int. Litigation

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. 

- 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

- 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

- 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

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

- 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)

- 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)

- no knowledge of US Law and US Law procedural system

- enforcement of the judgement, but it can be easy, if the opponent has a US Bank Account

- adversarial model (Verhandlungsgrundsatz) - heavy responsibility upon parties/attorneys; no help from the courts

- heavy cost (american rule)

- Settlement (only 1-2 % go to trial)

American rule provides that each party is responsible for paying its own attorney's fees, unless specific authority granted by statute or contract allows the assessment of those fees against the other party. The American rule contrasts with the English rule, under which the losing party pays the prevailing party's attorneys' fees. 

- class action

- civil rights violations

- copyright and patent cases

- antitrust actions

- federal courts: federal rules of civil procedure (Title 28 US Code) / Federal Rules of Evidence - no common federal law on civil procedure (except Burden of Proof)

- state courts: state rules of civil procedure and evidence / state common law on civil procedure (Gewohnheitsrecht)

Es bedarf eines ordentlichen Gerichtsverfahren (Rechtsweggarantie), um jemanden sein Leben, Freiheit oder Eigentum zu entziehen (US Constitution, 5th and 14th Amendment)

- minimum contacts (Power of the court to adjudicate)

- proper notice to defendant (Personal delivery, Art. 4 FRP)

- Opporturnity of the defendant to be heard, including

-- right to be informed timely / right to present every available defense / in exceptional cases, the hearing take place after a judgement

case that arise under: 

- US Constitution

- Laws of United States (Bundesrecht)

- treaties

- between citizens of different states, even though US federal law is not involved

- US District Court has original jurisdiction of all civil actions if the sum or value of controversy exceeds 75'000 US-Dollar (exclusive Interest and costs) and is between citizens of different US-States, citiziens of a US-State and a foreign state.

yes, when there is complete diversity and the value of a claim has to be at least 75 000 US-Dollars

«…adresses the question whether a court has the power to render (erlassen) a binding, enforceable judgment defining or declaring the rights and duties of the parties

- Question of personal jurisdiction is the question of personal jurisdiction over the defendant

- domicile and residence in the state of a court

- domicile = intent to stay + facts on physical location (place of living, General Charakter - place where de defendant always can be sued, based on the sovereignity theory)

- "consent" (defendant does not challenge jurisdiction) - Prorogation; the defendant has not claimed that the court is not competent

- IMPORTANT: Firstly, the jurisdiction has to be doubt and afterwards the claim has to be doubt

What is the traditional approach of personal jurisdicition? (2/2)

- Methods to take evidence abroad in civil or commercial matters (only between state parties)

- it provides for taking evidence by means of letters of request or by diplomatic or consular agents and commissioners

- help resolve differences between civil law and common law systems with respect to taking evidence

- by using letter of request, a judicial authority of a state party (the requesting state) can ask the competent authority of another state party (the state addressed) to obtain evidence for use in judicial proceedings in the requesting state. 

- the law of the state addressed applies to the execution of the letter of request.