Deck 3: Resolving International Commercial Disputes

Question 1

A U.S. court might refuse to enforce a Libyan court judgment where there is a lack of "due process" under the Fifth Amendment.

Answer 1

True

Question 2

A basis for the non-enforcement of a foreign judgment is the defective service of process or lack of personal jurisdiction.

Answer 2

True

Question 3

The Full Faith and Credit Clause of the U.S. Constitution applies to foreign court judgments.

Answer 3

False

Question 4

Venue means the appropriate set of laws applicable to a case.

Question 5

In general, at common law and in civil law jurisdictions, the choice of law clauses is rarely upheld.

Question 6

Jurisdiction has two (2) components where the court must have personal and subject matter jurisdiction.

Question 7

Most countries have broad discovery rules, just like the U.S., allowing the collection of evidence.

Question 8

The Bhopal disaster taught American corporations that they could insulate themselves from legal liability by having foreign control of the plant.

Question 9

Civil litigation is the primary means of settling contract disputes in the U.S. than in virtually any other country.

Question 10

According to the Asahi Metal case, merely placing your product into "the stream of commerce,"where it is a component in a product, is not sufficient to establish jurisdiction over a foreign company.

Question 11

The results of a mediation are not binding on either party.

Question 12

Many societies view litigation as evidence of personal achievement by the parties.

Question 13

Choice of law clauses in contracts stipulate in advance what court the parties will use in case of a dispute and thereby avoid conflicts of law issues.

Question 14

A foreign company's first line of defense in litigation in the U.S. is often that they are not subject to the jurisdiction of the courts.

Question 15

In an international dispute, where there is no choice of law and forum the forum, with greatest interest under conflicts of law will have the jurisdiction to hear the dispute.

Question 16

Once parties have initiated litigation in the United States, they cannot agree to have the dispute arbitrated.

Question 17

Choice of forum clauses fix in advance where the case will be heard by contract.

Question 18

Under the Full Faith and Credit Clause of the U.S. Constitution, a decision by a New York court will be enforced by a New Jersey court.

Question 19

Venue describes the appropriate geographical location of a court with jurisdiction.

Question 20

The Due Process clause of the U.S. Constitution requires that before a company can be brought before a court in the U.S. it must have had minimum contacts with the forum.

Question 21

A global economy cannot function unless business people know that contracts are enforceable and the appropriate remedy can be achieved.

Question 22

With mediation as a form of dispute resolution, the parties may at any point initiate litigation or agree to submit the dispute to arbitration.

Question 23

DownPillow, Inc., a U.S. company, and Eiderhoff, a German Company, negotiate a contract with forum and choice of law clauses for the U.S. A dispute arises, the case is heard in the U.S., and a judgment is given to DownPillow. DownPillow wants to enforce this judgment in Germany. According to the above scenario, w hich of the following statements is true?

A) Germany will not allow this judgment to be enforced in Germany because it does not recognize U.S. judgments.
B) Germany will allow one-half of the judgment to be enforced in Germany.
C) Germany will allow the entire judgment to be enforced if Eiderhoff received notice, it does not violate German law, and the U.S. reciprocates with German judgments.
D) None of the above.

Question 24

In the Asahi Metal Industry case, the Solano Superior Court refused jurisdiction over Asahi for lack of personal jurisdiction.

Question 25

There are several reasons that a court will not enforce an arbitration agreement. All of the following are reasons for not enforcing except :

A) no notice was given.
B) arbitration was obtained in the incorrect venue.
C) the judgment violates public policy.
D) the arbitration did not follow the agreement.

Question 26

The term mediation when dealing with dispute resolution refers to the situation where:

A) the two disputing parties settle the disagreement by themselves.
B) a third party tries to bring the parties in conflict to a mutually satisfactory solution.
C) the parties in conflict agree to have a court hear only limited evidence.
D) none of the above.

Question 27

One advantage of arbitration is that the entire case and evidence is not open to the public.

Question 28

One popular form of dispute settlement is arbitration. This is defined as:

A) rules in admissibility of evidence.
B) submission for determination of the disputed matter to a private unofficial person selected by agreement.
C) interlocutory determination by a judge.
D) none of the above.

Question 29

ADR refers to:

A) Alternative (or Alternate) Dispute Resolution.
B) Alternative Disruption Requirement.
C) A Data Reference System.
D) Atlantic Development Relations.

Question 30

One advantage of arbitration is that awards are recognized by the signers of the U.N. Convention on Recognition and Enforcement of Foreign Arbitral Awards (or, the New York Convention).

Question 31

Settlement of a dispute by binding arbitration never makes the decision binding.

Question 32

In an arbitration agreement, the parties may choose to restrict the arbitrator's powers or let the arbitrator decide what is equitable and good.

Question 33

In the Bhopal, India, disaster, the Union Carbide subsidiary involved was owned 50.9% by the parent company with headquarters in Connecticut while the other 49.1% was controlled by Indians. The case on behalf of the victims was started in the U.S. The judge dismissed the case saying it should be tried in India because of:

A) venue.
B) Rex Nonquam Moritur.
C) lack of jurisprudence.
D) Forum Non Conveniens.

Question 34

If mediation is chosen as a form of dispute resolution, it will be:

A) a mandatory process.
B) binding on all the parties.
C) a voluntary process.
D) not available in international disputes.

Question 35

With mediation as a form of dispute resolution, the parties have a very limited degree of control over the process.

Question 36

The following are all possible organizations that the parties may use to control the arbitration process except the:

A) International Chamber of Commerce.
B) American Arbitration Association.
C) London Court of International Arbitration.
D) International Monetary Fund .

Question 37

If a U.S. company and an Austrian company end up in a dispute about a contract they entered into that contains an arbitration clause, a case brought before a U.S. court would:

A) be heard by the U.S. court since arbitration clauses are not popular with such courts.
B) be heard by the U.S. court if the U.S. company can show it will be harmed by arbitration.
C) not be heard by the U.S. court because U.S. courts accept arbitration as a form of dispute resolution.
D) none of the above.

Question 38

Zapata, a Texas Corporation, entered into a contract with Unterweser, a German corporation, to tow Zapata's drilling rig from Louisiana to Italy. A storm arose and Zapata told Unterweser to tow the rig into Tampa, Florida. Zapata immediately filed a lawsuit in Florida against Unterweser for damages to the rig. The original contract called for "Any dispute must be heard before the London Court of Justice." The U.S. Supreme Court held that:

A) Florida has jurisdiction since that is where the oil rig is now located.
B) the case should be heard in Texas or Germany because that is where the parties are located.
C) the forum-selection clause is contrary to public policy and will not be enforced; either Florida, Texas, or Germany would be the correct place to hear it.
D) the parties must adhere to the forum-selection clause and have the case heard in London.

Question 39

Two of the disadvantages of arbitration are the increase in time to hear a dispute and the expense of the hearing.

Question 40

In a California lawsuit between a U.S. resident and a manufacturer based in Taiwan, what might limit the jurisdiction of the California court?

A) The Due Process Clause of the Fourteenth Amendment
B) Sovereign immunity
C) The Hague Convention on Taking Evidence Abroad
D) Comity
E) All of the above

Question 41

Weigh the relative benefits of a foreign citizen bringing suit in the U.S. as compared with bringing suit in their home state.

Question 42

Weigh the benefits and detriments of a business that establishes a global Internet presence.

Question 43

In what ways do forum selection and choice of law clauses serve similar interests? In what ways do they serve different or unrelated interests?

Question 44

Weigh the relative merits of using ADR and domestic courts in international disputes.

Question 45

The realities of international marketplace and the recognition of the importance reducing uncertainty have persuaded many courts:
I. To accept choice of law and forum clauses in international contracts
II. To require mandatory arbitration clauses in international contracts

A) Both I and II.
B) Neither I nor II.
C) I only.
D) II only.

Question 46

Consider the benefits and detriments of ADR in international disputes. (Consider the effect of the process on the parties.)

Question 47

A forum selection clause is:

A) contrary to public policy because it ousts the court of jurisdiction.
B) is upheld as long as it is reasonable, negotiated in an arm's length transaction, and absent a compelling reason not to honor it.
C) will not be upheld in Japan or the United States.
D) is upheld as long as it was voluntary.

Question 48

The disadvantages of arbitration include:
I. Limited Discovery
II. Limited Rights to Appeal

A) I only.
B) II only.
C) Neither I nor II.
D) Both I and II.

Question 49

What is the requirement f or a federal court to have personal and subject matter jurisdiction?

A) U.S. citizenship of at least one party.
B) The plaintiff is from Hawaii and the defendant is from Sweden.
C) The amount of controversy is at least $75,000.00.
D) Both b and c

Question 50

Compare and contrast the evidentiary rules of the U.S. with those of other nations. Which are more favorable to the plaintiff? Less favorable?

Question 51

Write a position paper advocating that jurisdictional choice of law clauses should be enforced in international transactions.

Question 52

Compare and contrast the relative benefits of arbitration and court adjudication.

Question 53

Many factors must be considered in choosing binding arbitration. All of the following should be considered except :

A) cost.
B) speed.
C) enforceability.
D) complexity.

Question 54

Write a position paper advocating that jurisdictional choice of law clauses should not be enforced in international transactions.

Question 55

If one is trying to determine the correct geographical location of a court that has jurisdiction over a case, he is determining:

A) jurisprudence.
B) venue.
C) allocation.
D) ADR.

Question 56

In the U.S., jurisdiction is:
I. Defined by the U.S. Constitution
II. Defined by various statutes

A) Both I and II.
B) Neither I nor II.
C) I only.
D) II only.

Question 57

Draft an international treaty pertaining to jurisdiction with respect to companies doing business utilizing the Internet.

Question 58

In what ways do the requirements for jurisdiction differ from those of European nations? How are they similar?

Question 59

When determining whether personal jurisdiction offends "traditional notions of fair play and substantial justice," the court evaluates several factors, including:

A) burden on the defendant.
B) the plaintiff's interest in having a convenient forum.
C) the forum's legitimate interests in the dispute.
D) two of the above.
E) all of the above.

Question 60

Many European countries refuse to enforce choice of law or jurisdiction clauses in consumer agreements, while U.S. courts typically enforce these. Consider the reasons and ramifications of these different approaches.

Question 61

The Blowout Company is a German corporation and manufacturer of the California Custom tire, a tire that is compatible with Harley Davidson motorcycles manufactured in the United States. Tofu Granola, a resident of Santa Cruz, California, purchased a pair of California Custom tires for his Harley. Granola purchased the tires from Goodstone Tires, Inc., a California corporation, at its store in Half Moon Bay, California. The Blowout Company and Goodstone provided assistance to their customers through maintenance of a toll-free hotline. Granola subsequently suffered severe injuries in an accident caused by the separation of the tread on the front tire of his Harley. If Granola files a lawsuit against Blowout in California state court, does such court have personal jurisdiction over Blowout? Why or why not?

Question 62

Craft an argument advocating for or against the creation of an international tribunal to address international commercial disputes between individuals.

Question 63

Gertrude Clodfelter, an 80 year old resident of North Dakota, recently filed a lawsuit in Florida against Islander Cruise Company, a Florida corporation, seeking damages as a result of a fall she suffered in the shower during a cruise to the Bahamas. The language in Ms. Clodfelter's ticket provided that "Any and all claims arising from injuries occurring during a cruise shall be filed in and shall be determined pursuant to the laws of the registry of the ship upon which the injury occurred." This language was located in very fine print in Paragraph 66 of Ms. Clodfelter's cruise ticket. The ship upon which Ms. Clodfleter was injured is registered in Panama. Furthermore, at the time of Ms. Clodfelter's purchase of her ticket, a sales agent employed by the cruise line told her: "Don't worry - we're a reputable company, easy to find and located right here in the United States." Finally, Florida has several statutes protecting senior citizens from commercial exploitation. Please explain the provisions of Ms. Clodfelter's ticket. Is this language enforceable? Why or why not?

Question 64

Outline an on-line Dispute Resolution procedure or body to handle international e-commerce disputes.