Transnational Law Outline

I. Transnational Legal Problems

a. Conflicts Between National Laws
i. Autocephalous Greek- Orthodox Church of Cyprus v. Goldberg &
Feldman Fine Arts, Inc – replevin- to get back property that was stolen.
Holy relics taken out of wall in Cyprus. Country split into north and
south, church in the north. Goldberg was an art dealer in Indiana and
she got the painting in a Swiss airport. Swiss does not apply because
never entered stream of commerce. Indiana – money, bank, citizen now
holding possession, current place of mosaic
1. Jurisdiction - Decide foreign entity’s citizenship by if that
state would recognize them as a citizen
2. Choice of law – choose choice of law analysis of the state in
which you sit, then analyze which choice of law to apply by:
most significant contacts
a. Place where the conduct causing the injury occurred
b. The residence or place of business of the parties
c. The place where the relationship is centered
3. Who has title? Turkish issued a decree that okayed title of
mosaic however U.S and everyone else does not recognize
Turkish rule. Intl law recognizes importance of relic being in
Cyprus. Peg did not buy in good faith
b. Conflicts of Intl law and National law – European Court of Human Rights of
the Council of Europe created by nations in Europe to interpret and apply the
fundamental European treaty governing intl human rights (U.S not a party)
i. Soering v. The United Kingdom – german intl killed gf’s parents in
Virginia. He then went to Europe. When there is a dispute btwn
someone in the charter and not they go before the European Court of
Human Rights (ECHR). U.S has extradition treaty with England. England
doesn’t want to send soering because it would be subjecting the person
to cruel and unusual punishment (U.S looking to execute). Not enough
to establish case against him in Germany.
1. Court has an inherent obligation not to extradite also
extends to cases in which the fugitive would be faced in
the receiving state by a real risk of exposure to inhuman
or degrading treatment
2. Determine based on nature and context of the treatment
or punishment, the manner and method of its execution,
its duration, it physical and mental effects, sex age, and
health of the victim
3. Violation of Art 3 despite not being a violation under U.S
const 8 amend
c. The influence of Transnational Law on National law
i. Roper v. Simmons – capital punishment of a juvenile under age of 18
(SCALIA – majority)
1. Intl law should be instructive but not binding
2. Art 37 (public intl law)- treaty among states on Rights of Children
3. Custom - Look at practices of other states – most do not allow
execution of children
 4. Dissent- O’Connor never look to intl law- if foreign sources
coincide with our domestic sources then use it
5. Foreign law instructive
II. Transnational Legal Personalities – most important is states; non-state parties have
varying degrees in being subjects of intl law in their own right
a. The State – make intl law through their domestic laws, through their
practices, through the treaties they enter, and intl organizations they create
i. U.S v. Ray – wanted to become sovereign nation, were not outside U.S.
border line
1. Territory goes out 12 miles past the land
2. To get sovereign immunity
a. Need defined territory
b. A permanent population – a stable population in the sense
of being settled under its own govt
c. Need your own govt and it needs to be effective and
functional – police, water, sewage, roads, fire protection,
social services
d. Must have capacity to enter into relations with other
states- making sure not a puppet state – join U.N, join
treaties, attend intl conferences
3. Places can be considered a state with an intention of an effective
functioning govt.
a. On the way is enough if they can reasonably do it
4. Sovereignty obligations
a. Must carry out soveriengty in good faith
b. Solve disputes peacefully (no war)
c. Respect human rights
d. Respect for other sovereign states
e. Eligible for recognition
f. Eligible for most favored nation status
b. Intl Organizations – organization that is created by an intl agreement and
has a membership consisting entirely or principally of states. Treaty gives it
its power and existences and can exercise functions not expressly assigned
to it under the treaty. Source of legal personality is domestic law- national
laws of a state. (some intl org created by intl org)
i. The Reparation Case – the UN is an intl organization developed to
regulate the intl economy by stabilizing currency, developing countries
and developed countries lending money to poor countries and trade.
Intl court of Justice (ICJ) has jurisdiction over states by treaty or the
consent of states by a compromise document. States can agree to
compulsory jurisdiction. The ICJ can give advice without a case in
controversy. Swedish natl works for UN as mediatory and hard while
working in Israel. (Sweden has not interest because he was not
furthering their purpose). Secretary seeked compensation on behalf of
the UN employees (nothing giving it that authority)
1. Intl organizations used to resolve issues.
2. Need a will separate from the states that created you.
3. Public unions created by sates to address uniformity
4. Intl org needs to be separate from states and have
powers necessary to carry out the job of the UN (implied)
 5. Some of the nature of the tasks could prevent home states from
bringing action on behalf of person
6. States gave capacity to bring legal claims for the function of their
business
a. If UN does not have this power then no one will take job at
UN, they need it for efficiency and make sure employees
are protected and lets them know where to go with
certainty
b. Test – essential to UN for performance of their Intl
duties
c. Persons
i. Natural Persons- individuals can only seek the protection of intl
law if their state sponsored their claim. Human beings were
protectable and had certain limited rights (aliens, prisoners of war,
civilians in war time, diplomatic agents)
1. Roberts v. United Mexican States – Mexicans held him in jail
longer than they were suppose to by their own laws. He was
held in poor conditions. Mexican said that they were treating
him like they treated their citizens. (earthen floors, straw roof,
non-sanitary, 30-40 men in same room.)
a. There is an Intl minimum standard of treatment for aliens
(ordinary standards of civilizations)
b. An outrage, badfaith, to willful neglect of duty, or to
an insufficiency of governmental action so far short
intl standards that every reasonable and impartial
man would readily recognize this insuffiency
2. The Nottebohm Case – Lichtenstein v. Guatemala – Guatemala
seized his property and Lichenstein was going to represent him
against Guatemala because he got citizenship from Lichenstein,
which involved him denouncing is citizenship of Guatemala.
a. Being a national is not enough for a state to take up a
claim
i. Need a genuine link to your country
ii. Real and effective nationality
iii. He had no intention of living there, originally from
Germany and place of business from Guatemala
ii. Juridical Persons – various enterprises, including non-profit associations,
religious organizations, and business organizations (corporations). Enjoy
right to own property and make contracts. The owe legal duties to avoid
negligent or tortuous conduct
1. Barcelona Traction Case – 88% of shareholders from Belgium.
Corporation chartered under Canadian law. Value of corporation
depleted by Spain’s actions. Belgium would take up claim
against Spain.
a. Corporations are creatures of domestic laws and have a
legal personality separate from shareholders; have rights
to property and free speech
b. Every corporation must be chartered or registered under
the law of a particular nation
 c. Only the state the corporation is chartered in can
take up a claim on behalf of the corporation (not
state of shareholders)
i. It is fair because the shareholders are not held
responsible for harm done by corporation
ii. It would be messy to have every state
shareholders are a part of, asserting a claim
2. Presbyterian Church of Sudan v. Talisman Energy, Inc. – held
corporation liable for an intentional tort because they are subject
to international law. Talisman Energy promoting genocide in
Sudan. Cannot sue Sudan govt because they will claim
sovereignty
a. U.S. courts may take jurisdiction over any civil
action by alien for a tort in violation of the law of
nation or a treaty of the US.
b. Corporation held liable for substantive violation of
intl law
i. Obligated to respect basic human rights of
individuals (right to life, freedom from slavery, free
from torture)
III. Sources of Transnational Law
a. Sources of National Law – law generated or recognized by a particular nation-
state within their domestic legal system
i. Sources of Law in the U.S
1. The Supremacy Clause- U.S. Constitution, laws of the United
States, and treaties made or which shall be made under the
Authority of the US., the constitution of any state, laws of any
state
2. Vertical Separation of Law- Federal Law vs State law – U.S const
is held over state law/const.
a. State law- contracts, torts, property, criminal law
b. Common Law – became the law of the states and supplied
the default rule for any particular legal question (not to
conflict with const. provision)
3. Horizontal Separation
a. U.S. Constitution – supreme law of the land
b. Law of the US
i. Statutes – federal legislation
ii. Judicial Decisions – power to interpret statutes;
usually apply the common law of a particular state
iii. Administrative regulations – power given to
administrative agencies to make rules governing a
particular area of law that preempt inconsistent state
law
iv. Treaties – only the ones made by the President with two-thirds of
the U.S. Senate
ii. Understanding Sources of National Law: Diversity of Legal Traditions
1. Private law – that area of law in which the sole function of
government is the recognition and enforcement of private rights.
Includes civil and commericial codes.
 2. Public law – focuses on the effectuation of the public interest by
state action (constitutional law, administrative law, and criminal
law)
3. Court Structure in civil law countries
a. A case falling within the jurisdiction of one court generally
is immune from jurisdiction in all others
b. Judge asks the questions and generally no cross
examination, opposing counsel just there to make sure
record is accurate
c. Parties submit written argument over evidence before trial
to judge, who will then review and present it at the final
hearing
d. Judges chosen based on experience in the subject matter
e. Hearsay admitted freely
f. No cross examination counterpart in criminal proceedings
g. Appeals on question of law only
h. Doctrine developed by legal scholars is highly valued
i. Legislation follows views of legal scholars
j. Little mobility in the legal profession usually chosen before
graduation
k. Favor specialty courts to deal con, crim, admin, comm. Law
4. Case Studies – Diversity of legal Traditions
a. Maddux v. Donaldson – (common law decision) car
accident and then P hit again almost immediately. Acts
not in concert but independent and tortuous acts of 2
tortfeasors. P must separate the injuries. Unfair for
tortfeasor to escape liability because of the very
complexity of the injury created by their wrong.
i. Looked at precedent
ii. Making analogies to other cases because not case is
factually alike
iii. Adversarial system
b. S.E v. SCH – (civil law) P was struck and thrown onto
highway by a truck which he remained lying there and then
ran over by another automobile. P entitled to money
i. Applied code and does not rely on prior case – does
not have to find cases
b. Sources of Public Intl law – a treaty may be a formal (the process in
negotiating, writing) or material source (specific subject matter legal
obligations)
i. Article 38 Sources – no heiarchy
1. Treaties – most extensive sources of intl law, most invoked and
most relied upon
a. Protocol useful when states want to revisit a treaty subject
matter without disturbing or opening up the prior
agreement
b. Treaty binds parties to the contract and binds non-parties
if it correctly sets down customary intl law which is binding
on all states
c. If broad can be considered generally applicable/ can
possibly crystallize custom
 d. If problem with treaty you would look at the Vienna
Convention of treaties for answers
2. Intl Custom – most extensive sources of intl law, most invoked
and relied upon; applicable to all states
a. General practice of states –
i. Uniformity of practice
ii. Constant state behavior
b. acceptance of the general practice as law – opinio
juris
i. requirement by law
c. The North Sea Continental Shelf Case – deciding property
line; use equidistant lines. Denmark and the Netherlands
claim as a matter of law because it was made by a treaty
source of law through the convention. Germany says they
are not bound because they were not a party to the treaty.
Denmark claims customary, thus law. States took up
equidistance principal but not out of obligation
i. Delimitation done in equity

3. General principles of law recognized by civilized nations –

common among all states
a. Collateral estoppel – a party who argues in one forum
cannot argue another forum that is parallel
b. Validity of circumstantial evidence
c. Attorney-client privilege
4. Judicial decisions – May include intl and relevant domestic judicial
decisions and may include arbitral decisions
a. Subsidiary
b. Interpret and apply the laws
ii. Peremptory Norms – norm of law which cannot be deviated from, no
other law can legitimately contradict
1. Siderman v. Argentina –argentine military officials tortured
Siderman and took his property, suing for it back. Argentina
tried to claim sovereign immunity. Cannot claim sovereign
immunity with respect to violations against jus cogens (norm of
intl law condemning official torture).
a. A state waives its right to sovereign immunity when
it violates jus cogens
IV. Integrating International and National Law
a. Theories of Monism and Dualism
i. Monism – apply intl law in a conflict btwn intl law and municipal law
ii. Dualism – intl law and municipal law are two entirely different systems
of equal standing ; if in conflict intl law would not be cited in a U.S. court
b. Practical approaches to the relationship btwn intl law and U.S. law in U.S.
courts
i. Treaties
1. Self-executing – a monistic position meaning already the law of
the land without the U.S. having to do anything
a. Edwards v. Carter – congress has the power to dispose of
the canal. Property clause is intended to permit Congress
to accomplish through legislation what can be
 accomplished by other means in the Const. Panama canal
non-self executing
i. Self executing treaty would trump domestic law but
not the const
b. Asakura v. City of Seattle – seattle ordinance needed to be
a US citizen to be a pawnbroker b/c he needed a license.
Treaty btwn Japan and US said that the citizens of both
would be treated the same as the citizens in the other
country. The ordinance would be discrimination.
i. Example of self executing
2. Non-self executing – need for some sort of incorporation,
adoption or implementation
a. Sei Fujii v. State of California - whether a Japanese person,
not a US citizen can have a right to own land. Non-self
executing treaty in article 55 and 56 “shall promote” rather
than “shall enjoy”
i. to determine if self executing, look to the intent of
the signatory
1. the framers must have intended to prescribe a rule
that standing alone would be enforceable in the
courts
ii. non executing treaties do not invalidate domestic law
iii. However in this case the 14th amendment did b/c it
was prejudicial/ racially discriminatory
b. Missouri v. Holland – Missouri trying to prevent a game
warden of the US from attempting to enforce the Migratory
Bird Treaty Act stating that States by the tenth
amendment owned the birds. Does the treaty and statute
become void as an interference with rights reserved to the
States. Treaty deals with animals that migrate throughout
the whole US
i. Do not have to rely on states for a national issue and
thus does not violate the 10th Amendment
ii. Non self-executing but in full force by federal statute
and constitutional
3. Executive agreements – not approved by Senate, but entered
into by the President by himself or approval of Congress
a. US v. Belmont – Russian company sent their money to NY
for deposit with Belmont. There was a Russian revolution
and soviets took the money and claims its everyones. We
refused to recognize communist government as a valid
govt. Executive agreement to quash all debt owed.
i. Executive agreement trumps state law; state law,
policy, const become irrelevant
b. Reid v. Covert – Covert killed her husband who was in the
armed forces. She however was not and wives of soldiers
were denied trial by jury which is a constitutional right.
Instead they were forced to trial before court martials.
Executive agreement had been enforce that military would
have exclusive jurisdiction over offenses committed in
Great Britain by servicemen or their dependants
 i. Covert could not be constitutionally tried by military
authorities
ii. No agreement can be made that would be free
from the restraints of the Const.
4. Later in time rule
a. Breard v. Greene – Breard, citizen of Paraguay was charged
with rape and capital murder, scheduled for execution.
Alleged violation of Vienna Convention to be allowed to
meet with consulate. Failed to raise this issue in state
court. The death penalty act provides no evidentiary
hearing will be given if he failed to develop the factual
basis of the claim in state court proceedings.
i. Procedural rules of forum state govern the
implementation of the treaty in that state
ii. The one last in date will control the other when there
are conflicting federal statutes.
iii. Federal law trumps executive agreements
5. Treaty Interpretation
a. Vienna Convention of the law of Treaties
i. States how to interpret treaties when in different
languages (authentic trumps)
ii. Treaty obligations should be carried out in good faith
iii. Look at treaty text to look for ordinary meaning
iv. To confirm the meaning you can look to extraneous
materials
b. Eastern Airlines v. Floyd- Needed to determine the meaning
of “other bodily injury” where the airline took off there was
a failing engine and the plane turned around and landed.
Passengers claiming mental distress because of the
“accident” (failing engine and preparation for ditching the
plane). Psychic injury not included.
i. Court looked to original/authentic French text from
the Warsaw Convention
ii. Court looked to outside material such as a dictionary,
legislation, and cases (all French)
c. Sale v. Haitian Refugee Centers – determining the
definition of return and deport. There was a Refugee
convention to not deport or return an alien to a country
where that alien’s life or freedom is in jeopardy due to race
religion, political, etc. The US had the boat turn around
before it reached US soil (federal executive order). Duty of
state to determine who is a political refugee then
determine whether assertion is true. Political refugee has
right to asylum (to remain in country)
i. Interpreted French treaty although not needed
because there was an authentic one in English
ii. Did not apply later in time rule
iii. US should not have returned the refugees back to
their country even if they have not made it to the
U.S. absent the executive order
 d. U.S. v. Machain – was a criminal defendant abducted from
a nation that had an extradition treaty. Despite this, he
can still be tried in federal court for violations of criminal
law
i. Court need not inquire about how the respondent got
before it
ii. Treaty btwn US and Mexico said nothing about
refraining from forcible abductions and no
consequences for such actions
iii. Following Ker v. Illinois
c. Custom
i. Flores v. Southern Peru Copper Corporation - Copper industry in Peru
polluting the airs of Peru. The P is stating that it is in violation of tort law
because they have the right to life and health. This is strictly intrastate
pollution. They sued in Southern District of New York. Strange because
it was an Arizona corporation causing the pollution. The basis of their
suit is Federal Law ATCA – Alien Tort Claims Act. Have to prove that
generally states recognize right to life and health.
1. Look to treaties, court decisions, statements by the government
officials, protests criticizing other states for pollution
2. Not enough to show a custom to right of life or health against
pollution and could not prove the general practices accepted as
law (opinio juris)
3. Non self executing treaties do not show that the general practice
is accepted as law
d. Peremptory Norms and Jus Cogens – non-derogatory norms that trump any
inconsistent treaties or other international agreements
i. Hawkins v. Comparet-Cassani - stun belt to shock inmate into
submission. Filed case saying that it violated Jus Cogens because it
amounted to torture. Court stated that the U.S. never had case enacting
jus cogens—since this is a U.S. citizen in U.S. courts this is not dealing
with International Law. Ct stated the inmate would be protected under
other remedies therefore we do not have to recognize Jus Cogens.
1. If other remedies available under US law, do not need to invoke
Jus Cogens.
ii. Buell v. Mitchell – charged with kidnapped and murder. Received the
death penalty. Has death penalty reached jus cogens norm that would
call for a reversal of the death sentence.
1. Intl law is one that has been accepted as such by the intl
community of states
a. In form of customary law
b. By intl agreement; or
c. By derivation from general principles common to the
2. Intl law not binding on the US in regards
V. Resolving Conflicts Between National Laws
a. The traditional approach: :Lex Loci and Vested rights
i. Slater v. Mexican Natl Railroad – US citizen went down to fix train and
got run over on Mexican Natl RR. It was brought in Northern District of
Texas (diversity). Which tort Law? Texas tort law because of the
damages it would be a lump sum and Mexican law would have survivors
 get only periodic payments that was subject to condition in the future.
The court would determine what you need.
1. Three test for what law to apply
a. Lex fori – law of the forum
b. Lex loci – law of the place – where rights vest
c. Government interest test – used today; functions best with
comity
2. Court determined Mexican law would apply – lex loci
3. P should not be able to rely on foreign law for a cause of action
and the D not be able to use the foreign law to limit liability
b. The Modern Approach: Governmental Interests
i. Governmental Interests – an Introduction
1. Babcock v. Johnson – NY citizens driving a NY car with NY ins.
Accident happened in Canada, only gone for 2 days. Canadian
law says that passengers cannot sue the drivers for accidents.
a. Look at under lying policy to determine which law should
apply (ins protection issue)
b. “Center of gravity” – place w/ most contacts
c. The local law of the state which has the most
significant relationship with the occurrence and with
the parties determines their rights and liabilities in
tort
d. If it was only about traffic laws then center of gravity would
shift to Canada
ii. Government Interest and Conflicts of Public Policy
1. D’Agostino v. Johnson & Johnson - Employee discovers bribes
being done in Switzerland. Blows whistle and gets fired. Which
laws should be applied. Court determined NJ law applied despite
everything swiss, bribe in swiss, K a swiss contract--- it does not
matter a number a contacts but the quality. It is so heavy
policywise. They advised this case involved federal law of
bribing public officials. Foreign Corrupt Practices Act was being
violated. The court held that the interests of New Jersey in
preventing violation of governmental policies that could have an
indirect effect on the domestic market for pharmaceutical
products and the health and welfare of its citizens were greater
than the interest of Switzerland in maintaining Swiss at-will
employment relationships.
a. The quality of contacts is important
b. Is there a strong governmental policy – have a direct effect
on its citizens was greater than swiss interest in at-will
employment
2. McGhee v. Arabian American Oil Co. – a Delware incorporation
company in the middle east, largest operation in Saudi Arabia.
McGhee rented video tapes on the compound which they were
prohibited. Deciding which law Saudi or US to apply
a. US law should apply b/c the compound was given certain
privileges of not being subjected to Saudi law so if Saudi
had tolerance there, they should have it now
b. The harm caused was really on the compound it did not
enter and affect western ideals
c. Conflicts of Law and National Foreign Policy
i. Banco Nacional de Cuba v. Sabbatino - The was a commodity broker,
Farr, Witlock. Got sugar from CAV and U.S relied heavily on sugar from
cuba. The shipment was suppose to be shipped to morocco. U.S.
reduced sugar quota it would take from Cuba because it did not like
communist govt. Cuba Nationalized and made into Cuba state
properties American companies which included CAV. The taking must
be for a public purpose and taking cannot be discriminatory. Must be
prompt, adequate and effective compensation and CAV got nothing. On
two accounts of seizing CAV assests were in violation of intl law. The
sugar did not make it to Morrocco. Farr, Witlock made a deal with Banco
Exterior. Banco signed a Bill of Lade. CAV says do not do that, its our
money you pay us. Farr. Witlock says we will not pay Banco but
indemnify us if we are sued. Sabbatino ends up with the money and
Banco sues sabattino for the money. Filed suit in NY. If it was under lex
loci then we would look to the law of Cuba. Under govt interest Cuban
sugar, banks, decree. U.S. interest in protecting their citizen and
company dealings in a foreign country.
1. Not decided on conflict of laws analysis but on the Active State
Doctrine
2. US courts will not sit in judgment of foreign intl states of
property taken that was within that foreign state in
absence of a treaty or other agreement even if it is in
violation of intl law
3. Dissent: by not acting we gave them our blessing (White)
d. New Challenges for Conflict of Laws
i. LICRA v. Yahoo - Yahoo was sued by two organizations of France. Yahoo
had auctions online. In the auction were Nazi memorialbilia, which was
against the laws of France because of what happened during WWII. This
was available to accessors from France. Activity from yahoo most likely
done from California. First Yahoo argued no jurisdictions. Which France
says the harm was in France. Yahoo then says they cannot control
those who click on the link. There was a way to prevent Italian users
from seeing France ads. So there must be a way to block French users.
Yahoo Guilty.
ii. There is a case in controversy because Yahoo is under a ruling of French
law. Yahoo want to declare what the law is. Was it constitutional for
foreign nations to regulate speech by U.S citizens. Unconstitutional
because it was speech taken place in the U.S. in California. If
you wanted to comply with everyone and the U.S. you would create a
restrictive domestic law. On appeal, the court reversed saying there
would be personal jurisdiction but case is not ripe.
1. Case will be ripe with French try to enforce judgment
2. Notice- if foreign law, notice must be given
e. Proving Foreign Law
i. Determining Foreign Law-Rules
1. If you will use foreign law must give notice; written and
reasonable
2. The court in determining foreign law may consider any relevant
material and source, including testimony. Ruling will be as a
matter of law
 ii. Determining Foreign Law – Illustrations – courts given broad discretion in
their investigation of foreign laws
1. Special Masters- appointed to apply foreign law to the case
before the court
a. Henry v. Bahama Cruise Lines – Panama cruise ship
registered in Panama, flying a Panamanian flag. Henry
suing for wages. Panama labor law applied
i. Law of the flag applies to ships sailing on high seas
until it docks
2. Expert Witnesses
a. US v. Schultz – Egyptian artifacts stolen, but have to look
at Egyptian law to know if they qualify as stolen. Court
relied on prosecution’s witnesses even though the law
professor was less bias.
3. Any relevant material or source- that judges can gather
themselves
a. Curley v. AMR Corp - Conflict between U.S. and Mexican
laws. Thought he might have had marijuana on board the
plane. Governmental interest test shows that mexico has
the most interest. Occurred in mexico, with Mexican
officials and citizens. Court applies NY law.
i. They looked at Mexican law and determined
insufficient and no true conflict.
ii. Looked at law review, criminal code, briefing,
treaties, affidavit of Mexican lawyer, Mexican
civil code.
iii. On appeal it was reversed and should be determined
under Mexican law. Case was sent back.
f. Enforcement of Transnation Judgments
i. Foreign Judgments – private intl law
1. Somportex Limited v. Philadelphia Chewing Gum Corp - P
brought breach of K against D in U.K courts. Case was not
defended by D. There was a default judgment against D. But
they have to get judgment enforced thus go to U.S. to seek
enforcement of judgment in U.S. courts.
a. Comity – each court will give due regard for another
countries judgment but not obligatory.
i. Another nations decisions should be given full
effect unless there is a special reason not to
such as detrimental to the nation about to
enforce it. (fraud, prejudice)
ii. Default judgment is as conclusive a judgment as you
can get. Deemed irrelevant the default nature of the
judgment as long as the party the judgment was
against was given ample opportunity to contest such
judgment.
iii. Should be enforced as long as it does not endangers
public health, morals, or wealth we will recognize
foreign nations different remedies.
ii. Private Arbitration - Demands of comity are not as clear in arbitration
because it’s a private matter. Two parties come together to get rid of a
 dispute among themselves. What respect should be given to a sovereign
state’s court and a private decision. There is a NY convention on
arbitration awards.
1. Karaha Bodas Co. v. Pertamina - Arbitration clause where each
side picks one and those two arbitrators will pick a third. Need to
place in whose laws are going to apply (substantive and
procedural). Indonesia substantive law applied(because project
took place in Indonesia) and Switzerland procedural law applied
(site of the proceedings). Where the arbitration would take
place. Procedures for arbitration, time frames, and costs (or have
escrow account). Evidence standards, identify arbitrators
a. Judgment sought in all places where there was assets from
Pertamina
b. If you are a state with primary jurisdiction you have the
power to enforce the arbitration as well as overturn it if you
are a place where the deal took place
c. Secondary courts can only refuse to enforce if one party
prevented from presenting a case, one side incapacitated,
party seeking enforcement failed to meet burden of proof.
You must have extraordinary circumstances to not have
enforcement
iii. Enforcing International Tribunal Judgments
1. United States
a. Sanchez Llamas v. Oregon – ICJ held that US violated
Article 36 by failing to name many Mexican’s their right to
a consulate.
i. Art 36 is self-executing because it has “shall” –
however it subcumbs to the procedural laws of the
state therefore they waived their rights
VI. Allocation of Transnational Jurisdiction
a. Legal Bases of National jurisdiction
i. The Territorial Principle - state may claim jurisdiction over person and
events inside its territory.
1. American Banana Co. v. United Fruit Co - the defendant took
over the plantation of the company that was trying to compete
with them. Acts of a private party in a foreign government.
These acts are illegal in the U.S. because it is stifling
competition. The U.S. should care because the U.S. will
only get bananas from one person and that person would
charge the highest price possible.
a. Court decided there was no jurisdiction because they
decided that Congress did not intend for the laws to go
outside its territory unless it says otherwise.
b. All laws passed by congress are meant to apply
within its territory.
ii. Effects Doctrine of the Territorial principle – state may have a
basis to claim jurisdiction over persons and events outside a state’s
territory provided effects are felt inside a state’s territory. Need a
substantial effect or a deleterious effect
1. United States v. Aluminum Company of America (Alcoa) - The
Alliance made swiss corporation that conspired to not compete
 among themselves, set prices and set quotas on how many to
produce a year, all took place outside the U.S.. The prices in the
U.S. would go up. Alcoa was asked to join the alliance and the
U.S. stated that this would violate the Sherman Act. He used
the effects doctrine to allow control over Alcoa.
a. In applying 9-11 – substantial effects in U.S. ;
2. EEOC v. Arabian American Oil Co. - A U.S. citizen goes to work
for an American company in Saudi Arabia and he gets fired. He
files a claim with the EEOC because he was fired on account of
race religion, and national origin. Does title VII apply to events
outside the U.S, The court determined that congress did not
intend it to apply to outside the U.S.
a. The court presumed that when congress passes a law that
its only meant to apply inside the U.S. and not outside.
iii. Nationality Principle - a state may legitimately claim jurisdiction on
the basis of the nationality principle where a person is a citizen of that
state whether the person is in that state’s territory or abroad in another
state’s territory.
1. Tomoya Kawakita v. United States - Was convicted of treason
and the question was, Was he a U.S. citizen at the time of the
act? Yes he was. He was born a U.S. citizen, claimed during the
war it was impossible for him to come to the U.S., he was over
there just for school. His parents were Japanese, he used
japenese passport when going to china, he said he had no loyalty
to the U.S., he also felt he was under financial duress. He
claimed he was not a U.S. citizen at that time. The court stated
that he was still a U.S. citizen and had not yet lost it and no
matter where u are or the other nationalities you hold you are
still a U.S. citizen and your allegiance is to the U.S.
a. If you have competing citizenships, which should apply?
iv. Passive Personality principle - a state may assert jurisdiction over
persons and events outside a state’s territory on the basis its citizen was
harmed
1. U.S. v. Roberts – sexual assault on Celebration, the citizen
harmed was from the U.S. although Celebration is a
v. Protective principle – a state can assert jurisdiction over person and
events outside a state’s territory where the security of the state is at
stake or some essential govt function is involved
1. United States v. Yousef - Consistent with protective principle
because Yousef set off these bombs on American Airlines and it
involved a government function. The blowing up of an Airline
would cause a panic and purpose of Government is to promote
peace.
a. What about the putting into American economy the intl
drug trade, can we use the protective principle that can be
use to monitor drug cartel – no even though it takes a
great deal of govt money to enforce.
vi. Universality principle – all states have jurisdiction over certain crimes
wherever they occur that are especially heinous. Such crimes are
thought to threaten, by their nature, the good order of the intl
community.
 1. United States v. Yunis - Charged with hijacking a Jordanian plane
in Lebanon. Two American citizen’s one board
a. Which states ought to use their jurisdiction?
b. Test of reasonableness- as long as claim to jurisdiction is
reasonable then u can assert it. Each state is to determine
if their claim is reasonable
b. The Resolution of Competing Claims to Jurisdiction
i. Timberlane Lumber v. Bank of America - Antitrust suit, the assertion of
jurisdiction would be reasonable after weighing the degree of conflict
with foreign law or policy, the nationality or allegiance of the parties,
and the locations or principal places of businesses or corp, the extent to
which enforcement by either state can be expected to achieve
compliance, the relative significance of effects on the U.S. as compared
with those elsewhere, the extent to which there is which there is explicit
purpose to harm or affect with those elsewhere, the extent to which
there is explicit purpose to har or affect American commerce, the
foreseeability of such effect, and the relative importance to violations
charged of conduct within the U.S. as compared with conduct abroad
1. Doctrine of sovereign equality – the one that most preserves
sovereign equality
2. Principle of non intervention - The one that does not go to
intervene into another state
3. Principle of territorial integrity – refrain from the use of force
against the territorial integrity or political independence of any
state.
ii. Hartford Fire Ins Co. v. California - Insures insurance companies. UK
does not forbid them from refusing but U.S. says not ok to refuse. No
true conflict because you can conform to both laws.
1. Dissent – reasonableness shows that it would unreasonable to
apply American law because the acts were in London, the
insurers are in London, the refusers were british, this is vital to
british economy. Unreasonable to apply Sherman act under