation can violate customary
international law
o Whether ATS claims should be limited to torts
occurring in the United States (Yes)
1984 - U.N. Convention Against Torture; 1990 U.S. Ratification
The U.S. Senate declaration: III. The Senate's advice and
consent is subject to the following declarations: (1) That
the United States declares that the provisions of articles 1
through 16 of the Convention are not self-executing.
The Torture Victim Protection Act (1991)
Implements some of the U.S.s obligations under the
Convention Against Torture.
Provides for a civil action against certain torturers.
States that an individual who, under actual or apparent
authority, or color of law, of any foreign nation (1)
subjects an individual to torture shall, in a civil action, be
liable for damages to that individual.
Provides further that a court shall decline to hear a claim
under this section if the claimant has not exhausted
adequate and available remedies in the place in which the
conduct giving rise to the claim occurred.
States that no action shall be maintained under the
provision unless it is commenced within 10 years after
the cause of action arose.
Relationship between the ATS and the TVPA.
Conflict of Laws
o Rules on Court Jurisdiction
A court must have:
Subject matter jurisdiction, and
Personal jurisdiction over the defendant
Subject Matter Jurisdiction
Federal Courts: Prescribed by 28 U.S.C. 1330-1369

1331: Federal question jurisdiction

o The district courts shall have original jurisdiction of
all civil actions arising under the Constitution, laws,
or treaties of the United States.
o Does it include jurisdiction over treaty issues?
(Yes)
o Does it include jurisdiction over issues under
customary international law? (No) Recall the
analysis in Filartiga.
Filartiga would suggest that might be the
case- customary intl law is part of our
law/specifically common law
Court left it open and found jurisdiction
under ATS
o Does it include jurisdiction over alleged violations
of the Torture Victim Protection Act? (Yes- statute)
1332: Diversity jurisdiction
o The district courts shall have original jurisdiction of
all civil actions where the matter in controversy
exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between - (1) citizens of
different States; (2) citizens of a State and citizens
or subjects of a foreign state; (3) citizens of
different States and in which citizens or subjects of
a foreign state are additional parties; and (4) a
foreign state . . . as plaintiff and citizens of a State
or of different States.
1350: The Alien Tort Statute
o Provides that the district courts have jurisdiction
over any civil action by an alien for a tort only,
committed in violation of the law of nations or a
treaty of the United States.
o Subject matter jurisdiction under this provision was
the issue in Filartiga.
State Courts: Prescribed by State Statutes
o Nebraska district courts have general jurisdiction.
o Special courts have limited subject matter
jurisdiction, like the juvenile courts and county
courts.
Personal Jurisdiction
Personal jurisdiction over the plaintiff.
Personal jurisdiction over the defendant.
o Due Process Clause of U.S. Constitution requires:
Notice
Opportunity to contest

 Jurisdictional basis
Jurisdictional basis can be:
Presence within the state (tag jurisdiction)
Recall Filartiga
Upheld in Burnham case (U.S. 1990)
Legislative history of Torture Victim
Protection Act
Consent of the defendant (including through
a forum selection clause in a contract)
Under longarm statutes, such as Neb. Rev. Stat. 25536.
o In addition to specified contacts, it grants personal
jurisdiction over any person who has any other
contact with or maintains any other relation to this
state to afford a basis for the exercise of personal
jurisdiction consistent with the Constitution of the
United States.
o In rem jurisdiction
Rules on a Courts Discretion Not to Hear a Case Over Which It Has
Jurisdiction
Forum non conveniens
The doctrine of forum non conveniens refers to the
discretionary power of a court to decline jurisdiction when
the convenience of the parties and the ends of justice
would be better served if the action were brought and
tried in another forum. Whether a suit should be
entertained or dismissed under the rule of forum non
conveniens depends largely upon the facts of the
particular case. Unless the balance is strongly in favor of
the defendant, however, the plaintiffs choice of forum
should rarely be disturbed. Christian v. Smith, 276 Neb.
867, 875-76 (2008).
Among other factors, the trial court should consider
practical factors that make trial of the case easy,
expeditious, and inexpensive, such as the relative ease of
access to sources of proof, the cost of obtaining
attendance of witnesses, and the ability to secure
attendance of witnesses through compulsory process.
Id. at 876.
Political question doctrine
Act of state doctrine
Comity- legal reciprocity: the judgments of a particular
jurisdiction will be recognized and enforced by a forum only to
the extent that the other jurisdiction would recognize and
enforce the judgments rendered by that forum
o

Other doctrines
Overview of Rules on Conflict of Laws
General principles
Most rules of conflict of laws, sometimes called choice of
law, are created by case law, though some are codified in
statutes or treaties.
Some basic concepts:
o A forum court in a forum state will apply its own
procedural rules.
o However, a forum court may apply the substantive
law of either the forum state or another state with
an interest in the dispute, called the foreign
state.
o Internal law or local law refers to all of a states
substantive law other than its conflict of laws rules.
A History of U.S. Rules of Conflict of Laws
o The First Restatement of Conflict of Laws (1934)
Rigid rules, including lex loci delicti.
Could produce absurd results (location of the
incident might be insignificant to the overall
transaction)
o The Restatement (Second) of Conflict of Laws
(1971)
Adopted a most significant relationship
standard.
Erie R. Co. v. Tompkins (U.S. 1938)
o It lays down a form of choice of law rule for federal
diversity jurisdiction cases.
o Under Erie, the federal court must apply the forum
states substantive law, including its common law.
o Erie overruled Swift v. Tyson, 4 U.S. 1 (1842), which
had held that in diversity cases not governed by an
explicit state statute the federal courts should
apply general federal common law rather than
state common law.
o Even though Erie renounced the application of a
general federal common law, there can be federal
common law in particular areas.
However, this is a controversial issue
implicating the status of customary
international law in the U.S. legal system.
Many courts apply customary international
law as part of federal common law.
But some judges, such as Supreme Court
Justice Antonin Scalia, believe that Erie

prevents this status for customary

international law, as in his concurrence in
Sosa v. Alvarez-Machain.
Rules for tort claims
Old rule of the First Restatement: Lex Loci Delicti
o Recall Filartiga (p. 12): It is not extraordinary for a
court to adjudicate a tort claim arising outside of its
territorial jurisdiction. A state or nation has a
legitimate interest in the orderly resolution of
disputes among those within its borders, and where
the lex loci delicti commissi is applied, it is an
expression of comity to give effect to the laws of
the state where the wrong occurred.
o Under the old rule, the law was applied of the
state where the last event necessary to make an
actor liable for an alleged tort takes place.
(Restatement (First) 377.) This was a theory of
vested rights.
o Old rule was viewed as inequitable when there was
only a tangential relationship between the place of
the injury and the parties.
o Old rule did not work well when there was no single
place where the injury occurred, such as in cases
of fraud, defamation, or unfair competition.
Rule of the Second Restatement
o Adopts a more flexible approach that applies the
law of the state with the most significant
relationship to the tort.
o Section 145(1) of the Second Restatement
provides: The rights and liabilities of the parties
with respect to an issue in tort are determined by
the local law of the state which, with respect to that
issue, has the most significant relationship to the
occurrence and the parties under the principles
stated in 6.
o Section 6 of the Second Restatement lists a wide
variety of factors a court should consider in the
absence of a statutory directive on choice of law,
including:
The needs of the interstate and international
systems,
The relevant policies of the forum,
The relevant policies of other interested
states and the relative interests of those

states in the determination of the particular

issue,
The protection of justified expectations,
The basic policies underlying the particular
field of law,
Certainty, predictability and uniformity of
result, and
Ease in the determination and application of
the law to be applied.
o Section 145 of the Second Restatement goes on to
say that contacts to be taken into account under 6
include:
The place where the injury occurred,
The place where the conduct causing the
injury occurred,
The domicile, residence, nationality, place of
incorporation and place of business of the
parties, and
The place where the relationship, if any,
between the parties is centered.
It says that these contacts are to be
evaluated according to their relative
importance with respect to the particular
issue.
Specific Rules for Personal Injury Claims
o Section 146 of the Second Restatement provides
with respect to personal injury claims: In an action
for a personal injury, the local law of the state
where the injury occurred determines the rights
and liabilities of the parties, unless, with respect to
the particular issue, some other state has a more
significant relationship under the principles stated
in 6 to the occurrence and the parties, in which
event the local law of the other state will be
applied.
o The Nebraska Supreme Court has adopted and
applied the principles in 146. See, e.g., Heinze v.
Heinze, 274 Neb. 595, 599 (2007). (Colorado
accident)
o Babcock v. Jackson, 240 N.Y.S.2d 743, 191 N.E.2d
279 (N.Y. 1963).
Rules for other types of claims
Contracts Cases
o Sections 186 to 188 of the Second Restatement
provide generally that parties can choose the law

that will govern disputes under their contract

through a choice of law provision in the contract.
o Choice of forum clauses in contracts are generally
honored as well. See section 80 of the Second
Restatement. Need more nuanced analysis than
just saying company a is larger so has more
leverage
Property Cases
Marriage, Divorce, and Child Custody Cases
An Example of a Choice of Law Clause
From Apple Corporations Software License Agreement
for I-Tunes for Windows:
Controlling Law and Severability. This License will be
governed by and construed in accordance with the laws of
the State of California, excluding its conflict of law
principles. This License shall not be governed by the
United Nations Convention on Contracts for the
International Sale of Goods, the application of which is
expressly excluded. If you are a consumer based in the
United Kingdom, this License will be governed by the laws
of the jurisdiction of your residence. If for any reason a
court of competent jurisdiction finds any provision, or
portion thereof, to be unenforceable, the remainder of this
License shall continue in full force and effect.
Why do you suppose the contract refers to the laws of
the State of California, excluding its conflict of law
principles instead of just the laws of the State of
California? What problem might be created with the
latter language?
o This guarantees that it will get CA law even if CA
law would send it somewhere else
The Concept of Domicile
Is relevant to many legal issues, including personal jurisdiction
and conflict of laws (see 145 of the Second Restatement).
The Nebraska Supreme Court has affirmed: Domicile is
obtained only through a persons physical presence
accompanied by the present intention to remain indefinitely at a
location or by the present intention to make a location the
persons permanent or fixed home. Webb v. Craven (In re
Estate of Craven), 265 Neb. 41, 45 (2002).
Change of domicile.
Difference from citizenship and residence.
Recognition of Foreign Judgments
Judgments of Other State Courts

Under the Full Faith and Credit Clause of Article IV,

section 1 of the U.S. Constitution, a U.S. state court must
recognize and enforce a judgment duly rendered in
another U.S. state court. It provides: Full Faith and
Credit shall be given in each State to the Public Acts,
Records, and judicial Proceedings of every other State.
See Russell v. Bridgens, 264 Neb. 217, 647 N.W.2d 56
(2002); John A. Nixon Family Trust v. Nixon (In re Nixon),
277 Neb. 546, 549-50 (2009).
Judgments of Foreign Country Courts
Full Faith and Credit Clause of the Constitution does not
require a U.S. state court to recognize and enforce
automatically a judgment rendered by a court in a foreign
country.
States can choose whether or not to recognize foreign
country judgments, but in general they give deference to
them based on the principle of comity so long as the
foreign country judgment results from procedures
considered fair under U.S. due process standards.
The Nebraska Supreme Court has affirmed, Comity is
neither a matter of absolute obligation nor mere courtesy.
As a general rule, a foreign judgment will not be given
effect under the principles of comity if opposed to the
settled public policy of this state. Weber v. Weber, 200
Neb. 659, 665 (1978).
Introduction to Comparative Law and Civil Law Systems
o Introduction to Comparative Law
Why Is Comparative Law Relevant to Your Future Practice as a
Lawyer?
Nebraskas Economy and Global Trade
Nebraska is the fifth leading state exporter of agricultural
products.
Its leading markets for agricultural products are Mexico,
Cuba, Taiwan, and Canada.
About 263,500 jobs in Nebraska depend on international
trade.
In 2008, Nebraska companies sold their products in nearly
180 foreign countries, including Canada, Mexico, Japan,
and Russia.
80% of Nebraskas exporting companies in 2007 were
small or mid-size companies.
Some Leading Exporting Nebraska Companies

Valmont Industries - exports irrigation equipment to

China, Spain, Argentina, and the United Arab
Emirates
o Conagra Foods - exports popcorn and other
foodstuffs to the Bahamas, China, and Iceland
o Tenaska Biofuels - exports corn oil to Turkey and
Egypt
Some Foreign-Owned Nebraska Employers
o BAE Systems, Inc. (U.K.)
o Bridgestone Americas (Japan)
o Cadbury Schweppes (U.K.)
o Novartis (Switzerland)
o Sodexho (France)
o Square D (France)
Comparative Law: A Nebraska Tradition
In the past century we studied law from within. The
jurists of today are studying it from without. Where the
last century held comparative law the best foundation for
wise lawmaking, [the jurists of today] hold it not enough
to compare the laws themselves, but that even more their
social operation must be studied and the effects which
they produce, if any, when put in action. Roscoe Pound,
The Spirit of the Common Law

Civil Law Systems and Their Relevance to U.S. Law

Roman Law
The Twelve Tables of Roman Law
The Roman Praetor
o A "gatekeeper" to the court- if your dispute met
criteria of certain formulae, you were allowed
access to the court (formulary procedure)
Portrait of a Jurisconsult (predecessor to a law professor)
Justinians Corpus Juris Civilis
o one of the first codifications of law in the western
world
England and Roman Law
o Whats one of the legal legacies weve inherited
from the Romans? (Res Ipsa Loquitor)
Modern Civil Law Systems
Roman Law and Its Influence on Civil Law Systems
The Evolution of the Civil Law in Europe after the Fall of the Roman
Empire
The resurgence of indigenous law
The rediscovery of Justinians Corpus Juris Civilis
o

o
o

The development of the jus commune on the European

continent
The evolution of modern-day nation-states and international law
after the Peace of Westphalia of 1648, which ended the Thirty
Years War
The Drafting and Promulgation of the Civil Codes
Napoleons 1804 Civil Code
Skim the Table of Contents at http://www.napoleonseries.org/research/government/c_code.html
What different subjects you have already studied in law
school, or anticipate studying, appear in this code?
Where do you suppose rules on torts might be found?
o Torts found in a broad law of obligations among
crimes and quasi-crimes
Selected Articles from the French Civil Code
o Article 3: Statutes relating to public policy and
safety are binding on all those living on the
territory. Immovables are governed by French law
even when owned by aliens. Statutes relating to
the status and capacity of persons govern French
persons, even those residing in foreign countries.
o Article 4: A judge who refuses to give judgment on
the pretext of legislation being silent, obscure or
insufficient, may be prosecuted for being guilty
of a denial of justice.
o Article 5: Judges are forbidden to decide cases
submitted to them by way of general and
regulatory provisions.
Prevents judge made law
o Article 6: Statutes relating to public policy and
morals may not be derogated from by private
agreements. (Jus Cogens)
The Spread of Civil Codes
The German Civil Code of 1900
The Swiss and Austrian Civil Codes
Uncodified Roman Dutch Law in the Netherlands and
South Africa
The Founders Knowledge of Roman Law and the Civil
Codes: Thomas Jeffersons library contained many works
on Roman law and the civil law, including Justinians
Corpus Juris Civilis and the French Civil Code of 1804.
The Role of Constitutions and Auxiliary Statutes in Civil Law Systems
Constitutions: The Influence of the U.S. Constitution and the
1948 Universal Declaration of Human Rights
Auxiliary Statutes that Supplement the Civil Code

Examples of Auxiliary Statutes in France

code of civil procedure (not to be confused with the civil
code)
code of criminal procedure
criminal code (which defines crimes)
commercial code
environmental code
law on traffic accidents
many other specialized statutes
The French Constitution of 1958
PREAMBLE: The French people solemnly proclaim their
attachment to the Rights of Man and the principles of
national sovereignty as defined by the Declaration of
1789, confirmed and complemented by the Preamble to
the Constitution of 1946, and to the rights and duties as
defined in the Charter for the Environment of 2004. By
virtue of these principles and that of the selfdetermination of peoples, the Republic offers to the
overseas territories which have expressed the will to
adhere to them new institutions founded on the common
ideal of liberty, equality and fraternity and conceived for
the purpose of their democratic development.
ARTICLE 1: France shall be an indivisible, secular,
democratic and social Republic. It shall ensure the
equality of all citizens before the law, without distinction
of origin, race or religion. It shall respect all beliefs. It shall
be organised on a decentralised basis. Statutes shall
promote equal access by women and men to elective
offices and posts as well as to position of professional and
social responsibility.
Organization of Substantive Law in Civil Law Countries

Public Law
Constitutional Law
Administrative Law
Criminal Law
Private Law
Civil Law (typically covered in the Civil
Code)
o Law of Persons
o Family Law
o Marital Property Law
o Property Law
o Succession Law
o Law of Obligations
Torts (Delicts)
Contracts
Unjust Enrichment
Commercial Law
Labor Law

Governmental structures
Parliament
Executive
Judicial Branch
Monism versus Dualism
o Monism- treaties automatically ratified
o Dualism- treaties require ratification of some
political body
o (US is a hybrid system)
The Role of the European Convention on Human Rights (1950)
Adopted as the law in EU states; creates the European
court of human rights
Organization of the Courts in Civil Law Countries

The French Court System

Cour de Cassation (Supreme Ordinary Court)
Seat of the French Conseil dEtat (Supreme Administrative
Court)
The German Federal Constitutional Court
Organization of the Legal Profession and Legal Education in Civil Law
and Common Law Countries
Divided versus Unitary

Ordinary Courts
Administrative Courts
Commercial Courts
Constitutional Courts

Divided
o Avous versus Avocats in France
o Solicitors versus Barristers in the U.K.
Unitary
o Germany
o The United States
The Important Role of Notaries in Civil Law Systems
More than just witnessing signatures. Often explain
contractual provisions and legal implications
Comparative Legal Education
Undergraduate versus Graduate (US)
One or Two Years of Practical Training
Special Schools for Judges and Prosecutors
Sample Legal Curriculum at the Sorbonne
o Introduction to Law and to Civil Law
o French Constitutional Law
o Historical Introduction to Law
o International Relations
o Economic Sciences
o Foreign Languages (English, French, or German)
o Juridical Methodology of Constitutional Law and
Civil Law
o Family Law
o Introduction to European Law
o Concluding Question for Reflection
What influence have civil law systems had on US law?
There is a highly organized US Code (USC)
Statutes are organized in a very similar fashion to civil law
countries
What are some of the different ways in which a knowledge of
civil law systems might be useful to you in your everyday
practice in Nebraska?
Common Law Systems and the U.S. Legal System

The Origins of the Common Law in England

A return to indigenous law after the departure of the Romans
around 400 A.D.
Rule by the Normans as of 1066
Law French: A Legacy of Norman Rule
Examples: jury and voir dire
Legal Developments under the Normans

Establishment of royal courts to supplement traditional

courts, which often implemented trial by ordeal
Use of local juries to determine facts
Continuing role for ecclesiastical courts
Role of the Lord Chancellor
The common law in effect allowed judges to create law.
In civil law systems the role of the judge is much more
restricted, and there historically has even been a formal
prohibition on judges making law. Where did we see
this in the French Civil Code?
But there is a common law tradition of judge as umpire
with respect to fact-finding.
Comparison with prominent fact-finding role of judge in
civil law systems.
The Writ System
The system under which only certain claims could be heard
Had to match an existing writ
o Examples of writs:
o writ of trespass (for direct damage)
o writ of trespass on the case (for indirect damage,
including some breach of contract claims)
o writ of habeas corpus
Over time, about 75 writs were created.
England abolished the writ system in 1832.
In the U.S., the writ-based concept of forms of action was
eliminated in civil procedure. The New York Field Code of 1848
was one of the first civil procedure codes to do so, leading to
open or code pleading.
The Inductive Style of Common Law Reasoning
The theory of our system is that the law consists not in the
actual rules enforced by decisions of the courts at any one time,
but the principles from which these rules flow; that old principles
are applied to new cases, and the rules resulting from such
application are modified from time to time as changed
conditions and new states of fact require. Williams v. Miles, 68
Neb. 463 (1903).
Stare Decisis
What is stare decisis? The binding force of precedent
The evolution of stare decisis
Developed out of a need to compile unified rules
William Blackstone, Commentaries on the Laws of England (1765
to 1769)
Read, compile and rationalize decisions to infer what the
law is

Not really a code, but an inductive code (treatises,

restatements)
Evolution of unique common law concepts on torts, contracts,
and property law
Example of property (grants from the King)
The Development of Equity Courts
Important legal concepts developed by equity courts
Remedy of specific performance of contracts
Remedy of injunctions to prevent irreparable harm
Discovery
Trusts, which separate legal and equitable ownership
The British Court System
The British Court of Appeal
The Former Lords of Appeal in Ordinary (Law Lords) (Lords
were also legislators)
Oct 2009- The creation of a Supreme Court of the UK (as a
separate branch of government)
The British Governmental System
The Crown
The Role of Parliament and Parliamentary Supremacy
Parliament can theoretically do whatever it wants to do
o No one can strike down and act of parliament
The Influence of the Common Law on U.S. Law
The legacy of British colonization and the current British
Commonwealth
Neb. Rev. Stat. 49-101 declares: So much of the common law
of England as is applicable and not inconsistent with the
Constitution of the United States, with the organic law of this
state, or with any law passed or to be passed by the Legislature
of this state, is adopted and declared to be law within the State
of Nebraska.
Roper v Simmons (US Supp Ct 2005)- prohibition of juvenile
executions
Looked at 1689 rights act; looked at UK parliament
A Combination of Common Law and Civil Law Influences on
Nebraska Law
What are some civil law features of Nebraska law that
distinguish it from the English common law and
contemporary U.K. law?
o Nebraska revised statues
o Concepts of human rights
The historical influence of the civil law in Nebraska
o The Roman or civil law system was in force in this
territory prior to the Louisiana purchase - Roscoe
Pound

Indigenous Law (including Native American Law)

o 2007 U.N. Declaration on the Rights of Indigenous Peoples
Which among other things, declares their desire to preserve
their own legal traditions
o CHARACTERISTICS OF INDIGENOUS LAW
What are some key values promoted by indigenous law?
Emphasis on dispute resolution and consultation as
opposed to an adversarial system
Consultation is something that has infiltrated US law
o Open-minded consultation and expression of
opinions (the theoretical ideal of the legislature)
o Jury system (working out the issues, etc.)
How are indigenous communities typically governed?
Councils of Elders (Historically unelected)
Chiefs- however they must often consult elders
What are some common features of indigenous laws treatment
of crimes?
Not governed by a clear criminal code
Treated as injuries to specific people, families or the
community
o Work out agreements between offenders and
victims
o Preference for dialogue
Ex- Practice of "Gacaca" in Rwanda
What are common indigenous views of land ownership?
A communal interest held in trust- no private ownership
o The preservation of indigenous law in many former colonies
Indigenous law in African legal systems
Preservation of Hindu and Muslim law in India
o American Indian Law
The principle of tribal sovereignty
The US Supp Ct has recognized the inherent sovereignty
of Indian nations and the "right of reservation Indians to
make their own laws and be ruled by them"- Williams v
Lee (1958)
The plenary legislative power of Congress over tribes
Plenary authority over the tribal relations of the Indians
has been exercised by Congress from the beginning, and
the power has always been deemed a political one, not
subject to be controlled by the judicial department of the
government. - Lone Wolf v. Hitchcock, 187 U.S. 553, 565
(1903)
Use of the customary international law doctrines of discovery
and conquest to legitimate U.S. title over Native American
lands

[The United States] maintain, as all others have

maintained, that discovery gave an exclusive right to
extinguish the Indian title of occupancy, either by
purchase or by conquest; and gave also a right to such a
degree of sovereignty, as the circumstances of the people
would allow them to exercise. . . . Conquest gives a title
which the Courts of the conqueror cannot deny. . . . The
title by conquest is acquired and maintained by force. Johnson v. MIntosh, 21 U.S. 543, 587-89 (1823)
United States ex rel. Standing Bear v. Crook (D. Neb. 1879)
An Indian is a person within the meaning of the laws
of the United States, and has, therefore, the right to sue
out a writ of habeas corpus in a federal court, or before a
federal judge, in all cases where he may be confined or in
custody under color of authority of the United States, or
where he is restrained of liberty in violation of the
constitution or laws of the United States. - United States
ex rel. Standing Bear v. Crook, 25 F. Cas. 695, 700-701 (D.
Neb. 1879)
Tribal sovereignty, governance, and courts today
The U.S. recognizes more than 560 tribal governments.
Therefore there are more than 600 sovereignties in the
U.S., including the federal government, state
governments, and tribal governments.
What are typical features of tribal governments today?
o Typically a council (nowadays they're often elected)
o Tribal codes
Tribal courts today
o 275 tribal court systems

Islamic Law
o The relevance of Islamic law
Why might a knowledge of Islamic law be helpful to you in your
legal practice in Nebraska?
Clients might want Islamic law incorporated into their
contracts
Business contracts with Muslim countries (choice of law
issue)
o The history of Islamic law
The Prophet Muhammad (570- 632 C.E.)
Muslims believe that the Quran was revealed to him over
twenty-three years.
About 500 out of its 6,000 verses relate to law.
Muhammad retreated to the city of Medina in 622 A.D., which is
the year that marks the start of the Islamic calendar.
o The sources of Islamic law

The Quran
The Sunna (behavior and sayings of the Prophet; recorded in
traditions or hadiths)
Ijma, or consensus of the Muslim community, and
Qiyas, or analogical reasoning
The schools of Islamic law
Different schools of thought: Maliki; Hanafi; al-ShafiI; Hanbali
(prevalent in Saudi Arabia)
Sharia law today
Includes rules on: Torts; Contracts; Property; Civil procedure;
Family law; Criminal law; Criminal procedure; Banking and
Islamic finance; Business
Religious choice of law principles in the Quran
Islamic law accepts Jewish law and Christian law as laws of prior
revelations. (See, e.g., 3:78, 5:50.)
Jews and Christians are regarded as People of the Book
So let the People of the Gospel judge according to what God
has sent down therein (5:51).
Other legal principles in the Quran
Unity of the human family: We have honoured the Children of
Adam and carried them on land and sea, and provided them
with good things, and preferred them greatly over many of those
We created. (17:72)
Respect for diversity: O mankind, We have created you male
and female, and appointed you races and tribes, that you may
know one another. (49:13)
Equality and justice: David, behold, We have appointed thee a
viceroy on earth; therefore judge between men justly, and follow
not caprice. (38:25)
Examples of Islamic law
The Constitution of Iraq (2005)
PREAMBLE : In the name of God, the Compassionate, the
Merciful. "Verily we have honored the children of Adam"
(Quran 17:70)
CHAPTER ONE: BASIC PRINCIPLES
Article (1): The Republic of Iraq is a single federal, independent
and fully sovereign state in which the system of government is
republican, representative, parliamentary, and democratic, and
this Constitution is a guarantor of the unity of Iraq.
Article (2):
1st Islam is the official religion of the State and is a
foundation source of legislation:
(a) No law may be enacted that contradicts the
established provisions of Islam.

(b) No law may be enacted that contradicts the principles

of democracy.
(c) No law may be enacted that contradicts the rights and
basic freedoms stipulated in this Constitution.
Islamic Civil Procedure
The role of the qadi (judge)
Oral proceedings; informal
Can investigate facts
Applies Islamic law to the case at hand (no stare decisis)
What are some similarities to and differences from common law
procedure?
No notion of following precedent
Parties can present evidence and speak
Appeals allowed
The role of the mufti
Equivalent of a legal scholar in the US
Government in Islamic Countries
Civil law or common law influences
Many adopt a Western-style court system, such as the French
system of ordinary and administrative courts
The role of shura (consultation) in justifying elected parliaments
or assemblies
The majlis (parliament) in the Islamic Republic of Iran
Consists of 290 members elected for terms of four years.
Includes representatives of the Jewish, Christian, and
Zoroastrian communities.
Islamic law and international human rights law
Potential compatibilities
Equal human dignity based on unity of the human family
A trust theory of government based on justice
Freedom of religion, as expressed in the Quranic verse
No compulsion is there in religion (2:257)
Some rights for women, including to work and own
property
Tensions
Denial of freedom of religion in practice
Punishment of apostasy
Discrimination against non-Muslims in practice
Cruel criminal punishments (such as stoning)
Subjugation of women in practice
Chinese Law
The Relevance of Chinese Law
The Influence of Confucianism
Key Elements of Confucian Social Teachings
o The teachings of li (ritual) and ren (humaneness)

An emphasis on social roles

Rulers are to lead by example, not force
In hearing cases I am as good as anyone else, but
what is really needed is to bring about that there
are no cases. Confucius
o Tension with the legalists
The Influence of the Legalists and Chinas Dynasties
The triumph of the legalists in the Chin Dynasty (221 B.C.
206 B.C.) and an emphasis on fa (law) implemented by
force
Key features of Chinese law under the imperial codes (until
1911)
The Great Ming Code (1397) and the Qing Code (1911)
The role of statutes and customary law
A focus on administrative law
No separation of judicial and executive power
Informal regulation outside the codes of contracts,
business, tenancy, debts, family law, partnerships
Informal resolution of disputes drawing on Confucian
principles
Collapse of the Chinese Empire; the implementation of the SIX
Laws
Modeled on western codes; borrowed from Japan, which in
turn borrowed from Germany
China Under Communism (since 1949) and the Evolution of
Socialist Law
Repealed many laws
Modeled laws after Soviets
Others saw socialist law as a variant of civil law
The Chinese Legal System Today
Revival of the Six Laws
Growth of law schools (UNL may partner with one of
them)
Revival of Confucian ideas
Training of judges and lawyers
Updating of the Civil Code
Supreme Peoples Court
o General Principles of Civil Law of the PRC with
Provisions on Property (2007) and Torts (2010)Demonstrates how recent these legal
developments are
Comparative Tort Law
o The Relevance of Comparative Tort Law
Review of comparative tort issues weve already discussed:
The ATS and the Torture Victim Protection Act
o
o
o

Conflict of laws rules and the application of foreign tort

law
Treaties Relating to Certain Transnational Tort Claims the Montreal
Convention Revisited
The Montreal Convention
Formal Name: Convention for the Unification of Certain
Rules for International Carriage by Air.
This was the treaty at issue in Baah v. Virgin Atlantic
Airways, 473 F.Supp.2d 591 (S.D. N.Y. 2007).
Do you remember why the court in Baah found that it
lacked subject matter jurisdiction under these provisions?
Is the Montreal Convention self-executing? Does it create
a private right of action? How do we know?
o Yes, SE, PRA
o Committee Reports (Biden!)
Federal Statutes Relating to Certain Transnational Tort Claims
The Alien Tort Statute
The Torture Victim Protection Act
The Foreign Sovereign Immunities Act of 1976 (FSIA)
It is codified at 28 U.S.C. 1602-1611.
It imposes restrictions on the ability of plaintiffs to sue
foreign governments in U.S. courts.
In general, it provides that foreign governments are
immune from civil suit unless an exception is applicable.
Section 1604 provides the general immunity rule:
o Subject to existing international agreements to
which united states is a party at the time of
enactment of this act a foreign state shall be
immune from the urisdicito of the courts of the
united state and of the states except as provided
SEE SLIDE
One exception is for commercial activities of
governments.
The Anti-Terrorism Act of 1991
It is codified at 18 U.S.C. 2331 et seq.
It establishes a cause of action for a U.S. national who
was injured by reason of an act of international terrorism.
See 2333(a).
Two key exceptions relevant to cross-border tort claims:
The tortious conduct exception
Section 1605(a)(5) provides an exception for an action in
which money damages are sought against a foreign state
for personal injury or death, or damage to or loss of
property, occurring in the United States and caused
by the tortious act or omission of that foreign state or of

Who
can
sue?

Who
can be
sued?

any official or employee of that foreign state while acting

within the scope of his office or employment. (Emphasis
added.)
The terrorist act exception
Section 1605A(a)(1) provides: A foreign state shall not
be immune from the jurisdiction of courts of the United
States or of the States in any case not otherwise covered
by this chapter in which money damages are sought
against a foreign state for personal injury or death that
was caused by an act of torture, extrajudicial killing,
aircraft sabotage, hostage taking, or the provision of
material support or resources for such an act if such act or
provision of material support or resources is engaged in
by an official, employee, or agent of such foreign state
while acting within the scope of his or her office,
employment, or agency.
In general, the claim must be by a U.S. national, and
the foreign state must have been designated as a
state sponsor of terrorism at the time the act
occurred. See 28 U.S.C. 1605A(a)(2).
The FSIA also provides that the terms torture and
extrajudicial killing have the meaning given those terms
in section 3 of the Torture Victim Protection Act of 1991
(28 U.S.C. 1350 note). 28 U.S.C. 1605A(h)(7).
The Relationship Between the ATS and the FSIA
If an alien brings a claim against a foreign government for a
violation of customary international human rights law, then both
the ATS and the FSIA will apply.
However, under the FSIA, the plaintiff will have to meet the
terms of at least one of the exceptions to sovereign immunity.
ATS
Only an
alien

A person
*silent in
regards
whether

TVPA
A US Citizen and an alien

Individuals acting under color of

title *not corporations or govt.
agencies

FSIA
A US Citizen
under the
terrorist
exception and
anyone under
the tortious
conduct
exception
Foreign
government
ONLY LIMITED
SITUATIONS

corps can
be sued

Groun
ds?

For a
tort
committed
in
violation
of the
law of
nations
[i.e.
Customary
Internatio
nal law]

(we learned
three)

For Torts and extraterritorial

killings under color of authority
[Note: only a civil claims for
damages can be brought, NOT a
criminal complaint]

For torts
related to
commercial
activities (28
USC 1602).
When money
damages are
sought for
personal
injury or
death, or
damage to
property,
occurring in
the United
States and
caused by the
tortious act
or omission of
that foreign
state or its
employees
acting in their
official
capacity (28
USC 1605).
For Terrorist
acts
committed by
a foreign
government,
even abroad,
against a US
citizen (28
USC 1605A).
*foreign state
must have
been
designated as
a state

sponsor of
terrorism at
the time of
the act.

Is
Privat
e right
of
action
create
d?
SMJ?
PJ?

Yes
because
this is an
implement
ing statute

Yes because this is an

implementing statute

Yes because
this is an
implementing
statute

Yes

1331

Yes, if within
exceptions.
?

Personal
Personal service. May kidnap
service [if
defendant to serve.
alien D
must be
present in
the US]
SoL
10 years
10 years
?
Other
Per
Must have exhausted local
US
requir
Kiobels
remedies [if reasonable] before
Government
ement
holding:
bringing a claim before the US
can assert
s?
claim
Courts
act of state
Torture/crime must have occurred
must
as a ground
outside of the US
touch and
to dismiss the
concern
case.
the US
But note that under the tortious conduct exception the
governments conduct must have occurred in the United
States.
Also, under the terrorist act exception only a U.S. national
can sue, not an alien.
So the FSIA may bar many, if not most, ATS claims against
governments.
However, ATS claims against individuals or corporations are not
barred by the FSIA.
Alien Tort Statute
o Establishes original district court jurisdiction over any civil action by
an alien for a tort only, committed in violation of the law of nations or a
treaty of the United States
o Who can sue under the ATS?

o
o
o
o
o

Only an alien
What kind of action can be brought under ATS?
Only a civil claim for damages, not a criminal complaint
Against whom can the claim be asserted?
A person
On what grounds can a claim be brought under the ATS?
For a tort committed in violation of the law of nations
generally understood to encompass customary international law.
The ATS grants SMJ to federal district courts to hear such claims
But just like with any other case, you need PJ over the defendant
If you have an alien D, that means that normally the D must
physically be present in the US and must be served with
summons and complaint here.
In addition to SMJ and PJ, for a claim to be heard by a court, there must
be a legally recognized claim that exists in the first place [private right
of action] in this case, torture is a clear violation of a customary
international human rights rule that prohibits torture instigated by
government officials
In Filartiga, the court held that the norm that is allegedly being
violated has to be sufficiently definite to support a cause of
action
Courts can dismiss civil suits based on:
Act of state doctrine
sovereign immunity doctrine; and
forum non conveniens
The doctrine of forum non conveniens refers to the
discretionary power of a court to decline jurisdiction when
the convenience of the parties and the ends of justice
would be better served if the action were brought and
tried in another forum. Whether a suit should be
entertained or dismissed under the rule of forum non
conveniens depends largely upon the facts of the
particular case. Unless the balance is strongly in favor of
the D, however, the Ps choice of forum should rarely be
disturbed.

The Torture Victim Protection Act [TVPA] implementing legislation for

the Convention Against Torture
o an individual who, under actual or apparent authority, or color of law,
of any foreign nation (1) subjects an individual to torture shall, in a civil
action, be liable for damages to that individual
The TVPA does not cover purely private criminal acts by
individuals or nongovernmental organizations
o a court shall decline to hear a claim under this section if the claimant
has not exhausted adequate and available remedies in the place in
which the conduct giving rise to the claim occurred.
o no action shall be maintained under the provision unless it is
commenced within 10 years after the cause of action arose

o
o
o
o
o
o

while the ATS provides a remedy to aliens only, TVPA would extend a
civil remedy also to US Citizens who have been tortured abroad.
In other words, both, aliens and US Citizens can sue under the
TVPA
Who can sue under the ATS?
Only individuals
A US Citizen or an alien
Who can be sued?
Only individuals (not the government)
What kind of action can be brought under ATS?
Only a civil claim for damages, not a criminal complaint
Against whom can the claim be asserted?
A person
On what grounds can a claim be brought under the ATS?
For Torts and extradional killings under color of authority
Other requirements?
Must have exhausted local remedies [if reasonable] before
bringing a claim before a US Court
SoL?
10 years

*NOTE: alien victims of torture within ten years prior to lawsuit essentially have the
option of suing under either the ATS or the TVPA (subject to the SCOTUS holding in
Kiobel) and can also plead claims under both statutes in a single complaint.

Foreign Sovereign Immunities Act [FSIA 1602-1611]:

o Imposes restrictions on the ability of Ps to sue foreign governments in
the US
o In general, it provides that foreign governments are immune from civil
suit unless an exception is applicable.
subject to existing international agreements to which the
United States is a party at the time of enactment of this Act a
foreign state shall be immune from the jurisdiction of the courts
of the United States and of the States except as provided in
sections 1605 to 1607 of this chapter.
o Three exceptions:
For torts related to commercial activities
Tortious Conduct Exception:
An action in which money damages are sought against a
foreign state for personal injury or death, or damage to or
loss of property, occurring in the United States AND
caused by the tortious act or omission of that
foreign state or of any official or employee of that
foreign state while acting within the scope of his
office or employment

Another exception is for terrorist acts committed by a

foreign government, even if abroad, against a US national
A foreign state shall not be immune from the jurisdiction of courts of the
United States or of the States in any case not otherwise covered by this
chapter in which money damages are sought against a foreign state for
personal injury or death that was caused by an act of torture, extrajudicial
killing, aircraft sabotage, hostage taking, or the provision of material
support or resources for such an act if such act or provision of material
support or resources is engaged in by an official, employee, or agent of
such foreign state while acting within the scope of his or her office,
employment, or agency. 28 U.S.C. 1605A(a)(1).
o In general, a claim must be by a U.S. national, and the foreign
state must have been designated as a state sponsor of terrorism at
the time the act occurred
Note that if an alien brings a claim against a foreign government for a
violation of customary international human rights law, then both the ATS
and the FSIA will apply
However, because FSIA generally immunizes governments from suit, the P will
have to meet the terms of at least one of the exceptions to sovereign immunity
The Act of State and Political Question Doctrines
Even if a claim is allowed under the FSIA, the government could
assert the act of state doctrine as an affirmative defense.
This doctrine essentially arises out of a concern that U.S. courts
not interfere with the conduct of foreign affairs by the U.S.
Executive Branch.
Courts may also invoke the political question doctrine to
decline to hear such a case if they believe that the issues
involved are primarily political rather than judicial.
Tort Concepts in Civil Law Systems
Example: Provisions of the French Civil Code
Torts are dealt with in Title IV of the French Civil Code, which is
entitled, Of Undertakings Formed without an Agreement.
Article 1370 introduces this title by stating: Certain
undertakings are formed without the intervention of any
agreement, either on the part of him who binds himself, or on
the part of him towards whom he is bound. Some of them result
from the sole authority of legislation; others arise from an act
personal to the one who is obligated. . . . Undertakings arising
from an act personal to him who is bound result either from
quasi-contracts, or from intentional or unintentional wrongs;
they constitute the subject-matter of this Title.
Two Categories of Non-Contractual Obligations under the French
Civil Code
Quasi-Contracts
Of Intentional and Unintentional Wrongs [Of Torts].

Art. 1382: Any act whatever of man, which causes damage to

another, obliges the one by whose fault it occurred, to
compensate it. on exam for sure
Art. 1383: Everyone is liable for the damage he causes not only
by his intentional act, but also by his negligent conduct or by his
imprudence.
Art. 1384: A person is liable not only for the damages he causes
by his own act, but also for that which is caused by the acts of
persons for whom he is responsible, or by things which are in his
custody.
Selected Other Provisions of Art. 1384
(Act no. 70-459 of 4 June 1970) The father and mother, in
so far as they exercise parental authority (Act no. 2002305 of 4 March 2002), are jointly and severally liable for
the damage caused by their minor children who live with
them. . . . (Act of 5 April 1937) The above liability exists,
unless the father and mother or the craftsmen prove that
they could not prevent the act which gives rise to that
liability.
Teachers and craftsmen, for the damage caused by their
pupils and apprentices during the time when they are
under their supervision.
Some Questions About These Provisions
What do you notice about the style of these provisions?
Short, clear, not a lot of elaboration. Problem is ambiguity.
(what is fault? What are things considered in your
custody? Ect.)
Is there an equivalent provision to Article 1382 in U.S.
statutory law, whether federal, or state? If so, where? If
not, why not? No, ours is based on common law.
Are there U.S. statutory equivalents to the other articles?
How do these provisions compare with the common law of
torts you have studied in your Torts class?
What accounts for any differences between them given
your study of the respective histories of civil law systems
and common law systems?
Other Tort Law Issues Addressed in Civil Codes and Auxiliary
Legislation
Product liability claims
Contributory or comparative negligence
o What is the Nebraska rule on contributory
negligence? See Neb. Rev. Stat. 25-21,185.09.

Why did Nebraska create a statutory provision on

contributory negligence instead of relying on the
common law?
o Conflict of Laws Rules Regarding Torts, Continued
To recall, section 145(1) of the Second Restatement provides:
the rights and liabilities of the parties with respect to an issue
in tort are determined by the local law of the state which, with
respect to that issue, has the most significant relationship to the
occurrence and the parties under the principles stated in 6.
Also recall the general rule for personal injuries under section
146. What is that rule?
Comparative Contract Law
o The U.N. Convention on Contracts for the International Sale of Goods
(CISG)
Adopted by the U.N. General Assembly in 1980.
Was intended to replace national laws on contracts when it
applies and create uniform rules that would remove legal
barriers to international trade and promote it.
Was ratified by U.S. in 1986.
Is considered by U.S. courts to be self-executing and to create a
private cause of action.
Therefore preempts state contract law where it applies.
79 state parties as of March 31, 2013.
States to which the CISG Applies
Under Article 1(1), the CISG applies to contracts of sale of
goods between different states parties whose places of
business are in different States:
o (a) when the States are Contracting States; or
o (b) when the rules of private international law
(conflict of laws) lead to the application of the law
of a Contracting State.
Upon ratification the U.S. made a reservation rejecting (b).
Therefore the CISG will only apply to contracts of sale of
goods between parties whose places of business are in
the U.S. and another party to the CISG.
Other countries that are parties to the CISG include U.S.
neighbors Canada and Mexico.
Parties are free to vary/modify rules
If they don't do that, CISG will govern as part of the
supreme law of the land
One major difference is UCC 2-207
o Some Similarities and Differences in Approaches to Contract Law
Between Civil Law Systems and Common Law Systems
Consideration in the common law and the prominence of the
notarial seal in the civil law
o

 Remedies for contract breaches

Conflict of Laws Principles Regarding Contract Law
The First Restatement provided generally that in determining the
validity of a contract and how to interpret it, as well as what
remedies were available under it, the law of the state where the
contract was made applied.
The Second Restatement provides for more flexibility, and gives
respect to choice of law clauses.
Section 186 provides that issues in contract are determined by
the law chosen by the parties in accordance with the rule of
187 and otherwise by the law selected in accordance with the
rule of 188.
Section 187 states a general rule in paragraph 1 that the parties
can chose the law that will govern their contract. It says: (1)
The law of the state chosen by the parties to govern their
contractual rights and duties will be applied if the particular
issue is one which the parties could have resolved by an explicit
provision in their agreement directed to that issue.
o Rules for Choice of Forum Clauses in a Contract
Section 80 of the Second Restatement provides: The parties
agreement as to the place of the action will be given effect
unless it is unfair or unreasonable.
Cases in which courts have held clauses to be unfair or
unreasonable include the use of fraud, duress, the abuse of
economic power, or the use of other unconscionable methods to
obtain the clause.
Comparative Civil Procedure and Review of the Course
o An Overview of Civil Procedure in Civil Law Countries and Its Relevance
to U.S. Cases
Attorney's fees- many systems don't like contingent fees
(because it makes the attorney a co-venturer in the lawsuit),
however it is being more widely adopted
Typical contingent fees in us (25-35%)
American rule is that you pay your own lawyer
Most of the rule has a "loser pays all" system
o Advantages over American rule- less incentive for
frivolous lawsuits
o Sometimes viewed as more fair
o Advantages over loser pays system- get the lawyer
you pay for
Jurisdiction of courts and recognition of foreign judgments
Exorbitant bases of jurisdiction
o Ex- France claims jurisdiction over any claim
involving a French citizen
Enforcement of foreign rules
o

o US rules (comity)
o Civil law rules (reciprocity statutes)
Service of process and international judicial cooperation
International judicial cooperation and letters rogatory
Treaties that further international judicial cooperation
o 1965 hauge convention on the service abroad of
judicial and extra judicial documents in civil and
commercial matters
o Rule 4(f) of the federal rules of civil procedure
provides in part that unless federal law provides
otherwise an individual other than a minor, an
incompetent person, or a person whose awiver has
been filedsee slide
Pleadings and formation of issues
Open pleading has always been the rule in civil law
countries
Judges take an active role in pleading and can correct an
attorney's mistake
Judges can generally rule onnew theories no advanced by
the parties so long as they give the parties notice
No strict separation of fact and law (as in common law
countries)
Judge issues order on the taking of evidence and can call
her own expert witnesses as amicus curiae
Evidence gathering in general
Purpose of US rules of evidence dont want jury to be
prejudiced by hearing unrealiable evidence or evidence
which will bias their opinion.
A series of hearings instead of a single trial in civil cases
Evidence gathering in civil law system
o The principle of free evaluation of evidence
o Prominent role of judge
Absence of exclusionary rules, except to
protect privacy or privilages
The prominent role of the dossier
Limited discovery, with restrictions on fishing exercises

Discovery and evidence gathering abroad

The judge usually questions witnesses and summaries of
testimony are prepared rather than verbatim transcripts
No deposition by lawyers
Introducing foreign law in a US federal proceedings: rule
44.1 of the FRCP

A party who intends to raise an issue about a

foreign countrys law must give notice by a
pleading or other writing. In determining foreign
law, the court may consider any relevant material
or source, including testimony whether or not
submitted by a party or admissible under the
federal rules of evidence. The courts determination
must be treated as a ruling on a question of law.
Use treaties to get assistance to gather evidence
The Court's decision
In civil law countries, the judge issues a judgement and
explanation at the end of the proceedings
This is similar to the reasoned opinion that udges must
issue in non jury cases as explained in rule 52(a) of the
FRCP which provides that in all actions tried upon the
facts without a jury or with an advisory jury, the court
shall find the facts specially and state separately its
concusions of law theron
The judge must rule on every issue in the case
The use of per curiam opinions with nod issenting or
concurring opinions
o Why are per curiam opinions the norm in civil law
countries?
o What are some arguments for and against use of
dissenting opinions?
Use of per curiam opinions with no dissenting or
concurring opinions
The appeals process
The first level of appeal is a de novo proceeding at which
new evidence can be presented.
Further opinions are on the law, not the facts as in the US
system
Right of appeal to the supreme court is fundamental right
(unlike the US where the Supp Ct has discretion):
o In some countries, like france, the supremem court
decides thousands of cases per year.
o By contrast the us supremem court has discretion
whether or not to issue a writ of certiorari and
chooses to hear only about 75 o 80 cases a year ot
of the 10000 or so petitions it receives for writ of
certiorari.
Review of the Course
o (1) the rules of international law as they are applied under
international law
o

(2) US rules regarding how and when international law is applied in US

courts
o (3) rules of foreign law as they are applied in the legal systems of other
countries, including systems drawing upon the civil law, common law,
indigenous law, Islamic law, and Chinese law traditions; and
o (4) US rules, regarding how and when foreign law is applied in US
courts
What are the key issues I know I have to talk about?
Show some depth. Maybe throw in a sentence about the history.
Talk about some of the confusion. One one hand plaintiff might argue this,
on the other hand
o

SCHAEFER EXAM QUESTIONS FROM LAST YEAR

1.

(50 points; about 30 minutes) Assume current US law charges a 20% tariff on imported
capacitors. (Note: A tariff is simply a tax imposed on imported goods). In 2013, Congress
passes a law that states, The President can proclaim into law any tariff cut on capacitors,
computers, televisions and other information technology products, provided that such tariff cut
is agreed to within the World Trade Organization (WTO) negotiations by at least 50 other
countries. In late 2016, the President negotiates with 78 other WTO countries under the
auspices of the WTO a tariff cut on capacitors down to 0%. In the agreement, all 78 countries
agree to reduce tariffs on capacitors down to 0%. The President signs the agreement after
lawyers draft the final agreement and two weeks later ratifies the agreement without sending
it to the Senate or the Congress for approval after the deal was reached. Several members of
Congress criticize the agreement, arguing the President needed to submit it to the Congress
for approval prior to ratification of the agreement. However, their efforts to introduce a bill
disapproving the agreement go nowhere as Congressional leaders are occupied with
immigration reform and cyber security legislation. No congressional committee is willing to
take up the disapproval motion. Shortly thereafter, the President does in fact issue a
proclamation in January 2017 reducing US tariffs on capacitors down to 0%. The US capacitor
industry sues the US customs service for charging 0% tariff on imported capacitors.

You are a clerk for the US federal district court judge hearing the case in the Court of International
Trade, a US Art. III federal district court. She asks you to write a memo on whether the
agreement is valid under the US legal system and whether the proclamation issued by the
President implementing the agreement is valid under the US legal system.

I.

Whether the international agreement is valid

a. (1) Power to Negotiate
i. President has power to negotiate as sole organ for the
communication/negotiation function
ii. Congress can paint with a broad brush when delegating
power in foregin affairs
1. U.S. v. Curtis-Wright
b. (2) Power to Sign
i. Power to sign lies in the Executive Branch
c. (3) Power to Approve
i. Jackson Concurrence/Rehnquist Spectrum

II.

2.

1. President has implied approval from Congress to

enter into agreement and issue proclamation (from
2013 Congressional law)
ii. Congressional Executive Agreement
d. (4) Power to Ratify
i. President posseses power to ratify; final consent to be
bound
e. (5) Otherwise Valid
i. Agreement does not conflict with Constitution/Bill of
Rights
Whether the proclamation is valid
a. Presidents proclamation does not have the force of law,
unless authorized by Congress
i. If Congress passes an act, which would take effect upon
the happening of a contingent event (getting at least 50
countries to agree), and subsequently the President
proclaimed that the event happened, then the
proclamation would have the force of law

(50 points; about 30 minutes) Assume the following facts. In 2014, the United States enters a
multilateral Convention on Aviation Pollution and Noise Abatement (CAPNA). The treaty is valid
under the US legal system, having been properly negotiated and signed by the President,
approved by 2/3rds of the Senate, and ratified by the President. Further, no provision of CAPNA
conflicts with the Constitution. In the Presidential transmittal letter to the Senate, the
President stated his intention that the CAPNA be self-executing. The Chairman of the Senate
Foreign Relations Committee also stated that intention on the floor of the Senate, but was
unable to have such a statement put in the Senate Foreign Relations Committee report and the
Senate Resolution of Consent because of opposition of several Senators on the Committee,
who felt that the full Congress should be involved in implementing any new standards created
by CAPNA to allow tailoring of the standards. The CAPNA requires parties to the treaty to
refuse landing rights to any aircraft creating more than 50 decibels (dB) of noise beginning in
2016. Congress passed a law in 2012 prohibiting the US Federal Aviation Administration (FAA)
from granting landing rights to any aircraft creating noise levels that exceed 60dB or that
otherwise are harmful to human health. The Senate Committee report to the 2012 law stated
that generally aircraft creating noise 60dB or lower will be permitted US landing rights but the
additional language of or that otherwise are harmful to human health was added because
there might be selected areas in the country where building construction is so dated that noise
levels below that might be considered harmful. In 2016, the FAA refuses landing rights to an
airline seeking to establish a route into a modern US city and whose aircraft creates 55dB of
noise.

The airline sues the FAA for refusing to grant it landing rights into the modern US city. The US federal
district judge hearing the case asks you to write a on memo on the impact the CAPNA
treaty has on the case and how to interpret the 2012 statute.
ANSWER:
ISSUES: 1-5 are taken out of play because its a value treaty. So self executing vs non self executing?
Consequences for each? Charming besty?

If the treaty is self executing, airline will probably lose. No landing rights above 50 and they
are at 55. Airline will argue non self executing and FAA will argue self executing. FAA will point to
presidential transmittal letter shows intent. Will point to chairperson of foreign relations comitte who
thought it was self executing. Airline will point out that it didnt make it into resolution fo consent or
into comitte report because several senators opposed it. Courts give greater weight to executive
branch views on treaty interpretation. This is a really close call, could go either way. If its self
executing, then it is later in time than statute (should try to use charming betsy before going to
hierarchy of norms). It its non self executing need tos tart with charming betsy. FAA will argue that or
otherwise harmful to human health should mean 50 so as to construe them as consistent. Statutory
language carries more weight than legislative history.

I.

II.

Whether Self-Executing or Non-Self Executing

a. (7) Self-Executing v. Non-Self-Executing
i. Examine U.S. intent
b. (8) Private Right of Action
i. No Senate Resolution of Consent
ii. Congressional approval only 2/3; Presidential transmittal
state intention for Self-Executing
iii. Senate Foreign Relations Committee; no language for
Self-Executing included
iv. Text of the Agreement; requires parties to begin acting in
2016
c. Likely not a Self-Executing agreement
2012 Statute Language; or that otherwise are harmful to human
health
a. Possible way for FAA to defend airlines suit even if treaty is
ruled Non-Self-Executing

International Contract Drafting

GOVERNING LAW AND DISPUTE RESOLUTION:
The present agreement, which is lawfully entered into, must be performed in good
faith and may only be revoked by mutual consent, or for causes authorized by law.
The CISG applies. Any issues involving the agreement or its interpretation that are
not governed by the CISG shall be governed by the laws of Nebraska, including but
not limited to the validity of the contract and all of its provision or the effect which
the contract may have on the title in the goods sold. Any dispute, controversy or
claim arising out of or relating to this contract or the breach, termination, or validity
thereof shall be settled by direct negotiation between the managing directors.
However, if direct negotiation does not result in a resolution of the dispute,
controversy or claim, then it shall be resolved by arbitration according to the
UNCITRAL Arbitration Rules. Arbitration is to take place in Lincoln, Nebraska in the
English Language.

EXPLANATION:

The first clause is a mutually agreed upon exception to the CISG regarding good
faith and consent in order to allow Empresas Agricultoras de Monterrey, S.A. (EAM)
to comply with Article 1794 of the Federal Civil Code of Mexico which asserts that
the existence of a contract requires (1) consent, and (2) an object that can be the
subject of a contract. (probably implied). Both, NebraskIrrigation and Empresas
Agricultoras de Monterrey agreed to use the CISG as their choice of law because it
allows them to circumvent the difficulty of deciding which countrys laws should
govern in the event of a dispute. If a conflict does arise, there is a growing body of
global case law on how to apply and interpret the CISG rules. Therefore, it is likely
that any conflict arising under this agreement can be settled based on precedent.
The direct negotiation and arbitration provision is beneficial to both parties because
it reduces the likelihood of a costly and time consuming lawsuit and the decision
that comes out of arbitration is legally binding. The choice of forum is Nebraska
because NebraskIrrigation is a larger company and should be able to determine the
choice of venue. Issues not governed by the CISG will be governed by the laws of
Nebraska because we decided that applying Mexican law in a Nebraska venue,
would create unnecessary difficulties.