T he cost and uncertainty of potential litigation with a foreign citizen or company can

act as a deterrent to international business transactions. The prospect of having to

pursue a claim or to defend a claim in a foreign court using foreign law may prove
too risky for some businesspeople. At the least, anyone contemplating a business
transaction with a foreign entity should ask the following questions: (1) What are the
alternatives to transnational litigation? (2) Where will a future dispute be argued or
settled? (3) What country's law would be applied to such a dispute? (4) Will a settlement
or decision be enforceable in a foreign country? These questions should be discussed
during the earlier stages of contract negotiation, and an international contract should
expressly answer these questions through the use of forum selection, choice of law, and
alternative dispute resolution clauses. The answer to question (1) is that
i n t e r n a t i o n a l commercial arbitration is a popular alternative to international liti-
gation. The contractual devices represented by choice of law and forum selection clauses
provide the avenue for dealing with questions (2) and (3).
Finally, a review of
Chapter 4 national laws and international

conventions will help

answer question (4).

International Commercial
International
Litigation Dispute Resolution
Anyone seeking to
undertake international litigation faces three areas of concern. First, how does one
properly begin a lawsuit against a foreign company? Second, once the litigation begins,
how do the parties gather evidence in foreign countries? Third, if successful in the
litigation, how does one enforce a judgment in a foreign country? To bring a lawsuit
against a foreign company, one must properly serve process. Service of process is the
http:/
International Bar
formal notification of defendants to defend themselves in court. Proper service of process AssociationSections
is necessary for a court to obtain personal jurisdiction over the defendant. Failure to on business law and
legal prauke. http://
obtain legally sufficient service of process is likelv to result in the nonenforceability of www.ibaiiet.org.
any default judgment obtained in the event that the defendant fails to appear. To require a
foreign party to defend itself in a suit brought in the United States, the service of process
should meet the requirements of both the United States and the country of the party being
served. This is especially crucial if the judgment will need to be enforced in a foreign
country Seivice of process requirements, however, varv widely throughout the world. The
U.S. Federal Rules of Civil Procedure state that service in a foreign country mav be made
"by any form of mail, requiring a signed receipt, to be addressed and dispatched by the
clerk of the court to the party to be served." In contrast, seivice by mail is generally not
hup:,//
Text of Hague Seiwoe
recognized by foreign court systems. Convention, http://
hcch.e-vision.nl/
index_en.php?act=
conventions.listings.

105
106 Hart 1 Legal and Ethical Environment of International Business

Adoption of the Convention on the Service Abroad of Judicial and Extrajudicial

Documents in Civil or Commercial Mattel s, or the Hague Service Convention, is one
response to the problem of international service of process. The Hague Service
Convention provides a government means to ensure effective and recognizable service of
process. The signatory countries to the convention are required to establish a central
authority for processing foreign plaintiffs' service of process requests. The central
authority serves the defendant directly or arranges to have it served by the appropriate
government agency. Fifty-five states have adopted the Hague Service Convention,
including the United States, Japan, China, France, Germany, Great Britain, Italy, Spain,
and Canada. In countries not party to the convention, dual service of process is
recommended. Dual service aims to satisfy the service requirements of the country of the
forum court and the country of the defendant in order to enhance the enforceability of any
future judgment.
Service of process in conformity with international and national rules only partially
addresses the issue of the ability of national courts to exercise authority over foreign
defendants. Courts must also possess jurisdiction to enter a judgment binding upon the
parties appearing before them and subject to enforcement abroad. Jurisdiction is the power
of a court to hear a case. There are two types of jurisdiction. Subject matter jurisdiction
is the power of the court over the type of case pending before it. It may be based on the
type of case, such as civil, criminal, probate, or domestic relations, or on the amount of
monev at issue. Personal jurisdiction is the power of the court over the people appearing
before it. U.S. courts exercise two different types of personal jurisdiction. General
personal jurisdiction permits courts to adjudicate any claims against a defendant
regardless of whether the claims have any relation to the forum court. For a court to
exercise general jurisdiction, the defendant must have a significant presence in the forum.
This presence may premised upon nationality, residence, or organization within the
United States, or it may consist of a "continuous and systematic presence" within the
forum.1 Specific personal jurisdiction permits courts to adjudicate only those claims
arising from or relating to the defendant's activities in the forum. For a court to exercise
specific personal jurisdiction, the defendant must purposefully avail itself of the
protections of the forum.2 Merely placing a product into the stream of commerce is
insufficient unless the product was specifically designed for the forum or the defendant
provided regular advice or service to customers in the forum or maintained a distributor in
the forum. Furthermore, the forum must be a reasonable location for the conduct of the
litigation. To determine the reasonableness of the forum, the court must balance the
burden on the defendant, the interest of the selected forum in resolving the dispute, the
plaintiffs interest in obtaining relief in the forum, and applicable foreign policy concerns,
if any, arising from the exercise of jurisdiction. The issue of personal jurisdiction over a
foreign defendant is discussed in Alpine View Company, Ltd. v. Atlas CoptoAB.
There are a number of defenses to the exercise of jurisdiction, even when such would
be proper under the requirements of due process. The U.S. Code grants sovereign
immunity to foreign states (Foreign Sovereign Immunities Act or FSIA)and their
political subdivisions, agencies, and instrumentalities.'

1 See Uehatptrrm Xacionalr, tie Colombia v Hall 4b6 I S 408 (1484). 2.

See Asahi Mrtat Industnn v (jmrl, 480 U S 102 (19H7)
3 See 28 U.S i. S 1602-07 (2000). For tin- tngl&h Liu ] (Siaie Immimin -\rt of 197) see Uiipier 33 17 1 LM 1123
(1478)
Chapter 4 international Commercial Dispute Resolution
Alpine View Company, Ltd. v. Atlas
205 F.3d 208 (5th Cir. 2000)
King, Chief Judge. This case arises out of an alleged breach
of a 1992 Intentional Agreement ("1992 Agreement")
between Alpine View Company, Limited ("Alpine View"),
and Uniroc AB ("Uniroc"), a wholry-owned subsidiary of the
Swedish holding company, Adas Copco AB ("ACAB"). In
1989, Bjorn Hansen, the president of Alpine View, was
granted exclusive worldwide rights to the distribution and
sale of offshore drill bits manufactured by Shanghai
Machinery & Equipment Import/Export Cotporation
("SMEC"), a Chinese company.
To facilitate the sale of these products, Hansen sought an
established distributor, and eventually executed the 1992
Agreement with Uniroc. Under the 1992 Agreement, Uniroc
was to purchase drill bits from Bjorn Hansen A/S, and
eventually become the exclusive distributor of those products
in certain specified sectors of die world market. Uniroc was
to pay Alpine View a commission based on net sales to users
and distributors outside the Atlas Copco Group, which
comprises ACAB and its 71 subsidiaries. To enhance its
ability to deal direcdvwith SMEC, Uniroc was also to enter
into a separate distributorship agreement with that company.
The existence of the separate distributorship agreement was a
precondition for the effectiveness of die 1992 Agreement.
Alpine View is incorporated under die laws of the British
Virgin Islands and Hansen is a resident of Norway.
Compressors and Comptec are each Delaware corporations,
with Compressors having its principal place of business in
Massachusetts and Comptec having its in New York.
Robbins is a Washington corporation and has its principal
place of business in that state. Compressors, Comptec, and
Robbins are all subsidiaries of ACAB.
Dismissal for Lack of Personal
Jurisdiction
We review de novo a district court's dismissal for want of
personal jurisdiction. The Due Process Clause permits the
exercise of personal jurisdiction over a nonresident defendant
when (1) that defendant has purposefully availed himself of
the benefits and protections of the forum state by establishing
minimum ion tacts nith the forum state; and (2) the exercise
of jurisdiction over diat defendant does not offend traditional
noUons of fair play and substantial justice. Minimum
contacts can be established either through contacts sufficient
to assert specific jurisdiction, or contacts sufficient to assert
general jurisdiction. Specific jurisdiction over a nonresident
corporation is appropriate when that corporation has
purposefully directed its activities at the forum state and the
"litigation results from alleged injuries that arise out of or
relate to
107
Copco A&
those activities." General jurisdiction, on the other hand, will
attach where the nonresident defendant's contacts with the
forum state, aldiough not related to the plaintiffs cause of
action, are "continuous and systematic."
1. Specific Jurisdiction and
the Stream-of-Commerce Theory
The Supreme Court stated that the "foreseeability that is
critical to due process analysis is that the defendant's conduct
and connection with the forum State are such that he should
reasonably anticipate being haled into court there."
Appellants rely heavily on the stream-of-commerce theory.
In support of their argument that the stream-of-commerce
theory is applicable to cases ouher dtan those involving
products liability, Appellant* point to courts applying the
theory to cases raising antitrust or intellectual property
related claims. When a nonresident's contact with the forum
state stems from a product, sold or manufactured by the
foreign defendant, which has caused harm in the forum state,
the court has specific jurisdiction if it finds that the defendant
delivered the product into the stream oi commerce with the
expectation that it would be purchased by or used by
consumers in the forum state. However, delivery of products
into die stream of commerce does not support assertion of
specific jurisdiction over ACAB and Robbins. Appellants
argue that putting products into the stream of commerce with
the expectation that Texans will purchase or use those
products suffices to establish jurisdiction wifh respect to "any
claims." This is more akin to a general jurisdiction argument
than to a specific jurisdiction argument. Appellants make no
attempt to link Appellees' contacts with Texas and the instant
litigation. This is a link that specific jurisdiction requires.
Appellants have not asserted that the alleged misdeeds occun
ed in Texas, or that the 1992 Agi eement was negotiated or
executed in Texas. Neither Alpine View nor Hansen is
considered a Texas resident.
2. General Jurisdiction and
the Alter-Ego Doctrine
Appellants also challenge the district court's conclusion that
they had not shown that assertion of general jurisdiction was
proper in this case. To make a prima jane showing of general
jurisdiction, Appellants must produce evidence that
affirmatively shows that ACAB's and Robbins' contacts with
Texas that are unrelated to the litigation are sutficient to
satisfy due process
108 Part 1 Legal and Ethical Environment of International Business

lequirements. Those unrelated contacts must be sub stantial,
continuous, and systematic. Examining the submitted
evidence, it is clear that Appellants have not demonstrated
that Robbins' direct contacts with Texas during the relevant
period were sufficient to establish general jurisdiction. The
evidence shows, at best, that Robbins sold, on isolated
occasions, products to entities located in Texas and that
Robbins' personnel made field service visits to Texas. These
contacts are neither substantial, continuous, nor systematic.
The same conclusion is compelled with legard to ACAB.
Appellants rely on evidence that indicates that the products
of ACAB's subsidianes aie sold in Texas. However, "a
foreign parent corporation is not subject to the jurisdiction of
a forum state meielv because its subsidiary is piesent or
doing business there; the mere existence of a parent-
subsidiary relationship is not suffi cient to warrant the
assertion of jurisdiction over the foreign parent." Appellants
must make a prima facie showing that ACAB so controls
other organizations that the activities of those oiganizations
may be fairlv attributed to ACAB for purposes of asserting
jurisdiction over it. Under Texas law, the niter-ego doctrine
applies when there is such unity between the parent
corporation and its subsidiary that the separateness of the two
corpoiations has ceased and holding only the subsidiary
corporation liable would result in injustice. We have said,
however, that "100% stock ownership and commonality of
officers and directors are not alone sufficient to establish an
alter-ego relationship between two corporations." Instead,
"the degree of control exercised b) the parent must be greater
than that normally associated with common ownership and
directorship." Such control has not been indicated here. The
existence of intercorporate loans does not establish the
requisite dominance, and in fact,
interest-bearing loans suggest sepaiation of corporate
enuties. We conclude that the district court did not err in
dismissing Appellants' claims against Robbins and ACAB
for lack of personal jurisdiction.
Case Highlights
International litigation is often complex because of the
diversity of die patties. In this case, the parties were
from China, Sweden, Norway, the British Virgin
Islands, and die states of New York, Massachusetts,
Washington, and Delaware. Under the due process
clause of die U.S. Constitution, personal jurisdiction
over a defendant must be based on eimer "minimum
contacts" for purposes of gaining specific juiisdiction or
"substantial, continuous, and systematic" contacts for
purposes of gaining general jurisdiction. Specific
jurisdiction requires a nexus between the minimum
contacts and the injuries claimed, whereas general
jurisdiction allows for lawsuits on unrelated claims.
The stream-of^commerce theory is applicable only if
the defendant delivers a product into the stream of
commerce with the expectation that it would be pin
chased in the forum state. A foreign parent company
does not become subject to die jurisdiction of a foreign
court simply because its subsidiary is amenable to that
state's jurisdiction. The alter-ego theory allows
jurisdiction o\er a parent company if the parent
company "dominates" the activities of a subsidiary that
has sufficient contacts with the forum court.

Foreign states are immune from lawsuits, and federal courts lack subject matter jurisdiction over
claims against foreign states unless an enumerated exception is applicable. Once a defendant
establishes that it is a foreign state, the burden of production shifts to the plaintiff to offer evidence
that an exception is applicable. There are several potential exceptions to sovereign immunity. A
commonly utilized exception is for commercial activities. This exception covers a commercial
activity carried on in the United States by the foreign state, an act performed in the United States in
connection with a commercial activity of the foreign state elsewhere, or an act outside the United
States in connection with a foreign commercial activity that causes a direct effect in the United
States.
A commercial activity is defined as a regular course of commercial conduct or a particular
commercial transaction. The U.S. Supreme Court has elaborated on this term by noting that "when
a foreign government acts, not as a regulator of a market, but in the manner of a private player
within it, the foreign sovereign's
Chapter 4 Intei national Commercial Dispute Resolution

actions are' 'commercial' within the meaning of the FSIA." 4 The activity must be within
the power of private citizens rather than those reserved exclusively for sovereigns. The
problem with, this ttpe of categorization of activities is that government procurement has
become increasingly commercialized, making the distinction between sovereign and
commercial activities difficult to define. The gravity of diis problem becomes apparent in
developing countries, where almost by necessity a governmental entity is invoked with
international transactions. For example, a government partner is common in joint venture
undertakings in developing countries. It is important in such dealings to negotiate a
contract clause in which the governmental entity waives its sovereign immunity defense.
Furthermore, a judicial determination of the exercise of sovereign power or
commercial activity may not characterize an entire transaction, and the two can coexist in
a set of interrelated transactions. For example, in Kuwait Airways Corporation v. Iraq
Airways Corporation, the British House of Lords found that the seizure of Chilian
aircraft owned by Kuwaiti Airways by the Iraqi military and their removal from the
country at the direction of the Iraqi government during the invasion of Kuwait in August
1990 were sovereign acts entitled to immunity pursuant to the State Immunity Act of
1978.-' However, subsequent government orders dissolving Kuwaiti Airways and
transferring its assets to Iraq Airways violated international law and were not exercises of
sovereign authority subject to state immunity. As such, these orders were subject to
challenge before appropriate English judicial authorities. The Parex Bank v. Russian
Savings Bank case further elaborates upon the commercial activity exception to foreign
sovereign immunity.
Courts have developed numerous doctrines outside the statutory framework by which
they may refuse to exercise jurisdiction in a given case. The act of state doctrine has
been described as "a nonjurisdictional, prudential doctrine based on the notion that die
courts of one country will not sit in judgment on the acts of the government of another
[state], done within its own territory." 6 In Sabbatino, die U.S. Supreme Court delineated a
three-part test to assist courts in determining whether die act of state doctrine bars
consideration of specific claims. This test consists of balancing the degree of codification
or consensus concerning the particular area of international law at issue, the implications
of judicial resolution of the issue for U.S. foreign relations, and whether the government
whose actions are at issue remains in existence at the time of the court's decision.
The political question doctrine provides that a political question is not subject to
review by courts. The doctrine precludes a court from hearing a case involving one or
more of the following factors: (1) a constitutional commitment of die issue to a coor-
dinate political department, (2) a lack of judicially discoverable and manageable
standards for resolving it, (3) die impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion, (4) die impossibility of a court's
undertaking independent resolution without expressing lack of die respect due coordinate
branches of government, (5) an unusual need for unquestioning adherence to a political
decision already made, or (6) the potentiality of embarrassment from multifarious
pronouncements by various departments on one question/ A broader international
principle diat courts use to rationalize decisions to honor

4 Jirpubhr oj Aigentina v Wellmm Inc, J04 S 607 614 (1992)

5. 2 I lo\d s Rep 317 (H.I.. 1945)
6 I'nderhillv Hernandez 168 S 2n0. 2J2 (1847). Set- also Banco \aoonalilr Cuba v Sabbalmo, 376U.S 398,428(1964)
1. See Baker v Can. 369 U S 186, 217 (1962)
110 Pari 1
Parex Bank v. Russian Savings Bank
I 16 F. Supp.2d 415 (2000)
Sweet, District Judge. Defendant Russian Savings Bank
("Sberbank") moves to dismiss the complaint filed b\
Plaintiff Parex Bank ("Parex"). Parex is a financial institution
organized and existing under the laws of Latvia. Sberbank is
an open joint-stock company organized tmder the laws of the
Russian Federation. Its majority shareholder is the Central
Bank of the Russian Federation, and its principal place of
business is Moscow.
The dispute arose out of Sberbank's alleged failure to
honor a nondeliverable forward exchange contract ("NDF
contract") between the parties in the aftermath of Russia's
1998 financial crisis. On March 11, 1998, a Parex trader in
Riga, Latvia telephonically initiated a contract for a
nondeliverable forward transaction with Sberbank in
Moscow. The parties agreed to exchange rubles for dollars at
the currency exchange rate as of March 9, 1999. At the time
the contract was entered into, the value of the Russian ruble
was determined by the MICEX exchange and fluctuated
based on market trading within a trading band set by the
Russian government. To the extent that the exchange rate
moved unfavorably for a part}, the contract required that
party to pay the other party the difference between the
MICEX dollar-ruble exchange rate on March 9, 1999 and the
agreed amount of 6.9 multiplied by 5,362,318.84. The
difference was to be transferred in dollars into the other
party's Bank of New York account.
Five months after the NDF contract was negotiated,
Russia suffered a financial crisis that fundamentally altered
its financial landscape. Like other emerging world markets,
Russia's financial system collapsed after violence erupted in
Indonesia in May 1998. In August of 1998, Russia's Central
Bank enacted emergency measures to counteract the
country's serious liquiditv problem. On August 17, the
Russian Government announced a package of severe
economic measures: First, it raised the trading band, which
allowed the ruble to devalue; second, it ordered a 90-dav
moratorium on the repayment of foreign debt by banks; and
third, it announced the restructuring of ruble-denominated
debt. Russian citizens withdrew their savings from banks en
masse and stores closed. In late August of 1998, the ruble-
dollar trading on the MICEX exchange was temporarily
suspended. From August to the beginning of September, the
ruble lost a significant portion of its face value.
In early September, due to the combination of the
economic crisis, the nonexistence of any MICEX exchange
rate on which to assess the NDF contract, and the
moratorium on paying back foreign debt, Sberbank
representatives contacted Parex in an attempt to settle
Legal and Ethical Environment of International Business
the NDF contract. Sberbank offered to settle at a rate
equivalent to the ceiling for rubles set by the Russian
government in 1998, 7.15 rubles per dollar. Parex objected to
what it viewed as Sberbank's altering the terms of the NDF
contract. The ensuing negotiations took place either in
Moscow or by telephone between Riga and Moscow through
February of 1999, and failed to produce a settlement.
On the value date of March 9,1999, Parex demanded that
Sberbank transfer $3,755,642.01 to Parex's Bank of New
York account m satisfaction of the contract. Parex filed this
action in the New York Supreme Court three months later,
and Sberbank properly removed it to this Court on August 9,
1999. Sberbank filed the instant motion to dismiss on March
24, 2000.
Where a case is brought against a "foreign state," the
Foreign Sovereign Immunities Act ("FSIA") provides that
personal jurisdiction exists where there is both subject matter
jurisdiction and proper service. This Court concluded in a
prior opinion that Sberbank, as an instrumentality or agency
of the Russian State, qualifies as a "foreign state" under the
FSIA. The FSIA is the only basis for the subject-matter
jurisdiction of the United States courts. Under the FSIA,
foreign states are immune Irom suit in the United States
unless one of several exceptions applies.
The most relevant exception to foreign sovereign
immunity is the "commercial activity" exception, which
provides diat a foreign state is not immune from suit in any
case in which the action is based upon ... an act outside the
territory of the United States in connection with a
commercial activity of the foreign state elsewhere and that
act causes a direct effect in the United States. 28 U.S.C.
1605(a)(2). A state is involved in "commercial activity"
under the FSIA when it functions like an actor in the private
marketplace rather than in a governmental or public capacity.
See Hand Bank v. PT Bank Negara Indonesia, 148 F.3d 127,
130 (2d Cir. 1998). An act is made "in connection" with
commercial activity if there is a "substantive connection" or
"causal link" between the act and the commercial activity.
The "act" at issue here, Sberbank's failure to deposit
funds into Parex's Bank of New York account, arises out of a
deal transacted outside of the United States, in Moscow and
Riga.
Despite die fact that one of the parties to the exchange
was a foreign state, the rubles for dollars exchange at issue
here was conducted as a private transaction rather than as a
public service, and as such constitutes "commercial activity."
See Republic of Argentina Wetiover, Inc., 504 U.S. 607 (1992).
Chapter 4 International Commercial Dispute Resolution 111

The only issue remaining to establish whether the Court has
subject matter jurisdiction over this case is whether
Sberbank's failure to deposit funds into Parex's Bank of New
York account caused a "direct effect" in the United States.
The Second Circuit requires that the conduct haiing a
direct effect in the United States be "legally significant" in
order for the commercial activity exception to apply.
Employing this test, the Second Circuit recently held that an
Indonesian state bank's failure to pay on a letter of credit
owed to a Korean bank for deposit in New York caused a
direct effect in the United Stales. Hanil Bank, 148 F.3d at
133. As here, the contract had been entered into out of the
United States, and the only connection to the United States
was the bank account into which the funds were to have been
deposited. By contractually consenting to pay the funds into
the plaintiffs New York account and then failing to do so, the
Court held, the Indonesian bank caused a legally significant
direct effect in New York.
Under this reasoning, there is subject matter jurisdiction
the instant dispute. As in Weltover and Hanil Bank,
neither party here is a citizen of the United States, and one of
them is a foreign state. The parties contracted at a location
outside the United States that a monetary deposit would be
made by one party into the other party's New York bank
account. And, as in both Weltover and Hanil Bank, "money
that was supposed to have been delivered to a New York
bank for deposit was not forthcoming." Under the law of this
Circuit, Sberbank's failure to deposit
dollars into Parex's Bank of New York account caused a
legally significant direct effect in the United States.
Therefore, every element of FSIA 1605(a)(2) has been met,
and this Court has subject-matter jurisdiction over the case.
Case Highlights
Sovereign immunity, as provided for under the Foreign
Sovereign Immunity Act, is reserved for foreign states
and the agencies or instrumentalities of a foreign state.
Foreign agencies or instrumentalities may lose their
sovereign immunities if they engage in commercial
activities in a fashion similar to activities engaged in by
private people.
For the commercial activity exception to apply to
transactions occurring outside me United States, die
activity must have a significant direct effect in the
United States.
A significant direct effect occurs when a foreign
sovereign enters into a contract to deposit funds into a
bank account located in the United States and then fails
to do so in contravention of the agreement.
Events in distant locations (such as Indonesia in this
case) can have significant effects on economies
throughout the world.

or enforce acts of another country is the principle of comity. It is defined as "the recognition which
one nation allows within its territory to the legislative, executive or judicial acts of another nation." 8
U.S. courts have also developed a general discretionary principle known as the forum
conveniens doctrine. The forum conveniens doctrine can be applied to any case if the court
determines that there is a more convenient forum to hear the case.9 Courts engage in a two-step
process in deciding whether to dismiss a claim based on fa/rum conveniens. The first step is
determining if an adequate alternative forum exists. If such a forum exists, then the court must
balance a series of factors involving the private interests of the parties and the public interest in
maintaining the litigation in the selected forum. Public interest factors include court congestion, the
unfairness of imposing jury duty on a community with no relation to the litigation, the interest of
the community in having localized controversies decided at home, and avoidance of problems
associated with conflict of laws and the application of foreign law. Private interest factors include
ease of access to

8 Hilton v Guyii, 139 U.S. 113, 164 (1895).

9 See Piper Ammji Co. v. Reyim, 454 V.S 235, 254 n 22 (1981). Sec also Gulf Oil Corp. v Gilbert, 330 U 5, 501, 506-09
(1947).
112 Part 1 Legal and Ethical Environment of International Business

evidence, the cost for witnesses to attend trial, the availability of compulsory process, and other
factors that might shorten the trial or make it less expensive. The plaintiff's choice of forum is
subject to judicial deference, and the burden of demonstrating the existence of an adequate
alternative forum and that the balance of private and public interests favor trial in the foreign forum
rests with the defendant. The Capital Currency Exchange case examines some of the nuances of
this judge-made doctrine.
A final consideration is venue. Venue refers to the issue of choosing between different courts
that all possess jurisdiction (personal and subject matter) over the case. Venue is concerned with
ascertaining the court that possesses the most appropriate or best geographical location to hear a
case. This concern relates to the appropriate judicial district in the U.S. federal judicial system and
the appropriate county in U.S. state judicial systems. With respect to federal litigation, the Alien
Venue Statute provides that aliens may be sued in any federal judicial

Capital Currency Exchange v. National Westminster Bank

and Barclays Bank
155 F.3d 603 (2d Cir. 1998)

McLaughlin, Circuit Judge. Capital Currency Exchange,
N.V. ("CCE"), is a financial company organized under the
laws of the Netherlands Antilles. CCE and its affiliates are
engaged principally in two kinds of international financial
transactions: (1) retail currency exchange and (2) money
transfers from the LTnited States to England. CCE and its
affiliates had a longstanding banking relationship with
Barclays UK In 1991, CCE, on behalf of Worldcash, sought a
New York State money transmission license. To qualify for
this license, Worldcash had to post a $500,000 bond in favor
of the New York State banking authorities. CCE arranged
with Barclays UK's New York office to issue an irrevocable
letter of credit as security for the bond. In May 1995, for
reasons that the parlies dispute, Barclays UK told CCE to
find another banker. In August 1995, NatWesl UK declined
to provide CCE with banking services. CCE maintains that
NalWest UK and Barclays UK conspired to drive CCE out of
the money transfer business bv depriving it of banking
services in violation of the antitrust laws, specifically
Sections 1 and 2 of the Sherman Act. On November 6, 1996,
defendants moved to dismiss the complaint under the forum
conveniens doctrine.
In a forum conveniens analysis, a court must deter-
mine that an adequate alternative forum exists. An alternative
forum is adequate if: (f) the defendants are subject to service
of process there; and (2) the forum permits "litigation of the
subject matter of the dispute." We believe
there is an adequate, alternative forum. Plaintiffs may
challenge defendants' allegedly anticompetitive actions under
Articles 85 and 86 of the Treaty of Rome, which English
courts are bound to enforce. Although English courts have
not yet awarded damages in an antitrust case, it appears that
English courts have the power to do so. It is well established,
however, that the unavailability of treble damages does not
render a forum inadequate. Thus, suits brought under the
Sherman Act are subject to dismissal under the forum
conveniens doctrine. AFFfRMED.
Case Update
The LT.S. Supreme Court denied certiorari and refused to
hear the case in Capital Currency Exchange v. National
Westminster Bank and Barclays Bank, 526 U.S. 1067 (1999).
Case Highlights
For a cout t to dismiss a case under the forum
conveniens doctrine, it must determine that an adequate
alternative forum exists.
The unavailability of certain remedies under the laws of
the alternative forum does not render that forum
inadequate.
Chapter 4 International Commeicial Dispute Resolution 113

district with the exception of suits against foreign sovereigns, which may be initiated onlv
in U.S. District Court for the District of Columbia.10

International Discovery
Once the defendant is properly ser\ed and personal jurisdiction is obtained, the next issue
is the ability to pursue discovery against the defendant. Discovery is the process of
gathering evidence from one's adversary and from third parties. Discovery is often the http:/
most difficult and costly part of international litigation. The U.S. Federal Rules of Civil Text of Hague Evidence
Convention:
Procedure allow for numerous and broad methods of discovery. Other countries with less http://hcch.e-vision.11l/
liberal discovery methods are less receptive to requests for the discovery of their index en.php?act=
conventions.
nationals. The purpose of the Convention on the Taking of Evidence Abroad in Civil or textscid=82.
Commercial Matters (Hague Evidence Convention) is to facilitate the discovery of
foreign parties. This convention provides for the use of letters of request that require
foreign courts to perform the discovery process. It also provides for the "taking of
evidence by diplomatic officers, consular agents and commissioners."
A number of factors limit the effectiveness of the convention. First, although the
United States has ratified the convention, only thirty-one other states, very few of which
are located outside Western Europe, have adopted the convention. Second, a foreign
court may reject a letter of request if the court deems it to be in violation of its national
laws. Nonetheless, a U.S. plaintiff having problems with foreign discovery should seek
the help of the U.S. State Department in gathering evidence through the Hague Evidence
Convention.

Enforceability of Judgments
After obtaining a judgment in an international litigation, the winning party often needs to
enforce the judgment in a foreign country. This is likely when die foreign defendant does
not possess enough assets in the forum court to satisfy the judgment. International
litigation judgments are more difficult to enforce than arbitral awards. In Hilton v.
Guyot,11 the Supreme Court held that a foreign judgment is entided to enforcement if the
defendant had an opportunity for a fair trial. A fair trial is predicated on the foreign court
possessing personal and subject matter jurisdiction, conducting trials using regular
procedures, and acting "under a system of jurisprudence likely to secure an impartial
administration of justice." Despite this embrace of international comity, however, the
court in Hilton failed to enforce a French judgment under a rule of reciprocity. The rule
of reciprocity holds that a country will not enforce judgments rendered in a foreign
country that does not likewise enforce its judgments. Because of the convergence of
national legal systems and the U.S. recognition of other legal systems, the rule of
reciprocity has rarely been used in recent years as a defense to the enforcement of a
foreign judgment. However, the rule of reciprocity retains an important role in legal
systems outside the United States. For example, many Asian states, such as China,
I NT E RNA T I O NA L
Indonesia, Japan, Korea, Malaysia, and Taiwan, as well as Mexico and many African
states, require

10. See 28 U.S.. 13 (d) (2000)

11. 154 1 .S 113 (1 89 )).
114 Part 1 Legal and Ethical Environment of International Business

reciprocity prior to the enforcement of a foreign judgment.12 By contrast, some states, most notably
Argentina, Brazil, and India, have abolished the reciprocity requirement.
The court in Hunt v. BPExploration Ltd?2, reviewed U.S. law on the enforcement of foreign
judgments. The case involved die enforcement of a British judgment against a U.S. defendant. The
court recognized that Hilton was still good law. Therefore, die most effective grounds for attacking
a foreign judgment is to argue diat a defendant

Nelson Bunker Hunt v. BP Exploration Company (Libya) Ltd.

492 F.Supp.885 (N.D.Tex 1980)

Higginbotham, District Judge. This parallel London/ Dallas
litigation stems from a relationship between BP and Hunt
with respect to an oil field located in Libya. In 1957, Libya
granted Hunt Concession No. 65 in the province of
Cyrenaica. In June I960, Hunt entered into a letter agreement
as to Concession No. 65 with BP accompanied by an
Operating Agreement. The 1960 Agreement provided that
Hunt would convey to BP an undivided one-half interest in
Concession No. 65. On May 2, 1975, BP instituted suit in
England, relying primarily on Section 1 (3) of the Frustrated
Contracts Act, 1943 ("Act"). BP's claim under the Act was
that its contract with Hunt was frustrated when BP's interest
in the concession was expropriated, and that, because of BP's
contractual performance before expropriation, Hunt obtained
a valuable benefit. Hunt declined to accept service of the writ
issued on May 2, 1975, through agents and solicitors in the
U.K. and attempts to serve him personally during a short visit
also proved unsuccessful.
On June 19, 1975, the High Court of Justice, Queen's
Bench Division, Commercial Court, granted BP's request for
service by mail. On June 30, 1978, Mr. Justice Goff entered
judgment against Hunt, and held that the counterclaim under
the Act failed. On March 26, 1979, an English court awarded
BP $15,575,823 and $8,922,060. Both Hunt and BP appealed
but the Court of Appeals in England has not yet decided the
appeals.
The Law of Recognition
Hilton v. Guyot is the leading American decision on the
recognition and enforcement of foreign country judgments.
The Supreme Court held that:
Where there has been opportunity for a jull and fair trial abroad
before a court of competent jurisdiction, conducting the trial upon
regular proceedings, after due citation or voluntary appearance of
the defendant, and under a system ofjunsprudente likely to secure
an impartial administration of justice between the citizens of its
own country and those of other countries, and there is nothing to
show either prejudice in the court, orm the system of laws under
which it is sitting, or fraud in the procuring of the judgment, or
any other special reason why the comity of this nation should not
allow it full effect, the merits of the case should not, in an action
brought in this country upon the judgment, be tried afresh, as on
new trial or an appeal, upon the mere assertion of the parly that
the judgment was erroneous in law or in fact.
Applying the Hilton v. Guyot principles of comity in order to
determine whether a foreign country judgment should be
recognized presents difficult social and public policy
judgments. Comity is a recognition which one nation extends
to the legislative, executive, or judicial acts of another. It is
not a rule of law, but one of practice, convenience, and
expediency. It is a nation's expression of understanding that
demonstrates due regard both to international duty and
convenience and the rights of persons protected by its own
laws. Comity should be withheld only when its acceptance
would be contrary or prejudicial to the interest of the nation
called upon to give it effect.
In this ca.se, Hunt cannot seriously assert that there was
not timely notice and opportunity to defend, that fraud was
involved, or that the proceedings were not rendered
according to a civilized jurisprudence. Hunt asserts,
correctly, that if the English court had no personal
jurisdiction over him, the judgment should not be recognized.
The record reflects, however, that the English court did have
jurisdiction over Hunt. This court turns to a minimum
contacts analysis in order to determine if the English court's
exercise of jurisdiction comports with our own notions
expressed in due process terms. Hunt's contacts with England
are of such an extent and of such nature that the maintenance
of this suit does not offend fair play and substantial justice.
Hunt has engaged in much purposeftil activity in England.
The contract was

I 2. Sec Louis Gaib &- Julian Lew. hvforcemrnl of Foreign Judgments (2003)
13 142 . Supp. 8KJ (N.D. Tex. 1980)
Chaptei 4 International Commercial Dispute Resolution 115

executed in England, Hunt has personally traveled to
England to participate in meetings with BP, he had agents
resident m England to represent his interests, and BP's
principal place oi business was in London.
Public Policy
Hunt's argument that an American judgment would not be
recognized in England and so should not, on public policy
grounds, be recognized here is in essence an assertion that
reciprocity is an essential element of recognition. The court
disagrees. Though the Hilton case required reciprocity as a
condition of recognition, American decisions since Hilton
have moved "decisively away from the requirement of
reciprocity as a condition of recognition." Indeed, the
draftsmen of the Uniform Foreign Money-Judgment
Recognition Act consciously rejected reciprocity as a factor
to consider in recognizing foreign money judgments.
Effect of the Appeal
Hunt next argues that the English judgment is not entitled to
recognition because it is now on appeal; and the decision of
the Court of Appeal will be subject to
review by the House of Lords. Existing precedent on comity,
the principle under which foreign country judgments are
recognized, lends support to this assumption. The Uniform
Foreign Money-Judgments Recognition Act provides that "if
the defendant satisfies the court either that an appeal is
pending or that he is entitled and intends to appeal from the
foreign judgment, the court may stay the proceedings until
the appeal has been determined or until the expiration of a
period of time sufficient to enable the defendant to prosecute
the appeal." Therefore, it is necessary for this court to stay
the proceedings until a final determination of the proceedings
in England.
Case Highlights
Comity is a recognition that one nation extends to the
legislative, executive, or judicial acts of another.
Reciprocity is no longer a factor considered in the
recognition of a foreign judgment.
A foreign judgment is not due recognition while it is in
the process of being appealed.

did not have an opportunity for a fair trial. These arguments are procedural ones centered on due
process and public policy concerns. In Hunt, the court held that, given the historical deference
received by British judgments, the Hilton due process standards were met, given the similarities of
the legal systems.
However, major substantive differences in the laws of the court rendering judgment and the
enforcing court will also be scrutinized during the enforcement stage. For example, U.S. courts will
generally not enforce foreign country's penal and tax judgments.14 The court in Hunt v. BP http:/
Exploration did not enforce the British judgment, pending its appeal in the English court system. It The Hague Conference on
private International Law has
cited the Uniform Foreign Money-Judgments Recognition Act, which states that "if the defendant begun work on a new
satisfies the court either that an appeal is pending or that he is entided and intends to appeal from judgment convention
the foreign judgment, the court may stay the proceedings until the appeal has been determined or Hague Convention on
International Jurisdiction and
until the expiration of a period of time sufficient to enable the defendant to prosecute the appeal." 11 Foreign Judgments in Civil
The decision in Yahoo!, Inc. v. La Ligue Centre Le Racisms et L'Antisemitisme provides another and Commercial Matters.
http://www.cptech.
example of a U.S. court refusing to enforce a foreign judgment on public policy grounds,
org/ecom/jurisdictioii/
specifically, the guarantee of free speech contained in the First Amendment to the U.S. hague.hlm]. The proposed
Constitution. Convention would likely also
deal with issues of Internet
]uribdicUon.

14.
See, e.g., Rppubhi of Honduras v Phitip Mums (.ompnn-,, 441 F 3d 1253 (lUh Cir. 2003), Attorney General of Canada v.
Ii [ Reynolds Tobacco Holdings, Inc., 268 F.3d 103 {2d Cll 2001); \iror Inl'l Corpomtion v. El Paso Corporation, 292 F
Supp.2d 1337 (S D Fla 2003), European (.ommunU) v. Japan lobacco, Int., 186 F Supp 2d 231 (1DXY 2002).
15. The Lniform Foreign Mcmev-Jtidgments Ret ognition Act. 6, 13 tTnilorm Laws Annotated ( O L A . ) 263 (192) The
shortcoming of the act is that it has not recrised a significant degree of mtei national adoption.
116 Part 1 Legal and Ethical Environment of International Business

A number of international conventions have been promulgated to help enforce judgments inter
nationally. Three are regional in nature: Members of the European Union can use Regulation No.
44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and
Commercial Matters. The Lugano Convention applies to all countries in the European Free Trade
Area. Finally, the Inter-American Convention on the Extraterritorial Validity of Foreign
Judgments applies to members of the Organization of American Slates. The only truly
"international" convention, the Hague Convention on the Recognition and Enforcement of
Foreign Judgments in Civil and Commercial Matters, has been accepted by only three states and
has failed to be effective in facilitating the enforcement of foreign judgments.
In contrast, the United Nations Convention on the Recognition and Enforcement of Foreign
Arbitral Awards or New York Convention has been widely accepted and is

Yahoo!, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme

169 F.Supp.2d 1 181 (ND. Cal.2001)

Fogel, District Judge. Plaintiff moves for summary judgment.
Defendants oppose the motion. For the reasons set forth
below, the motion will be granted. Defendants La Ligue
Contre Le Racisme Et TAntisemiusme ("LICRA") and
L'Union Des Etudiants Juifs De France, citizens of France,
are non-profit organizations dedicated to eliminating anti-
Semitism. Plaintiff Yahoo!, Inc. ('Yahoo!") is a corporation
organized under the laws of Delaware with its principal place
of business in Santa Clara, California. Yahoo! is an Internet
service provider that operates various Internet websites and
services that any computer user can access at the Uniform
Resource Locator ("URL") http://www.yahoo.com. Yahoo!
provides a variety of means by which people from all over
the world can communicate and interact with one another
over the Internet. Anv computer user with Internet access is
able to post materials on many of these Yahoo! sites, which
in turn are instantly accessible b\ anyone who logs on to
Yahoo! 's Internet sites. As relevant here, Yahoo!'s auction
site allows anyone to post an item for sale and solicit bids
from any computer user from around the globe. Yahoo!
records when a posting is made and after the requisite time
period lapses sends an e-mail notification to the highest
bidder and seller with their respective contact information.
Yahoo! is never a party to a transaction, and the buver and
seller are responsible for arranging privately for payment and
shipment of goods. Yahoo! monitors the transaction through
limited regulation by prohibiting particular items from being
sold [but] does not activelv regulate the content of each
posting, and individuals are able to post, and have in fact
posted, highlv offensive matter, including Nazi-related
propaganda and Third Reich memorabilia, on Yahoo! \s
auction sites.
On or about April 5, 2000, LICRA sent a "cease and
desist" letter to Yahoo!'s Santa Clara headquarters informing
Yahoo! that the sale of Nazi and Third Reich related goods
through its auction services violates French law. LICRA
threatened to take legal action unless Yahoo! took steps to
prevent such sales within eight days. Defendants
subsequently filed a civil complaint against Yahoo! in the
Tribunal de Grande Instance de Paris (the 'Trench Court").
The French Court found that approximately 1,000 Nazi
and Third Reich related objects, including Adolf Hitler's Mrin
Kampj, TheProtocol of'the Elders oj (an infamous anti-
Semitic report produced by the Czarist secret police in the
early 1900*s), and purported "evidence" that the gas
chambers of the Holocaust did not exist were being offered
for sale on Yahoo.com's auction site. Because anv French
citizen is able to access these materials on Yahoo.com
directly or through a link on Yahoo.fr, the French Court
concluded that the Yahoo.com auction site violates Section
R645-1 of the French Criminal Code, which prohibits
exhibition of Nazi propaganda and artifacts for sale. On May
20, 2000, the French Court entered an order requiring Yahoo!
to (1) eliminate French citizens' access to any material on the
Yahoo.com auction site that offers for sale any Nazi objects,
relics, insignia, emblems, and flags; (2) eliminate French
citizens' access to web pages on Yahoo.com displaying text,
extracts, or quotations from Mein Kampf and Protocol of the
Elders of Zion; [and] (3) post a warning to French citizens on
Yahoo.fr that any search through Yahoo.com may lead to
sites containing material prohibited bv Section R645-1 of the
French Criminal Code, and that such viewing of the pro-
hibited material mav result in legal action against the Internet
user. The order subjects Yahoo! to a penalty of 100,000
Euros for each day that it fails to comply with the
Chapter 4 International Commercial Dispute Resolution
order. Yahoo! subsequently posted the required warning and
prohibited postings in violation of Section R645-1 of the
French Criminal Code from appearing on Yahoo.fi'. Yahoo!
also amended the auction policy of Yahoo.com to prohibit
individuals from auctioning: Any item that promotes,
glorifies, or is direcdv associated with groups or individuals
known principally for hateful or violent positions or acts,
such as Nazis or the Ku Klux Klan. Official government-
issue stamps and coins are not prohibited under this policy.
Expressive media, such as books and films, may be subject to
more permissive standards as determined by Yahoo! in its
sole discretion. Notwithstanding these actions, the
Yahoo.com auction site still offers certain items for sale
(such as stamps, coins, and a copv of Man Kampf) which
appear to violate the French Order.
Yahoo! claims that because it lacks the technology to
block French citizens from accessing the Yahoo.com auction
site to view materials which violate the French Order or from
accessing other Nazi-based content of websites on
Yahoo.com, it cannot comply with the French order without
banning Nazi-related material from Yahoo.com altogether.
Yahoo! contends that such a ban would infringe
impermissibly upon its rights under the First Amendment to
the United States Constitution. Accordingly, Yahoo! filed a
complaint in this Court seeking a declaratory judgment that
the French Court's orders are neither recognizable nor
enforceable under the laws of the United States.
As this Court and others have observed, the instant case
presents novel and important issues arising from the global
reach of the Internet. Indeed, the specific facts of this case
implicate issues of policy, politics, and culture that are
beyond the purview of one nation's judiciary. Thus it is
critical that the Court define at the outset what is and is not at
stake in the present proceeding.
This case is not about the moral acceptability of
promoting the symbols or propaganda of Nazism. Most
would agree that such acts are profoundly offensive. By any
reasonable standard of morality, the Nazis were responsible
for one of the worst displays of inhumanity in recorded
history. This Court is acutely mindful of the emotional pain
reminders of the Nazi era cause to Holocaust survivors and
deeply respectful of the motivations of the French Republic
in enacting the underlying statutes and of the defendant
organizations in seeking relief under those statutes. Vigilance
is the key to preventing atrocities such as the Holocaust from
occurring again.
Nor is this case about the right of France or any other
nation to determine its own law and social policies. A basic
function of a sovereign state is to determine by law what
forms of speech and conduct are acceptable within its bor-
ders. In this instance, as a nation whose citizens suffered the
effects of Nazism in ways that are incomprehensible to most
Americans, France dearfv has the right to enact and enforce
laws such as those relied upon by the French Court here.
117
What is at issue here is whether it is consistent with die
Constitution and laws of the United States for another nation
to regulate speech by a United States resident within the
United States on the basis that such speech can be accessed
by Internet users in that nation. In a world in which ideas and
information transcend borders and the Internet in particular
renders the physical distance between speaker and audience
virtually meaningless, the implications of this question go far
beyond the facts of this case. The modern world is home to
widely varied cultures with radically divergent value
systems. There is little doubt that Internet users in the United
States routinely engage in speech that violates, for example,
China's laws against religious expression, the laws of various
nations against advocacy of gender equality or
homosexuality, or even the United Kingdom's restrictions on
freedom of the press. If the government or another party in
one of these sovereign nations were to seek enforcement of
such laws against Yahoo! or another U.S.-based Internet
service provider, what principles should guide the court's
analysis?
The Court has stated that it must and will decide this case
in accordance with the Constitution and laws of the United
States. It recognizes that in so doing, it necessarily adopts
certain value judgments embedded in those enactments,
including the fundamental judgment expressed in the First
Amendment that it is preferable to permit the non-violent
expression of offensive viewpoints rather than to impose
viewpoint-based governmental regulation upon speech. The
government and people of France have made a different
judgment based upon their own experience. In undertaking
its inquiry as to the proper application of the laws of the
United States, the Court intends no disrespect for that
judgment or for the experience that has informed it.
No legal judgment has any effect, of its own force,
beyond the limits of the sovereignty from which its authority
is derived. However, the United States Constitution and
implementing legislation require that full faith and credit be
given to judgments of sister states, territories, and
possessions of the United States. The extent to which the
United States, or any state, honors the judicial decrees of
foreign nations is a matter of choice, governed by "the
comity of nations." Hilton v. Guyot, 159 U.S. 113, 163
(1895). Comity "is neither a matter of absolute obligation, on
the one hand, nor of mere courtesy and good will, upon the
other." Hilton, 159 U.S. at 163-64. United States courts
generally recognize foreign judgments and decrees unless
enforcement would be prejudicial or contrarv to die country's
interests.
As discussed previously, the French order's content and
viewpoint-based regulation of the web pages and auction site
on Yahoo.com, while entitled to great deference as an
articulation of French law, clearly would be inconsistent with
the First Amendment if mandated by a court in the United
States. What makes this case uniquely challenging is
118 Parti Legal and Ethical Environment of International Business

that the Internet in effect allows one to speak in more than
one place at the same time. Although France has the
sovereign right to regulate what speech is permissible in
France, this Court may not enforce a foreign order that
violates the protections of the United States Constitution by
chilling protected speech that occurs simultaneously wifhin
our borders. The reason for limiting comity in this area is
sound. "The protection to free speech and the press embodied
in [the First] amendment would be seriously jeopardized by
the entry of foreign judgments granted pursuant to standards
deemed appropriate in [another country] but considered
antithetical to the protections afforded die press by the U.S.
Constitution." Absent a body of law that establishes
international standards with respect to speech on die Internet
and an appropriate treaty or legislation addressing
enforcement of such standards to speech originating widiin
the United States, the principle of comity is outweighed by
the Court's obligation to uphold the First Amendment.
Yahoo! seeks a declaration from this Court that the First
Amendment precludes enforcement within the United States
of a French order intended to regulate the content of its
speech over the Internet. Yahoo! has shown that the French
order is valid under fhe laws of France, that it may be
enforced with retroactive penalties, and that the ongoing
possibility of its enforcement in the United States chills
Yahoo!'s First Amendment rights. Yahoo! also has shown
that an actual controversy exists and that the direat to its
constitutional rights is real
and immediate. Defendants have failed to show the existence
of a genuine issue of material fact or to identify any such
issue the existence of which could be shown through further
discovery. Accordingly, the motion for summary judgment
will be granted.
Case Highlights
Businesses operating in the international marketplace
must remain constantly vigilant with respect to the
social policies, cultural sensitivities, and moral
acceptability of their business practices in the states in
which thev conduct their operations. The global reach
and largely unregulated nature of the Internet continues
to present novel and important legal issues for states,
businesses, and consumers.
U.S. courts generally recognize foreign judgments and
decrees unless enforcement would be prejudicial or
contrary to the country's interests. Absent international
standards with respect to speech on the Internet, such as
may be contained in a treaty or national legislation
addressing such speech originating within the United
States, the interests represented by the First Amendment
outweigh the principle of comity to the judgments of
foreign courts.

enforced by 134 states. Thus, the enforcement of a judgment in a foreign country is dependent on
the nuances of enforcement in that particular country. For example, France and Switzerland refuse
to enforce a foreign judgment against their nationals unless there is a clear indication fhat the
national voluntarily intended to submit to the jurisdiction of the foreign court. Many countries will
not enforce U.S. judgments that are contrary to their public policy. For example, foreign courts are
I N T E R NA T I O NA L unlikely to enforce punitive and treble damage awards because there are no such remedies
recognized under their laws. Punitive damages are awarded in the relatively few states whose legal
systems originated in the common law tradition, such as Australia, Canada, India, Ireland, New
Zealand, and the United Kingdom. In any event, no country rivals the United States in the number
of instances when such awards are made available. Faced with such obstacles, a plaintiff may
choose to file suit direcdy in the country of the defendant or to arbitrate the claim.

Choice of Law
How do courts determine which national laws apply in a given case? Generally, absent a choice of
law clause in which the parties to a contract expressly state the law that will govern any disputes,
the law of the country most closely connected to the agreement will govern. Sometimes the courts
may apply the principle of
Chapter 4 International Commercial Dispute Resolution 119

depecage to apply different governing laws to different parts of the contract. In short, different
parts of the contract may have closer connections to different countries. The country of closest
connection is often the country of the residence of the performing party.
Courts have fashioned conflict of law rules to assist them in making choice of law decisions.
These rules are essentially a list of factors used to determine the country with the closest connection
to the case. Under the Restatement (Second) of the Conflut of Laws,u' the law of the jurisdiction
with the "most significant contacts" governs both tort and contract claims. In evaluating tort claims,
the following four factors are relevant: (1) the domicile, place of incorporation, and place of
business of the parties; (2) the place where a tort occurred; (3) the place where the relationship of
the parties is centered; and (4) the place where the injury occurred. With respect to contract claims,
the factors are (1) the place of contracting, (2) the place of negotiation, (3) the place of
performance, (4) location of the subject matter of the contract, and (5) the domicile, place of
incorporation, and place of business of the parties. Other factors considered include the place the
contract was signed and the place the breach occurred. The Restatement also states that if the place
of negotiating the contract and the place of performance are in the same country, the law of that
country will usually be applied. If a specific contract clause or issue is invalid in a country with a
close connection to the contract, then that country's laws may be deferred to because of its strong
interest in enforcing its laws and public policies.
Before a contract and a choice of law clause are drafted, the conflict of law rules in the national
law of the other party should be researched. This will help determine whether an express choice of
law clause is needed and, if so, the factors the foreign country will use in assessing the
enforceability of the choice of law selection. The conflict of law rules found in Hungarian law are
shown in the following Comparative Law capsule.1'

Hungarian Conflict of Law Rules

Specific Rules When the ser

Sale/purchase contracts: Law of the country of
vices are to be per
formed in more than ________
COMPARATIVE LAW
_____
the seller
one country, then the law of the country of the
Lease contracts: Law of the country of the
employer is applicable.
lessor
Banking/credit contracts: Law of the country
General Default Rule
of the financial institution
If specific rules are not applicable: Law of the
Employment contracts: Law of the country in
country of the party performing the principal
which the services are performed
obligation.

16. See Restatement (Second) of the Conflict of Laws 187 (1971)

17. See. Auicles 25-29 & 51-52 of Law Decree No 13 of 1979 on Pn\ate International I-aw. See also Ferenc Midi & ]
Vekas. The Law of Conflicts and of International Economic Relations 375, 459-65 (1998).
120 Part 1 Legal and Ethical Environment of International Business

One principle used in determining the law to be applied by the forum court is, that,
absent sufficient proof to establish with reasonable certainty the substance of the foreign
principles of law, the court should apply the law of its country. A court is not expected to
decide a case based on incomplete and frequendy confusing explanadons of foreign law.
In Ban que Libanaise Pour Le Commerce v. Khreich}6 the Federal Circuit Court stated
that it was the plaintiffs "burden to provide the legal pigment and then paint the district
court a clear portrait of the relevant foreign (Abu Dhabi) law." It affirmed the right of the
lower court to apply Texas law to what was primarily a foreign transaction.

judicial Abrogation of Choke of Law Clauses

Internationally, courts and arbitration tribunals have generally enforced contractual
choice of law clauses. Courts, however, usually require that the choice of law have some
connection to the parties or the contract. Arbitration tribunals, on the other hand, are more
likely to enforce a reasonable choice of law selection, even if the law chosen is not
connected to the contract or the transaction. Arbitrators may see an unconnected choice of
law selection as a fair compromise, given the international nature of the transaction,
especially if the parties' choice is the laws of one of the more popular neutral countries,
such as Great Britain, the United States, Switzerland, or Germany. For example, in an
arbitration enforcing an English choice of law clause in a contract for the sale of seed
potatoes between a Dutch seller and a Mozambique buyer, an International Chamber of
Commerce (ICC) arbitration panel held that "the parties to transnational contracts enjoy
a large degree of autonomy in selecting the proper law of their contract." 19 This selection
was subject to arbitral deference, especially when the selected law was that of a country
to which the contract bore some connection or was the law of a country selected for
reasons of its expertise (such as English law in maritime matters) or neutrality (such as
Swedish or Swiss law). The panel concluded that it could disregard the parties' selection
only if there was an indication that English law was selected for the express purpose of
avoiding a mandatory provision of the laws of the Netherlands or Mozambique.
At times, statutory mandates may preempt this reasonableness inquiry. For example,
the English Unfair Contract Terms Act of 1977 adopts a presumption of unreasonableness
for indemnity clauses by which a consumer is "made to indemnify another person in
respect of liability that may be incurred by the other for negligence or breach of
INTERNATIONAL
contract."20 For international sales contracts, the act voids any choice of law clause whose
purpose is the avoidance of the Unfair Terms Act.
Courts have used a number of factors in scrutinizing choice of law clauses. The
following excerpts from the Restatement (Second) of the Conflict of Laws provide the
rationale for the need for such rules and the.factors that courts review in deciding whether
to honor a choice of law selection.

18. 915 KM 1000 (5th Cir 1990).

19. Claimant: Bu\er (Mozambique) \. Defendant. Seller (The Netherlands), International Chamber of Commerce. ( a-scNo.
JJO't, I 17 (1987)
20. Coniiau Terms Aet 4(1) (as amended 2003).
Chapter 4 International Commercial Dispute Resolution 121

SECTION ONE: REASON FOR THE RULES OF CONFLICT OF LAWS

The world is composed of territorial states having separate and differing systems of law. Events
and transactions occur, and issues arise, thai may have significant relationships to more than one
state, making necessary a special body oj rules and methods for their ordering and resolution.

SECTION SIX: CHOICE OF LAW PRINCIPLES

The factors relevant to the choice of law include:
(a) the needs of the international system,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the
determination of the particular issue,
(d) the protection of justified expectations,
(e) the haw- pedicles underlying the particular field of law,
(f) certainty, predictability, and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
In weighing these factors, the modern judicial trend is to give great deference to the choice made by
the parties in their contractual choice of law clause. As noted by one commentator, "[i]n the area of
contracts, where choice-of-law rules are uncertain, some measure of predictability and certainty is
achieved by allowing the pardes, within broad limits, to select the law to govern the validity and
effect of titeir contract."21 This deference also advances the policy goal of protecting "the justified
expectations" of the contracting parties.
The Restatement also provides two grounds for abrogating the parties' choice of law clause.
First, the chosen law has no substantial relationship to the parties or the transaction, and there is no
reasonable basis for the parties' choice. Second, application of the law of the chosen state would be
contrary to a fundamental policy of a country that has a materially greater interest than the chosen
state in the determination of the particular issue. A forum court is unlikely to enforce a choice of
law under such circumstances. Milanovich v. Costa Crociere, S.p.A. addresses the unique instance
when a party to a contract seeks to set aside its own choice of law provision on the basis that it
violates public policy.2'1

Milanovich v. Costa Crociere, S.pA.

954F.2d 763 (D.C. Cir. 1992)

Wald, Circuit Judge. Appellants Gregory Milanovich
and Marjorie Koch-Milanovich, a husband and wife
residing in the District of Columbia, booked passage for
a one-week Caribbean cruise on an Italian flag vessel
owned b\ appellee Costa Crociere, S.p.A, The cruise
disembarked from San Juan, Puerto Rico on February 6,
1988. On the morning of February 7, while the ship was
in international waters, the deck chair upon which
Mr. Milanovich was sitting collapsed, allegedly causing
him serious injury.

21. Willis Rrese "Conflict of Laws and the ResUtemetu St'toncl," 28 Law Contrmpomry Problems 679 (1963).
22. 954 F.2d 763 (D.C. Cir. 1992)
122 Parti
On March 31, 1989, appellants filed a personal injury
action in the United States District Court for the District of
Columbia. The suit was filed one year and fifty-three days
after the date of the accident. The cruise company promptly
moved for summary judgment claiming that the suit was
time-barred by a provision of the passage ticket establishing a
one-year time limit for bringing personal injury actions.
Appellants opposed summary judgment arguing that another
provision of the ticket invoked Italian law as the "ruling law
of the contract," and that under Italian law the one-year
limitation was unenforceable. They submitted uncontroverted
expert testimony that under Articles 1341 and 1342 of the
Italian Ci\il Code, provisions expressly referenced in the
passage ticket, liability limiting provisions in certain kinds of
"adhesion" contracts, of which a passenger ticket is one, are
unenforceable against the nondrafting party unless that party
gives specific written assent to such provisions. Without such
written approval, they contended, the one-year limitation
period in this case was unenforceable.
The district court disagreed. Because of the pre-
ponderance of U.S. contactsappellants are U.S. citizens,
the cruise was advertised in the U.S., the tickets were
purchased and delivered in the U.S., and the ship lelt from
and returned to a U.S. portthe court held that U.S. law, not
Italian law, provided the rule of decision regarding the
validity of the one-year limitation clause. Applying U.S. law,
the court found that this provision had been effectively
incorporated into the contract and was legally enforceable.
On appeal, the Milanoviches challenge the district court's
refusal to enforce the choice-of-law provision contained in
their passage ticket. The question we ultimately face is
whether a provision of that contract limiting the time for suit
was validly incorporated and is legally enforceable. The
resolution of those questions depends, however, on the body
of contract law with which we examine the contract.
The contract contains a provision purporting to adopt
Italian law as the law of the contract, but to follow that
direction and use Italian contract law to decide whether the
provision telling us to use Italian law is valid would
obviously be "putting the barge before the tug." DeNkola v.
Cunard Line Ltd., 642 F.2d 5, 7 n.2 (1st Cir. 1981) What law
should govern whether a choice-of-law provision is a valid
part of a maritime contract is a difficult question, but one we
need not decide because both parties here have assumed that
American contract law principles control.
Under American law, contractual choice-of-law provi-
sions are usually honored. Restatement (Second) of Conflict
of Laws 187 (1971). The district court here,
Legal and Ethical Environment of International Business
however, ignored the choice-of-law clause, reasoning that
The Bremen case, in which the Supreme Court enforced a
similar clause, was distinguishable because it involved com-
mercial parties of equal bargaining strength. Appellees, in
turn, argue that the district court properly disregarded the
choice-of-law clausea clause that they drafted and
included in this adhesion contractbecause a contractual
choice-of-law clause is only one factor to be considered in a
court's choice-of-law analysis. We find neither argument
persuasive.
First, while there are indeed statements by some district
courts that a choice-of-law clause is only one factor in
determining the applicable law, they appear to express
mainly the courts' understandable reluctance to automatically
enforce the terms of these adhesion contracts against the
passenger. While these concerns warrant heightened judicial
scrutiny of choice-of-law provisions in passage tickets, they
do not sanction their utter disregard, especially where there
are no countervailing polices of the forum implicated and
where it is the nondrafting party that seeks enforcement of
the choice-of-law provision.
Second, the district court's conclusion that the reasoning
of The Bremen is limited to the commercial context has been
undermined by the Supreme Court's recent decision in
Carnival Cruise Lines, Inc. x>. Shute, 113 L. Ed. 2d 622, 111
S. Ct. 1522 (1991), in which the Court extended the logic of
The Bremen to contracts governing pleasure cruises. In
Carnival Cruise, an injured cruise ship passenger filed suit in
his home state despite a stipulation in the passage ticket
requiring all suits to be filed in Florida. The Court recognized
that the choice-of-forum clause was not the subject of
bargaining, but nonetheless considered whether it was
"reasonable" and therefore enforceable under American law.
The Court noted that "forum-selection clauses contained in
form passage contracts are subject to judicial scrutiny for
fundamental fairness," id. at 1528, but concluded that this
particular choice-of-forum clause was reasonable and that the
plaintiff had failed to satisfy the "'heavy burden of proof"
required to set aside the clause on grounds of inconvenience.
Id. at 1528 (quoting The Bremen, 407 U.S. at 17).
Under The Bremen and Carnival Cruise decisions, then,
courts should honor a contractual choice-of-law provision in
a passenger ticket unless the party challenging the
enforcement of the provision can establish that "enforcement
would be unreasonable and unjust," "the clause was invalid
for such reasons as fraud or overfeaching," or "enforcement
would contravene a strong public policy of the forum in
which suit is brought." The Bremen, 407 U.S. 1, 15, 32 L.
Ed. 2d 513, 92 S. Ct. 1907 (1972); see also Carnival Cruise,
111 S. Ct. at 1528.
Chapter 4 International Commercial Dispute Resolution 123

Appellees do not argue that enforcement of the choice-
of-law provision would be unreasonable or unjust, or that
they have been the victim of fraud, bad faith or overreaching;
after all, appellees drafted the choice-of-law provision and
included it in the form passage contract. Instead, appellees
argue that a particular policy of the forum would be
contravened by enforcement of the contractual choice-of-law
clause. Under 42 U.S.C. 183b(a), they say, it is unlawful
for the . . . owner of any sea-going vessel . . . transporting
passengers . . . from or between ports of the United States
and foreign ports to provide ... a shorter period for . . . the
institution of suits on [claims for loss of life or bodily injury]
than one year.
Appellees argue that this provision implicitly sanctions a
maximum limitation period of one year and was enacted "to
provide uniformity of treatment and predictability of
outcome for American passengers" regardless of the
nationality of the carrier. Enforcing a choice-of-law clause
that will permit suit beyond one year from the date of the
accident, appellees argue, would contravene this public
policy. The plain language of 42 U.S.C. 183b, however,
reveals that the provision seeks only to prevent time
limitations of less than one year. Enforcing the choice-of-law
clause here obviously does not contravene that policy. To the
extent there is an affirmative forum policy regarding time
bars to suit, it is embodied in 46 U.S.C. 763a, which
provides for a three-year statute of limitations for maritime
torts. Enforcing the choice-of-law clause here would clearly
not undermine that policy.
The Milanoviches' passage ticket designates Italian law
as the ruling law of the contract. Appellees, the parties
opposing enforcement of that provision, have
not demonstrated that the choice-of-law clause is unjust or
unreasonable or that its enforcement would violate American
public policy. We therefore see no reason to deny
enforcement of this express provision of the Milanoviches'
passage ticket. Under Italian law, as it was explained by
appellants' expert without contradiction by appellees, the
contract's one-year limitation on suit is invalid, and thus
appellants' action was timely filed. The summary judgment
of the district court is vacated and the case is remanded for
further proceedings to adjudicate appellants' personal injury
claim.
Case Highlights
Choice of law provisions are enforceable in tickets for
pleasure cruises as well as commercial maritime
contracts.
Choice of law provisions contained in tickets for
pleasure cruises are enforceable in the absence of
unreasonableness, injustice, fraud, bad faith,
overreaching, or contravention of a strong public policy
of the forum.
A party challenging the enforceability of a choice of law
provision in a U.S. court bears a "heavy burden of
proof," especially when the challenging party is the
author of the clause.
Contracting parties should exercise due care in the
preparation of a choice of law provision, including
significant research of the substantive provisions of the
selected law prior to its incorporation into the contract.

Arbitration of Disputes in International Transactions

The simplest solution to a contract dispute is to contact and negotiate with the other party. With
patience, understanding, and flexibility, one can often resolve conflicts to the satisfaction of both
sides. If, however, negotiations fail and the sum involved is large enough to warrant the effort, a
company should obtain the assistance and advice of its legal counsel and other qualified experts. If
both parties can agree to take their dispute to an arbitration agency, this step is preferable to legal
action, because arbitration is often faster and less costly. The ICC handles the majority of http:/
international arbitrations and is usually acceptable to foreign companies because it is not affiliated ICC International Court
of Arbitration
with any single country. International Dispute
Litigation is the less preferred method of dispute resolution in many countries. It is seen in Resolution Center:
some countries, most notably in Japan, as a failure of the businessperson qua businessperson. (See http://www.iccwbo.org/
mdex_court.asp.
Doing Business Internationally: The Role of Alternative Dispute Provides links to ICC
rules and model clauses.
124 Part 1 Legal and Ethical Environment of International Business

2J
The Role of Alternative Dispute Resolution in Japan

The Japanese have settlement, but Lhe same judge presiding

Doing M&iWess Internationally charactcristicallv
____ __
litigate disputes. The Japanese litigation system
promises up to a ten ).ear watt before a
controversy is resolved. There is a cultural
aversion lo conflict based on ingrained notions
of nia or peace and harmom. Informal
resolution usually preserves the relationship
between the parties. It removes the stigma of
blame 01 fault associated with one who is
found guilty or liable. The Japanese attitude
toward compromise, conciliation, and
aibiuation is discussed here.
Compromise. Compromise 01 wakat differs
from out-oi-court settlement negotiations in
that it involves a judge. In benron ken
ivakai the parties present their cases oralh
before the judge and, with the judge,
explore areas of compromise. In soshjno
wakai or "compromise before the court,"
aftei thorough discussions with both
parties, the judge generates compromise
proposals. Compromise offers obvious
benefits not found in traditional litigation.
A compromise may preserve peace and the
status quo and come at the expense of the
legitimate expectations of one of the
parues; unlike in a court of law, the judge
in compromise proceedings is free to
disregard the legal merits and standing of
the parties in order to settle fhe dispute
equitably and restoie a sense ol harmony
between the parties. As a ruler under
Confucian principles, the judge is bound to
act with compassion and benevolence The
compromise proceedings are confidential.
The compromise agreement represents a
voluntary contract; parties are alwavs free
to refuse a judicially sponsored
over the compromise proceedings would
beenalso
reluctant
heai the to
case at trial. Conciliation.
Conciliation 01 chtn may be initiated by
application of the parties or by the court and
mav occur while a lawsuit is pending.
Unlike with court-sponsoied compromise, a
court appoints a conciliation committee. A
conciliation commissioner must be a
lawver, must have expert knowledge and
experience useful in settling disputes, and
must possess "rich knowledge and
experience in public life." There is,
however, no guarantee that tine outcome
will reflect the legal merits of the case.
Indeed, it has been described as "OK, OK
(maanma)" or "fifty/fifty (seppan)"
conciliation because of the overriding
emphasis placed on settling the dispute and
restoring harmony. Arbitration. Japanese
aibitration or chsai can be divided into two
categories: arbitration conducted between
two Japanese parties and arbitration
conducted between a Japanese party and a
foreign party. Arbitration has not been
favored as a method of dispute resolution
among the Japanese because, like litigation,
arbitration involves the "imposition" of a
settlement by a third party and therefore
cannot restore the harmony disrupted bv the
dispute. Arbitration has, however, gained
widespread acceptance as a means of
resolving disputes in international business
transactions between Japanese and foreign
parties. Arbitration allows Japanese
concerns to negotiate "equitable positions as
opposed to purelv legal technicalities" and
to avoid extensive pretrial discovery battles
that serve onlv to "exacerbate the conflict."

Resolution in Japan.) In such cultures, arbitration may prove "a' 'face-saving' approach to dispute
resolution."24 From a more practical perspective, litigation is an expensive process likely to
permanently damage the business relationship and is inherently unpredictable as to result.
International litigation is often unduly delayed because of

2S Andrew M. Paidufk. "Vutuous Wavs and Beautiful Customs The Role of Alternative Dispute Resolution n
Japan." 11 hmpU inltrmalitmtil 6r ( umparanve Law Journal \, V3, 37-42 4445, (1W7). 24 Steven t \elson
"Alternatives to Litigation of International Disputes," 2^ lnlnnnlwnal Lancet 187 14 (1484)
Chapter 4 Intei national Commercial Dispute Resolution

a lack of uniformity in procedural rules. For example, the liberalized nature of U.S. discovery rules
often meets with hostility in foreign courts.
The uncei tainty of dispute resolution in a foreign country is generally more manageable
through arbiuation than thiough the national court system. This is especially true in former Soviet
bloc countries and developing countries, where the enforcement of new substantive laws is
uncertain and uneven. Furthermore, even when enforced, the remedies granted may be insufficient
to fully protect the contract and property rights of the foreign party. In general, arbitral awards
rendered in countries party to die New York Convention are readily enforceable in all otdier
signatory countries.23
Arbitration is appealing for a variety of reasons. Frequendy cited advantages over conventional
litigation include potential savings in time and expense, confidentiality, and expertise of the
arbitrators. For export transactions, in which the parties to the agreement are from different
countries, additional advantages are neutrality, the avoidance of either party's domestic courts, and
ease of enforcement. In an agreement to arbitrate, usually consisting of a clause inserted in the
contract, the parties also have broad powers to specify many significant aspects of the arbitration.
The arbitration clause may appoint an arbitration institute and may name the arbitration location,
the law and rules that will govern, qualifications of the arbitrators, and the language in which the
arbitral proceedings will be conducted.
For an international arbitration to work effectively, the national courts in die countries of bodi
parties to the dispute must recognize and support arbitration. Should one party attempt to avoid
arbitration after a dispute has arisen, die other party must be able to rely on the judicial system in
either country to enforce the agreement to arbitrate. In addition, die party that prevails in die
arbitration proceeding must be confident that die national courts will enforce the decision of the
arbitrators. The federal policy of the United States is to approve and support resolution of disputes
by arbitration. Through the New York Convention, which the United States ratified in 1970, 134
countries have undertaken international legal obligations to recognize and enforce arbitral awards.
(See Comparative Law: Convention on the Recognition and Enforcement of Foreign Arbitral
Awards.) The New York Convention is by far die most

Convention on the Recognition an d Enforcement of Foreign Arbitral

Awards (June 10, 1958)"
Article I whether contractual or
When signing, ratifying or acceding to this not, which are
considered as com-
COMPARATIVE LAW
Convention anv State mav on the basis of rec-
iprocity declare that it will apply the mercial under the national law of the State
Convention to the recognition and enfoi cement making such declaration.
of awards made only in the territory of another
Contracting State. It may also declare that it Article II
will apply the Convention only to differences Each Contracting State shall recognize an
arising out of legal relationships, agreement in writing under which the
continued

25. Paidieck, \ujira note 23. at 38.

26. Tide 4 L Sf 1-16 201-07 & 401-06 iodif\ the United States \rbitratum Ad, the Convention on the Ret omnium And
Enfoicement of Forngri -Vwaids and the Inter-\mencan Cotm-nlion on Intel national Comtnerual \ibitiation,
iespecti\eh.
126 Part 1 Legal and Ethical Environment of International Business

Convention on the Recognition and Enforcement of Foreign Arbitral

Awards (June 10, 1958) (continued)
parties undertake to submit to arbitration all or
any differences which have arisen or which may
arise between them in respect of a defined legal
relationship, whether contractual or not,
concerning a subject matter capable of
seldement by arbitration.
The teim "agreement in writing" shall
include an arbitral clause in a contract or an
arbitration agreement, signed by the parties or
contained in exchange of letters or telegrams.
accordance with the rules of procedure of the
territory where the award is relied upon, under
conditions laid down in the following articles.
Article IV
To obtain the recognition and enforcement
mentioned in the preceding article, the party
applying for recognition and enforcement shall,
at the lime of the application, supply a duly
authenticated original award or certified copy.

Article III
Each Contracting State shall recognize arbitral
awards as binding and enforce them in

important international agreement on commercial arbitration and may be credited for much of the
explosive growth of arbitration in international business disputes.
The convention provides for the full recognition of contract arbitration clauses and outlines a
narrow set of grounds for the nonenforcement or vacating of an arbitration award: (1) where an
award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or
corruption in the arbitrators;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing or in
refusing to hear evidence pertinent and material to the controversy;
(4) where the arbitrators exceed their powers; (5) where there was evident miscalculation of
figures; and (6) where the arbitrators have awarded upon a matter not submitted to them. The Iran
Aircraft Industries case examined the issue of the enforceability of a foreign arbitration award.

Iran Aircraft Industries v.Avco Corporation

980F.2d I (2dCir. 1992)

Lumbard, Circuit Judge. The district court declined to
enforce an award of the Iran-United States Claims Tribunal
which resulted in an award of $3,513,086 due from Avco to
the Iranian parties. The Iranian parties contend that the
Award is enforceable under the United Nations Convention
on the Recognition and Enforcement of Foreign Arbitral
Awards (the "New York Convention").
The New York Convention
Avco argues that the district court properly denied
enforcement of tile Award pursuant to Article V( 1) (b) of the
New York Convention because it was unable to present
its case to the Tribunal. Article V ( l ) ( b ) of the New York
Convention "essentially sanctions the application of the
lorum country's standards of due process." The New York
Convention, however, provides for nonenforcement where:
"The party against whom the award is invoked was not given
proper notice of the appointment of me arbitrator or ol the
arbitration proceedings or was otherwise unable to present
his case." In this case, Avco was not made aware that the
Tribunal required actual invoices to substantiate its claim.
Having thus led Avco to believe it had used a proper tnediod
to substantiate its claim, the Tribunal then rejected Avco's
claim for lack of proof. We believe that by so misleading
Avco the Tribunal denied Avco die opportunity to present its
claim in a meaningful
Chapter 4 International Commercial Dispute Resolution 127

manner. Accordingly, Avco was "unable to present its case"
within the meaning of Article V(l)(b), and enforcement of
the Award was properly denied.
AFFIRMED. Cardamone, Circuit Judge, dissenting. The
New York Convention obligates U.S. courts to enforce
foreign arbitral awards unless certain defenses provided in
Article V(l) of the Convention are established. The specific
defense with which we deal in the case at hand appears in
article V(l)(b). That section states that enforcement of an
arbitral award may be denied if the court is satisfied that the
party against whom the award is sought to be enforced was
unable to present its case before the arbitration panel. The
standard, as die majority points out, essentially involves a
due process inquiry to see whether the party against whom
enforcement is sought has been put on notice and has had an
opportunity to respond.
Avco was not denied due process before the
Iran-U.S. Claims Tribunal. The ruling by the Hague
Tribunal in the instant matter was not high-handed or
arbitrary. A reading of prior cases reveals that they involved
arbitration hearings actually cut short and not completed
before an award was rendered. The present picture is vasdy
different. Avco had a full opportunity to present its claims,
and was on notice that there might be a problem with its
proof. Accordingly, I dissent and vote to enforce the award.
Case Highlights
The New York Convention requires U.S. courts to
enforce foreign arbitration awards.
Enforcement of an arbitration award may be widi-held
if the losing party was denied due process.
Due process requires the defendant be given proper
notice and an opportunity to be heard.

An arbitration clause does not and should not completely separate the arbitration from the court
system. At least in two instances, the court system is crucial to the vitality of the arbitration process.
The first is the most obvious: The arbitration award must be enforced through the court system. An
unenforceable award renders the arbitration process a meaningless exercise. Fortunately, the New
York Convention has provided security of enforcement in many national jurisdictions. Nonetheless,
the arbitration clause should expressly state that the parties consent to the jurisdiction of any
competent court for purposes of the enforcement and satisfaction of any award. Establishing an
escrow account before arbitration commences will make enforcement less problematic and court-
dependent. The parties can be required to deposit money, letters of credit, or insurance bonds. The
arbitration clause should then provide that the arbitrator is empowered to release the funds held in
escrow to satisfy any award.
A second role for the court system is in granting injunctive relief pending the outcome of the
arbitration. The arbitration clause may provide that the parties can apply to the arbitrators for
injunctive relief, but the arbitrator's ability to restrain the parties may be legally ineffective. Thus,
the clause should also allow the parties to resort to the court system. This provision is especially
important in the area of intellectual property, where the critical need to restrain the release of
confidential information and trade secrets makes injunctive relief a necessity. It is important for the
aggrieved party to maintain the status quo pending the outcome of the arbitration process.
The sensitivity of the information may also dictate a clause that restrains the release of
information within the arbitration process. First, the clause should reiterate that all information
provided in the arbitration is to remain private and confidential. Release of such information by one
of the parties would be a ground for a separate claim. Second, the clause should provide that
information is to be provided to the arbitrators during the resolution process and not during the
selection process. The next section discusses the parameters for negotiating a proper arbitration
clause.
128 Part 1 Legal and Ethical Environment of Internationa! Business

Arbitration and Mediation Clauses

http:,
American Socieft of
International Law's Guide to
t lectronic Resources for
International Law (sec-tion
on International Settlement
Dispute)'
http://www.asil.org/.
Includes a database with 61
national arbitration statutes.
Click on "Dispute
Resolution."
Arbitration is the most common vehicle for dispute resolution in international commercial
transactions.27 It can be institutionalized through the use of standard rules provided by such
organizations as the American Arbitration Association (AAA) or the ICC, or it can be done on an
ad hoc basis.2K Arbitration offers the potential for a shortened, cost-effective, confidential, and
hopefully more amicable means to resolve a dispute. It allows the parties to select arbitrators with
the necessary expertise to understand the technicalities of the issues in dispute. Also, an unusual
choice of law is more likely to be sustained by a panel of aibitrators than by national courts of law.
Unlike courts, arbitrators' primary mandate comes from the contractual arbitration clause and not
national public policy concerns.
Confidentiality, especially in areas involving sensitive information, and the finality of
arbitration awards (compared with the multiple appeals common in litigation) make alternative
dispute resolution the preferred means for solving contractual disputes. Most courts honor the
dictates of an arbitration clause. The Farrel Corporation case demonstrates, however, that there are
some instances when a court will ignore such a clause.

Farrel Corporation v. International Trade Commission

949 F.2d I 147 (Fed. Cir. 1991)

Michel, Circuit Judge. Farrel manufactures and distributes
worldwide heavy machinery used in mixing rubber and
plastics. Pomini, an Italian company, also sells imported
rubber and plastics processing machinery in competition with
Farrel. From 1957 until 1986, Farrel and Pomini entered into
a series of licensing agreements allowing Pomini to
manufacture, using Farrel's technology and sell a line of
rubber and plastics mixing machines worldwide, with the
exceptions of the United States, the United Kingdom and
Japan.
The agreements included provisions requiring that
Pomini return all designs, specifications, and other materials
on the expiration of the contractual relationship. Each of the
licensing agreements contained an arbitration clause
requiring that "all disputes" be resolved by arbitration under
the International Chamber of Commerce ("ICC"): "All
disputes arising in connection with the present Agreement
shall be finally settled by
arbitration. Arbitration shall be conducted in Geneva,
Switzerland, in accordance with the rules of Arbitration of
the International Chamber oi Commerce. Judgment upon the
award rendered may be entered in any Court having
jurisdiction, or application may be made to such Court for a
judicial acceptance of the award and an order ol
enforcement, as the case may be."
On January 1, 1986, in accordance with the license
provisions, Farrel terminated Pomini's rights to use or to
retain Farrel technology. Approximately seven months later,
Pomini announced that it planned to enter the U.S. market
and supply American customers with internal mixing devices
and components it manufactured in Italy. Farrel later alleged
that Pomini was only able to do this bv using trade secrets
that Pomini had misappropriated from Fan el. Farrel filed a
complaint against Pomini in the Tribunal of Busto Arsizio, an
Italian civil court, alleging the misappropriation of trade
secrets and infringement of

"When businesses eniei into tiansnational relationships such as contracts for the sale of t^oods, |oint ventures, construction
piojecLs, or distributorships, the contract rvpicalh calls for arbitration the event ol anv dispute ' Yves Dezalav & Brvant
( "\tei chants of Law as Moral ErlLiepieneuis. onstruttmg International Justice from tht ( ompelitioTi for
Transnational Business Disputes," 29 / afi< & Soaet\ Review 27 30 (1995) Compare Chiisuna S Romano, "1996 Brazilian
Commeicial Arbitration law," 5 Annual Surve\ of Irtternalwnal cir Comparative Law 27 (99) (Brazil "was slow in
accepting dcsirabihtv ot international commercial arbitration) Dezalav &. Gartli ("Meichanls of I aw," at 31) note that
28 the arbitration i ules of the tmKd Nanons Commission on International Iiade taw are often used for ad hoc aibitration lo
find the I'NCITRAI arbitiation rules, see HI I N GAOR, Supp. No. 17, Doc V31 '17 at 33 (1976), reprinted m 15 II VI
701 (1976)
Chapter 4 International Commercial Dispute Resolution 129

various patents and trademarks registered in Italy. A similar
suit was filed in the Scottish Court of Sessions, in which
Farrel alleged that Pomini infringed certain of its patents and
trademarks registered in the United Kingdom. In both suits,
Pomini asserted, as an affn mative defense, the "existence of
binding arbitration agi cements between the parties requiring
that all disputes be resolved by an arbitration panel of the
ICC "
Meanwhile, on Julv 24, 1990, Farrel filed a complaint
against Pomini with the Commission. It alleged that Pomini
violated 19 U.S.C. 1337(a) in the importation and sale of
internal mixing machines and their components by
misappropriating trade secrets, committing trademark
infringement, and falselv representing the manufacturers'
source. Farrel petitioned for an immediate cease and desist
order under 19 U.S.C. 1337(f) and a limited permanent
exclusion order forbidding entry into the United States of
Pomini's internal mixing devices. On October 3, 1990, the
administrative lawjudge ("ALJ") assigned to the case issued
an initial determination terminating the investigation based
on the existence of the arbitration clauses in the technology
licensing agreements.
We have jurisdiction over appeals from the International
Trade Commission. The Commission has exclusive authority
to investigate, either on the basis of a complaint or on its own
initiative, allegations that foreign importcis are engaging in
unfair methods of competition and unfair acts in the
importation of articles. The ITC, through its staff, conducts
the investigations. Farrel contends that the Commission, by
relying
on a private contractual arbitration agreement to terminate its
investigation, acted contrary to its authority. We conclude
that the Commission acted contrary to law by terminating its
investigation on the basis of an arbitration agreement without
first determining whether a violation existed as required
under Section 1337. The Commission's decision terminating
the instant investigation is REVERSED AND REMANDED.
Case Update
The U.S. Supreme Court denied certiorari and refused to
hear the case in Farrel Corporation v. International Trade
Commission, 504 U.S. 913 (1992).
Case Highlights
The existence of an arbitration clause in a contract
provides an affirmative defense against a party's
commencement of litigation. The U.S. International
Trade Commission (ITC) has exclusive jurisdiction over
the issuance of cease and desist orders, preventing
infringing foreign goods from being imported into the
United States. The ITC must research the merits of any
claims of violations of the Tariff Act or intellectual
property laws, despite the existence of an arbitration
agreement.

THE CUSTOM ARBITRATION CLAUSE

A vague, simple arbitration clause is often not worth the paper it is printed on, because issues it
does not deal with will probably need to be resolved in court. An arbitration clause should state the
specific rules to be applied, such as the rules of the ICC29 or the AAA. The AAA's standard clause
states: "Any controversy or claim arising out of or relating to this contract, or the breach thereof,
shall be settled by arbitration administered by the American Arbitration Association in accordance
with its applicable rules and judgment on the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof." This clause makes clear that issues pertaining to the
contract are to be arbitrated, and it provides a complete set of rules and procedures in referencing
the AAA rules of arbitration. The entry of judgment language ("may be entered in any court") is
essential to showr intent that any arbitration award is to be final and binding. In short, in
international contracting it is important "to make absolutely clear in the contract that both parties
desire arbitration, are willing to accept judgment of an award, and are willing to accept judgment in
any jurisdiction."w

29. International Chamber of Ccimmnic, Rules of Arbrtianon ( 9 8 ), a\allabU at http.//ww\s i<( wbo.oig 30 James H Davis,
Kenneth E Pavnr &John R Thomas, 'Drafting the Technology License AgTtcmem,' 13 All ABA Caurw Materials ]ou) mil 27
(1996).
130
1 1 i. LY-Ja //
American Ai Duration
Association.
http://www.adr.org.
http:/
Mediation Information and
Resource Center:
http://www.mediate.com or
ADR and Mediation
Resources, http:// adrr.com.
1 Legal and tthical Environment of International Business
The AAA standard clause does not provide for mediation or conciliation31 as a means
to resolve a dispute before a formal arbitration. It is highly recommended that a med-arb
clause be utilized in most contracts. Conciliation or mediation as a required precursor to
any arbitration is generally advantageous to both parties. First, mediation has been shown
to be highly successful in resolving disputes promptly and preserving the long-term
solidarity of the contractual relationship. Second, if mediation is unsuccessful, the parties
will have a better understanding of the issues in dispute, which is likely to lead to a more
efficient arbitration. Mediation may be more appealing if die clause states that the
arbitrators may include mediation costs in their arbitration award. The downside of
mediation is minimal, because either party retains the power to end the mediation at any
time in order to proceed to arbitration.
The standard arbitration clause can be transformed easily into a med-arb clause by
inserting the following language: "The parties agree first to attempt to settle the dispute
through mediation administered by the AAA and its Commercial Mediation Rules or ICC
ADR Rules before resorting to arbitration." Conciliation makes sense in an international
business dispute because of the increased chance that misunderstandings are due to
cultural and language differences.32 Unfortunately, international mediation or conciliation
is an underutilized dispute resolution device. Therefore, the arbitration clause should
state expressly that the parties have agreed to submit voluntarily to conciliation before
they proceed with a formal arbitration.
To stimulate interest in conciliation, the ICC adopted its ADR Rules, which became
effective on July 1, 2001. The ICC ADR Rules, discussed in the next section, are made
up of seven concise articles intended to encourage simplicity, flexibility, timeliness, cost
savings, and confidentiality in the conciliation process. In practice, it is best for the
parties to negotiate a custom clause. The additional time spent negotiating and drafting
the clause will be well spent, given the costs of international dispute resolution. Focus on
Transactions: A Checklist for the Drafter lists issues that should be addressed in
negotiating a custom arbitration clause.
ICC ADR RULES
The ICC ADR rules simplify the process of beginning alternative dispute resolution. Any
party seeking alternative dispute resolution simply submits a request for ADR, along with
a $1,500 application fee. Unless provided by an agreement, the ICC, through an ICC
National Committee, appoints a single individual, known as a neutral, to facilitate the
process. The neutral then seeks an agreement on the type of alternative dispute resolution
to be used. If the parties are unable to reach an agreement, the neutral is authorized to
utilize mediation as the preferred mode of dispute resolution. Flexibility is enhanced by
the fact that the rules place few restraints on the neutral, other than to be guided by
"principles of fairness and impartiality and by the wishes of the parties." The ICC's
position regarding costs is that they should be considerably less than the costs of
arbitration. Administrative expenses are set in the ICC's discretion but, in any event,
cannot exceed $10,000. The neutral's fee is set at an hourly rate fixed by the ICC in
consultation with the
31 Some commentators rhslmgiush between mediation and conciliation Because theie is no generalb accepted definition
upon v\ h to am such dif torencei., the two ^ ui ds will be used intei changeabl\. Mediation 01 conciliation tefeis
to the use of a thiid parr, to negotiate a settkincnt of a dispute Ihe mediation is a nonbnidm^ proceeding. I he medratoi has
no power to issue a binding ruling.
32 Em A. Schwartz. "International Conciliation and the ICC," 5 The ICL International Court of Artntratum f>
(Ncn 1994)
Chapter 4 International Commercial Dispute Resolution 131

A Checklist for the Drafter33

It is not enough to state that "disputes arising
under the agreement shall be settled by arbi-
tration." Although that language indicates the
parties' intention to arbitrate and may authorize
a court to enforce the clause, it leaves man\
issues unresolved. Issues such as when, where,
how, and belore whom a dispute will be
arbitrated are subject to disagreement once a
controveisv has arisen, with no way to resolve
them except to go to court.
Some of the more important elements a
practitioner should keep in mind when drafting,
adopting, or recommending a dispute resolution
clause follow:
The clause might co\er all disputes that
may arise or only certain types.
It could specify only arbitrationgiving a
binding resultor also provide an
opportunity for nonbinding negotiation or
mediation.
The arbitration clause should be signed by
as many potential parties to a future
dispute as possible.
To be fully effective, "entry of judg-
ment" language in domestic cases is
important.
It is normally a good idea to state whether a
panel of one or three arbitrators is to be
selected and to include the
place where the arbitration will occur. If the
contract includes a general choice of law
clause, it may govern the arbitration
proceeding. The consequences should be
considered. Consideration should be given
to incorporating the AAA's Procedures for
Large, Complex Disputes for potentially
substantial or complicated cases.
The drafter should keep in mind that the
AAA has specialized rules for arbitration in
the construction, patent, securities, and
certain other fields. If anticipated disputes
fall into any of these areas, the specialized
rules should be considered for
incorporation in the arbitration clause. An
experienced AAA administrative staff
manages the processing of cases under
AAA rules. The parties are free to
customize and refine basic arbitration
procedures to meet their particular needs. If
the parties agree on a procedure that
conflicts with otherwise applicable AAA
rules, the AAA will almost always respect
the wishes of the parties.

parties and the neutral. The fee must be reasonable, based on the complexity of the dispute and
other relevant circumstances.
Concerns for confidentiality are emphasized in the rules' general mandate that the confidential
nature of the process shall be respected in die absence of an agreement of the parties or if such
confidentiality is prohibited by law. Statements made in the course of the proceedings cannot be
used as evidence in subsequent proceedings between the parties, and the neutral cannot be called to
testify as a witness at such proceedings.

Legality of Arbitration and Forum Selection Clauses

A well-written arbitration clause answers not only the question of how a contract dispute is to be
resolved but also where the dispute is to be resolved. In the latter sense, an arbitration clause acts as
a forum selection clause. In the past, U.S. courts often

33. Drafting Dispute Resolution Clauses. A Piai tkal Guide (2004), available at http-//\vww adrorg.
132 Pan 1 Legal and Ethical Environment of International Business

voided forum selection clauses as usurping the court s jurisdiction. One of the public policy
concerns was to preserve the U.S. plaintiff's right to bring a lawsuit in a U.S. court. However, the
U.S. Supreme Court in the Bremen v. Zapata Off-Shore Company3* case held that a forum selection
clause should be voided only in unustial cases. The court determined that forum selection clauses
are to be enforced fully unless the attacking party meets "the heavy burden of showing that its
enforcement would be unreasonable, unfair, or unjust." The court explained that the challenging
party needed to show that the "contractual forum will be so gravely difficult and inconvenient" that
the plaintiff will, for all practical purposes, be deprived of the right to proceed with the claim. The
court's stated rationale was that the expansion of U.S. business would be retarded if "wc insist on a
parochial concept that all disputes must be resolved under our law and in our courts." Furthermore,
it reasoned that the security and predictability of international contracts and contract dispute
resolution must be ensured. "The elimination of uncertainties by agreeing in advance on a forum
acceptable to both parties is an indispensable element in international trade and contracting." The
Tennessee Imports, Inc. case explores the issues of the arbitrability of specific issues and the
enforceability of arbitration clauses.
Forum selection and arbitration clauses should be as carefully drafted as any other provision
within a contract. Failure in this regard may result in unnecessary lawsuits or litigation in multiple
jurisdictions. Particular attention should be paid to the clear designation of a forum and the
applicability of the clause to all claims that may arise from the terms of the contract. In addition,
the clause should include language mandating the utilization of the designated forum rather than
merely providing the parties with the option of submission of claims to the forum.

Tennessee Imports, Inc. v. Pier Paulo

745 F.Supp. 13 (M.D.Tenn. 1990)

Nixon, District Judge. Plaintiff, Tennessee Imports, Inc.,
brought this action for breach of contract and tortious
interference with contract against defendant Prix Italiais an
Italian corporation with its principal place of business in
Venice, Italy. The contract provided that "should anv dispute
arise between the contractual parties or in connection with
the relations stipulated by this contract and no settlement can
be achieved, then both parties agree to the competence of the
Arbitration Court of the Chamber of Commerce in Venice,
Italv." Tennessee Imports argued that enforcement of this
provision would result in substantial inconvenience and
would deny it effective lelief. Furthermore, that the tortious
interference claim is not within the scope of the forum
selection clause. The defendants have responded to the
plaintiff's arguments as follows: (1) That the Arbitration
Court leferred to in Article 8 is the Arbitration Court of the
International Chambei of Commerce, a well-recognized and
competent arbitral bodv which may conduct proceedings in
Venice, (2) That the contract between Prix and Tennessee
Impoits was the result of "arms length negotiations by
experienced and sophisticated business entities," and (3)
That, because of the expansion of American trade and
commerce in world markets, public policy now supports
upholding forum selection clauses.
A. The Federal Arbitration Act
Because the forum selection clause at issue is also an
arbitration clause found in the contract involving interna-
tional commerce, its validity, interpretation, and enforcement
are governed by the Federal Arbitration Act, 9 U.S.C 1 et
seq. Congress enacted the Arbitration Act in 1924 "to ensure
judicial enforcement of privatelv made agreements to
arbitrate." The Act sets up "a presumption in favor of
arbitration," and requires that courts "ngorouslv enforce
agreements to arbitrate." In the field of international com-
merce, this presumption m favor of arbitiation was

34. 407 t S 1 (1971)

Chapter 4 International Commercial Dispute Resolution
strengthened by adoption of the United Nations Convention
on the Recognition and Enforcement of Foreign Arbitral
Awards ("New York Convention"). The United States ratified
the Convention on September 30, 1970, with certain
reservations as allowed by Article I (3) of the Convention.
These reservations include the following: "The United States
of America will apph the Convention, on the basis of
reciprocity, to the recognition and enforcement of only fhose
awards made in the territory of another Contracting State."
Itah ratified the Convention on January 31, 1969, widiout
reservations.
The language of the Convention contemplates a very
limited inquiry by the courts in determining the enforce-
ability of arbitration clauses found in international
commercial agreements. In making this determination, the
Court must first address three questions: (1) Is there an
agreement in writing to arbitrate the subject of the dispute?,
(2) Does the agreement provide for arbitration in the territory
of a signatory country?, and (3) Does the agreement arise out
of a legal relationship, whether contractual or not, which is
considered as commercial? In the case of narrow arbitration
clauses, the court will determine if issues fall within the
scope of an arbitration clause before referring them to
arbitration.
In the case of broad arbitration clauses, arbitrability of
issues arguably falls within the scope of the clause and it will
be left to the arbitrators to determine whether an issue falls
within the scope of a clause. Nevertheless, in certain cases, a
stay or preliminary injunction may be a more appropriate
solution. A court may issue a preliminary injunction if it
deems preliminary injunctive relief necessary to ensure that
the arbitration process remains a meaningful one.
B. The Enforceability of the
Arbitration Clause
Each of the two parties is incorporated and has their principal
place of business in different countries that are signatories to
the New York Convention. The sales contract contains an
express agreement to arbitrate and provides for arbitration in
Italy. Thus, if the disputes between these parties fall within
the scope of their arbitration agreement, this Court must
enforce that agreement unless the Court finds that it falls
within the Tennessee Imports' claim of inducing and
procuring breach. A party cannot tortiously induce a breach
of its own contract, Tennessee Imports
The potential dangers of inexact drafting of forum selection clauses and resultant multitudinous
litigation are demonstrated in Frediani & Del Greco S.p.A. v. Gina Imports, LlcCs In this case,
Frediani & Del Greco, an Italian corporation, brought an action in an Illinois court against Gina
Imports, Ltd., an Illinois corporation, for collection of
35. 870 F Supp 217 (\ D 14)
133
cannot escape arbitration merely by characterizing these
claims as sounding in tort Courts have consistently held that
broad arbitration clauses encompass contract-based tort
claims.
Tennessee Imports argues that Prix used its superior
economic power to obtain Tennessee Imports' assent to the
arbitration clause without negotiation and, as such, it is
adhesive and unconscionable. The Uniform Commercial
Code addresses the subject of unconscionability in 2-302. It
states that "the basic test is whether, in the light of the
general commercial background and the commercial needs
of the particular trade or case, the clauses involved are so
one-sided as to be unconscionable under the circumstances
existing at the time of die making of the contract and not of
disturbance of allocation of risks because of superior
bargaining power." The clause is not hidden in the small
print boilerplate of a standard form contract. It is not the
product of a battle of forms. It is not buried among the
provisions of a lengthy and complex sales agreement. On its
face, the contract appears to be one specifically drawn to
define the relationship between these two parties. Tennessee
Imports appears to have had ample opportunity to examine
the contract before executing it. Having made its choice,
Tennessee Imports must now abide by it.
The parties are hereby REFERRED to arbitration.
Case Highlights
Arbitration clauses that state the place for arbitration
also serve as forum selection clauses.
In a case involving a "narrow" arbitration clause, the
court will determine if issues fall within the scope of an
arbitration clause before referring them to arbitration.
In case of "broad" arbitration clauses, the arbitrators
will generally determine the arbitrability of an issue.
A court may issue a preliminary injunction if it deems
preliminary injunctive relief necessary to ensure that the
arbitration process remains a meaningful one.
Courts are not receptive to attacks on the enforceability
of an arbitration clause on grounds of unconscionability,
especially when both parties are merchants.
134 Part 1 Legal and Ethical Environment of International Business

unpaid invoices relating to the delivery of olive oil. The terms and conditions stated on
the invoices provided, in part, "For any controversy, the only competent forum will be
Lucca." In granting Gina Import's motion for summary judgment, the District Court held
that, although the clause may have lost some meaning in its translation from Italian to
English and could have been clearer in any event, it nonetheless constituted an exclusive
forum selection agreement. The court held that use of die term any (onlroversy
encompassed litigation, arbitration, and other forms of dispute resolution. The term forum
referred to a location, of which Frediani & Del Greco's home city of Lucca qualified. As
for exclusivity, the court noted diat the language used was "will be" and not the usual
mandatory language "shall." Nevertheless, ouier words clarified that the clause was
mandatory. Specifically, the term forum was limited by only competent. The court
concluded that die word only in particular made the clause mandatory and exclusive. As a
result, the plaintiff was not permitted to disregard the forum selection clause within its
own invoice and was required to commence proceedings in Italy.
In the area of consumer purchases, some courts continue to void arbitration
clauses. In a 1999 New York court voided an arbitration clause as uncon-
scionable under Section 2-302 of the Uniform Commercial Code. Bower v. Gatervay^
involved the sale of a Gateway computer. After receiving an order either by mail, phone,
or Internet, Gateway mailed its "Standard Terms and Conditions of Agreement." The
standard terms stated that any dispute would be resolved under the arbitration rules of the
International Chamber of Commerce. The court in Bower held that the high cost of
arbitration would unconscionably deter the purchaser from invoking a claim.
In contrast, arbitration is accepted without question in most international business
settings. The court in Europcar Italia, S.P.A. v. Maiellano Tours, Inc?' held that any party
to a foreign arbitration award may seek confirmation in a U.S. court within three years
after the award was made.5*8 The case involved the enforcement of an award made
through an informal procedure in Italy. The U.S. Court of Appeals for the Second Circuit
held that "in light of the differences in arbitration among the signatory countries, the New
York Convention should be read broadly to cover both formal and informal arbitration. A
stay of confirmation should not be lightly granted lest it encourage abusive tactics by the
party diat lost in arbitration." 39
The next two sections examine two clauses, force majeure and liquidated damages,
which should also be analyzed in conjunction with the dispute resolution clause. The
force majeure clause provides excuses against breach of contract claims. The occurrence
of a force majeure event precludes the nonbreaching party from pursuing litigation or
arbitration against the breaching party. The liquidated damages clause, by which the
parties agree in advance to damages in the event of breach, may make litigation or
arbitration unnecessary.

Force Majeure Clause

A force majeure (superior force) clause allows a party to terminate its obligations under a
contract because of the occurrence of something described in the clause. Force majeure
events include wars, blockades, strikes, governmental interference or

3b fi76NYS2d 569 (A.pp Dn 1994)

37. 156 t %i 310 (2d Cir. ] 998)
38. 9 U S 207 (2000)
39. See also teitihzn Cmrjmcuton of India v /Dl Management, Im , 517 RSupp 948 (S D. Ohio 198U
Chapter 4 International Commercial Dispute Resolution

approval, fire, transportation problems, and others. Any event expressly designated by
the parties will be given force majeure effect. Often overlooked, a force majeure clause
should be custom drafted to take into account the type of industry, the countries, and type
of carriage involved.
The force majeure clause that excuses a breaching party from liability for non-
performance is common under most national legal systems. Force majeure refers to
"extraordinary events independent of the parties' will that cannot be foreseen or averted
by them with due diligence, being beyond their control and preventing the contracting
party from fulfilling the obligation undertaken in the contract." 40 Most force majeure
e\ents require four criteria to satisfy the requirements of most national laws: (1) The
event must be external to the transaction and the parties, (2) it must render the
performance radically different from that originally contemplated, (3) it must have been
unforeseeable (objectively), and (4) its occurrence must be beyond the control of the
party concerned.41
In Harriscom Svemka42 the force majeure clause enabled a seller to avoid liability for
not performing on a contract. An Iranian distributor filed a breach of contract claim
against a manufacturer of radio communications products. The manufacturer claimed an
excuse under the agreement's force majeure clause. It claimed that the U.S. government
prohibition on all sales to Iran of goods categorized as military equipment was a force
majeure event. The U.S. State Department began a commodity jurisdiction proceeding,
authorized by the Arms Export Control Act, to decide whether the radio was a military
product that should be on the government's munitions list. Placement on the list would
require the manufacturer to obtain export licenses for all its sales of the radio, not just
those to Iran. The manufacturer negotiated a compromise in which it agreed to
"voluntarily withdraw from further sales to the Iranian market." In exchange, the
government agreed that the radio was not subject to the stringent export controls of
munitions list products.
One of the issues before the court was whether the manufacturer's failure to ship
spare radio parts was a voluntary act or a force majeure. Other issues included whether
the defendant was released under the force majeure clause that excused performance
under circumstances of governmental interference, whether the voluntary nature of
defendant's compliance negated the excuse, and whether the defendant was required to
give substituted performance through its Indian licensee. Despite the voluntary nature of
the defendant's actions, the court held diat the government had undoubted power to
compel compliance. Like commercial impracticability, a force majeure clause excuses
nonperformance when circumstances beyond the control of the parties prevent
performance. The court held that the governmental interference in this case was such a
circumstance.
The importance of a well-drafted force majeure clause is illustrated by the case of
Bende if Sons, Inc. v. Crown Recreation, Inc.*3 In that case, a U.S. seller of combat boots
sought an excuse for nonperformance because of the derailment of the train transporting
the boots. It sought the excuse of commercial impracticability under Section 2-615 of the
Uniform Commercial Code. Section 2-615 provides foi an excuse for nonperformance
when performance is "made

40. Theo Rauh, "Legal Const qiu nets of Force Wafmip Undei German, Swiss tnghsh and United States' l.aw," 25 Drnvrr
jmirmil of International 1 nw & Pohp, ijl (1996)
41. Ibid at 152
42. 3 F3d57h (19)
43. 548 F. Supp. 1018 (ED Louisiana 1982)
136 Part 1 Legal and Lthical Environment of International Business

impracticable by the occurrence of a contingency the nonoccurrence of which was a basic

assumption on which the contract was made." Surprisingly, the court rejected the defense, holding
that the deiailment was. an allocated risk because "common sense dictates that the) could easily
have foreseen such an occurrence."44
In Phillips Puerto Rico Core, Inc. v. 'Iradax Petroleum,^'' liability rested upon the
interpretation of a standard force majeure clause in relationship to a tiade term. The clause in
question read as follows:

FORCE MAJEURE: In the event of any strike, fire in other event falling within the term Force
Majeure preventing or delaying shipment or delivery of the goods by the seller . . . then the
contract period of shipment or delivery shall he extended by 30 days on telex request made within
seven days of its octurreme. Should shipment or delivery of the goods continue to be prevented
beyond 30 days, the unaffected party may cancel the unfulfilled balance of the contract. Should the
rontrad thus be (amelled and/or perfoimance be prevented during any extension to the shipment or
delivery period neither party shall have any claim against the other. 41"

The trade term in the contract provided was cost and freight (C & F) for products to be shipped
irom Algeria to Puerto Rico. The U.S. Coast Guard unexpectedly detained the ship while in transit.
The purchaser brought suit against the seller for breach of contract, and die seller claimed an
excuse by invoking the force majeure clause. The court held that the defense was not necessary
because, under the & F term, the risk of loss had already passed to the purchaser at the port of
shipment. Therefore, the purchaser no longer had a claim of nonperformance against the seller. A
more detailed force majeure clause could have provided that the purchaser was not obligated on the
purchase if the goods were detained prior to actual delivery at the port of destination.
The force majeure clause should be a highly negotiated, customized provision dealing with the
particulars of the specific parties and specific type of contract. Unfortunately, most contracts,
domestic and international, utilize vaguely worded standard excuse or exemption clauses. In the
most recent edition of "Force Majeure and Hardship," the ICC provides an elaborate force majeure
clause.4' The ICC model clause includes a long list of traditional force majeure events, such as
hostilities between states, civil disorder, natural disasters, and compliance with applicable national
laws. However, the ICC also includes less apparent e\ents, such as prolonged failure of
telecommunications, which may absolve a party from performance of its contractual obligations.
Parties may be excused from their contractual obligations upon the occurrence of one of these
events if it is beyond the party's "reasonable control." The failure of third parties upon whom
performance of the contract depends may also relieve a contracting party of its obligations. It also
provides that, in any event, a party seeking relief pursuant to a force majeure

44 Ibid M 1022
43 782 F2d M4 ( )
46 This clause does possess a number of good features i\ti\ though it dots not adequately define the teim force majeure It
does define the responsibilities ol the parts atlciupting to dtdaii font majt tire It also plOMdes an automatic thntv-das
peifoimance extension beloie allowing thi piuthasi'i to c a n t c ] llu tonliact \gtadualed icsponsc to a ione majeuie eveni
should be considered m drafting a iorce majeure claust The diaftei should attempt to dtfnu not onl\ die e \ t n t s to hi
considered as loice majenie but also the relatue duties and rights of each parrv stemming h oin smli an ot tit
47 ICC, Publication No 650, "Foice Majeme ,md Haidship (2004)
Chapter 4 International Commercial Dispute Resolution

clause must undertake "all reasonable means to limit the effect of the impediment or
event upon its performance of its contractual duties."
The concept of force majeure or excuse has been incorporated in Article 79 of the
Convention for the International Sale of Goods (see Chapter Eight). Article 79 refers to a
force majeure event as an impediment. The impediment must be reasonably
unforeseeable because technically everything is foreseeable. Foreseeable impediments
cannot serve as an excuse for nonperformance. Foreseeable impediments or events are
occurrences "a party could reasonably be expected to take into account and to make
contingency plans for when entering into the contract." Work stoppages or strikes at a
supplier or subcontractor are generally not sufficient causes. This presumption ma\ be
overcome if, for example, the contract specifies the use of a particular supplier or
subcontractor.
Impediment does not mean inconvenient, or more costly, or difficult to perform.
Because the force majeure clause generally does not recognize changes in circumstances
that result in mere hardship, the parties may expand the clause to include events that
make performance not impossible but unduly costly. Such a clause is referred to as a
hardship clause. The most recent edition of the ICC's "Force Majeure and Hardship"
manual obligates parties to negotiate "alternative contractual terms" in the event
continued performance of the contract becomes "excessively onerous" because ol an
unforeseeable event beyond the reasonable control of the parties. The party invoking the
hardship clause may terminate die contract in the event it is unable to negotiate
satisfactory alternative terms with the other contracting party. The parties may avoid the
uncertainty associated with the vagueness of these terms by providing specific examples
within their contract. However, caution should be exercised in this regard, as any listing
will be incomplete by necessity, given the unforeseeable nature of many hardships.
Furthermore, any list of such occurrences may be deemed exclusive without language
indicating that tiiey are only demonstrative rather dian exhaustive.
Another force majeure type of clause that can be considered is fhe government
approval clause. If some government permit, license, or approval is required to perform
under the contract, then the parties may elect to have the approval be a condition
precedent to the contract. This type of provision is especially appropriate in an
intellectual property transfer transaction in a country where government approval is
required. A simple government approval clause in an export contract would read: "Seller
shall obtain all necessary permits, licenses, or permissions to export the goods. Buyer
shall obtain all necessary permits, licenses, or permissions to import the goods. This
contract is not fully executed and enforceable until such permissions have been
received."18

Liquidated Damages Clause

Liquidated damages clauses state in advance the damages that the parties agree to
voluntarily pay upon breaching the contract, technically eliminating the need for a court
action or arbitral proceeding. These clauses, however, also known as penalty clauses, are
not uniformly enforced under all national legal systems. This section compares
substantive differences in liquidated damages law among different legal systems.

48 William box }i International Commercial Agieenientt \ Pnmer on Drafting, \?%ntmting and Resolving DispuU-\ H>8
(3rcU-d 1998)