SUMMARY OF CONCEPTS COVERED - IN 441 W/2018

1 – Introduction to International Law

 Public v. private international law
o Public – governments
o Private – persons and businesses
 Civil law, Common law, Shari’a
 Alvarez-Machain v. US
o Pre-trial motion to dismiss for lack of jurisdiction
o Extradition treaty – mutual engagement to return criminally accused persons
 Lex mercatoria – the law merchant
o Tradition of respect for business courts and business self-regulation; validity of trade customs
 ICJ – International Court of Justice (the Hague)
 ICC – International Chamber of Commerce – but careful: also, the International Criminal Court
 Falcoal v. Kurumu –
o Public tender
o sovereign immunity;
o jurisdiction:
 subject matter – requires effect on US party
 personal jurisdiction – requires minimum contacts, such as signature of contract,
negotiation, advertising, offices, regular business
o use of bid bonds and performance bonds (or standby credits)

2 . Extraterritorial Application of US Law and FCPA

 Kern v. Dynalectron
o extraterritorial application of US law;
o BFOQ exception to gender-based employment discrimination.
 FCPA – US Foreign Corrupt Practices Act
o Only prohibits bribing foreign officials
 US v. Liebo – can a gift be characterized as a bribe?
o Exception – facilitation or lubrication expenses (“grease”)
 Transparency International
o Publishes Corruption Perceptions Index (CPI)
 OECD Convention against Corruption and Bribery
o Goes further than FCPA; prohibits private bribery and facilitation/lubrication payments
 Doe v. Unocal – Corporations subject to US Alien Tort Claims Act

3 – International Tribunals
o World Trade Organization – e.g., Turtle excluder device case
 Disputes are first sent to Dispute Settlement Panel, and then the decision of the Panel
must be voted on by the Dispute Settlement Body, which is like a general assembly of
WTO member nations.
o International Court of Justice – Decision on Israeli wall/fence
 ICJ lacks enforcement mechanism
o International Criminal Court – Should U.S. join treaty?
 Vast majority of ICC cases to date concern Africa.

4 - Comparative Law: Civil Law (Europe/Lat.Am); Common Law (English-speaking countries); Shari’a
(Islamic countries)
 Raulin v Fischer – application of civil law penalties as damages rather than penal fines
 o In Civil Law countries, personal injury suits may be heard at the same time as a criminal
action related to the suit; in Common Law countries, these matters are treated in two
different law suits; a Common Law court asked to enforce a Civil Law court judgment
that has both injury/damages compensation and criminal fines will ONLY enforce the
compensation award, because one nation’s courts may NOT enforce another country’s
criminal judgments.
o Civil law judges are more often interpreters of Codes produced by the legislature, while
in Common law countries the judges are also creators of the law, as well as interpreters of
statutes
 LIAMCO Arbitration is consistent with Shari’a, which requires fulfilment of contracts
o Shari’a found primarily in Koran and sayings of Muhammad
o Shari’a prohibition against charging of interest (riba) has led to need for Islamic Banking
o Many countries use mix of Shari’a and either civil or common law

5 – Human Rights Law

 Universal Declaration on Human Rights – UN statement of basic human rights – not a self-executing
treaty, did not automatically go into effect in signatoryh states (Sei Fuji case)
 Sovereign immunity traditionally shielded political leaders from prosecution for crimes against their
own people. Two types of immunity – res materiae (act of state) and res personae (head of state). Today,
neither immunity is held to shield leaders from prosecution for war crimes or crimes against humanity
(but note that expropriations of property are not crimes against humanity).

6 - International Dispute Resolution

 International litigation – requires “service of process” on defendant
 Finnish Fur v. Shulof – signing as agent or principal/Finnish choice of law clause upheld
o Corporate shareholders’ personal assets normally are shielded against corporate liabilities
o Exception: piercing the corporate veil; fraud or undercapitalization
o Shulofs agreed to personal liability by participating in Finnish auction
o Shulof failed to sign bill of exchange in a way that disclosed corporate capacity
 Defenses to jurisdiction – lack of personal jurisdiction (specific v. general); sovereign immunity; forum
non conveniens.
o “Long arm” statutes – permit exercise of jurisdiction over foreign defendants when defendant
has “minimum contacts” with forum state.
o Specific personal jurisdiction – contacts giving rise to subject matter are the issue in the case
(e.g., a contract dispute, signature and negotiation of the contract in the forum state give rise to
specific jurisdiction)
o General jurisdiction – the foreign defendant has “systematic, substantial and continuous”
business with the forum state, meaning it is possible to sue defendant even when the subject of
the lawsuit does not involve minimum contacts by defendant (e.g., all contacts related to the
lawsuit were abroad, but the defendant has continuous and systematic business with the forum
state).
 Discovery – depositions, interrogatories, inspections, order to produce documents
 Enforceability of judgments – not universal (see Nelson Bunker Hunt):
o Europe – Brussels / Lugano Conventions
 Enforceability of arbitral awards – importance of NY Convention on the Recognition and Enforcement
of Foreign Arbitral Awards; more widely enforceable than court judgments.
 Choice of law – if no clause, courts conduct “conflict of laws” analysis
 International Commercial Arbitration
o Compared to litigation: cheaper, faster, less hostile, confidential, no precedent, expertise of
arbitrators,
 o BUT: no appeals, fewer procedural safeguards, less deterrent effect than litigation on foreign
counterparties.
o Arbitral Forum – ICC, LCIA, AAA, CEITAC
o Arbitration clauses – place, language, law, number of arbitrators
o Mediation/Conciliation – non-binding
 Force majeure clauses – both parties excused in the event of unforeseeable circumstances
 Liquidated damages clauses – pre-calculated damages
Cases:
o Milanovich v Costa Crociere – enforceability of forum selection or choice of law clause: subject
to test of reasonableness; here the clause was drafted by the defendant and inserted into an
adhesion contract, so it was enforced against the defendant.
o Alpine View v Copco – Foreign defendant had neither minimum contacts with forum state such
as to give rise to specific jurisdiction, nor “substantial and continuous business” sufficient to give
rise to general jurisdiction.
o BP v. Nelson Bunker Hunt – non-enforceability of foreign judgments pending appeal, even when
the final judgement would be enforced
o Iran Aircraft v. Avco – enforceability of arbitral awards – not enforceable if defendant didn’t get
a fair chance to present case.
o Farrel v. International Trade Commission – arbitration clause and US agency jurisdiction
o Tennessee v. Pier Paulo – Arbitration required even though plaintiff sought to make complaint
“sound in tort.”
o Yahoo v. La Ligue – French judgment not enforceable in California against Yahoo because
contrary to U.S. First Amendment principles – the “public policy” exception to the rule that most
judgments from sister states will be enforced.