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Fenster schliessen

Part I: 

What is the basic idea of the "Forum non conveniens"?

a foreign client who escapes litigation in the United States can avoid

- Inconveniens of Litigation in the US

- Discovery dangers and expense

- possible punitive damages

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Definition of "Forum non conveniens"?

It is a discretionary doctrine that allows a court to dismiss a case that might be more properly heard in another forum (such as another country)

Clerides v. Boeing Co. 534 F. 3d: a common law doctrine of forum non conveniens allows a trial court to dismiss a suit over which it would normally have jurisdiction if it best serves the conveniens of the parties and the ends of justice

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Two part test? 

- Availability of a foreign forum (are all the parties amenable to process and subject to the jurisdiction of that foreign forum)

- Adequacy of the foreign forum (the parties will not be deprived of remedies or be treatend unfairly)

= If an adequate alternative forum is available, the court will weigh private and public interest factors

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What are private interest factors?

 

- relative ease of access to sources of proof

- availability of compulsory process for attendance of unwillig witnesses

- cost of obtaining the assistance of willing witnesses

- possibilities to view the premises (if appropriate)

- other practial factors that make trial of a case easy, expenditious and inexpensive

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what are the public interest factors?

- burden on courts with crowdes dockets
- local interest in having disputes decides locally
- interest in having the trial in the forum whose law will govern
- interest in avoiding unnecessary conflicts of law
- unfair burden of jury duty for citizens if there is no relationship to the forum

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How to win a motion to dismiss (Antrag auf Klageabweisung) based on forum non conveniens?

to prevail on a motion to dismiss based on forum non conveniens, the defendants must show that the relevant private and public interest factors strongly favor transfer of the case

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How can parallel proceedings be solved?

- motion to stay (Antrag auf Sistierung des Verfahrens)

- anti-suit injunction (prevents an opposing party from commencing or continiuing proceedings in another jurisdiction or forum)

- motion to compel arbitration (Antrag Streiterledigung zu erzwingen)

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Part III: 

Why is US such an litigation friendly place?

- Filling fees are low, in Europe there is a filing fee which is relatively to the value of a claim

- contingency fee: Lawyer takes the procedural risks. a party does not have to pay the lawyer, until they win. if they lose, the party has nothing to pay

- Juries: untrained persons and the reason why in US are that high damages

- damages: punitive damages, economic damages and damages for pain and suffering

-- punititive damages: state wants to punish the defendant, that means that there is a criminial element in civil law. a person can be punished twice (ne bis in idem). Punitive damages should make companies to change their behaviour. Compensating is not enough

-- economic damages: medical bills, therapy cost, wage loss

-- damages for pain and suffering (Genutuung): immaterila hardship

- easy jurisdiction rules

- "american rule":  loser do not have to pay, that means low risks to bring a lawsuit

- discovery procedure: both sides can gather information of the other sides case, it is easy to build a case

- class action: lawsuit that many victims can sue together a defendant

- reality in US: settle (very little cases go to litigation)