1、3-2CHAPTER 3DISPUTE RESOLUTIONTopics for this chapter:lSettlement of Disputes Through DiplomacylSettlement of Disputes in Int. TribunalslSettlement of Disputes in Municipal CourtslImmunities of States from the Jurisdiction of Municipal CourtslChoosing the Governing LawlRefusal to Exercise Jurisdicti

2、onlOpposition to the Exercise of JurisdictionlProving Foreign LawlRecognition of Foreign Judgments第1頁(yè)/共50頁(yè)3-3Settlement of Disputes Through Diplomacy Diplomacy is a form of international dispute settlement that uses negotiation, mediation, or inquiry. Negotiation is the process of reaching an agreem

3、ent by discussion. It may be done through diplomatic authorities, commissions, or at a summit conference.第2頁(yè)/共50頁(yè)3-4Settlement of Disputes Through Diplomacy Mediation uses an impartial third party to provide a channel of communication, known as offering their good offices. The mediator may engage in

4、 conciliation, whereby they investigate and make a settlement proposal to the parties. All parties must consent to a mediation. An inquiry is the process by which an impartial third party makes an investigation to determine the facts underlying a dispute without resolving the dispute itself. Inquiri

5、es are used to investigate the facts of a specific incident, such as the sinking of a ship. 第3頁(yè)/共50頁(yè)3-5Settlement of Disputes in International Tribunals If diplomacy fails, the parties usually turn to a court to resolve the dispute. Disputes between states or IGOs are taken to an international tribu

6、nal, such as the ICJ or a dispute resolution panel of the World Trade Organization. Disputes involving a private or company usually end up in arbitration or in a municipal court of a state. 第4頁(yè)/共50頁(yè)3-6International Court of Justice Principal judicial organ of the United Nations. It has jurisdiction

7、to hear: Disputes between states pursuant to its contentious jurisdiction. Cases from organs and specialized agencies of the UN pursuant to its advisory jurisdiction. No power to hear cases involving individuals. Comprised of 15 judges elected to nine-year terms.第5頁(yè)/共50頁(yè)3-7ICJ Jurisdiction For a con

8、tentious case, all the parties must have recognized the ICJs contentious jurisdiction. Optional Clause Jurisdiction unilateral grant of jurisdiction by a state to the ICJ. Most states put restrictions on the type of cases they will let the court hear. 第6頁(yè)/共50頁(yè)3-8ICJ Jurisdiction Under the rule of re

9、ciprocity, a state must respond to a suit brought against it only if the state bringing the suit has also accepted the jurisdiction of the ICJ under. Under a self-judging reservation or Connally Reservation clause a state may exclude from the jurisdiction of the ICJ any dispute that it determines is

10、 a domestic matter.第7頁(yè)/共50頁(yè)3-9ICJ Jurisdiction and Judgments The ICJs advisory jurisdiction is the power of the court to give opinions about issues of international law at the request of the United Nations or one of its specialized agencies. A judgment of the ICJ has no binding force except between

11、the parties as to that particular case. There is no way to force a state to comply with a judgment. Most comply voluntarily.第8頁(yè)/共50頁(yè)3-10International Criminal Court The ICC is an independent court of last resort that tries persons accused of the most serious international crimes. The ICC may exercis

12、e jurisdiction over individuals accused of: Genocide Crimes against humanity War crimes Assisting those committing the above crimes. Accused must be national of state or commit crime in state that accepts ICC jurisdiction. 第9頁(yè)/共50頁(yè)3-11World Trade Organization Dispute Settlement Procedures Implements

13、 and enforces the rules of international trade between nations. Rules are contained in agreements. Each agreement has three objectives: To help trade flow freely To achieve liberalization through negotiation To set up means to resolve disputes WTO dispute settlement process governed by the Understan

14、ding on Rules and Procedures Governing the Settlement of Disputes (DSU)第10頁(yè)/共50頁(yè)3-12The DSU Process The DSU encourages states to resolve disputes through consultation. Parties must enter into consultation within 30 days or Dispute Settlement Panel is formed. The organs charged with carrying out the

15、DSU are (1) the Dispute Settlement Body, (2) the Dispute Settlement Panels, and (3) the Appellate Body.第11頁(yè)/共50頁(yè)3-13Dispute Settlement Panel Made up of three panelists from states not involved in the dispute. Function is to assist the DSB by making an objective assessment of the facts and determinin

16、g the applicability and conformity with WTO agreements, then making findings to help the DSB make recommendations and rulings. The panel decision may be appealed to Appellate Body by a party to the dispute. 第12頁(yè)/共50頁(yè)3-14Case 3-1Japan-Taxes on Alcoholic Beverages Complaints by European Communities, C

17、anada, and US against Japan over Japanese Liquor Tax Law. Japan wanted panel to rely upon prior panel reports involving different complainants. Appellate Body held that panel reports help interpret the GATT but are not binding except with resolving the particular dispute between parties to that disp

18、ute. 第13頁(yè)/共50頁(yè)3-15International Center for the Settlement of Investment Disputes Purpose is to encourage private investment in underdeveloped countries. ICSID provides a mechanism for resolving disputes between an investor and the country of investment. Adopted rules for conciliations and arbitratio

19、ns. Third party states, including the investors state, may not intervene.第14頁(yè)/共50頁(yè)3-16The ICSID ProcessBefore ICSID can convene a panel, two steps must be satisfied:1. The host state and the state of the investor must both be parties to the Washington Convention.2. The investor and host state must b

20、oth consent to ICSID jurisdiction.Jurisdiction of the ICSID shall extend to any legal dispute arising directly out of an investment.Consent to jurisdiction may not be withdrawn. 第15頁(yè)/共50頁(yè)3-17The ICSID Arbitration Process Parties may select any odd number of arbitrators they agree upon. Majority must

21、 be from states not involved in the dispute. Arbitrations normally take place in Washington, D.C., but the parties can agree on another location with approval. Once consent to ICSID arbitration is given, it is the exclusive remedy for the parties and they may not ask for diplomatic intervention.第16頁(yè)

22、/共50頁(yè)3-18ICSID Jurisdiction ICSID must have jurisdiction over both the parties and over the subject matter of the dispute. Personal Jurisdiction Parties appearing must be a state party and national of another contracting state. A state party is the state itself, its agencies, or its subdivisions. Th

23、e national of another contracting state can be a natural person (human) or a juridical person (business entity). Juridical person must have a home state outside the investment state. (51% foreign ownership or foreign management.)第17頁(yè)/共50頁(yè)3-19ICSID Jurisdiction (cont.) Subject Matter Jurisdiction ICS

24、ID arbitration panels can only decide matters that are: Disputes Cannot be a collusive action in which the parties are not at odds. Must be a legal dispute where there is a disagreement as to the existence of a legal right or obligation. Arise out of an investment the ICSID convention does not defin

25、e investment. Absent an agreement, given the ordinary meaning of putting capital into a venture with the expectation of receiving a profit.第18頁(yè)/共50頁(yè)3-20ICSID and NAFTA NAFTA provisions protect cross-border investors and facilitate the settlement of investment disputes. Each party must accord investo

26、rs from other NAFTA parties national treatment and not expropriate investments. Investors may initiate arbitration under ICSID rules. Case 3-2 involves NAFTA parties and an arbitration commenced by Canadian company against the US.第19頁(yè)/共50頁(yè)3-21Case 3-2In the Matter of the Loewen Group Inc. v. United

27、States Loewen, a Canadian company that owned funeral homes in the US, lost an anti-competitive practices lawsuit in Mississippi. Jury set damages at $500M. Loewen challenged jury verdict under NAFTA. ICSID formed 3-person NAFTA arbitration panel. U.S. argued that jury decision in private contract li

28、tigation did not constitute a governmental measure under NAFTA. Panel found NAFTA jurisdiction, placing no limits on what type of court decision it considers covered by NAFTA. Opens up possibility of review of even U.S. Supreme Court decisions by NAFTA. Loewens claim was ultimately rejected for fail

29、ure to exhaust all remedies in the U.S. courts.第20頁(yè)/共50頁(yè)3-22Settlement of Disputesin Municipal Courts The ability of a national court to exercise the power to hear a case is known as jurisdiction. The ability of a party to escape the jurisdiction of a court is known as immunity.Natural and juridical

30、 persons have few immunities from a municipal court. Even state agencies, such as national airlines, are rarely able to claim immunity. 第21頁(yè)/共50頁(yè)3-23Jurisdiction in Criminal CasesCriminal prosecutions may be conducted where there is some nexus between the regulating nation and the crime or criminal.

31、 The connection between the form and person must be reasonable.Four nexuses justify criminal jurisdiction:1. Territorial nexus place where the crime is committed determines jurisdiction.2. Nationality nexus looks at nationality of person committing the crime to determine jurisdiction.3. Protective n

32、exus jurisdiction lies when national or international interest of the forum is injured.4. Universality nexus courts have jurisdiction over crimes of universal concern, such as slavery and hijacking.第22頁(yè)/共50頁(yè)3-24Jurisdiction in Civil Cases Jurisdiction in civil cases is based upon either in personam

33、or in rem principles. In personam jurisdiction is the power to decide matters concerning natural or juridical persons, while in rem jurisdiction is the power of a court to determine ownership rights of property. Persons subject to in personam jurisdiction: Nationals of the forum Individuals present

34、within the state Individuals domiciled in the state Individuals who consent to jurisdiction第23頁(yè)/共50頁(yè)3-25Case 3-3Bumper v. Comm. of Police Religious artifact discovered in India and illegally sold to Bumper in London. The temple in India sued to recover the artifact. Question was whether an instituti

35、on that was not recognized as a person under English law was entitled to sue as a legal entity because it was recognized under the laws of its own state. Held: If another country recognizes an institution as a legal entity, then the English courts will accept them as parties to suits. 第24頁(yè)/共50頁(yè)3-26J

36、urisdiction Over Juridical Persons Subject to in personam jurisdiction in a municipal court much in the same way that individuals are. Domestic entities are legal entities created within the state. Foreign entities subject to jurisdiction only if (1) they are recognized as juridical persons and (2)

37、they give their consent. The entity must be properly formed by a recognized government. Often use forum selection clause in agreements to choose a court or arbitration tribunal.第25頁(yè)/共50頁(yè)3-27Case 3-4Shell v. R. W. Sturge, Ltd.Plaintiffs were Ohio residents who invested in the Society of Lloyds, also

38、executing an agency agreement with Sturge to represent them with Lloyds as their Members Agent.Tried to sue under Ohio securities laws.Agreements contained both choice of law and forum selection clauses naming England.A selection forum clause in an international agreement should be enforced unless1.

39、 Enforcement would be unreasonable and unjust or2. The clause was invalid for reasons of fraud or overreaching. 第26頁(yè)/共50頁(yè)3-28Immunities of States From the Jurisdiction of Municipal CourtsSovereign states are immune from the jurisdiction of foreign courts1. when they engage in activities that are uni

40、que to sovereigns and2. where they act officially within their own territory.The doctrine of sovereign immunity says that domestic courts must decline to hear cases against foreign sovereigns.Absolute sovereign immunity has given way to restrictive sovereign immunity whereby a foreign state is not i

41、mmune when the cause of action for a suit is based on conduct unrelated to the states governmental activities (e.g. commercial activities).第27頁(yè)/共50頁(yè)3-29Case 3-5Abbott v. Republic of South Africa Plaintiff, a foreign national, worked at the embassy of South Africa as a bilingual secretary. Sued in Sp

42、anish court after her dismissal and won judgment. Tried to collect judgment by executing against bank accounts held by the embassy. Held: Vienna Convention on Diplomatic Relations provides immunity for foreign state property used for governmental activities.第28頁(yè)/共50頁(yè)3-30Act of State Doctrine Doctrin

43、e that restrains municipal courts from exercising jurisdiction over foreign states. The act of a government within the boundaries of its own territory is not subject to scrutiny in a foreign court. A municipal court will not hear a dispute based on such acts if to do so would interfere with the foru

44、m states foreign policy. The US implements this rule based upon the general system of separation of powers. U.S. Constitution(Public domain photo from Nat. Archives)第29頁(yè)/共50頁(yè)3-31Case 3-6Int. Assoc. of Machinists v. OPEC IAM sued OPEC for anti-trust violations arising out of OPECs price-setting activ

45、ities. 第30頁(yè)/共50頁(yè)3-32Case 3-6IAM v. OPEC (cont.) IAM alleged deliberate price-fixing and sought injunctive relief. The OPEC countries refused to recognize the courts jurisdiction. The court relied upon the act of state doctrine as stated in Underhill v. Hernandez, 168 U.S. 250 (1897): Every sovereign

46、 State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Despite commercial activity, the court refused to enter the delicate area of foreign relations an

47、d dismissed the action. 第31頁(yè)/共50頁(yè)3-33Choosing the Governing LawPrivate rights acquired under the laws of foreign states will be respected and enforced in our courts.In deciding which laws to apply to a dispute, a court will follow choice of law rules to determine if they should apply their own law o

48、r the law of another state.第32頁(yè)/共50頁(yè)3-34Choosing the Governing LawChoice of law is a two-step procedure:If the parties agree to application of the laws of a certain state, that law will apply.If no agreement on choice of law, the court will:1. Follow statutory dictates2. Determine which state has th

49、e most significant relationship with the dispute, or3. See which state has the greatest interest in the outcome.第33頁(yè)/共50頁(yè)3-35Choosing the Governing Law:Agreement of the Parties By using a choice of law clause in an agreement, the parties agree in advance as to what law should apply to any dispute th

50、at arises. Parties may agree by their statements to a court or by stating their position in pleadings. On rare occasions, courts will infer the intention of the parties as to choice of law based upon their actions. Court will most always skip over this option and look to statutory provisions.第34頁(yè)/共5

51、0頁(yè)3-36Choosing the Governing Law:Statutory Choice of Law Provisions If there is no agreement by the parties, the court will apply the law of the state where the rights of the parties to the suit became legally effective under the vested rights doctrine. To determine where the rights vest, the court

52、need only look to a statute (e.g., contract rights vest where the contract was entered into). For suits involving delicts (private wrongs or injuries) or torts, the governing law is the place where the wrong was committed. 第35頁(yè)/共50頁(yè)3-37Choosing the Governing Law:Most Significant Relationship The maj

53、ority of civil law states do not follow the rigid vested rights doctrine but have opted for either the most significant relationship doctrine or the governmental interests doctrine.Under the lost significant relationship doctrine, the court will apply the law of the state that has the most contact w

54、ith the parties. 第36頁(yè)/共50頁(yè)3-38Choosing the Governing Law:Most Significant Relationship Courts will consider the following general factors in all cases when seeking to apply the most significant relationship doctrine:1.Which states law best promotes the needs of the international system?2.Which state

55、s law will be furthered the most by applying it to the case at hand?3.Which states law will best promote the underlying policies of the legal subject matter area involved?第37頁(yè)/共50頁(yè)3-39Choosing the Governing Law:Most Significant RelationshipCourt will also consider specific factors depending upon the

56、 type of case.For tort cases, the specific factors are:1. Place of injury2. Place of the act3. Nationality, domicile, residence of the parties4. Place where relationship between parties was centered第38頁(yè)/共50頁(yè)3-40Choosing the Governing Law:Most Significant RelationshipFor person property cases, the sp

57、ecific factors are:1. The location of the property and2. The nationality, domicile, residence, or place of incorporation of the parties.For real property cases:1. Location of the property第39頁(yè)/共50頁(yè)3-41Choosing the Governing Law:Most Significant RelationshipThe specific factors in contract cases are:1

58、. The place of contracting,2. The place of negotiation,3. The place of performance,4. The location of the subject matter, and5. The nationality, domicile, residence, or place of incorporation of the parties. The most significant relationship doctrine is illustrated in Case 3-7.CONTRACT TO SELL KNOW

59、ALL MEN BY THESE PRESENTS:This CONTRACT TO SELL, made and executed this _ day of _, 2008 by and between: (NAME OF SELLER /VENDOR), of legal age, single/married to (Name of 第40頁(yè)/共50頁(yè)3-42Case 3-7Bank of India v. Naraindas Sadhwani Issue was whether Bank of India suit against guarantors (residents of H

60、ong Kong) who owned 60% of Japanese company that received funds should be resolved using Indian, British, or Japanese law.第41頁(yè)/共50頁(yè)3-43Case 3-7Bank of India v. Naraindas Sadhwani Under three-prong test, when the intention of the parties to a contract with regard to the law governing it is not expres