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International Litigation and Conflicts of Law
Wayne State University Law School
Dubinsky, Paul Richard

International Litigation
 
Part I. Subject Matter Jurisdiction
 
Class 1            Tues, 8/31                   Introduction, Alienage Jurisdiction, and the                                                                                                 Relationship between International Law and U.S. Law
                        B&R                pp. 5-30 (Hercules v. Dynamic Export)
 
What makes a dispute transnational? (1) parties; (2) evidence; (3) parallel proceeding; (5) question of preliminary relief; (6) enforcement; (7) international law applies in the dispute
 
Courts need:
(1)   The power over party – personal jurisdiction
(2)   Power over certain kind dispute – subject matter jurisdiction
 
Subject matter jurisdiction of federal court is limited jurisdiction – within boundary of Art III of Constitution.
l Federal Question. 28 USC §1331. The district shall have original jurisdiction … arising from .laws of U.S., constitution, treaty of U.S. When you do federal Q analysis, you want to do two part analysis: federal question, and jurisdictional statue (constitutional limit). Before you invoke 1331, you need to say which law it arise under.
1)      Federal statue. The status says that plaintiff has cause of action to go to federal court
2)      or cause of action arise under federal common law
3)      Treaties of U.S. – Violation of customary law is violating of law of U.S. (the federal common law of U.S.)
4)      Constitution of U.S.
l Diversity jurisdiction 28 USC §1332 – concern bias because we have jury system
l ATS. 28 USC §1350
1)      TVPA (Torture Victim Protection Act) 28 USC §1350 note.
 
Hercules Inc. v. Dynamic Export Corp. (3). Where a corporation is incorporated in state A and has its principal place of business in state B and the adverse party is a citizen of either A or B, diversity I slacking.
l According to the court, customary international law prohibits official torture, and section 1350 provides a jurisdictional basis for suits in federal courts for violations of this “law of nations” prohibition.
 
 
 
 
 
 
 
 
 
 
 
Class 2            Thurs, 9/2                   Federal Question Jurisdiction and
                                                            the Alien Tort Statute
                        B&R                pp. 31-66 (Filartiga v. Pena-Irala, Sosa v. Alvarez-Machain,                                                             Sequihua v. Texaco)
                        Doc Sup           Appendix A (Torture Victim Protection Act)
 
Filartiga v. Pena-Irala. (3). The Alien Tort Statute (ATS) (28 U.S.C. 1350) provides that the “district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or of a treaty of the United States.”
Sosa v. Alvarez-Machain (2004) (4). ATS only exclusively concerned with federal-court jurisdiction creation. It does not create a cause of action.
 
Sequihua v. Texaco, Inc. – contamination of the air in Ecuador. Under the doctrine known as comity of nations, a court should decline to exercise jurisdiction under certain circumstances in deference to the laws and interest of another foreign country.Country has it right to control its own natural resource.
l [Factor] analysis: (1) activities occurred in Ecuador; (2) P are all resident of Ecuador; (3) D are not resident of Texas; (4) enforcement is question; (5) interfere with foreign sovereign to control its own environment and resource; (6) expression objection  motion to dismiss granted.
 
 
Part II. Discovery Practice in International Litigation
 
Class 3            Tues, 9/7         Direct Discovery Under the Federal Rules of Civil                                                                           Procedure (10)
B&R                            pp. 907-34 (In re Uranium Antitrust Litigation, Dubai Islamic Bank v.Citibank, N.A.)
FRCP 37
 
Discovery form: Interrogator v. deposition
 
Crucial distinction between parties and non-parties!!!
l If non party and non compliance to the discovery order, you are at the end of road
o   Domestically – need court meets PJ requirement to issue discovery order
o   Transnational cases – physical evidence or individual locate outside: (1) Treaty – One option sue base on treaty where U.S. is a party; (2) Voluntary judicial cooperation mechanism
If individual is a party, US have many ways
l Rules of evidence discovery sanction
o   Request of Discovery Order in U.S.: (1) Point specific (2) Custody, Possession or Control.
o   A court has the power to order a person subj. to its jurisdiction to perform an act in another state.
l Monetary sanction
l Default admission
l Default dismissal
l Default judgment
 
In re Uranium. (11) Once personal jurisdiction over the person and control over the documents by the person are present, a United States court has power to order production of the document.
l Two preconditions for exercise of this power: (1) the court must have personal jurisdiction over the person. (2) the person must have control over the documents.
 
Dubai (13). Determining whether an individual is a managing agent
l Former employee is not managing agent is not employee, you have to pursue them as non-party
 
 
Class 4            Tues, 9/14       Conflicts Between U.S. Discovery Rules
                           and Foreign Law
                        Doc Sup           Appendix C (FRCP 45) Appendix Z (Restatement sec. 442)
B&R                            pp. 935-62 (Laker Airways v. Pan Am, U.S. v. First National City Bank, Reinsurance Co. of America v. Administratia Asigurarilor de Stat)
 
Direct US Discovery of Materials located abroad: Resolving conflicts between US Discovery orders and foreign law.
Problem – the direct US discovery orders for conflict with foreign blocking statutes. If US courts order discovery in violation of foreign law, they may subject an innocent private party to either US discovery sanction or foreign criminal penalty.
General rules – The U.S. plaintiff are seeking discovery from party. If it’s party, you can just serve discovery request of the document. If it is non party, you can’t simply subpoena unless the court issue subpoena has jurisdiction to this person.
 
Societe International v. Rogers. (13). In a foreign discovery dispute in which someone is seeking federal of civil procedures. They possess, custody, control. Begin from the premise tha

on is the intermediary party mechanism
setup intermediary filter the request and get the material for you
A request is going to come, for instance from US: either a judged and litigant themselves, specify what they want. Forward to a foreign official.
Everyone country has to designate which agency to be forwards.
Why would U.S. seek to a treaty like Hague Convention
U.S. – fill the gap (as a supplement to federal procedure; not as substitute)
Why would other country agree?
They were largely see it as a way to limit U.S. aggress discovery
 
International mechanism – possible alternative forms
l international judicial cooperation
l Cooperation among regulatory authorities that are not courts. i.e.
o   Anti-trust law abroad, by anti trust authority. In many foreign countries, there is regulatory authority. There may be inter agreement among these authorities.
l Prosecutorial cooperation – sharing information by prosecutorial authorities.
 
Aerospatiale [19]. As the matter interpreting, there is no general first use of the convention requirement. When the court has jurisdiction over a foreign litigant, the Hague Convention does not apply to the production of evidence in that litigant’s possession, even though the documents and information sought may physically be located within the territory of a foreign signature of the convention.
 
Benton Graphics v. Uddeholm Corp. (1987)[20]. The party seeking to utilize Convention procedure must demonstrate appropriate reasons. Reasoning: A foreign litigants attempting to supplant the federal rules with convention procedures must demonstrate why he particular facts and sovereign interest support using the Convention.
 
Major exception of Hague convention
l If evidence location in U.S. in then doesn’t apply
l E-discovery. If information you seek can be pull off in U.S. by D in U.S. then there is an argument.
l How do you advise foreign defendant to structure their information record?
 
In Re Vitamins Antitrust Litigation. [20]. Despite the strong interest in comity and the respect that this Court has for Belgium’s severing interest, the court will adopt jurisdictional discovery involving UCB SA proceed under the Federal Rules.
l Party seek first use of convention procedure has burden to show why need to use it.
o   (1) Particular fact of the case.à these are narrowly tailored
o   (2) Sovereign interest at stake.
§ Comity analysis… the extent to which noncompliance with the request would undermine important interest of the us.
o   (3) effectiveness of the convention procedure.