AugustinternationalbusinesslawChapter学习课程

1、3-2CHAPTER 3DISPUTE RESOLUTIONTopics for this chapter:lSettlement of Disputes Through DiplomacylSettlement of Disputes in Int. TribunalslSettlement of Disputes in Municipal CourtslImmunities of States from the Jurisdiction of Municipal CourtslChoosing the Governing LawlRefusal to Exercise Jurisdicti

2、onlOpposition to the Exercise of JurisdictionlProving Foreign LawlRecognition of Foreign Judgments第1页/共50页第一页，编辑于星期五：十一点 十分。3-3Settlement of Disputes Through Diplomacy Diplomacy is a form of international dispute settlement that uses negotiation, mediation, or inquiry. Negotiation is the process of

3、reaching an agreement by discussion. It may be done through diplomatic authorities, commissions, or at a summit conference.第2页/共50页第二页，编辑于星期五：十一点 十分。3-4Settlement of Disputes Through Diplomacy Mediation uses an impartial third party to provide a channel of communication, known as offering their good

4、 offices. The mediator may engage in conciliation, whereby they investigate and make a settlement proposal to the parties. All parties must consent to a mediation. An inquiry is the process by which an impartial third party makes an investigation to determine the facts underlying a dispute without r

5、esolving the dispute itself. Inquiries are used to investigate the facts of a specific incident, such as the sinking of a ship. 第3页/共50页第三页，编辑于星期五：十一点 十分。3-5Settlement of Disputes in International Tribunals If diplomacy fails, the parties usually turn to a court to resolve the dispute. Disputes betw

6、een states or IGOs are taken to an international tribunal, such as the ICJ or a dispute resolution panel of the World Trade Organization. Disputes involving a private or company usually end up in arbitration or in a municipal court of a state. 第4页/共50页第四页，编辑于星期五：十一点 十分。3-6International Court of Just

7、ice Principal judicial organ of the United Nations. It has jurisdiction to hear: Disputes between states pursuant to its contentious jurisdiction. Cases from organs and specialized agencies of the UN pursuant to its advisory jurisdiction. No power to hear cases involving individuals. Comprised of 15

8、 judges elected to nine-year terms.第5页/共50页第五页，编辑于星期五：十一点 十分。3-7ICJ Jurisdiction For a contentious case, all the parties must have recognized the ICJs contentious jurisdiction. Optional Clause Jurisdiction unilateral grant of jurisdiction by a state to the ICJ. Most states put restrictions on the ty

9、pe of cases they will let the court hear. 第6页/共50页第六页，编辑于星期五：十一点 十分。3-8ICJ Jurisdiction Under the rule of reciprocity, a state must respond to a suit brought against it only if the state bringing the suit has also accepted the jurisdiction of the ICJ under. Under a self-judging reservation or Connal

10、ly Reservation clause a state may exclude from the jurisdiction of the ICJ any dispute that it determines is a domestic matter.第7页/共50页第七页，编辑于星期五：十一点 十分。3-9ICJ Jurisdiction and Judgments The ICJs advisory jurisdiction is the power of the court to give opinions about issues of international law at th

11、e request of the United Nations or one of its specialized agencies. A judgment of the ICJ has no binding force except between the parties as to that particular case. There is no way to force a state to comply with a judgment. Most comply voluntarily.第8页/共50页第八页，编辑于星期五：十一点 十分。3-10International Crimin

12、al Court The ICC is an independent court of last resort that tries persons accused of the most serious international crimes. The ICC may exercise jurisdiction over individuals accused of: Genocide Crimes against humanity War crimes Assisting those committing the above crimes. Accused must be nationa

13、l of state or commit crime in state that accepts ICC jurisdiction. 第9页/共50页第九页，编辑于星期五：十一点 十分。3-11World Trade Organization Dispute Settlement Procedures Implements and enforces the rules of international trade between nations. Rules are contained in agreements. Each agreement has three objectives: To

14、 help trade flow freely To achieve liberalization through negotiation To set up means to resolve disputes WTO dispute settlement process governed by the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU)第10页/共50页第十页，编辑于星期五：十一点 十分。3-12The DSU Process The DSU encourages s

15、tates to resolve disputes through consultation. Parties must enter into consultation within 30 days or Dispute Settlement Panel is formed. The organs charged with carrying out the DSU are (1) the Dispute Settlement Body, (2) the Dispute Settlement Panels, and (3) the Appellate Body.第11页/共50页第十一页，编辑于

16、星期五：十一点 十分。3-13Dispute Settlement Panel Made up of three panelists from states not involved in the dispute. Function is to assist the DSB by making an objective assessment of the facts and determining the applicability and conformity with WTO agreements, then making findings to help the DSB make rec

17、ommendations and rulings. The panel decision may be appealed to Appellate Body by a party to the dispute. 第12页/共50页第十二页，编辑于星期五：十一点 十分。3-14Case 3-1Japan-Taxes on Alcoholic Beverages Complaints by European Communities, Canada, and US against Japan over Japanese Liquor Tax Law. Japan wanted panel to re

18、ly upon prior panel reports involving different complainants. Appellate Body held that panel reports help interpret the GATT but are not binding except with resolving the particular dispute between parties to that dispute. 第13页/共50页第十三页，编辑于星期五：十一点 十分。3-15International Center for the Settlement of In

19、vestment Disputes Purpose is to encourage private investment in underdeveloped countries. ICSID provides a mechanism for resolving disputes between an investor and the country of investment. Adopted rules for conciliations and arbitrations. Third party states, including the investors state, may not

20、intervene.第14页/共50页第十四页，编辑于星期五：十一点 十分。3-16The ICSID ProcessBefore ICSID can convene a panel, two steps must be satisfied:1. The host state and the state of the investor must both be parties to the Washington Convention.2. The investor and host state must both consent to ICSID jurisdiction.Jurisdicti

21、on of the ICSID shall extend to any legal dispute arising directly out of an investment.Consent to jurisdiction may not be withdrawn. 第15页/共50页第十五页，编辑于星期五：十一点 十分。3-17The ICSID Arbitration Process Parties may select any odd number of arbitrators they agree upon. Majority must be from states not invol

22、ved in the dispute. Arbitrations normally take place in Washington, D.C., but the parties can agree on another location with approval. Once consent to ICSID arbitration is given, it is the exclusive remedy for the parties and they may not ask for diplomatic intervention.第16页/共50页第十六页，编辑于星期五：十一点 十分。3

23、-18ICSID Jurisdiction ICSID must have jurisdiction over both the parties and over the subject matter of the dispute. Personal Jurisdiction Parties appearing must be a state party and national of another contracting state. A state party is the state itself, its agencies, or its subdivisions. The nati

24、onal of another contracting state can be a natural person (human) or a juridical person (business entity). Juridical person must have a home state outside the investment state. (51% foreign ownership or foreign management.)第17页/共50页第十七页，编辑于星期五：十一点 十分。3-19ICSID Jurisdiction (cont.) Subject Matter Jur

25、isdiction ICSID arbitration panels can only decide matters that are: Disputes Cannot be a collusive action in which the parties are not at odds. Must be a legal dispute where there is a disagreement as to the existence of a legal right or obligation. Arise out of an investment the ICSID convention d

26、oes not define investment. Absent an agreement, given the ordinary meaning of putting capital into a venture with the expectation of receiving a profit.第18页/共50页第十八页，编辑于星期五：十一点 十分。3-20ICSID and NAFTA NAFTA provisions protect cross-border investors and facilitate the settlement of investment disputes

27、. Each party must accord investors from other NAFTA parties national treatment and not expropriate investments. Investors may initiate arbitration under ICSID rules. Case 3-2 involves NAFTA parties and an arbitration commenced by Canadian company against the US.第19页/共50页第十九页，编辑于星期五：十一点 十分。3-21Case 3

28、-2In the Matter of the Loewen Group Inc. v. United States Loewen, a Canadian company that owned funeral homes in the US, lost an anti-competitive practices lawsuit in Mississippi. Jury set damages at $500M. Loewen challenged jury verdict under NAFTA. ICSID formed 3-person NAFTA arbitration panel. U.

29、S. argued that jury decision in private contract litigation did not constitute a governmental measure under NAFTA. Panel found NAFTA jurisdiction, placing no limits on what type of court decision it considers covered by NAFTA. Opens up possibility of review of even U.S. Supreme Court decisions by NA

30、FTA. Loewens claim was ultimately rejected for failure to exhaust all remedies in the U.S. courts.第20页/共50页第二十页，编辑于星期五：十一点 十分。3-22Settlement of Disputesin Municipal Courts The ability of a national court to exercise the power to hear a case is known as jurisdiction. The ability of a party to escape

31、the jurisdiction of a court is known as immunity.Natural and juridical persons have few immunities from a municipal court. Even state agencies, such as national airlines, are rarely able to claim immunity. 第21页/共50页第二十一页，编辑于星期五：十一点 十分。3-23Jurisdiction in Criminal CasesCriminal prosecutions may be co

32、nducted where there is some nexus between the regulating nation and the crime or criminal. The connection between the form and person must be reasonable.Four nexuses justify criminal jurisdiction:1.Territorial nexus place where the crime is committed determines jurisdiction.2.Nationality nexus looks

33、 at nationality of person committing the crime to determine jurisdiction.3. Protective nexus jurisdiction lies when national or international interest of the forum is injured.4.Universality nexus courts have jurisdiction over crimes of universal concern, such as slavery and hijacking.第22页/共50页第二十二页，

34、编辑于星期五：十一点 十分。3-24Jurisdiction in Civil Cases Jurisdiction in civil cases is based upon either in personam or in rem principles. In personam jurisdiction is the power to decide matters concerning natural or juridical persons, while in rem jurisdiction is the power of a court to determine ownership r

35、ights of property. Persons subject to in personam jurisdiction: Nationals of the forum Individuals present within the state Individuals domiciled in the state Individuals who consent to jurisdiction第23页/共50页第二十三页，编辑于星期五：十一点 十分。3-25Case 3-3Bumper v. Comm. of Police Religious artifact discovered in In

36、dia and illegally sold to Bumper in London. The temple in India sued to recover the artifact. Question was whether an institution that was not recognized as a person under English law was entitled to sue as a legal entity because it was recognized under the laws of its own state. Held: If another co

37、untry recognizes an institution as a legal entity, then the English courts will accept them as parties to suits. 第24页/共50页第二十四页，编辑于星期五：十一点 十分。3-26Jurisdiction Over Juridical Persons Subject to in personam jurisdiction in a municipal court much in the same way that individuals are. Domestic entities

38、are legal entities created within the state. Foreign entities subject to jurisdiction only if (1) they are recognized as juridical persons and (2) they give their consent. The entity must be properly formed by a recognized government. Often use forum selection clause in agreements to choose a court

39、or arbitration tribunal.第25页/共50页第二十五页，编辑于星期五：十一点 十分。3-27Case 3-4Shell v. R. W. Sturge, Ltd.Plaintiffs were Ohio residents who invested in the Society of Lloyds, also executing an agency agreement with Sturge to represent them with Lloyds as their Members Agent.Tried to sue under Ohio securities law

40、s.Agreements contained both choice of law and forum selection clauses naming England.A selection forum clause in an international agreement should be enforced unless1. Enforcement would be unreasonable and unjust or2. The clause was invalid for reasons of fraud or overreaching. 第26页/共50页第二十六页，编辑于星期五

41、：十一点 十分。3-28Immunities of States From the Jurisdiction of Municipal CourtsSovereign states are immune from the jurisdiction of foreign courts1. when they engage in activities that are unique to sovereigns and2.where they act officially within their own territory.The doctrine of sovereign immunity sa

42、ys that domestic courts must decline to hear cases against foreign sovereigns.Absolute sovereign immunity has given way to restrictive sovereign immunity whereby a foreign state is not immune when the cause of action for a suit is based on conduct unrelated to the states governmental activities (e.g

43、. commercial activities).第27页/共50页第二十七页，编辑于星期五：十一点 十分。3-29Case 3-5Abbott v. Republic of South Africa Plaintiff, a foreign national, worked at the embassy of South Africa as a bilingual secretary. Sued in Spanish court after her dismissal and won judgment. Tried to collect judgment by executing again

44、st bank accounts held by the embassy. Held: Vienna Convention on Diplomatic Relations provides immunity for foreign state property used for governmental activities.第28页/共50页第二十八页，编辑于星期五：十一点 十分。3-30Act of State Doctrine Doctrine that restrains municipal courts from exercising jurisdiction over foreig

45、n states. The act of a government within the boundaries of its own territory is not subject to scrutiny in a foreign court. A municipal court will not hear a dispute based on such acts if to do so would interfere with the forum states foreign policy. The US implements this rule based upon the genera

46、l system of separation of powers. U.S. Constitution(Public domain photo from Nat. Archives)第29页/共50页第二十九页，编辑于星期五：十一点 十分。3-31Case 3-6Int. Assoc. of Machinists v. OPEC IAM sued OPEC for anti-trust violations arising out of OPECs price-setting activities. 第30页/共50页第三十页，编辑于星期五：十一点 十分。3-32Case 3-6IAM v.

47、OPEC (cont.) IAM alleged deliberate price-fixing and sought injunctive relief. The OPEC countries refused to recognize the courts jurisdiction. The court relied upon the act of state doctrine as stated in Underhill v. Hernandez, 168 U.S. 250 (1897): Every sovereign State is bound to respect the inde

48、pendence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Despite commercial activity, the court refused to enter the delicate area of foreign relations and dismissed the action. 第31页/共50页第三

49、十一页，编辑于星期五：十一点 十分。3-33Choosing the Governing LawPrivate rights acquired under the laws of foreign states will be respected and enforced in our courts.In deciding which laws to apply to a dispute, a court will follow choice of law rules to determine if they should apply their own law or the law of an

50、other state.第32页/共50页第三十二页，编辑于星期五：十一点 十分。3-34Choosing the Governing LawChoice of law is a two-step procedure:If the parties agree to application of the laws of a certain state, that law will apply.If no agreement on choice of law, the court will:1. Follow statutory dictates2. Determine which state h

51、as the most significant relationship with the dispute, or3. See which state has the greatest interest in the outcome.第33页/共50页第三十三页，编辑于星期五：十一点 十分。3-35Choosing the Governing Law:Agreement of the Parties By using a choice of law clause in an agreement, the parties agree in advance as to what law shoul

52、d apply to any dispute that arises. Parties may agree by their statements to a court or by stating their position in pleadings. On rare occasions, courts will infer the intention of the parties as to choice of law based upon their actions. Court will most always skip over this option and look to sta

53、tutory provisions.第34页/共50页第三十四页，编辑于星期五：十一点 十分。3-36Choosing the Governing Law:Statutory Choice of Law Provisions If there is no agreement by the parties, the court will apply the law of the state where the rights of the parties to the suit became legally effective under the vested rights doctrine. T

54、o determine where the rights vest, the court need only look to a statute (e.g., contract rights vest where the contract was entered into). For suits involving delicts (private wrongs or injuries) or torts, the governing law is the place where the wrong was committed. 第35页/共50页第三十五页，编辑于星期五：十一点 十分。3-3

55、7Choosing the Governing Law:Most Significant Relationship The majority of civil law states do not follow the rigid vested rights doctrine but have opted for either the most significant relationship doctrine or the governmental interests doctrine.Under the lost significant relationship doctrine, the

56、court will apply the law of the state that has the most contact with the parties. 第36页/共50页第三十六页，编辑于星期五：十一点 十分。3-38Choosing the Governing Law:Most Significant Relationship Courts will consider the following general factors in all cases when seeking to apply the most significant relationship doctrine

57、:1.Which states law best promotes the needs of the international system?2.Which states law will be furthered the most by applying it to the case at hand?3.Which states law will best promote the underlying policies of the legal subject matter area involved?第37页/共50页第三十七页，编辑于星期五：十一点 十分。3-39Choosing th

58、e Governing Law:Most Significant RelationshipCourt will also consider specific factors depending upon the type of case.For tort cases, the specific factors are:1. Place of injury2. Place of the act3. Nationality, domicile, residence of the parties4. Place where relationship between parties was cente

59、red第38页/共50页第三十八页，编辑于星期五：十一点 十分。3-40Choosing the Governing Law:Most Significant RelationshipFor person property cases, the specific factors are:1.The location of the property and2. The nationality, domicile, residence, or place of incorporation of the parties.For real property cases:1.Location of th

60、e property第39页/共50页第三十九页，编辑于星期五：十一点 十分。3-41Choosing the Governing Law:Most Significant RelationshipThe specific factors in contract cases are:1. The place of contracting,2. The place of negotiation,3. The place of performance,4. The location of the subject matter, and5. The nationality, domicile, re