Module 2 Readings
Early in the week, complete the following:
· Read the overview for Module 2
· From the textbook, International business law and its environment, read the following chapters:
· Resolving International Commercial Disputes
· From the Internet, read:
· Bergsten, C. F., & Subramanian, A. (2008, October 8). Globalizing the crisis response. Washington Post. Retrieved from http://www.washingtonpost.com/wp-dyn/content/article/2008/10/07/AR2008100702440.html
· Kramer, L. (1996, January 29). McDonald’s accelerates international expansion. Nation's Restaurant News. Retrieved from EBSCOhost Business Source Elite
· Goudy, G. (2007). International expansion-risk sharing considerations. Business Credit, 109(1), 53-55. Retrieved from http://search.proquest.com.libproxy.edmc.edu/docview/230146054
· Pratap, R. (2008, April 23). AT&T in talks to re-enter Indian cellular market. Business Week. Retrieved fromhttp://www.businessweek.com/globalbiz/content/apr2008/ gb20080423_219907.htm
· World Trade Organization (WTO). (n.d.). World tariff profiles 2008. Retrieved fromhttp://www.wto.org/english/res_e/booksp_e/tariff_profiles08_e.pdf
CHAPTER 3: Resolving International Commercial Disputes
AVOIDING BUSINESS DISPUTES
Long-term business relationships are generally the most profitable ones. Experienced executives and international managers know this, and they work very hard to foster them, at both the personal and organizational levels. Long-term relationships are based on trust. In a world where we do business with people who look, speak, and act differently from ourselves and who live and work oceans away, trust takes on a new and even more important significance. Indeed, it has been said that all of international business is based on trust. Any dispute that threatens the bonds of trust can threaten future business opportunities, do irreparable harm to individual and corporate reputations, and permanently damage long-term relationships. Moreover, when disputes become combative, it can be costly, time consuming, and physically and mentally exhausting for all parties. After all, there is the real possibility that one or both of the parties will have to litigate in a protracted and expensive trial in a foreign court, before a foreign judge, and in a foreign language, and have their rights determined under foreign procedural rules and possibly foreign law. Quite often the parties must retain attorneys in more than one country. So, when disagreements break out, amicable settlements are usually the best outcome and offer the best hope of salvaging a business relationship. It is always helpful if the parties have a reservoir of trust and goodwill that they can draw on to settle the dispute in a friendly way. But, of course, this is not always possible, and the prudent international businessperson, in any contract or any venture, will seek good legal advice and always “hope for the best and plan for the worst.”
Nowhere is this more important than in negotia ...
This document discusses the potential participation of third parties like amicus curiae in arbitration proceedings. While some argue this could increase transparency and consider public policy issues, allowing third party participation may contradict the foundation of arbitration which is based on party consent. Arbitration differs from litigation in that it requires the agreement of both parties to arbitrate. This agreement forms the basis of the tribunal's jurisdiction. Introducing third parties could violate the privity of this arbitration agreement. The document will examine arguments for and against third party participation in arbitration and consider whether a balance can be struck between the need for transparency and maintaining arbitration's core features.
This document discusses alternative dispute resolution (ADR). It defines arbitration and describes its advantages as being cheaper, faster, and allowing parties more control over the process compared to litigation. The document outlines different types of ADR like mediation, conciliation, and negotiation. It notes that ADR provides confidentiality, uses experienced neutral parties, and takes a cooperative approach. The document also discusses disadvantages like potential unequal bargaining power between parties and lack of precedent. Overall, it analyzes the pros and cons of using ADR to resolve disputes compared to traditional litigation.
The document provides an introduction to alternative dispute resolution (ADR). It defines ADR as any method of resolving disputes without litigation through processes outside of governmental authority. The main ADR methods discussed are arbitration, mediation, negotiation, and conciliation. Advantages of ADR include rapidity, confidentiality, flexibility, and cost savings compared to traditional litigation. Arbitration involves a neutral arbitrator rendering a binding decision, while mediation uses a neutral mediator to help parties reach their own agreement. Negotiation allows parties to directly settle disputes themselves without a third party. Conciliation employs a neutral conciliator to help parties resolve differences and bring about a negotiated settlement.
Part Ii What Every Executive Should Know About Dispute ResolutionRBCG1
1) Litigation is costly for businesses and most cases settle before going to trial. During the litigation process, discovery allows both sides to determine boundaries for settlement negotiations.
2) Rejecting a settlement offer carries risks, as plaintiffs who turn down offers often receive less at trial. Plaintiffs were more likely to make poor choices about rejecting offers in contingency fee cases.
3) Negotiation is an important alternative to litigation for resolving disputes and should focus on interests rather than positions. Developing rapport and trust between parties can help reach a mutually agreeable solution.
April 2011 Part Ii What Every Executive Should Know About Dispute ResolutionRBCG1
1) Litigation is costly for businesses and most cases settle before going to trial. During the litigation process, discovery allows both sides to determine boundaries for settlement negotiations.
2) Plaintiffs who reject settlement offers often fare worse at trial, receiving smaller awards than the rejected offers. Defendants who reject settlement offers also often lose more by going to trial when they could have settled for less.
3) Negotiation is an important alternative to litigation for resolving disputes and should focus on interests rather than positions to find mutually agreeable solutions. Building rapport and trust between parties can help resolve current and future conflicts.
Here are the key points about conflict management and dispute resolution:
- Conflict and disputes are normal in human relationships and society. They can arise due to differences in interests, values or goals between parties.
- If not managed properly, conflicts can escalate and turn destructive, damaging relationships and causing psychological or physical harm. However, with effective resolution techniques, conflicts can also produce constructive outcomes where all parties feel satisfied.
- Different resolution methods exist along a continuum from cooperative to competitive. Cooperative techniques like negotiation, mediation and arbitration aim to find mutually agreeable solutions through compromise. Competitive methods like litigation aim to have one party win at the expense of others.
- The most constructive approach is usually cooperative resolution which
The document discusses the essentials of arbitration agreements. It states that arbitration agreements require parties to resolve disputes through a neutral third-party arbitrator instead of going to court. Contracts often include arbitration clauses that make this dispute resolution process mandatory if disagreements arise. While courts generally support arbitration, they may not enforce clauses if a party was not informed they were forfeiting their right to litigation or if the clause is presented unfairly. The document outlines some concerns about mandatory arbitration clauses preventing whistleblowing, limiting class action lawsuits, and relying on a single arbitrator's decision. It also discusses alternative dispute resolution options like mediation and escalating issues to senior management.
This document discusses how international commercial disputes are resolved through judicial and non-judicial means. It outlines different cultural attitudes toward contracts between high and low context cultures. It then discusses alternative dispute resolution (ADR) methods like arbitration, mediation, and conciliation that are commonly used in international contracts. The document provides examples of arbitration clauses and international ADR organizations. It also discusses challenges with international litigation like jurisdiction, service of process, venue, applicable law, and enforcing judgments across borders.
This document discusses the potential participation of third parties like amicus curiae in arbitration proceedings. While some argue this could increase transparency and consider public policy issues, allowing third party participation may contradict the foundation of arbitration which is based on party consent. Arbitration differs from litigation in that it requires the agreement of both parties to arbitrate. This agreement forms the basis of the tribunal's jurisdiction. Introducing third parties could violate the privity of this arbitration agreement. The document will examine arguments for and against third party participation in arbitration and consider whether a balance can be struck between the need for transparency and maintaining arbitration's core features.
This document discusses alternative dispute resolution (ADR). It defines arbitration and describes its advantages as being cheaper, faster, and allowing parties more control over the process compared to litigation. The document outlines different types of ADR like mediation, conciliation, and negotiation. It notes that ADR provides confidentiality, uses experienced neutral parties, and takes a cooperative approach. The document also discusses disadvantages like potential unequal bargaining power between parties and lack of precedent. Overall, it analyzes the pros and cons of using ADR to resolve disputes compared to traditional litigation.
The document provides an introduction to alternative dispute resolution (ADR). It defines ADR as any method of resolving disputes without litigation through processes outside of governmental authority. The main ADR methods discussed are arbitration, mediation, negotiation, and conciliation. Advantages of ADR include rapidity, confidentiality, flexibility, and cost savings compared to traditional litigation. Arbitration involves a neutral arbitrator rendering a binding decision, while mediation uses a neutral mediator to help parties reach their own agreement. Negotiation allows parties to directly settle disputes themselves without a third party. Conciliation employs a neutral conciliator to help parties resolve differences and bring about a negotiated settlement.
Part Ii What Every Executive Should Know About Dispute ResolutionRBCG1
1) Litigation is costly for businesses and most cases settle before going to trial. During the litigation process, discovery allows both sides to determine boundaries for settlement negotiations.
2) Rejecting a settlement offer carries risks, as plaintiffs who turn down offers often receive less at trial. Plaintiffs were more likely to make poor choices about rejecting offers in contingency fee cases.
3) Negotiation is an important alternative to litigation for resolving disputes and should focus on interests rather than positions. Developing rapport and trust between parties can help reach a mutually agreeable solution.
April 2011 Part Ii What Every Executive Should Know About Dispute ResolutionRBCG1
1) Litigation is costly for businesses and most cases settle before going to trial. During the litigation process, discovery allows both sides to determine boundaries for settlement negotiations.
2) Plaintiffs who reject settlement offers often fare worse at trial, receiving smaller awards than the rejected offers. Defendants who reject settlement offers also often lose more by going to trial when they could have settled for less.
3) Negotiation is an important alternative to litigation for resolving disputes and should focus on interests rather than positions to find mutually agreeable solutions. Building rapport and trust between parties can help resolve current and future conflicts.
Here are the key points about conflict management and dispute resolution:
- Conflict and disputes are normal in human relationships and society. They can arise due to differences in interests, values or goals between parties.
- If not managed properly, conflicts can escalate and turn destructive, damaging relationships and causing psychological or physical harm. However, with effective resolution techniques, conflicts can also produce constructive outcomes where all parties feel satisfied.
- Different resolution methods exist along a continuum from cooperative to competitive. Cooperative techniques like negotiation, mediation and arbitration aim to find mutually agreeable solutions through compromise. Competitive methods like litigation aim to have one party win at the expense of others.
- The most constructive approach is usually cooperative resolution which
The document discusses the essentials of arbitration agreements. It states that arbitration agreements require parties to resolve disputes through a neutral third-party arbitrator instead of going to court. Contracts often include arbitration clauses that make this dispute resolution process mandatory if disagreements arise. While courts generally support arbitration, they may not enforce clauses if a party was not informed they were forfeiting their right to litigation or if the clause is presented unfairly. The document outlines some concerns about mandatory arbitration clauses preventing whistleblowing, limiting class action lawsuits, and relying on a single arbitrator's decision. It also discusses alternative dispute resolution options like mediation and escalating issues to senior management.
This document discusses how international commercial disputes are resolved through judicial and non-judicial means. It outlines different cultural attitudes toward contracts between high and low context cultures. It then discusses alternative dispute resolution (ADR) methods like arbitration, mediation, and conciliation that are commonly used in international contracts. The document provides examples of arbitration clauses and international ADR organizations. It also discusses challenges with international litigation like jurisdiction, service of process, venue, applicable law, and enforcing judgments across borders.
Part Ii What Every Executive Should Know About Dispute ResolutionRBCG1
This document provides an overview of alternative dispute resolution and litigation for business executives. It discusses three key points:
1. Uncertainty from disputes can damage a company in many ways such as making lenders less likely to lend. It is difficult for executives to separate disputes from their personal and professional roles.
2. Most civil lawsuits settle before or during trial to avoid high costs and uncertainty. Effective pre-trial discovery is important for determining settlement parameters.
3. Studies show that plaintiffs who reject settlement offers usually fare worse financially at trial, while defendants who reject offers risk much larger losses if they receive an unfavorable verdict. Trials are high-risk gambles for both sides.
The document summarizes the mediation process for resolving civil disputes. It explains that mediation involves the plaintiff, defendant, their lawyers, and a neutral mediator meeting to negotiate a settlement. The mediator's role is to facilitate discussion between the parties to help them reach a voluntary agreement. The process begins with joint sessions where each side presents their case, followed by private caucus sessions where the mediator shuttles between the parties to narrow their differences. If an agreement is reached, the lawyers document the settlement terms in a legally binding contract. The document outlines the key steps and advantages of mediation over traditional litigation.
Arbitration is an alternative dispute resolution process where disputes are decided by an impartial third party, called an arbitrator, rather than a court. The arbitrator's decision is legally binding for both sides. Arbitration is commonly used to resolve commercial disputes, especially in international transactions, and sometimes for consumer and employment matters. It can be voluntary or mandatory according to a contract or statute. The key advantages of arbitration are that the parties have more control over the selection of the arbitrator and process, it is often faster than litigation, and arbitration awards are more easily enforced internationally under treaties. However, arbitration also has disadvantages like limited rights to appeal decisions.
My Client has been Sued in the United States--Now What?Scueto77
This document provides an overview of what a foreign company or individual can expect when facing a lawsuit in the United States. It discusses informing clients about differences from their own legal system, managing clients' fears, accurately explaining the issues in the client's native language, and addressing threshold questions of jurisdiction and the possibility of moving the case abroad. The key recommendations are to develop a simple written summary of the basic facts for clients in their own language, explain differences from their legal system, address fears about unfamiliar aspects like juries, and determine if the court has jurisdiction and if moving the case to another forum is possible.
The Benefits of Arbitrating International Commercial DisputesStephenLBrodsky
International arbitration provides several key advantages over cross-border litigation for resolving international commercial disputes. The most significant is that arbitral conventions like the New York Convention make it much easier to enforce arbitration awards across borders. Over 150 countries have signed on to the New York Convention. International arbitration also allows parties more control over procedure and greater input in selecting subject matter experts as arbitrators. While arbitration may involve certain disadvantages like limited discovery and appellate rights, it typically provides swifter, more flexible, and more confidential proceedings compared to litigation.
This document discusses the history and relevance of arbitration as a tool for dispute resolution in Nigeria. It provides the following key points:
1. Arbitration has existed since ancient times as a more informal way for parties to settle disputes without the formality and expense of courts. It originally involved parties agreeing to accept the decision of a third party to resolve their conflict.
2. Arbitration was used in Nigeria prior to colonialism through various customary dispute resolution methods. The British then introduced a formal arbitration system through ordinances in 1914 based on English law.
3. Today, arbitration is governed by the Arbitration and Conciliation Act and is an important alternative dispute resolution mechanism in Nigeria. It allows
BoyarMiller - Review of Boilerplate Contract Provisions: Say What You Mean an...BoyarMiller
Review of Boilerplate Contract Provisions: Say What You Mean and Mean What You Say
Presented by: Chris James & Jon Goch
to HYLA - Houston Young Lawyers Association on
March 4, 2015
Successful Strategies For Resolving Disputes (Jenny Cooper and Brendan Cash, ...nzde
1) Litigation can be a long and costly process with many variables outside the parties' control, so it's important to carefully consider objectives and strategy from the beginning.
2) Key questions include analyzing the facts and legal position, determining desired outcomes, and considering alternative dispute resolution options.
3) Ongoing strategic choices around procedures, settlement discussions, and preparation can impact the results, so parties should actively manage their approach throughout the process.
This document provides a summary of the United States and state court systems, including:
- The structure and selection of judges in the federal court system established by the Constitution compared to state court systems established by state laws and constitutions.
- The process for appealing decisions within the federal and state court hierarchies.
- The differences between civil and criminal cases and their jurisdiction in state and federal courts.
This document discusses international disputes and their settlement. It defines an international dispute as a disagreement between states on a point of law or fact that can arise from legal or political grounds. Disputes can be settled through amicable or peaceful means, such as negotiation, good offices, mediation, arbitration, or through the United Nations General Assembly or Security Council. The most common peaceful means are negotiation between the states directly, mediation involving a third party to participate in discussions, and arbitration where a third party makes a binding decision. International disputes may also be settled through legal means such as the International Court of Justice.
Arbitration as a method of resolving disputes Ishaan Savla
1) Arbitration is a formal process where a private third party arbitrator makes a binding decision to resolve disputes instead of going through litigation.
2) It has been used internationally since the late 19th century to resolve conflicts between countries in a private manner.
3) Arbitration results in a final ruling, unlike mediation which facilitates negotiations, and the rulings can be enforced globally through treaties like the 1958 New York Convention.
CASE 6B – CHESTER & WAYNE Chester & Wayne is a regional .docxannandleola
CASE 6B – CHESTER & WAYNE
Chester & Wayne is a regional food distribution company. Mr. Chester, CEO, has asked your
assistance in preparing cash-flow information for the last three months of this year. Selected
accounts from an interim balance sheet dated September 30, have the following balances:
Cash $142,100 Accounts payable $354,155
Marketable securities 200,000 Other payables 53,200
Accounts receivable $1,012,500
Inventories 150,388
Mr. Wayne, CFO, provides you with the following information based on experience and
management policy. All sales are credit sales and are billed the last day of the month of sale.
Customers paying within 10 days of the billing date may take a 2 percent cash discount. Forty
percent of the sales is paid within the discount period in the month following billing. An
additional 25 percent pays in the same month but does not receive the cash discount. Thirty
percent is collected in the second month after billing; the remainder is uncollectible. Additional
cash of $24,000 is expected in October from renting unused warehouse space.
Sixty percent of all purchases, selling and administrative expenses, and advertising expenses is
paid in the month incurred. The remainder is paid in the following month. Ending inventory is
set at 25 percent of the next month's budgeted cost of goods sold. The company's gross profit
averages 30 percent of sales for the month. Selling and administrative expenses follow the
formula of 5 percent of the current month's sales plus $75,000, which includes depreciation of
$5,000. Advertising expenses are budgeted at 3 percent of sales.
Actual and budgeted sales information is as follows:
Actual: Budgeted:
August $750,000 October $826,800
September 787,500 November 868,200
December 911,600
January 930,000
The company will acquire equipment costing $250,000 cash in November. Dividends of $45,000
will be paid in December.
The company would like to maintain a minimum cash balance at the end of each month of
$120,000. Any excess amounts go first to repayment of short-term borrowings and then to
investment in marketable securities. When cash is needed to reach the minimum balance, the
company policy is to sell marketable securities before borrowing.
The company will acquire equipment costing $250,000 cash in November. Dividends of $45,000
will be paid in December.
The company would like to maintain a minimum cash balance at the end of each month of
$120,000. Any excess amounts go first to repayment of short-term borrowings and then to
investment in marketable securities. When cash is needed to reach the minimum balance, the
company policy is to sell marketable securities before borrowing.
Questions (use of spreadsheet software is recommended):
1. Prepare a cash budget for each month of the fourth quarter and for the quarter in total.
Prepare supporting schedules as needed. (Round all budge.
CASE 9 Bulimia Nervosa Table 9-1 Dx Checklist Bulimia Nervos.docxannandleola
"CASE 9 Bulimia Nervosa Table 9-1 Dx Checklist Bulimia Nervosa 1. Repeated binge-eating episodes. 2. Repeated performance of ill-advised compensatory behaviors (e.g., forced vomiting) to prevent weight gain. 3. Symptoms take place at least weekly for a period of 3 months. 4. Inappropriate influence of weight and shape on appraisal of oneself. (Based on APA, 2013.) Rita was a 26-year-old manager of a local Italian restaurant and lived in the same city as her parents. Her childhood was not a happy one. Her parents divorced when she was about 5 years of age. She and her three older brothers remained with their mother, who often seemed overwhelmed with her situation and unable to run the household effectively. Rita would often refer to her childhood as utterly chaotic, as if no one were in charge. Within a 12-month period, 1 percent to 1.5 percent of individuals will meet the diagnostic criteria for bulimia nervosa; at least 90 percent of cases occur in females (APA, 2013). She nevertheless muddled through. When her brothers were finally all off to college or beyond, Rita entered high school, and the household seemed more manageable. Ultimately, she developed a close relationship with her mother, indeed too close, Rita suspected. Her mother seemed like her closest friend, at times the entire focus of her social life. They were both women alone, so to speak, and relied heavily on one another for comfort and support, preventing Rita from developing serious friendships. The two often went shopping together. Rita would give her mother an update on the most recent fashion trends, and her mother would talk to Rita about “how important it is to look good and be put together in this day and age.” Rita didn’t mind the advice, but sometimes she did wonder if her mother kept saying that as a way of telling her that she didn’t think she looked good. Rita later attended a local public college, majoring in business. However, she quit after 3 years to take a job at the restaurant. She had begun working in the restaurant part-time while a sophomore and after 2 years was offered the position of daytime manager. It was a well-paying job, and since her interest was business anyway, Rita figured it made sense to seize an attractive business opportunity. Her mother was not very supportive of her decision to leave college, but Rita reassured her that she intended to go back and finish up after she had worked for a while and saved some money. Just before leaving college, Rita began a serious relationship with a man whom she met at school. Their interest in each other grew, and they eventually got engaged. Everything seemed to be going well when out of the blue, her fiancé’s mental state began to deteriorate. Ultimately he manifested a pattern of schizophrenia and had to be hospitalized. As his impairment extended from days to months and then to more than a year, Rita finally had to end the engagement; she had to pick up the pieces and go on without him. She felt .
Case 9 Bulimia Nervosa in Gorenstein and Comer (2014)Rita was a.docxannandleola
Rita is a 26-year-old woman who struggles with bulimia nervosa. She engages in binge eating episodes 2-3 times per week, consuming over 4,000 calories in a single sitting. After binges, she purges through vomiting to avoid weight gain. Rita is preoccupied with her weight and body image. Though her weight is in the normal range, she is highly critical of her body and engages in frequent weighing, clothing comparisons, and mirror checking. Her disordered eating patterns have become more severe over time, further compromising her physical and mental health.
Case 8.1 Pros and Cons of Balkan Intervention59Must the a.docxannandleola
Case 8.1 Pros and Cons of Balkan Intervention59
“Must the agony of Bosnia-Herzegovina be regarded, with whatever regrets, as somebody else’s trouble?
We don’t think so, but the arguments on behalf of that view deserve an answer. Among them are the
following:
The Balkan conflict is a civil war and unlikely to spread beyond the borders of the former
Yugoslavia. Wrong. Belgrade has missiles trained on Vienna. Tito’s Yugoslavia claimed, by way of
Macedonia, that northern Greece as far south as Thessaloniki belonged under its sovereignty. Those
claims may return. ‘Civil’ war pitting non-Slavic Albanians against Serbs could spread to Albania,
Turkey, Bulgaria, and Greece.
The United States has no strategic interest in the Balkans. Wrong. No peace, no peace dividend.
Unless the West can impose the view that ethnic purity can no longer be the basis for national
sovereignty, then endless national wars will replace the Cold War. This threat has appeared in
genocidal form in Bosnia. If it cannot be contained here, it will erupt elsewhere, and the Clinton
administration’s domestic agenda will be an early casualty.
If the West intervenes on behalf of the Bosnians, the Russians will do so on behalf of the Serbs, and
the Cold War will be reborn. Wrong. The Russians have more to fear from ‘ethnic cleansing’ than
any people on Earth. Nothing would reassure them better than a new, post-Cold War Western
policy of massive, early response against the persecution of national minorities, including the
Russian minorities found in every post-Soviet republic. The Russian right may favor the Serbs, but
Russian self-interest lies elsewhere.
The Serbs also have their grievances. Wrong. They do, but their way of responding to these
grievances, according to the State Department’s annual human rights report, issued this past week,
‘dwarfs anything seen in Europe since Nazi times.’ Via the Genocide Convention, armed
intervention is legal as well as justified.
The UN peace plan is the only alternative. Wrong. Incredibly, the plan proposes the reorganization
of Bosnia-Herzegovina followed by a cease-fire. A better first step would be a UN declaration that
any nation or ethnic group proceeding to statehood on the principle of ethnic purity is an outlaw
state and will be treated as such. As now drafted, the UN peace plan, with a map of provinces that
not one party to the conflict accepts, is really a plan for continued ‘ethnic cleansing.’”
Case 8.2 Images, Arguments, and the Second Persian Gulf Crisis, 1990–
1991
The analysis of policy arguments can be employed to investigate the ways that policymakers represent or
structure problems (Chapter 3). We can thereby identify the images, or problem representations, that
shape processes of making and justifying decisions. For example, during times of crisis, the images which
United States policymakers have of another country affect deliberations about the use of peacekeeping
and negotiation, the imposition of economic sanctions, o.
Case 6-2 Not Getting Face Time at Facebook—and Getting the Last La.docxannandleola
Case 6-2 Not Getting Face Time at Facebook—and Getting the Last Laugh!
In August 2009, Facebook turned down job applicant Brian Acton, an experienced engineer who had previously worked at Yahoo and Apple. More than 4 years later, Facebook paid him $3 billion to acquire his 20% stake of WhatsApp, a start-up he had cofounded immediately after Facebook rejected his job application.(1) WhatsApp Messenger is a proprietary, cross-platform, instant-messaging subscription service for smartphones and selected feature phones that use the Internet for communication. In addition to text messaging, users can send each other images, video, and audio media messages, as well as their location using integrated mapping features.(2) How could Facebook, a highly successful firm, have made such a drastic mistake?
Back in 2009, Brian Acton was a software engineer who was out of work for what seemed like a very long time. He believed he had what it took to make a difference in the industry, but his career did not work out as planned. Even though he spent years at Apple and Yahoo, he got rejected many times by Twitter and Facebook.(3) Acton described the details of the interview process that he failed to do well in as follows:
First of all, interviewing a person for a job that requires technical skills is difficult for both the interviewer and the interviewee. Facebook is a highly desirable firm to work for and requires the best skills and talents from all of their potential employees. It is therefore not surprising that the selection process rivals, if not tops, any company in the industry. The process starts with an email or a phone call from a recruiter in response to an online application or [to] a recommendation from a friend who may work for Facebook. Sometimes, in the initial chat online, timed software coding challenges are set to find the best performers. If this chat goes well, an applicant will go on to the next level—an initial in-person interview or phone screening.(4)
In this next hurdle, the applicant will have a 45-minute chat with a fellow engineer/potential coworker, [with] whom he or she shares the same area of expertise. They will tell you about their job and what their role is in Facebook; then they ask about the applicant’s résumé, motivation, and interests. Additionally, the applicant will be tested about his or her technical skills, coding exercises, and programming abilities.(5)
If successful, the applicant will be invited for back-to-back interviews. This part of the process is very grueling and stressful since all the interviews take place throughout a single day. The candidate will also be asked to manually write a program on a whiteboard to make sure that the applicant is knowledgeable about program writing. The goal in this final step is to see how one approaches a problem and comes up with a solution [that] is simple enough to solve in 10–30 minutes and can be easily explained.(6)
As a potential coworker, the applicant will be te.
Case 6.4 The Case of the Poorly Performing SalespersonEd Markham.docxannandleola
Case 6.4 The Case of the Poorly Performing Salesperson
Ed Markham, the African American sales manager at WCTV, is considering how to handle a problem with one of his salespersons, Jane Folsom, who is White. Ed was promoted to sales manager three months ago after working at WCTV for 2 years. He earned his promotion by exceeding sales goals every month after his first on the job. He developed a research report using secondary data like MRI and the Lifestyle Market Analyst to analyze the market. His former boss praised the report, gave a copy to all salespersons, and included a summary of it in the rate card. When his former boss left for a new job in a larger market, he recommended Ed as his replacement.
Jane has been a salesperson at WCTV for 2 years. For most of that time, she has exceeded sales quotas about as much as Ed had. For the past 3 months, she has not met sales quotas. After his second month as sales manager, Ed talked to Jane about her performance. She attributed her below-average performance to the closing of a major advertiser, Anthony’s Fashions. This local clothing store closed because several major retailers, including JC Penney and Dillard’s, had opened at the local mall.
Ed listened to Jane’s explanation and then suggested ways to obtain new clients. He asked Jane whether she had set personal sales goals, set up a prospect file of new and inactive advertisers as well as existing businesses that were potential clients, come up with research and data on the market to use in presentations and reports to clients, come up with new ideas or opportunities to advertise for clients, or asked her clients about their needs and goals (Shaver, 1995). Jane said no, she simply telephoned or visited her clients regularly to see if they wanted to run ads.
Ed also asked Jane why several of her clients had not paid their bills. He explained that a salesperson must check out a client’s ability to pay before running a schedule. Jane replied that she was not aware of that fact and that no one had ever trained her to sell. She had sold time for a radio station before, but that was all the training she had. Ed’s predecessor had just hired her and cut her loose.
Ed gave Jane a memo after their first meeting a month ago asking her to focus on sales training for the next month. First, she should read Shaver’s (1995) Making the Sale! How to Sell Media With Marketing. He gave her a copy, told her to read it, and asked her to contact him if she had any questions. After reading the book, he told her that she should establish written personal sales goals, begin to develop a prospect file (with two new and two inactive clients), and develop three ideas for new advertising opportunities for existing clients. In the memo, Ed told Jane that he would not hold her to sales performance standards that month. He wanted Jane to focus on doing the background work he assigned to help her improve her future sales performance.
At the meeting a month later, Ed discovered.
Case 5.6Kelo v City of New London545 U.S. 469 (2005)Ye.docxannandleola
Case 5.6
Kelo v City of New London
545 U.S. 469 (2005)
Yes, Actually, They Can Take That Away From You
Facts
In 1978, the city of New London, Connecticut, undertook a redevelopment plan for purposes of creating a redeveloped area in and around the existing park at Fort Trumbull. The plan sought to develop the related ambience a state park should have, including the absence of pink cottages and other architecturally eclectic homes. Part of the redevelopment plan was the city’s deal with Pfizer Corporation for the location of its research facility in the area. The preface to the city’s development plan included the following statement of goals and purpose:
To create a development that would complement the facility that Pfizer was planning to build, create jobs, increase tax and other revenues, encourage public access to and use of the city’s waterfront, and eventually “build momentum” for the revitalization of the rest of the city, including its downtown area.
The affected property owners, including Susette Kelo, live in homes and cottages (15 total) located in and around other existing structures that would be permitted to stay in the area designated for the proposed new structures (under the city’s economic development plan) that would be placed there primarily by private land developers and corporations. The city was assisted by a private, nonprofit corporation, the New London Development Corporation (NLDC), in the development of the economic plan and piloting it through the various governmental processes, including that of city council approval. The central focus of the plan was getting Pfizer to the Fort Trumbull area (where the homeowners and their properties were located) with the hope of a resulting economic boost that such a major corporate employer can bring to an area.
Kelo and the other landowners whose homes would be razed to make room for Pfizer and the accompanying and resulting economic development plan filed suit challenging New London’s legal authority to take their homes. The trial court issued an injunction preventing New London from taking certain of the properties but allowing others to be taken. The appellate court found for New London on all the claims, and the landowners (petitioners) appealed.
Judicial Opinion
STEVENS, Justice Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future “use by the public” is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case.
The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpos.
CASE 5.10 FIBREBOARD PAPER PRODUCTS CORP. V. NLRB SUPREME COURT OF.docxannandleola
CASE 5.10 FIBREBOARD PAPER PRODUCTS CORP. V. NLRB SUPREME COURT OF THE UNITED STATES, 379 U.S. 203 (1964).
[After receiving union proposals for contract revisions for the benefit of the maintenance workers at the company’s Emeryville, California, plant, the company advised the union that negotiations for a new contract would be pointless because it had definitely decided to contract out the work performed by the employees covered by the agreement upon the expiration of the agreement. The company planned to replace these employees with an independent contractor’s employees and expected that substantial savings would be effected by this contracting-out of the work. The Board ordered the company to reinstate the maintenance operation with the union employees, reinstate the employees with back pay, and fulfill its statutory bargaining obligation. The court of appeals granted the Board’s enforcement petition, and the Supreme Court agreed to hear the case.]
WARREN, C. J.... I. Section 8(a)(5) of the National Labor Relations Act provides that it shall be an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees.” Collective bar- gaining is defined in Section 8(d)
as the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment.
“Read together, these provisions establish the obligation of the employer and the representative of its employees to bargain with each other in good faith with respect to ‘wages, hours, and other terms and conditions of employment....’ The duty is limited to those subjects, and within that area neither is legally obligated to yield. Labor Board v. American Ins. Co., 343 U.S. 395. As to other matters, however, each party is free to bargain or not to bargain....” Labor Board v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 349. Because of the limited grant of certiorari, we are concerned here only with whether the subject upon which the employer allegedly refused to bargain— contracting out of plant maintenance work previously performed by employees in the bargaining unit, which the employees were capable of continuing to perform—is covered by the phrase “terms and conditions of employment” within the meaning of Section 8(d).
The subject matter of the present dispute is well within the literal meaning of the phrase “terms and conditions of employment.”
As the Court of Appeals pointed out, it is not necessary that it be likely or probable that the union will yield or supply a feasible solution but rather that the union be afforded an opportunity to meet management’s legitimate complaints that its maintenance was unduly costly.
We are thus not expanding the scope of mandatory bargaining to hold, as we do now, that the type of “contracting out” involved in this case—the replacement of employees in the exi.
Case 4 The McDonald’s China Food Supplier Scandal1. What we.docxannandleola
Case 4:
The McDonald’s China Food Supplier Scandal
1. What were the root causes for Husi’s misbehavior?
2. What are the major challenges faced by the multinationals such as McDonald’s in supply chain management in China?
3. Should McDonald’s be held responsible for the scandal? How could McDonald’s avoid similar situations from happening again?
4. Should OSI be held responsible for the scandal? What should OSI do to prevent similar situations from happening again?
.
Case 3 Neesha Wilson Phoenix Rising Risks, Protective Factors, and.docxannandleola
Neesha Wilson, a 10-year-old African American girl, was referred for assessment by her school due to poor academic performance and behavioral issues. She lives with her mother and older brother, as her father left the family 3 years ago. Testing showed Neesha's intellectual abilities were likely underestimated and her academic skills were well above grade level, though she was repeating 4th grade. Neesha reported worries about school performance and family stressors, and showed signs of anxiety through somatic symptoms like fatigue. While most scores were normal, elevated scales indicated concerns with negative mood, physiological arousal, and somatic complaints.
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CASE 6B – CHESTER & WAYNE Chester & Wayne is a regional .docxannandleola
CASE 6B – CHESTER & WAYNE
Chester & Wayne is a regional food distribution company. Mr. Chester, CEO, has asked your
assistance in preparing cash-flow information for the last three months of this year. Selected
accounts from an interim balance sheet dated September 30, have the following balances:
Cash $142,100 Accounts payable $354,155
Marketable securities 200,000 Other payables 53,200
Accounts receivable $1,012,500
Inventories 150,388
Mr. Wayne, CFO, provides you with the following information based on experience and
management policy. All sales are credit sales and are billed the last day of the month of sale.
Customers paying within 10 days of the billing date may take a 2 percent cash discount. Forty
percent of the sales is paid within the discount period in the month following billing. An
additional 25 percent pays in the same month but does not receive the cash discount. Thirty
percent is collected in the second month after billing; the remainder is uncollectible. Additional
cash of $24,000 is expected in October from renting unused warehouse space.
Sixty percent of all purchases, selling and administrative expenses, and advertising expenses is
paid in the month incurred. The remainder is paid in the following month. Ending inventory is
set at 25 percent of the next month's budgeted cost of goods sold. The company's gross profit
averages 30 percent of sales for the month. Selling and administrative expenses follow the
formula of 5 percent of the current month's sales plus $75,000, which includes depreciation of
$5,000. Advertising expenses are budgeted at 3 percent of sales.
Actual and budgeted sales information is as follows:
Actual: Budgeted:
August $750,000 October $826,800
September 787,500 November 868,200
December 911,600
January 930,000
The company will acquire equipment costing $250,000 cash in November. Dividends of $45,000
will be paid in December.
The company would like to maintain a minimum cash balance at the end of each month of
$120,000. Any excess amounts go first to repayment of short-term borrowings and then to
investment in marketable securities. When cash is needed to reach the minimum balance, the
company policy is to sell marketable securities before borrowing.
The company will acquire equipment costing $250,000 cash in November. Dividends of $45,000
will be paid in December.
The company would like to maintain a minimum cash balance at the end of each month of
$120,000. Any excess amounts go first to repayment of short-term borrowings and then to
investment in marketable securities. When cash is needed to reach the minimum balance, the
company policy is to sell marketable securities before borrowing.
Questions (use of spreadsheet software is recommended):
1. Prepare a cash budget for each month of the fourth quarter and for the quarter in total.
Prepare supporting schedules as needed. (Round all budge.
CASE 9 Bulimia Nervosa Table 9-1 Dx Checklist Bulimia Nervos.docxannandleola
"CASE 9 Bulimia Nervosa Table 9-1 Dx Checklist Bulimia Nervosa 1. Repeated binge-eating episodes. 2. Repeated performance of ill-advised compensatory behaviors (e.g., forced vomiting) to prevent weight gain. 3. Symptoms take place at least weekly for a period of 3 months. 4. Inappropriate influence of weight and shape on appraisal of oneself. (Based on APA, 2013.) Rita was a 26-year-old manager of a local Italian restaurant and lived in the same city as her parents. Her childhood was not a happy one. Her parents divorced when she was about 5 years of age. She and her three older brothers remained with their mother, who often seemed overwhelmed with her situation and unable to run the household effectively. Rita would often refer to her childhood as utterly chaotic, as if no one were in charge. Within a 12-month period, 1 percent to 1.5 percent of individuals will meet the diagnostic criteria for bulimia nervosa; at least 90 percent of cases occur in females (APA, 2013). She nevertheless muddled through. When her brothers were finally all off to college or beyond, Rita entered high school, and the household seemed more manageable. Ultimately, she developed a close relationship with her mother, indeed too close, Rita suspected. Her mother seemed like her closest friend, at times the entire focus of her social life. They were both women alone, so to speak, and relied heavily on one another for comfort and support, preventing Rita from developing serious friendships. The two often went shopping together. Rita would give her mother an update on the most recent fashion trends, and her mother would talk to Rita about “how important it is to look good and be put together in this day and age.” Rita didn’t mind the advice, but sometimes she did wonder if her mother kept saying that as a way of telling her that she didn’t think she looked good. Rita later attended a local public college, majoring in business. However, she quit after 3 years to take a job at the restaurant. She had begun working in the restaurant part-time while a sophomore and after 2 years was offered the position of daytime manager. It was a well-paying job, and since her interest was business anyway, Rita figured it made sense to seize an attractive business opportunity. Her mother was not very supportive of her decision to leave college, but Rita reassured her that she intended to go back and finish up after she had worked for a while and saved some money. Just before leaving college, Rita began a serious relationship with a man whom she met at school. Their interest in each other grew, and they eventually got engaged. Everything seemed to be going well when out of the blue, her fiancé’s mental state began to deteriorate. Ultimately he manifested a pattern of schizophrenia and had to be hospitalized. As his impairment extended from days to months and then to more than a year, Rita finally had to end the engagement; she had to pick up the pieces and go on without him. She felt .
Case 9 Bulimia Nervosa in Gorenstein and Comer (2014)Rita was a.docxannandleola
Rita is a 26-year-old woman who struggles with bulimia nervosa. She engages in binge eating episodes 2-3 times per week, consuming over 4,000 calories in a single sitting. After binges, she purges through vomiting to avoid weight gain. Rita is preoccupied with her weight and body image. Though her weight is in the normal range, she is highly critical of her body and engages in frequent weighing, clothing comparisons, and mirror checking. Her disordered eating patterns have become more severe over time, further compromising her physical and mental health.
Case 8.1 Pros and Cons of Balkan Intervention59Must the a.docxannandleola
Case 8.1 Pros and Cons of Balkan Intervention59
“Must the agony of Bosnia-Herzegovina be regarded, with whatever regrets, as somebody else’s trouble?
We don’t think so, but the arguments on behalf of that view deserve an answer. Among them are the
following:
The Balkan conflict is a civil war and unlikely to spread beyond the borders of the former
Yugoslavia. Wrong. Belgrade has missiles trained on Vienna. Tito’s Yugoslavia claimed, by way of
Macedonia, that northern Greece as far south as Thessaloniki belonged under its sovereignty. Those
claims may return. ‘Civil’ war pitting non-Slavic Albanians against Serbs could spread to Albania,
Turkey, Bulgaria, and Greece.
The United States has no strategic interest in the Balkans. Wrong. No peace, no peace dividend.
Unless the West can impose the view that ethnic purity can no longer be the basis for national
sovereignty, then endless national wars will replace the Cold War. This threat has appeared in
genocidal form in Bosnia. If it cannot be contained here, it will erupt elsewhere, and the Clinton
administration’s domestic agenda will be an early casualty.
If the West intervenes on behalf of the Bosnians, the Russians will do so on behalf of the Serbs, and
the Cold War will be reborn. Wrong. The Russians have more to fear from ‘ethnic cleansing’ than
any people on Earth. Nothing would reassure them better than a new, post-Cold War Western
policy of massive, early response against the persecution of national minorities, including the
Russian minorities found in every post-Soviet republic. The Russian right may favor the Serbs, but
Russian self-interest lies elsewhere.
The Serbs also have their grievances. Wrong. They do, but their way of responding to these
grievances, according to the State Department’s annual human rights report, issued this past week,
‘dwarfs anything seen in Europe since Nazi times.’ Via the Genocide Convention, armed
intervention is legal as well as justified.
The UN peace plan is the only alternative. Wrong. Incredibly, the plan proposes the reorganization
of Bosnia-Herzegovina followed by a cease-fire. A better first step would be a UN declaration that
any nation or ethnic group proceeding to statehood on the principle of ethnic purity is an outlaw
state and will be treated as such. As now drafted, the UN peace plan, with a map of provinces that
not one party to the conflict accepts, is really a plan for continued ‘ethnic cleansing.’”
Case 8.2 Images, Arguments, and the Second Persian Gulf Crisis, 1990–
1991
The analysis of policy arguments can be employed to investigate the ways that policymakers represent or
structure problems (Chapter 3). We can thereby identify the images, or problem representations, that
shape processes of making and justifying decisions. For example, during times of crisis, the images which
United States policymakers have of another country affect deliberations about the use of peacekeeping
and negotiation, the imposition of economic sanctions, o.
Case 6-2 Not Getting Face Time at Facebook—and Getting the Last La.docxannandleola
Case 6-2 Not Getting Face Time at Facebook—and Getting the Last Laugh!
In August 2009, Facebook turned down job applicant Brian Acton, an experienced engineer who had previously worked at Yahoo and Apple. More than 4 years later, Facebook paid him $3 billion to acquire his 20% stake of WhatsApp, a start-up he had cofounded immediately after Facebook rejected his job application.(1) WhatsApp Messenger is a proprietary, cross-platform, instant-messaging subscription service for smartphones and selected feature phones that use the Internet for communication. In addition to text messaging, users can send each other images, video, and audio media messages, as well as their location using integrated mapping features.(2) How could Facebook, a highly successful firm, have made such a drastic mistake?
Back in 2009, Brian Acton was a software engineer who was out of work for what seemed like a very long time. He believed he had what it took to make a difference in the industry, but his career did not work out as planned. Even though he spent years at Apple and Yahoo, he got rejected many times by Twitter and Facebook.(3) Acton described the details of the interview process that he failed to do well in as follows:
First of all, interviewing a person for a job that requires technical skills is difficult for both the interviewer and the interviewee. Facebook is a highly desirable firm to work for and requires the best skills and talents from all of their potential employees. It is therefore not surprising that the selection process rivals, if not tops, any company in the industry. The process starts with an email or a phone call from a recruiter in response to an online application or [to] a recommendation from a friend who may work for Facebook. Sometimes, in the initial chat online, timed software coding challenges are set to find the best performers. If this chat goes well, an applicant will go on to the next level—an initial in-person interview or phone screening.(4)
In this next hurdle, the applicant will have a 45-minute chat with a fellow engineer/potential coworker, [with] whom he or she shares the same area of expertise. They will tell you about their job and what their role is in Facebook; then they ask about the applicant’s résumé, motivation, and interests. Additionally, the applicant will be tested about his or her technical skills, coding exercises, and programming abilities.(5)
If successful, the applicant will be invited for back-to-back interviews. This part of the process is very grueling and stressful since all the interviews take place throughout a single day. The candidate will also be asked to manually write a program on a whiteboard to make sure that the applicant is knowledgeable about program writing. The goal in this final step is to see how one approaches a problem and comes up with a solution [that] is simple enough to solve in 10–30 minutes and can be easily explained.(6)
As a potential coworker, the applicant will be te.
Case 6.4 The Case of the Poorly Performing SalespersonEd Markham.docxannandleola
Case 6.4 The Case of the Poorly Performing Salesperson
Ed Markham, the African American sales manager at WCTV, is considering how to handle a problem with one of his salespersons, Jane Folsom, who is White. Ed was promoted to sales manager three months ago after working at WCTV for 2 years. He earned his promotion by exceeding sales goals every month after his first on the job. He developed a research report using secondary data like MRI and the Lifestyle Market Analyst to analyze the market. His former boss praised the report, gave a copy to all salespersons, and included a summary of it in the rate card. When his former boss left for a new job in a larger market, he recommended Ed as his replacement.
Jane has been a salesperson at WCTV for 2 years. For most of that time, she has exceeded sales quotas about as much as Ed had. For the past 3 months, she has not met sales quotas. After his second month as sales manager, Ed talked to Jane about her performance. She attributed her below-average performance to the closing of a major advertiser, Anthony’s Fashions. This local clothing store closed because several major retailers, including JC Penney and Dillard’s, had opened at the local mall.
Ed listened to Jane’s explanation and then suggested ways to obtain new clients. He asked Jane whether she had set personal sales goals, set up a prospect file of new and inactive advertisers as well as existing businesses that were potential clients, come up with research and data on the market to use in presentations and reports to clients, come up with new ideas or opportunities to advertise for clients, or asked her clients about their needs and goals (Shaver, 1995). Jane said no, she simply telephoned or visited her clients regularly to see if they wanted to run ads.
Ed also asked Jane why several of her clients had not paid their bills. He explained that a salesperson must check out a client’s ability to pay before running a schedule. Jane replied that she was not aware of that fact and that no one had ever trained her to sell. She had sold time for a radio station before, but that was all the training she had. Ed’s predecessor had just hired her and cut her loose.
Ed gave Jane a memo after their first meeting a month ago asking her to focus on sales training for the next month. First, she should read Shaver’s (1995) Making the Sale! How to Sell Media With Marketing. He gave her a copy, told her to read it, and asked her to contact him if she had any questions. After reading the book, he told her that she should establish written personal sales goals, begin to develop a prospect file (with two new and two inactive clients), and develop three ideas for new advertising opportunities for existing clients. In the memo, Ed told Jane that he would not hold her to sales performance standards that month. He wanted Jane to focus on doing the background work he assigned to help her improve her future sales performance.
At the meeting a month later, Ed discovered.
Case 5.6Kelo v City of New London545 U.S. 469 (2005)Ye.docxannandleola
Case 5.6
Kelo v City of New London
545 U.S. 469 (2005)
Yes, Actually, They Can Take That Away From You
Facts
In 1978, the city of New London, Connecticut, undertook a redevelopment plan for purposes of creating a redeveloped area in and around the existing park at Fort Trumbull. The plan sought to develop the related ambience a state park should have, including the absence of pink cottages and other architecturally eclectic homes. Part of the redevelopment plan was the city’s deal with Pfizer Corporation for the location of its research facility in the area. The preface to the city’s development plan included the following statement of goals and purpose:
To create a development that would complement the facility that Pfizer was planning to build, create jobs, increase tax and other revenues, encourage public access to and use of the city’s waterfront, and eventually “build momentum” for the revitalization of the rest of the city, including its downtown area.
The affected property owners, including Susette Kelo, live in homes and cottages (15 total) located in and around other existing structures that would be permitted to stay in the area designated for the proposed new structures (under the city’s economic development plan) that would be placed there primarily by private land developers and corporations. The city was assisted by a private, nonprofit corporation, the New London Development Corporation (NLDC), in the development of the economic plan and piloting it through the various governmental processes, including that of city council approval. The central focus of the plan was getting Pfizer to the Fort Trumbull area (where the homeowners and their properties were located) with the hope of a resulting economic boost that such a major corporate employer can bring to an area.
Kelo and the other landowners whose homes would be razed to make room for Pfizer and the accompanying and resulting economic development plan filed suit challenging New London’s legal authority to take their homes. The trial court issued an injunction preventing New London from taking certain of the properties but allowing others to be taken. The appellate court found for New London on all the claims, and the landowners (petitioners) appealed.
Judicial Opinion
STEVENS, Justice Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future “use by the public” is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case.
The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpos.
CASE 5.10 FIBREBOARD PAPER PRODUCTS CORP. V. NLRB SUPREME COURT OF.docxannandleola
CASE 5.10 FIBREBOARD PAPER PRODUCTS CORP. V. NLRB SUPREME COURT OF THE UNITED STATES, 379 U.S. 203 (1964).
[After receiving union proposals for contract revisions for the benefit of the maintenance workers at the company’s Emeryville, California, plant, the company advised the union that negotiations for a new contract would be pointless because it had definitely decided to contract out the work performed by the employees covered by the agreement upon the expiration of the agreement. The company planned to replace these employees with an independent contractor’s employees and expected that substantial savings would be effected by this contracting-out of the work. The Board ordered the company to reinstate the maintenance operation with the union employees, reinstate the employees with back pay, and fulfill its statutory bargaining obligation. The court of appeals granted the Board’s enforcement petition, and the Supreme Court agreed to hear the case.]
WARREN, C. J.... I. Section 8(a)(5) of the National Labor Relations Act provides that it shall be an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees.” Collective bar- gaining is defined in Section 8(d)
as the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment.
“Read together, these provisions establish the obligation of the employer and the representative of its employees to bargain with each other in good faith with respect to ‘wages, hours, and other terms and conditions of employment....’ The duty is limited to those subjects, and within that area neither is legally obligated to yield. Labor Board v. American Ins. Co., 343 U.S. 395. As to other matters, however, each party is free to bargain or not to bargain....” Labor Board v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 349. Because of the limited grant of certiorari, we are concerned here only with whether the subject upon which the employer allegedly refused to bargain— contracting out of plant maintenance work previously performed by employees in the bargaining unit, which the employees were capable of continuing to perform—is covered by the phrase “terms and conditions of employment” within the meaning of Section 8(d).
The subject matter of the present dispute is well within the literal meaning of the phrase “terms and conditions of employment.”
As the Court of Appeals pointed out, it is not necessary that it be likely or probable that the union will yield or supply a feasible solution but rather that the union be afforded an opportunity to meet management’s legitimate complaints that its maintenance was unduly costly.
We are thus not expanding the scope of mandatory bargaining to hold, as we do now, that the type of “contracting out” involved in this case—the replacement of employees in the exi.
Case 4 The McDonald’s China Food Supplier Scandal1. What we.docxannandleola
Case 4:
The McDonald’s China Food Supplier Scandal
1. What were the root causes for Husi’s misbehavior?
2. What are the major challenges faced by the multinationals such as McDonald’s in supply chain management in China?
3. Should McDonald’s be held responsible for the scandal? How could McDonald’s avoid similar situations from happening again?
4. Should OSI be held responsible for the scandal? What should OSI do to prevent similar situations from happening again?
.
Case 3 Neesha Wilson Phoenix Rising Risks, Protective Factors, and.docxannandleola
Neesha Wilson, a 10-year-old African American girl, was referred for assessment by her school due to poor academic performance and behavioral issues. She lives with her mother and older brother, as her father left the family 3 years ago. Testing showed Neesha's intellectual abilities were likely underestimated and her academic skills were well above grade level, though she was repeating 4th grade. Neesha reported worries about school performance and family stressors, and showed signs of anxiety through somatic symptoms like fatigue. While most scores were normal, elevated scales indicated concerns with negative mood, physiological arousal, and somatic complaints.
Case 48 Sun Microsystems Done by Nour Abdulaziz Maryam .docxannandleola
Case 48: Sun Microsystems
Done by: Nour Abdulaziz
Maryam Barifah
Shrouq Al-Jaadi
Balqees Mekhalfi
Yara El-Feki
Introduction
•In 2009, Oracle was planning to acquire Sun Microsystems.
•This acquisition would allow Oracle;
•to further diversify their brand, customers and acquire various new platforms that would be added to their portfolio such as MySQL, Solaris and Java.
•Oracle originally placed an offer of $9.50 per share price which is considerably higher than Sun Microsystem’s price that is $6.69.
•This will cut the production costs and make the company more efficient throughout all the value chain.
•Oracle aimed to capitalize on Sun Microsystem’s decline by getting particular assets or the whole company at the deflated price.
Is Sun Microsystems a good strategic fit for Oracle? Should Oracle acquire Sun Microsystems?
- as it will allow them to achieve their vision of becoming the Apple of the software industry.
- it will allow the company to deliver high-quality customer products by combining both hardware and software components, hence reducing the consumer setup process.
Continue
It will provide Oracle with the needed expansion.
-This acquisition fits Oracle’s overall strategy which is to improve through acquiring and effectively integrating other companies
Worth of Sun Microsystems and Valuation Approaches
To know how much Sun Microsystems worth, we must find the Stand Alone Value of the company.
The Stand Alone value represents the present value of Sun Microsystem individually before factoring the synergy that would be created when Oracle acquires Sun.
Another method is the value of Sun Microsystem with synergies, which after being acquired by Oracle, must be found. This is done to see whether or not the acquisition was a proper strategic decision or not
Another method of valuing the Sun Microsystem is through the comparative company analysis (CCA). That is done through the thorough assessment of rival and peer businesses of similar size and industry.
Finally, the acquisition price, which is the price that is paid to the target when it is first acquired, is also used as a separate method of valuation. The value of the acquisition price ranges between the values of the stand-alone and the synergies.
USING THE DCF
To be able to find the values of both, the Stand Alone and the synergies, we have decided the best way to do so is by calculating the discounted cash flow (DCF) by using the multiples and the perpetuity growth methods and finding the average of both.
DCF Using Multiples MethodDCF Using Perpetuity Growth MethodIt does not consider long-term growth rate or the economics of business.This method seems inaccurate as the company assumes a certain growth rate will remains the same 2014 onwards (forever) which is unrealistic.It is considered a challenging method to use as it is very difficult to identify truly comparable companies.
USING THE WACC
The weig.
CASE 42 Myasthenia Gravis The immune response turns agai.docxannandleola
CASE 42 Myasthenia Gravis
The immune response turns against the host.
The specific adaptive immune response can, in rare instances, be mounted
against self antigens and cause autoimmune disease. Injury to body tissues
can result from antibodies directed against cell-surface or extracellular-matrix
molecules, from antibodies bound to circulating molecules that deposit as
immune complexes, or from clones of T cells that react with self antigens. A
special class of autoimmune disease is caused by autoantibodies against cell
surface receptors (Fig. 42.1). Graves' disease and myasthenia gravis are two
well-studied examples . Graves' disease is caused by autoantibodies against
the receptor on thyroid cells for thyroid-stimulating hormone (TSH), secreted
by the pituitary gland. In this disease, autoantibody binds to the TSH recep
tor; like TSH, it stimulates the thyroid gland to produce thyroid hormones.
In myasthenia gravis, the opposite effect is observed: antibodies against the
acetylcholine receptor at the neuromuscular junction impede the binding of
acetylcholine and stimulate internalization of the receptor, thereby block
ing the t ransmission of nerve impulses by acetylcholine (Fig. 42.2). In addi
tion, the presence of autoantibodies at the neuromuscular junction initiates
complement-mediated lysis ofthe muscle endplate and damages the muscle
membrane.
Myasthenia gravis means severe (gravis) muscle (my) weakness (asthenia).
This disease was first identified as an autoimmune disease when an immun
ologist immunized rabbits with purified acetylcholine receptors to obtain
antibodies against this receptor. He noticed that the rabbits developed floppy
ears, like the droopy eyelids (ptosis) that are the most characteristic symptom
of myasthenia gravis in humans. Subsequently, patients with this disease
were found to have antibodies against the acetycholine receptor. In addition,
pregnant women with myasthenia gravis transfer the disease to their newborn
infants. As IgG is the only maternal serum protein that crosses the placenta
fro m mother to fetus, neonatal myasthenia gravis is clear evidence that
myasthenia gravis is caused by an anti-IgG antibody. More recently, patients
with myasthenia gravis have been identified who have autoantibodies against
muscle-specific kinase (MUSK) rather than the acetylcholine receptor.
MUSK is a tyrosine kinase receptor involved in clustering acetylcholine
receptors; therefore, these autoantibodies also inhibit signaling through the
neuromuscular junction.
Topics bearing on
this case:
Humoral autoimmunity
Transfer of maternal
antibodies
Mechanisms for
breaking tolerance
This case was prepared by RaifGeha , MD, in collaboration with Janet Chou, MD.
~ Case 42: Myasthenia Gravis
Fig. 42.1 Autoimmune diseases caused
by antibody against surface or matrix
antigens. These are known as type II
autoimmune diseases. Damage by
IgE-mediated responses (type I) does no.
Case 4 JetBlue Delighting Customers Through Happy JettingIn the.docxannandleola
Case 4 JetBlue: Delighting Customers Through Happy Jetting
In the early years, JetBlue was a thriving young airline with a strong reputation for outstanding service. In fact, the low-fare airline referred to itself as a customer service company that just happened to fly planes. But on a Valentine’s Day, JetBlue was hit by the perfect storm, literally, of events that led to an operational meltdown. One of the most severe storms of the decade covered JetBlue’s main hub at New York’s John F. Kennedy International Airport with a thick layer of snow and ice. JetBlue did not have the infrastructure to deal with such a crisis. The severity of the storm, coupled with a series of poor management decisions, left JetBlue passengers stranded in planes on the runway for up to 11 hours. Worse still, the ripple effect of the storm created major JetBlue flight disruptions for six more days. Understandably, customers were livid. JetBlue’s efforts to clean up the mess following the six-day Valentine’s Day nightmare cost over $30 million in overtime, flight refunds, vouchers for future travel, and other expenses. But the blow to the company’s previously stellar customer-service reputation stung far more than the financial fallout. JetBlue became the butt of jokes by late night talk show hosts. Some industry observers even predicted that this would be the end
of JetBlue. But just three years later, the company is not only still flying, it is growing, profitable, and hotter than ever. During a serious economic downturn competing airlines were cut routes, retiring aircraft, laying off employees, and lost money. JetBlue added planes, expanded into new cities, hired thousands of new employees, and turning profits.
Truly Customer Focused What’s the secret to JetBlue’s success? Quite simply, it’s an obsession with making sure that every customer experience lives up to the company slogan, “Happy Jetting.” Lots of companies say they focus on customers. But at JetBlue, customer well-being is ingrained in the culture. From the beginning, JetBlue set out to provide features that would delight customers. For example, most air travelers expect to be squashed when flying coach. But JetBlue has configured its seats with three more inches of legroom than the average airline seat. That may not sound like much. But those three inches allow six-foot three-inch Arianne Cohen, author of The Tall Book: A Celebration of Life from on High, to stretch out and even cross her legs. If that’s not enough, for as little as $10 per flight, travelers can reserve one of JetBlue’s “Even More Legroom” seats, which offer even more space and a flatter recline position. Add the fact that every JetBlue seat is well padded and covered in leather, and you already have an air travel experience that rivals first-class accommodations (something JetBlue doesn’t offer). Food and beverage is another perk that JetBlue customers enjoy. The airline doesn’t serve meals, but it offers the best selection of free.
Case 4-2 Hardee TransportationThe Assignment Answer the four .docxannandleola
Case 4-2 Hardee Transportation
The Assignment: Answer the four (4) questions at the end of Case 4-2
Resources: Course Textbook, Appendix 4B, Table 4B-1, Attached worksheet (Word or Excel format)
Acceptable Length:
Show your work for solution to questions 1 and 2
. Well-written responses to question 3 and 4.
Formatting Requirements:
Enter your name and date
Provide well-structured solutions/answers- incomplete answers will receive partial credit
Show your work
2. Answer case questions,
using the attached word template or excel document
. Complete assignment and submit as an attachment using the assignment link when finished.
.
Case 3-8 Accountant takes on Halliburton and Wins!1. Descri.docxannandleola
Case 3-8 Accountant takes on Halliburton and Wins!
1. Describe the inadequacies in the corporate governance system at Halliburton.
2. Consider the role of KPMG in the case with respect to the accounting and auditing issues. How did the firms’ actions relate to the ethical and professional expectations for CPAs by the accounting profession?
3. The Halliburton case took place before the Dodd-Frank Financial Reform Act was adopted by Congress. Assume Dodd-Frank had been in effect and Menendez decided to inform the SEC under Dodd-Frank rather than SOX because it had been more than 180 days since the accounting violation had occurred. Given the facts of the case would Menendez have qualified for whistleblower protection? Explain.
4. Some critics claim that while Menendez’s actions may have been courageous, he harmed others along the way. His family was in limbo for many years and had to deal with the agony of being labeled a whistleblower and disloyal to Halliburton. The company’s overall revenue did not change; a small amount was merely shifted to an earlier period. Halliburton didn't steal any money, they didn't cheat the IRS, they didn't cheat their customers or their employees. In fact, they lessened their cash flows by paying out taxes earlier than they should have under the rules. How do you respond to these criticisms?
.
Case 3 Ford’s Pinto Fires The Retrospective View of Ford’s Fiel.docxannandleola
Case 3
Ford’s Pinto Fires: The Retrospective View of Ford’s Field Recall Coordinator
Brief Overview of the Ford Pinto Fires
Determined to compete with fuel- efficient Volkswagen and Japanese imports, the Ford Motor Company introduced the subcompact Pinto in the 1971 model year. Lee Iacocca, Ford’s president at the time, insisted that the Pinto weigh no more than 2,000 pounds and cost no more than $2,000. Even with these restrictions, the Pinto met federal safety standards, although some people have argued that strict adherence to the restrictions led Ford engineers to compromise safety. Some 2 million units were sold during the 10- year life of the Pinto.
The Pinto’s major design flaw— a fuel tank prone to rupturing with moderate speed rear- end collisions— surfaced not too long after the Pinto’s entrance to the market. In April 1974, the Center for Auto Safety petitioned the National Highway Traffic Safety Administration (NHTSA) to recall Ford Pintos due to the fuel tank design defect. The Center for Auto Safety’s petition was based on reports from attorneys of three deaths and four serious injuries in moderate- speed rear- end collisions involving Pintos. The NHTSA did not act on this petition until 1977. As a result of tests performed for the NHTSA, as well as the extraordinary amount of publicity generated by the problem, Ford agreed, on June 9, 1978, to recall 1.5 million 1971– 1976 Ford Pintos and 30,000 1975– 1976 Mercury Bobcat sedan and hatchback models for modifications to the fuel tank. Recall notices were mailed to the affected Pinto and Bobcat owners in September 1978. Repair parts were to be delivered to all dealers by September 15, 1978.
Unfortunately, the recall was initiated too late for six people. Between June 9 and September 15, 1978, six people died in Pinto fires after a rear impact. Three of these people were teenage girls killed in Indiana in August 1978 when their 1973 Pinto burst into flames after being rear- ended by a van. The fiery deaths of the Indiana teenagers led to criminal prosecution of the Ford Motor Company on charges of reckless homicide, marking the first time that an American corporation
was prosecuted on criminal charges. In the trial, which commenced on January 15, 1980, “Indiana state prosecutors alleged that Ford knew Pinto gasoline tanks were prone to catch fire during rear- end collisions but failed to warn the public or fix the problem out of concern for profits.” On March 13, 1980, a jury found Ford innocent of the charges. Production of the Pinto was discontinued in the fall of 1980.
Enter Ford’s Field Recall Coordinator
Dennis A. Gioia, currently a professor in the Department of Management and Organization at Pennsylvania State University, was the field recall coordinator at Ford Motor Company as the Pinto fuel tank defect began unfolding. Gioia’s responsibilities included the operational coordination of all the current recall
92 Business Ethics
campaigns, tracking incoming information.
Case 3Competition in the Craft Brewing Industry in 2017John D. Var.docxannandleola
Case 3Competition in the Craft Brewing Industry in 2017
John D. Varlaro
Johnson & Wales University
John E. Gamble
Texas A&M University–Corpus Christi
Locally produced or regional craft beers caused a seismic shift in the U.S. beer industry during the early 2010s with the gains of the small, regional newcomers coming at the expense of such well-known brands as Budweiser, Miller, Coors, and Bud Light. Craft breweries, which by definition sold fewer than 6 million barrels (bbls) per year, expanded rapidly with the deregulation of intrastate alcohol distribution and retail laws and a change in consumer preferences toward unique and high-quality beers. The growing popularity of craft beers allowed the total beer industry in the United States to increase by 6.7 percent annually between 2011 and 2016 to reach $39.5 billion. The production of U.S. craft breweries more than doubled from 11.5 million bbls per year to about 24.6 million bbls per year during that time. In addition, production by microbreweries and brewpubs accounted for 90 percent of craft brewer growth in 2016.1
The industry had begun to show signs of a slowdown going into 2017, with Boston Beer Company, the second largest craft brewery in the United States and known for its Samuel Adams brand, experiencing a 4 percent sales decline in 2016 that erased two years of of growth. The annual revenues of Anheuser-Busch InBev SA, whose portfolio included global brands Budweiser, Corona, and Stella Artois and numerous international and local brands, remained relatively consistent from 2014 to 2016. However, the sales volume of Anheuser-Busch’s flagship brands and its newly acquired and international brands such as Corona, Goose Island, Shock Top, Beck’s, and St. Pauli Girl allowed it to control 45.8 percent of the U.S. market for beer in 2016.2
Industry competition was increasing as grain price fluctuations affected cost structures and growing consolidation within the beer industry—led most notably by AB InBev’s acquisition of several craft breweries, Grupo Modelo, and its pending $104 billion acquisition of SABMiller—created a battle for market share. While the market for specialty beer was expected to gradually plateau by 2020, it appeared that the slowing growth had arrived by 2017. Nevertheless, craft breweries and microbreweries were expected to expand in number and in terms of market share as consumers sought out new pale ales, stouts, wheat beers, pilsners, and lagers with regional or local flairs.The Beer Market
The total economic impact of the beer market was estimated to be 2.0 percent of the total U.S. GDP in 2016 when variables such as jobs within beer production, sales, and distribution were included.3Exhibit 1 presents annual beer production statistics for the United States between 2006 and 2016.
Year
Barrels Produced (in millions)*
2006
198
2007
200
2008
200
2009
197
2010
195
2011
193
2012
196
2013
192
2014
193
2015
191
2016
189
*Rounded to the nearest million. .
CASE 3.2 Ethics, Schmethics-Enrons Code of EthicsIn Jul.docxannandleola
CASE 3.2 "Ethics, Schmethics"-Enron's Code of Ethics
In July 2000, Enron Corporation published an internal code of ethics docu-
ment that ran 64 pages in length (see the Appendix 1).Page 12 of the document
proudly announced the company's position on business ethics:
Employees of Enron Corp., its subsidiaries, and its affiliated companies
(collectively the "Company") are charged with conducting their business
affairs in accordance with the highest ethical standards. An employee
shall not conduct himself or herself in a manner which directly or indi-
rectly would be detrimental to the best interests of the Company or in
a manner which would bring to the employee financial gain separately
derived as a direct consequence of his or her employment with the Com-
pany. Moral as well as legal obligations will be fulfilled openly, promptly,
and in a manner which will reflect pride on the Company's name.
Products and services of the Company will be of the highest quality and
as represented. Advertising and promotion will be truthful, not exagger-
ated or misleading.
Agreements, whether contractual or verbal, will be honored. No bribes,
bonuses, kickbacks, lavish entertainment, or gifts will be given or received
. in exchange for special position, price or privilege . . . Relations with
the Company's many publics-customers, stockholders, governments,
employees, suppliers, press, and bankers-will be conducted in honesty,
candor, and fairness." .- ~ ~ ~ -
Subsequent investigations into the inner workings of Enron Corp. revealed that
the only time this code of ethics received formal attention (other than, presum-
ably,when it was created and formally accepted) was when the board of directors
voted to waive key provisions of the code in order to allow the off-balance-sheet
partnerships that Chief Financial Officer Andy Fastow ultimately used to hide
over half a billion dollars of debt from analysts and investors.
A more realistic picture of the apparent flexibility of Enron's ethical culture
can be found in the extreme conflict of interest represented in its relationship
with Arthur Andersen. Andersen provided both consulting and auditing ser-
vices for fees running into millions of dollars-money that became so critical to
Andersen's continued growth that its employees were encouraged to sign off on
off-balance-sheet transactions-transactions that were not shown on Enron's
publicly-reported balance sheet-that stretched the limits of generally accepted
accounting principles (GAAP) to their furthest edges. In addition, Enron hired
former Andersen employees to manage the affairs of their former colleagues,
which further strengthened the conflict of interest in a relationship that was
supposed, at the very least, to be at arm's length, and, at best, above reproach.
1. What is the purpose of a code of ethics?
2. Do you think the employees of Enron Corp. were told about the vote to put
aside key elements of the code of ethics? If not, why not? If they had .
it describes the bony anatomy including the femoral head , acetabulum, labrum . also discusses the capsule , ligaments . muscle that act on the hip joint and the range of motion are outlined. factors affecting hip joint stability and weight transmission through the joint are summarized.
Walmart Business+ and Spark Good for Nonprofits.pdfTechSoup
"Learn about all the ways Walmart supports nonprofit organizations.
You will hear from Liz Willett, the Head of Nonprofits, and hear about what Walmart is doing to help nonprofits, including Walmart Business and Spark Good. Walmart Business+ is a new offer for nonprofits that offers discounts and also streamlines nonprofits order and expense tracking, saving time and money.
The webinar may also give some examples on how nonprofits can best leverage Walmart Business+.
The event will cover the following::
Walmart Business + (https://business.walmart.com/plus) is a new shopping experience for nonprofits, schools, and local business customers that connects an exclusive online shopping experience to stores. Benefits include free delivery and shipping, a 'Spend Analytics” feature, special discounts, deals and tax-exempt shopping.
Special TechSoup offer for a free 180 days membership, and up to $150 in discounts on eligible orders.
Spark Good (walmart.com/sparkgood) is a charitable platform that enables nonprofits to receive donations directly from customers and associates.
Answers about how you can do more with Walmart!"
How to Make a Field Mandatory in Odoo 17Celine George
In Odoo, making a field required can be done through both Python code and XML views. When you set the required attribute to True in Python code, it makes the field required across all views where it's used. Conversely, when you set the required attribute in XML views, it makes the field required only in the context of that particular view.
Beyond Degrees - Empowering the Workforce in the Context of Skills-First.pptxEduSkills OECD
Iván Bornacelly, Policy Analyst at the OECD Centre for Skills, OECD, presents at the webinar 'Tackling job market gaps with a skills-first approach' on 12 June 2024
Reimagining Your Library Space: How to Increase the Vibes in Your Library No ...Diana Rendina
Librarians are leading the way in creating future-ready citizens – now we need to update our spaces to match. In this session, attendees will get inspiration for transforming their library spaces. You’ll learn how to survey students and patrons, create a focus group, and use design thinking to brainstorm ideas for your space. We’ll discuss budget friendly ways to change your space as well as how to find funding. No matter where you’re at, you’ll find ideas for reimagining your space in this session.
This document provides an overview of wound healing, its functions, stages, mechanisms, factors affecting it, and complications.
A wound is a break in the integrity of the skin or tissues, which may be associated with disruption of the structure and function.
Healing is the body’s response to injury in an attempt to restore normal structure and functions.
Healing can occur in two ways: Regeneration and Repair
There are 4 phases of wound healing: hemostasis, inflammation, proliferation, and remodeling. This document also describes the mechanism of wound healing. Factors that affect healing include infection, uncontrolled diabetes, poor nutrition, age, anemia, the presence of foreign bodies, etc.
Complications of wound healing like infection, hyperpigmentation of scar, contractures, and keloid formation.
Chapter wise All Notes of First year Basic Civil Engineering.pptxDenish Jangid
Chapter wise All Notes of First year Basic Civil Engineering
Syllabus
Chapter-1
Introduction to objective, scope and outcome the subject
Chapter 2
Introduction: Scope and Specialization of Civil Engineering, Role of civil Engineer in Society, Impact of infrastructural development on economy of country.
Chapter 3
Surveying: Object Principles & Types of Surveying; Site Plans, Plans & Maps; Scales & Unit of different Measurements.
Linear Measurements: Instruments used. Linear Measurement by Tape, Ranging out Survey Lines and overcoming Obstructions; Measurements on sloping ground; Tape corrections, conventional symbols. Angular Measurements: Instruments used; Introduction to Compass Surveying, Bearings and Longitude & Latitude of a Line, Introduction to total station.
Levelling: Instrument used Object of levelling, Methods of levelling in brief, and Contour maps.
Chapter 4
Buildings: Selection of site for Buildings, Layout of Building Plan, Types of buildings, Plinth area, carpet area, floor space index, Introduction to building byelaws, concept of sun light & ventilation. Components of Buildings & their functions, Basic concept of R.C.C., Introduction to types of foundation
Chapter 5
Transportation: Introduction to Transportation Engineering; Traffic and Road Safety: Types and Characteristics of Various Modes of Transportation; Various Road Traffic Signs, Causes of Accidents and Road Safety Measures.
Chapter 6
Environmental Engineering: Environmental Pollution, Environmental Acts and Regulations, Functional Concepts of Ecology, Basics of Species, Biodiversity, Ecosystem, Hydrological Cycle; Chemical Cycles: Carbon, Nitrogen & Phosphorus; Energy Flow in Ecosystems.
Water Pollution: Water Quality standards, Introduction to Treatment & Disposal of Waste Water. Reuse and Saving of Water, Rain Water Harvesting. Solid Waste Management: Classification of Solid Waste, Collection, Transportation and Disposal of Solid. Recycling of Solid Waste: Energy Recovery, Sanitary Landfill, On-Site Sanitation. Air & Noise Pollution: Primary and Secondary air pollutants, Harmful effects of Air Pollution, Control of Air Pollution. . Noise Pollution Harmful Effects of noise pollution, control of noise pollution, Global warming & Climate Change, Ozone depletion, Greenhouse effect
Text Books:
1. Palancharmy, Basic Civil Engineering, McGraw Hill publishers.
2. Satheesh Gopi, Basic Civil Engineering, Pearson Publishers.
3. Ketki Rangwala Dalal, Essentials of Civil Engineering, Charotar Publishing House.
4. BCP, Surveying volume 1
LAND USE LAND COVER AND NDVI OF MIRZAPUR DISTRICT, UPRAHUL
This Dissertation explores the particular circumstances of Mirzapur, a region located in the
core of India. Mirzapur, with its varied terrains and abundant biodiversity, offers an optimal
environment for investigating the changes in vegetation cover dynamics. Our study utilizes
advanced technologies such as GIS (Geographic Information Systems) and Remote sensing to
analyze the transformations that have taken place over the course of a decade.
The complex relationship between human activities and the environment has been the focus
of extensive research and worry. As the global community grapples with swift urbanization,
population expansion, and economic progress, the effects on natural ecosystems are becoming
more evident. A crucial element of this impact is the alteration of vegetation cover, which plays a
significant role in maintaining the ecological equilibrium of our planet.Land serves as the foundation for all human activities and provides the necessary materials for
these activities. As the most crucial natural resource, its utilization by humans results in different
'Land uses,' which are determined by both human activities and the physical characteristics of the
land.
The utilization of land is impacted by human needs and environmental factors. In countries
like India, rapid population growth and the emphasis on extensive resource exploitation can lead
to significant land degradation, adversely affecting the region's land cover.
Therefore, human intervention has significantly influenced land use patterns over many
centuries, evolving its structure over time and space. In the present era, these changes have
accelerated due to factors such as agriculture and urbanization. Information regarding land use and
cover is essential for various planning and management tasks related to the Earth's surface,
providing crucial environmental data for scientific, resource management, policy purposes, and
diverse human activities.
Accurate understanding of land use and cover is imperative for the development planning
of any area. Consequently, a wide range of professionals, including earth system scientists, land
and water managers, and urban planners, are interested in obtaining data on land use and cover
changes, conversion trends, and other related patterns. The spatial dimensions of land use and
cover support policymakers and scientists in making well-informed decisions, as alterations in
these patterns indicate shifts in economic and social conditions. Monitoring such changes with the
help of Advanced technologies like Remote Sensing and Geographic Information Systems is
crucial for coordinated efforts across different administrative levels. Advanced technologies like
Remote Sensing and Geographic Information Systems
9
Changes in vegetation cover refer to variations in the distribution, composition, and overall
structure of plant communities across different temporal and spatial scales. These changes can
occur natural.
Leveraging Generative AI to Drive Nonprofit InnovationTechSoup
In this webinar, participants learned how to utilize Generative AI to streamline operations and elevate member engagement. Amazon Web Service experts provided a customer specific use cases and dived into low/no-code tools that are quick and easy to deploy through Amazon Web Service (AWS.)
Main Java[All of the Base Concepts}.docxadhitya5119
This is part 1 of my Java Learning Journey. This Contains Custom methods, classes, constructors, packages, multithreading , try- catch block, finally block and more.
Digital Artefact 1 - Tiny Home Environmental Design
Module 2 ReadingsEarly in the week, complete the following· R.docx
1. Module 2 Readings
Early in the week, complete the following:
· Read the overview for Module 2
· From the textbook, International business law and its
environment, read the following chapters:
· Resolving International Commercial Disputes
· From the Internet, read:
· Bergsten, C. F., & Subramanian, A. (2008, October 8).
Globalizing the crisis response. Washington Post. Retrieved
from http://www.washingtonpost.com/wp-
dyn/content/article/2008/10/07/AR2008100702440.html
· Kramer, L. (1996, January 29). McDonald’s accelerates
international expansion. Nation's Restaurant News. Retrieved
from EBSCOhost Business Source Elite
· Goudy, G. (2007). International expansion-risk sharing
considerations. Business Credit, 109(1), 53-55. Retrieved
from http://search.proquest.com.libproxy.edmc.edu/docview/230
146054
· Pratap, R. (2008, April 23). AT&T in talks to re-enter Indian
cellular market. Business Week. Retrieved
fromhttp://www.businessweek.com/globalbiz/content/apr2008/
gb20080423_219907.htm
· World Trade Organization (WTO). (n.d.). World tariff profiles
2008. Retrieved
fromhttp://www.wto.org/english/res_e/booksp_e/tariff_profiles0
8_e.pdf
CHAPTER 3: Resolving International Commercial Disputes
AVOIDING BUSINESS DISPUTES
Long-term business relationships are generally the most
profitable ones. Experienced executives and international
managers know this, and they work very hard to foster them, at
both the personal and organizational levels. Long-term
2. relationships are based on trust. In a world where we do
business with people who look, speak, and act differently from
ourselves and who live and work oceans away, trust takes on a
new and even more important significance. Indeed, it has been
said that all of international business is based on trust. Any
dispute that threatens the bonds of trust can threaten future
business opportunities, do irreparable harm to individual and
corporate reputations, and permanently damage long-term
relationships. Moreover, when disputes become combative, it
can be costly, time consuming, and physically and mentally
exhausting for all parties. After all, there is the real possibility
that one or both of the parties will have to litigate in a
protracted and expensive trial in a foreign court, before a
foreign judge, and in a foreign language, and have their rights
determined under foreign procedural rules and possibly foreign
law. Quite often the parties must retain attorneys in more than
one country. So, when disagreements break out, amicable
settlements are usually the best outcome and offer the best hope
of salvaging a business relationship. It is always helpful if the
parties have a reservoir of trust and goodwill that they can draw
on to settle the dispute in a friendly way. But, of course, this is
not always possible, and the prudent international
businessperson, in any contract or any venture, will seek good
legal advice and always “hope for the best and plan for the
worst.”
Nowhere is this more important than in negotiating and drafting
business contracts. The contract is the basis of any bargain and
its importance cannot be overstated. If and when a dispute
arises, the terms of the contract provide the basis for dispute
resolution.
Cultural Attitudes toward Disputes
Keep in mind that cultural factors will influence a party’s
attitude toward how disputes are settled. Americans are
notorious litigators, quickly turning to the courts to redress
grievances. Their combative stance can result in a “win or lose”
mentality. On the other hand, Asians are notable for going to
3. great lengths to seek an amicable settlement. After all, by
tradition, it is a virtue to seek harmony and a vice to seek
discord. These differences are evident in the way American and
Japanese businesspeople approach contract or business
negotiations. It is quite common for Americans to include their
attorney or corporate counsel as a member of the negotiating
team. Indeed, many Western managers and executives would
never dream of it being any other way. But to the Japanese, this
may seem a little confrontational, a little unnecessary, and a bad
omen or a sign that disagreement is inevitable.
All too often, Americans view the negotiating process as
something to be gotten out of the way so the deal can be closed,
the contract signed, and all can go back home. People of many
other cultures, from Asia to Latin America, might see the
negotiating process as a time to build a relationship and new
friendships. Of course, these attitudes differ throughout the
world, and from country to country, and no generalizations
should be made. But one thing is certain, and that is that the
rest of the world views Americans as confrontational and quick
to call in the lawyers. Perhaps the words of the English Lord
Denning best sum up the foreign view:
As the moth drawn to the light, so is a litigant drawn to the
United States. If he can only get his case into their courts, he
stands to win a fortune. At no cost to himself; and at no risk of
having to pay anything to the other side…. The lawyers will
charge the litigant nothing for their services but instead they
will take forty percent of the damages…. If they lose, the
litigant will have nothing to pay to the other side. The courts in
the United States have no such cost deterrents as we have.
There is also in the United States a right to trial by jury. These
are prone to award fabulous damages. They are notoriously
sympathetic and know that the lawyers will take their forty
percent before the plaintiff gets anything. All this means that
the defendant can be readily forced into a settlement. Smith
Kline and French Laboratories v. Bloch, [1983] 1 W.L.R. 730,
733–4 (Eng. C.A.).
4. The resolution of disputes between citizens of different
countries, with business transactions that span continents and
cultures, raises many complicated legal and tactical problems.
Consider a dispute involving an American manufacturer that
purchases thousands of meters of cloth from a Chinese supplier.
The cloth is shipped to Vietnam where the manufacturer
contracted to have it embroidered and sewn into pillow shams.
When the finished goods arrive in the United States, it is
discovered that they are damaged. Apparently the fabric was
shipped from China in a defective condition, but the Vietnamese
firm failed to inspect for damage as it normally did. The
Chinese company claims that the time for bringing the defective
fabric to its attention has long passed. The Vietnamese company
says it was not its responsibility. Consider all the questions
presented. To whom does the manufacturer look for
remuneration? Is the relationship between the parties worth
keeping, and is the case capable of being settled or should the
manufacturer “take the gloves off”? Was there a contract with
either party and did it specify the method of resolution, such as
mediation, arbitration, or litigation, and, if so, where and under
what law? If the contract does not specify, what legal rules
apply to determine where the case should be heard and what law
should govern? Finally, if a judgment is obtained through
litigation, how will it be enforced across international borders?
These are some of the questions discussed in this chapter.
Methods of Resolution
This chapter presents several alternatives for dispute resolution,
including mediation, arbitration, and litigation. Consider a
domestic dispute in which a New York supplier tries to sue a
Texas distributor. This situation raises several questions:
Should the parties settle, mediate, arbitrate, or litigate? Where
should the dispute be heard—in New York or Texas? In federal
or state court? Which law applies to the transaction—the law of
New York, Texas, or some other jurisdiction? Finally, if a
resolution is reached (be it a settlement, a verdict, or a
judgment), how will it be enforced?
5. Changing the parties to an American supplier and a foreign
distributor adds several dimensions to the problem. Many of the
same questions that are relevant to a domestic dispute are
equally relevant to an international dispute, but they become
infinitely more complex. This chapter examines these questions
as they apply to commercial disputes in international business.
ALTERNATIVE DISPUTE RESOLUTION
Alternative dispute resolution (ADR) usually offers a faster,
cheaper, and more efficient alternative to resolving
international commercial disputes than litigation. Unlike
litigation, ADR requires that the parties voluntarily submit to
the resolution process.
Mediation
Mediation is a voluntary, nonbinding, conciliation process. The
parties agree on an impartial mediator who helps them amicably
reach a solution. The final decision to settle rests with the
parties themselves. It is private, and there are no public court
records or glaring articles in the local press to influence local
opinion about the firms. The parties reserve all legal rights to
resort to binding arbitration or litigation.
Arbitration
Arbitration is a more formalized process resulting in a binding
award that will be enforced by courts of law in many countries.
The parties must agree to arbitration, but once they do, they
may not withdraw. Arbitration is frequently used in
international business because it “levels the playing field” since
the case may be heard in a more impartial tribunal. First,
arbitration may permit the resolution of the case in a third
“neutral” country, rather than in the country of one of the
parties. The parties are generally free to choose a location for
arbitration that is mutually convenient. For example, a dispute
between an American company and a Russian company might be
arbitrated in Paris or Stockholm. Disputes between American
companies and Chinese companies are often arbitrated in Hong
Kong. (Not only is Hong Kong still considered a neutral site,
but its awards are enforceable by the courts of both the United
6. States and China.) Secondly, the arbitrator may be chosen by
the parties from a roster of impartial industry experts or
distinguished lawyers, who may also be from a third country.
Finally, the case may be resolved using the impartial and
straightforward rules of the arbitrating organization, rather than
the procedures buried in the statutes or rules of a court of the
country of one of the parties. Arbitration rules are the rules of
arbitral tribunals that address issues such as the qualification
and appointment of arbitrators, the conduct of proceedings,
procedures for finding the facts and applying the law, and the
making of awards. These rules are often published in multiple
languages.
There are other advantages to arbitration besides neutrality.
Pretrial discovery is faster and more limited than that available
in the United States, resulting in less expense and delay. The
process is private and records of proceedings are not publicly
available as are court records. Arbitration and attorney fees are
far less than similar fees in a court of law. The rules for
evidence admissibility are more flexible than in many national
courts. And finally, a party’s right to appeal is more limited.
Although parties can always agree to arbitration, a requirement
to submit to arbitration is often set out in many international
contracts. Arbitration clauses might be used in contracts for the
sale of goods, commodities, or raw materials. They are used in
international shipping contracts, employment contracts,
international construction contracts, financing agreements, and
cruise ship tickets, to name a few, as well as in multimillion- or
billion-dollar contracts. Today, arbitration is being used more to
resolve disputes over intellectual property and licensing
agreements.
Despite its reputation for being less costly than litigation,
arbitration is not cheap. The International Chamber of
Commerce (ICC) estimates that for a $1 million claim before its
International Court of Arbitration in Paris, the average
arbitrator’s fee would be approximately $37,000, with about
$19,500 in administrative expenses, for a total of approximately
7. $56,500 in costs—or about 5 percent. For a $100,000 claim, the
average arbitrator’s fee would be approximately $9,325, with
about $4,650 in administrative expenses, for a total of
approximately $13,975 in costs—or about 13 percent.
National Arbitral Laws.
Most commercial nations today have laws permitting arbitration
and specifying the effect of an arbitral award (see Exhibit 3.1).
The British Arbitration Act went into effect in 1996. The
Arbitration Law of the People’s Republic of China became
effective in 1994 (it provides that arbitrators must have eight
years’ prior legal experience), and the Russian arbitration law
was enacted in 1993. (Notably, it provides that arbitration may
be conducted in Russia in any language agreed upon by the
parties). The laws of many countries, such as China, Russia,
Mexico, and Canada, were patterned after the 1985 Model Law
on International Commercial Arbitration of the United Nations’
Commission on International Trade Law (UNCITRAL). The
U.S. Federal Arbitration Act dates back to 1925, but it has been
modernized. It applies to both domestic and international
arbitration and defers to the specific procedural rules of the
arbitral body conducting the arbitration proceedings. Many U.S.
states (e.g., California, Connecticut, Illinois, Oregon, and
Texas) have enacted statutes on international commercial
arbitration, some patterned after the UNCITRAL model.
Exhibit 3.1: Some Arbitration Treaties in Force Worldwide
Arab Convention on Commercial Arbitration (1987)
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (New York Convention, 1959)
Convention on the Settlement of Investment Disputes Between
States and Nationals of Other States (Washington Convention,
1966)
European Convention Providing a Uniform Law on Arbitration
(Strasbourg Convention, 1966)
Geneva Protocol on Arbitration Clauses (1923)
Geneva Convention on the Execution of Foreign Arbitral
Awards (1927)
8. Inter-American Convention on International Commercial
Arbitration (Organization of American States, Panama
Convention, 1975)
Arbitration Bodies.
There are many organizations worldwide providing arbitral
services. The choice is up to the parties, and this is often
decided in advance and set out in the terms of the contract.
Some of the leading private organizations for arbitration of
commercial disputes are the following:
• American Arbitration Association
• Arbitration Institute of the Stockholm Chamber of
Commerce
• Cairo Regional Center for International Commercial
Arbitration
• China International Economic and Trade Arbitration
Commission
• Dubai International Arbitration Center
• Hong Kong International Arbitration Centre and the HK
Mediation Centre
• International Court of Arbitration of the International
Chamber of Commerce (ICC)
• Japan Commercial Arbitration Association
• London Court of Arbitration
• St. Petersburg International Commercial Arbitration Court
• Singapore International Arbitration Centre
• World Intellectual Property Organization (WIPO)
Arbitration and Mediation Center
Two additional organizations provide dispute resolution
between private parties and national governments:
• The International Centre for Settlement of Investment
Disputes (ICSID), a part of the World Bank group, provides
arbitration for the settlement of disputes between member
countries and investors who qualify as nationals of other
member countries.
• The Permanent Court of Arbitration at The Hague provides
arbitral services for commercial disputes to states, private
9. parties, and intergovernmental organizations, including
handling mass claims and environmental disputes where one of
the parties is a national government.
Each of these organizations operates under a different set of
procedural rules. The ICC uses its own rules, which are highly
respected. Many other arbitral bodies use the widely accepted
rules drafted by UNCITRAL, which take into account the
various legal systems and countries in which they might be
used. The UNCITRAL rules, for example, are used by the Hong
Kong Arbitration Center, by the WIPO, and by other
organizations throughout the world.
Arbitration Clauses.
Many contracts contain clauses requiring that disputes be
submitted for arbitration because it removes much of the
uncertainty in the event of a breach of contract or other dispute.
Here is a typical example:
All disputes or claims arising out of this contract, or breach
thereof, shall be resolved by arbitration before [name of arbitral
body], and according to the rules of that body. Any award
rendered thereby may be entered in any court of competent
jurisdiction.
While the validity of these clauses is now generally accepted,
that was not always clear. In the following case, Scherk v.
Alberto-Culver, the U.S. Supreme Court considered an
arbitration clause in an international contract calling for
arbitration in Paris.
Enforcement of Arbitration Awards.
Arbitral awards are recognized and enforceable by the courts of
most nations. In the United States, an arbitral award will
usually be enforced if the following conditions are met:
• The award is enforceable under the local law of the
country where the award was made
• The defendant was properly subject to the jurisdiction of
the arbitral tribunal
• The defendant was given notice of the arbitration
proceeding and an opportunity to be heard
10. • Enforcement of the award is not contrary to public policy
• The subject matter of the contract at issue is not unlawful
under applicable law
• The contract at issue is not void for reasons of fraud or the
incapacity of one of the parties
Scherk v. Alberto-Culver
417 U.S. 506 (1974) United States Supreme Court
BACKGROUND AND FACTS
Alberto-Culver Co., a Delaware corporation with its principal
office in Illinois, manufactured toiletries and hair products in
the United States and abroad. In February 1969, Alberto-Culver
signed a contract in Austria to purchase three businesses of
Fritz Scherk (a German citizen) that were organized under
German and Liechtenstein law, as well as the trademarks to
related cosmetics. In the contract, Scherk warranted that he had
the sole and unencumbered ownership of these trademarks. The
contract also contained a clause that provided that “any
controversy or claim [that] shall arise out of this agreement or
the breach thereof would be referred to arbitration before the
International Chamber of Commerce in Paris, France, and that
the laws of Illinois shall govern.” One year after the closing,
Alberto-Culver discovered that others had claims to Scherk’s
trademarks. Alberto-Culver tried to rescind the contract; Scherk
refused, and Alberto-Culver filed suit in federal court in Illinois
claiming that the misrepresentations violated the Securities and
Exchange Act, Sec. 10(b), and SEC rule 10b-5. Scherk moved to
dismiss or to stay the action pending arbitration. In the U.S.
District Court, the motion to dismiss was denied and arbitration
was enjoined. The U.S. Court of Appeals affirmed. The U.S.
Supreme Court granted certiorari.
JUSTICE STEWART
The United States Arbitration Act, now 9 U.S.C. 1 et seq.,
reversing centuries of judicial hostility to arbitration
agreements, was designed to allow parties to avoid “the
costliness and delays of litigation,” and to place arbitration
agreements “upon the same footing as other contracts….”
11. Alberto-Culver’s contract to purchase the business entities
belonging to Scherk was a truly international agreement.
Alberto-Culver is an American corporation with its principal
place of business and the vast bulk of its activity in this
country, while Scherk is a citizen of Germany whose companies
were organized under the laws of Germany and Liechtenstein.
The negotiations leading to the signing of the contract in
Austria and to the closing in Switzerland took place in the
United States, England, and Germany, and involved
consultations with legal and trademark experts from each of
those countries and from Liechtenstein. Finally, and most
significantly, the subject matter of the contract concerned the
sale of business enterprises organized under the laws of and
primarily situated in European countries, whose activities were
largely, if not entirely, directed to European markets.
Such a contract involves considerations and policies
significantly different from those found controlling in Wilko v.
Swan [citation omitted]. In Wilko, quite apart from the
arbitration provision, there was no question but that the laws of
the United States generally, and the federal securities laws in
particular, would govern disputes arising out of the stock-
purchase agreement. The parties, the negotiations, and the
subject matter of the contract were all situated in this country,
and no credible claim could have been entertained that any
international conflict-of-laws problems would arise. In this
case, by contrast, in the absence of the arbitration provision
considerable uncertainty existed at the time of the agreement,
and still exists, concerning the law applicable to there solutions
of disputes arising out of the contract.
Such uncertainty will almost inevitably exist with respect to any
contract touching two or more countries, each with its own
substantive laws and conflict-of-laws rules. A contractual
provision specifying in advance the forum in which disputes
shall be litigated and the law to be applied is, therefore, an
almost indispensable precondition to achievement of the
orderliness and predictability essential to any international
12. business transaction. Furthermore, such a provision obviates the
danger that a dispute under the agreement might be submitted to
a forum hostile to the interests of one of the parties or
unfamiliar with the problem involved.
A parochial refusal by the courts of one country to enforce an
international arbitration agreement would not only frustrate
these purposes, but would invite unseemly and mutually
destructive jockeying by the parties to secure tactical litigation
advantages. In the present case, for example, it is not
inconceivable that if Scherk had anticipated that Alberto-Culver
would be able in this country to enjoin resort to arbitration he
might have sought an order in France or some other country
enjoining Alberto-Culver from proceeding with its litigation in
the United States. Whatever recognition the courts of this
country might ultimately have granted to the order of the
foreign court, the dicey atmosphere of such a legal no-man’s-
land would surely damage the fabric of international commerce
and trade, and imperil the willingness and ability of
businessmen to enter into international commercial
agreements….
For all these reasons we hold that the agreement of the parties
in this case to arbitrate any dispute arising out of their
international commercial transaction is to be respected and
enforced by the federal courts in accord with the explicit
provisions of the Arbitration Act.
Decision. Reversed and remanded.
Comment. The Court understood that an arbitration agreement
was the ultimate type of forum selection clause. The Court made
reference to national legislation that indicated an acceptance of
arbitration (the Arbitration Act, 9 U.S.C 1 et. seq.). Other
countries have similar national legislation or are signatories to
the New York Convention and/or the European Convention on
International Arbitration.
Case Questions
1. What were the Court’s reasons for upholding the
arbitration provision?
13. 2. What needs of international businesses were served by the
Court’s holding? How were these needs addressed?
3. What factors would Alberto-Culver need to have shown in
order to have overturned the arbitration provision?
More than 140 nations have signed the 1958 United Nations
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, known as the New York Convention, further
strengthening the ability to enforce awards in those countries.
The New York Convention requires that an arbitral award made
in one country be honored and enforced by the courts of another
country, where both countries are parties to the convention. The
award will be enforced unless one of the defenses listed above
exists, or if the original award has been set aside or suspended
by a court in the country in which it was made.
LITIGATION
Litigation in a court of law is the final alternative for resolving
a dispute. It is used more frequently in the United States than in
virtually any other country. Many countries have different
procedural rules for litigating cases. First, many concepts
familiar to American and English students, such as trial by jury
and other traditions, may not be used in the civil law countries.
While we take jury trials in criminal and civil cases almost for
granted in the United States, the same is not true throughout the
world. The role of the judge may be very different; in some
countries, the judge is an impartial arbiter of fairness and
procedure, while in other countries, he or she may examine
witnesses and take an active role in the search for the truth. The
discovery process, by which the parties attempt to uncover
evidence in advance of trial, can also be different. For instance,
oral depositions taken under oath outside of court may be
routinely done in the United States, while in China and some
other countries, their use is prohibited. There are different rules
for compensating lawyers; in the United States, for instance,
contingent fees are widely used in tort cases, while in other
countries, they are barred. The entire issue of damages is
frequently handled differently. Finally, appeals are handled
14. differently in many countries, with some, like the United States,
limiting appeals to reconsidering issues of law applied by the
trial courts. In other countries, appellate courts will consider
new or additional evidence.
There can also be many differences in substantive law (“the law
of the case”), although this topic is too broad for this chapter.
Suffice it to say that almost every body of law—contracts, torts,
crimes, property, business regulation, intellectual property, and
so forth—can vary from legal system to legal system and
country to country. This will have a tremendous impact on the
outcome of litigation. Certainly, parties to a contract can have
some control over the choice of substantive law and procedural
rules by incorporating a choice of law clause in the contracts.
They may also be able to have control over where the litigation
takes place by utilizing a forum selection clause in the contract.
These are critical issues that must be kept in mind as you read
on.
Jurisdiction
Jurisdiction, one of the key concepts of jurisprudence, is the
power of a court to hear and decide a case. A court that has
jurisdiction is said to be a “competent” court. The term has
different meanings depending on how it is used. For example,
territorial jurisdiction refers to the power of criminal courts to
hear cases involving crimes committed within their territory. In
rem jurisdiction refers to a court’s power over property within
its geographical boundaries. Subject matter jurisdiction refers to
the court’s authority to hear a certain type of legal matter, such
as tort cases or breach of contract. In the United States, for
example, federal courts have subject matter jurisdiction over
cases involving federal statutes and federal government
agencies, constitutional issues, and cases arising between
citizens of different states or between citizens of the United
States and citizens of foreign countries (where the amount in
controversy exceeds $75,000). The latter is known as diversity
of citizenship jurisdiction. Thus, we see that the term
“jurisdiction” can be used in many different ways. But one thing
15. is certain—without it, courts are powerless to act.
In Personam Jurisdiction.
In personam jurisdiction or “jurisdiction over the person” refers
to the court’s power over a certain individual or corporation. No
party can be made to appear before a court unless that court has
personal jurisdiction. If there is no personal jurisdiction, the
case will be dismissed upon the defendant’s motion. Typically,
jurisdiction is obtained by having a summons served on an
individual or on the legal agent of a corporation. In certain
types of cases, service over those not present in the territory can
be done by registered mail or even through publication in the
“legal notices” section of approved newspapers. In the United
States, the requirement of obtaining service of process on a
defendant in a case, and of having jurisdiction over them, is
required by the Due Process Clause of the 5th and 14th
Amendments to the U.S. Constitution. The method used must be
authorized by statute and be fundamentally fair.
The basic concept is that one should not be “hauled into court”
in some distant state or country unless that person has some
connection to that place. Every national legal system has its
jurisdictional requirements. For example, the French Civil Code
states that “a foreigner, even if not residing in France, may be
cited before French courts for the execution of obligations by
him contracted in France with a citizen of France.” In Germany,
the presence of property owned by the defendant, whether the
property is insignificant or even if it is not related to the case,
can still be the basis of jurisdiction. Similarly, in the United
States, there are many federal and state statutes that define
when a court is competent to hear and decide a case.
Requirement for In Personam Jurisdiction: Minimum Contacts.
At one time in U.S. legal history, the U.S. Supreme Court had
interpreted the Due Process Clause to limit personal jurisdiction
to people physically present in the court’s territory. As the
nation grew and as interstate commerce expanded, the concept
was broadened to allow jurisdiction over persons who were not
present within the court’s geographical territory, but who, for
16. reasons of justice and fairness, should be held to answer a
complaint there. A modern example is a state “implied consent”
statute, by which one operating a motor vehicle on the highways
of a state “impliedly consents” to submitting to the jurisdiction
of the courts of that state for all suits arising out of the
operation of the vehicle there.
The due process requirements for in personam jurisdiction over
persons absent from a state or territory have been carefully
considered by the courts. In the now famous language of U.S.
Supreme Court decisions dealing with both interstate and
international commerce, “due process requires only that in order
to subject a defendant to a judgment in personam, if he be not
present within the territory of the forum, he have certain
minimum contacts with it such that the maintenance of the suit
does not offend traditional notions of fair play and substantial
justice.” International Shoe Co. v. Washington, 326 U.S. 310
(1945). Just how much of a connection to a foreign state or
country does it take for the courts to require one to defend a
case there? The courts have answered the question on a case-by-
case basis, looking to see whether it would be fair to ask a
nonresident to come to their jurisdiction to defend a case. The
courts have looked at many factors, including the extent of the
defendant’s presence in the state, what business he or she may
have conducted there, the burden on the defendant, fairness to
the plaintiff, and the interest of the state in having the case
resolved there. Did the defendant have an office, branch
location, or salespeople in the territory of the forum? Did any of
its employees or agents travel there on business? Did it
advertise or otherwise solicit business there? Did it ship goods
there? Did it enter into a contract there, or was the contract to
be performed there? In Worldwide Volkswagen Corp. v.
Woodson, 444 U.S. 286 (1980), the U.S. Supreme Court stated
that a New York automobile distributor was not required to
appear in Oklahoma to defend a products liability suit based on
the sale of a vehicle that took place in New York and was later
involved in a serious accident in Oklahoma.
17. Petitioners carry on no activity whatsoever in Oklahoma. They
close no sales and perform no services there. They avail
themselves of none of the privileges and benefits of Oklahoma
law. They solicit no business there either through salespersons
or through advertising reasonably calculated to reach the State.
Nor does the record show that they regularly sell cars at
wholesale or retail to Oklahoma customers or residents or that
they indirectly, through others, serve or seek to serve the
Oklahoma market. In short, respondents seek to base
jurisdiction on one, isolated occurrence and whatever inferences
can be drawn therefrom: the fortuitous circumstance that a
single Audi automobile, sold in New York to New York
residents, happened to suffer an accident while passing through
Oklahoma.
A similar concept exists in the international context. The
following case, Asahi Metal Ind. v. Superior Ct. of California,
480 U.S. 102 (1987), questions whether a Japanese
manufacturing company should be forced to defend a lawsuit in
California for an accident that occurred there. As you read, keep
in mind that these cases are resolved on a case-by-case basis
after a consideration of all of the facts. A decision on
jurisdiction may depend on one or more different factors not
present in other cases. In other words, it is very difficult for
lawyers to counsel whether your actions will or will not subject
you to a foreign court’s jurisdiction some time in the future. In
reading this case, think about what factors, if they had been
present, might have forced Asahi to appear in court in
California.
Asahi Metal Industry, Co. v. Superior Court of California,
Solano County
480 U.S. 102 (1987) United States Supreme Court
BACKGROUND AND FACTS
Asahi Metal Industry, a Japanese corporation, manufactured
valve assemblies in Japan and sold them to tire manufacturers
including Cheng Shin (a Taiwanese corporation) from 1978 to
1982. Cheng Shin sold tires all over the world, including in
18. California. On September 23, 1978, in Solano County,
California, Gary Zurcher was injured riding his motorcycle. His
wife was killed. He filed a products liability action against
Cheng Shin, the manufacturer of his motorcycle’s tires, alleging
that the tires were defective. Cheng Shin filed a cross-complaint
seeking indemnification from Asahi. Cheng Shin settled with
Zurcher. However, Cheng Shin pressed its action against Asahi.
The California Supreme Court held that California state courts
possessed personal jurisdiction over Asahi, and Asahi sought
review by the U.S. Supreme Court. The case presented the
question of whether a dispute between a Taiwanese company
and a Japanese company with the above-described relationship
to California should be heard by the California courts. In other
words, did the California courts have personal jurisdiction over
Asahi?
JUSTICE O’CONNOR
The placement of a product into the stream of commerce,
without more, is not an act of the defendant purposefully
directed toward the forum State. Additional conduct of the
defendant may indicate an intent or purpose to serve the market
in the forum State, for example, designing the product for the
market in the forum State, advertising in the forum State,
establishing channels for providing regular advice to customers
in the forum State, or marketing the product through a
distributor who has agreed to serve as the sales agent in the
forum State. But a defendant’s awareness that the stream of
commerce may or will sweep the product into the forum State
does not convert the mere act of placing the product into the
stream into an act purposefully directed toward the forum State.
Assuming, arguendo, that respondents have established Asahi’s
awareness that some of the valves sold to Cheng Shin would be
incorporated into tire tubes sold in California, respondents have
not demonstrated any action by Asahi to purposefully avail
itself of the California market. It has no office, agents,
employees, or property in California. It does not advertise or
otherwise solicit business in California. It did not create,
19. control, or employ the distribution system that brought its
valves to California. There is no evidence that Asahi designed
its product in anticipation of sales in California. On the basis of
these facts, the exertion of personal jurisdiction over Asahi by
the Superior Court of California exceeds the limits of due
process.
The strictures of the Due Process Clause forbid a state court
from exercising personal jurisdiction over Asahi under
circumstances that would offend “traditional notions of fair play
and substantial justice.” International Shoe Co. v. Washington,
326 U.S. 310, 316 (1945), quoting Milliken v. Meyer, 311 457,
463 (1940).
We have previously explained that the determination of the
reasonableness of the exercise of jurisdiction in each case will
depend on an evaluation of several factors….
Certainly the burden on the defendant in this case is severe.
Asahi has been commanded by the Supreme Court of California
not only to traverse the distance between Asahi’s headquarters
in Japan and the Superior Court of California in and for the
County of Solano, but also to submit its dispute with Cheng
Shin to a foreign nation’s judicial system. The unique burdens
placed upon one who must defend oneself in a foreign legal
system should have significant weight in assessing the
reasonableness of stretching the long arm of personal
jurisdiction over national borders.
When minimum contacts have been established, often the
interests of the plaintiff and the forum in the exercise of
jurisdiction will justify even the serious burdens placed on the
alien defendant. In the present case, however, the interests of
the plaintiff and the forum in California’s assertion of
jurisdiction over Asahi are slight. All that remains is a claim for
indemnification asserted by Cheng Shin, a Taiwanese
corporation, against Asahi. The transaction on which the
indemnification claim is based took place in Taiwan; Asahi’s
components were shipped from Japan to Taiwan. Cheng Shin
has not demonstrated that it is more convenient for it to litigate
20. its indemnification claim against Asahi in California rather than
in Taiwan or Japan.
Because the plaintiff is not a California resident, California’s
legitimate interests in the dispute have considerably diminished.
The Supreme Court of California argued that the State had an
interest in “protecting its consumers by ensuring that foreign
manufacturers comply with the state’s safety standards.” …The
State Supreme Court’s definition of California’s interest,
however, was overly broad. The dispute between Cheng Shin
and Asahi is primarily about indemnification rather than safety.
Moreover, it is not at all clear at this point that California law
should govern the question whether a Japanese corporation
should indemnify a Taiwanese corporation on the basis of a sale
made in Taiwan and a shipment of goods from Japan to Taiwan.
Considering the international context, the heavy burden on the
alien defendant, and the slight interests of the plaintiff and the
forum State, the exercise of personal jurisdiction by a
California court over Asahi in this instance would be
unreasonable and unfair.
Because the facts of this case do not establish minimum
contacts such that the exercise of personal jurisdiction is
consistent with fair play and substantial justice, the judgment of
Supreme Court of California is reversed, and the case is
remanded for further proceedings not inconsistent with this
opinion. It is so ordered.
Decision. The U.S. Supreme Court reversed the California
Supreme Court and found that there was no jurisdiction. This
Supreme Court case is significant because it lists several factors
that will be taken into account in determining whether a court
has personal jurisdiction.
Case Questions
1. Why did the Court refuse to hold that the California courts
had personal jurisdiction over Asahi?
2. What activities would Asahi need to have engaged in order
for the Court to determine that it had purposefully availed itself
of California law? Are some of these activities more important
21. than others? If so, which ones?
3. Did the Court give adequate weight to California’s interest
in the safety of products distributed in the state? Why or why
not?
Jurisdiction in the European Union.
Jurisdiction in civil and commercial cases between parties
domiciled in two or more European Union (EU) countries is
determined by EU Council Regulation No. 44/2001. This law
became effective in 2002 and replaced the 1968 Brussels
Convention on Jurisdiction and the Enforcement of Judgments
in Civil and Commercial Matters. The general rule is that
jurisdiction is determined by the domicile of the defendant. The
regulation states that “persons domiciled in a Member State
shall, whatever their nationality, be sued in the courts of that
Member State.” Corporations are domiciled in the Member State
(i.e., member country of the EU) where they are incorporated,
where they have their primary administrative offices, or where
they have their principal place of business.
There are several exceptions to this general rule. The exceptions
are: (1) Cases involving commercial contracts for the sale of
goods within the EU will be heard in the country where the
goods were or should have been delivered; (2) Cases involving a
breach of contract for services (other than insurance or
employment) within the EU will be heard where the services
were or should have been provided; (3) Tort cases, such as an
action arising out of an automobile accident, will be heard
before the courts in the country where the wrong occurred; (4)
In consumer contract cases, a consumer may bring an action
against the other party to the contract either in the country in
which that party is domiciled or in the country where the
consumer is domiciled. Lawsuits against a consumer to enforce
the contract can only be brought in the courts of the consumer’s
home country; (5) An employer may sue its employee or former
employee only in the employee’s place of domicile. However,
an employee may bring a lawsuit against an employer either in
the country where the employee is domiciled; where the
22. employer is domiciled, or, if not domiciled in the EU, where a
branch or agent is located; or in the country where the employee
regularly or last worked; and (6) Where at least one of the
parties is domiciled in the EU, by an agreement specifying the
courts of a certain EU country, provided that the agreement is in
written or electronic form, or in international cases, in a form
that the parties should have known amounted to a forum
selection.
Jurisdiction in the Internet Age.
As electronic commerce brings the world closer together, there
will likely be more disputes between parties in distant
countries. How will the courts fashion rules for deciding when a
party must defend itself against litigation in foreign courts? Just
as the meaning of “minimum contacts” adapted to the rise of
interstate commerce in the United States over sixty years ago, it
is now adapting to the rise of the Internet age. The following
case, Graduate Management Admission Council v. Raju,
involves a situation that many readers may appreciate. In this
case, involving several different tort actions including
trademark infringement and unfair competition, the Indian
defendant must have simply decided not to show up in the
United States to answer a complaint against him. Perhaps he
thought that the U.S. courts would have no jurisdiction over him
if he stayed away. He did not appear, and a default judgment
was entered against him.
Graduate Management Admission Council v. Raju
241 F. Supp. 2d 589 (2003) United States District Court (E.D.
Va.)
BACKGROUND AND FACTS
Plaintiff Graduate Management Admission Council (GMAC) is
a nonprofit corporation located in Virginia. It develops and
owns all rights to the Graduate Management Admission Test
(GMAT), used for admittance to about 1,700 graduate business
programs in the United States and elsewhere. The GMAT forms
and questions are original, copyrighted materials. GMAC
routinely registers its material with the Register of Copyrights
23. and has registered “GMAT” as a trademark with the U.S. Patent
and Trademark Office. Defendant Raju is a citizen of India.
Raju registered the domain names “gmatplus.com” and
“gmatplus.net” in 2000 and operated a Website under the former
name. The Website sold, for as much as $199, seven books
containing “100 percent actual questions” never before
published. The books were sold to customers in India, China,
Korea, Singapore, France, Australia, Japan, and Taiwan, and to
at least two individuals in Virginia. The Website contained
ordering information for customers in the United States. Orders
placed on the site were paid for by a money transfer through
Western Union or MoneyGram. GMAC filed a complaint against
Raju for infringement, cyber piracy, unfair competition, and
other torts. The defendant failed to appear, and the court
entered a default judgment against him on the basis of having
personal jurisdiction over him.
ELLIS, DISTRICT JUDGE
* * *
Under the well-established International Shoe formulation, the
exercise of personal jurisdiction over a defendant requires that
the defendant “have certain minimum contacts with [the forum]
such that the maintenance of a suit does not offend ‘traditional
notions of fair play and substantial justice.’” See International
Shoe Co.v. Washington, 326 U.S. 310, 316 (1945).. Personal
jurisdiction can be established under either general or specific
jurisdiction. Where, as here, the defendant’s contacts with the
forum are also the basis for the suit, specific jurisdiction is
appropriate. In determining whether specific jurisdiction exists,
courts must consider “(1) the extent to which the defendant
‘purposefully availed’ itself of the privilege of conducting
activities in the State; (2) whether the plaintiff’s claims arise
out of those activities directed at the State; and (3) whether the
exercise of personal jurisdiction would be constitutionally
‘reasonable.’” Id.
[T]his due process analysis must take account of the modern
reality of widespread Internet electronic communications.
24. Accordingly, the Fourth Circuit recently adopted the [Zippo
Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119
(W.D. Pa. 1997)] “sliding-scale” approach for determining
whether Internet activity can serve as a basis for personal
jurisdiction.
Under the now-familiar Zippo test, the likelihood that personal
jurisdiction can be constitutionally exercised is determined by
focusing on “the nature and the quality of commercial activity
that an entity conducts over the Internet.” Passive websites, that
do “little more” than make information available to users in
other jurisdictions, cannot support personal jurisdiction
everywhere that information is accessed.
At the other end of the spectrum are situations where a
defendant “clearly does business over the Internet,” for example
through the “knowing and repeated transmission of files over
the Internet,” which clearly do support personal jurisdiction. In
between is the “middle ground” of “interactive Web sites”
which are not passive, because they allow a user to exchange
information with the host computer, but also do not constitute
“clearly doing business over the Internet.” To determine
whether an “interactive” website is grounds for personal
jurisdiction, a court must consider the “level of interactivity and
the commercial nature of the exchange of information that
occurs on the Web site.” * * *
Rule 4(k)(2), Federal Rules of Civil Procedure… provides for
personal jurisdiction through nationwide service of process over
any defendant provided (i) exercise of jurisdiction is consistent
with the Constitution and the laws of the United States, (ii) the
claim arises under federal law, and (iii) the defendant is not
subject to the jurisdiction of the courts of general jurisdiction of
any state. Rule 4(k)(2) was added in 1993 to deal with a gap in
federal personal jurisdiction law in situations where a defendant
does not reside in the United States, and lacks contacts with a
single state sufficient to justify personal jurisdiction, but has
enough contacts with the United States as a whole to satisfy the
due process requirements. Precisely this situation is presented
25. here. The first element of the Rule 4(k)(2) analysis requires the
same minimum contacts due process analysis as is conducted
under Rule 4(k)(l)(A), with the significant difference that the
relevant forum is the United States as a whole, not an individual
State. * * *
In considering Raju’s contacts with the United States in this
case, the…test for determining personal jurisdiction based on
electronic activities must be adapted for the purpose of national
contacts analysis. Substituting the United States as the relevant
forum, the test requires a showing in this case (i) that Raju
directed his electronic activity into the United States, (ii) that
he did so with the manifest intent of engaging in business or
other interactions within the United States, and (iii) that his
activity creates a potential cause of action in a person within
the United States that is cognizable in the United States’ courts.
Raju’s alleged activity plainly creates a potential cause of
action in a person within the United States which is cognizable
in federal courts….GMAC is a Virginia nonprofit corporation
and thus a “person” within the United States. GMAC’s causes of
action are based on federal law, and thus are clearly cognizable
in federal courts. It is also clear that Raju’s intent is to “engage
in business,” namely the business of selling his GMAT test
preparation materials to buyers for a substantial fee…. All that
remains is a showing that Raju “directed his electronic activity”
into the United States, with the intent of engaging in business
“within the United States.” * * *
The record clearly indicates that Raju directed his activity at the
United States market and specifically targeted United States
customers. The intended market for business conducted through
a website can be determined by considering the apparent focus
of the website as a whole. See Young v. New Haven Advocate,
315 F.3d 256 (4th Cir. 2002) (examining the “general thrust and
content” of the newspapers’ websites, including the local focus
of the stories, local advertisements and classifieds, local
weather and traffic information, and links to local institutions,
in determining that “the overall content of both websites is
26. decidedly local”). The relevant question is whether the website
is “designed to attract or serve a [United States] audience” Id. .
There is ample evidence that Raju targeted the United States
market. First, and most significantly, the GMATplus site
provides specific ordering information for United States
customers. The ordering information page directs customers
who “live in the United States or Canada” to contact Western
Union or Money-Gram, and provides the toll free numbers for
use by those customers….No other countries apart from the
United States and Canada are mentioned by name on the
ordering information page. Thus, ordering information for
customers in the United States (and Canada) is provided first
and with more specificity than for customers from other
countries. Second, the ordering information page informs
customers that materials will “reach most parts of the world
(including the US) within 3-5 working days.” Third, the prices
for the products are listed in dollars, presumably United States
dollars. Fourth, three of the six testimonials are purportedly
from United States citizens. Fifth, the promotional text on the
site suggests that Raju’s materials will allow American citizens
and others to catch up with test takers from “India, China,
Korea, Japan, and Taiwan,” who purportedly score better on the
test as a group than “their American or European counterparts…
because most of them have access to 100 percent of unpublished
previous questions in these countries.” Finally, Raju confirmed
his apparent intent to serve United States customers by shipping
his materials to the two Virginia residents mentioned in the
record.
In sum, it is quite clear upon review of the GMATplus website
and the record as a whole that while Raju may have aimed his
website at the entire, worldwide market of GMAT test takers, he
specifically directed his electronic activity at the United States
market and did in fact ship materials in the United States. Thus,
GMAC has shown…that Raju “directed his electronic activity
into [the United States] with the manifested intent of engaging
in business…within [the United States]”….It follows that the
27. exercise of personal jurisdiction based on nationwide contacts
under 4(k)(2) comports with constitutional due process
requirements in this case. * * * To find otherwise would not
only frustrate GMAC’s attempts in this case to vindicate its
rights under United States law, by requiring GMAC to turn to
foreign courts to vindicate those rights against a likely elusive
defendant, it would also provide a blueprint whereby other
individuals bent on violating United States trademark and
copyright laws could do so without risking suit in a United
States court.
Decision. Raju had sufficient minimum contacts with the United
States to justify personal jurisdiction over him there under the
federal rules. The magistrate judge was directed to take
whatever steps deemed necessary to determine the appropriate
relief to be awarded GMAC in this matter.
Case Questions
1. On what basis did the court hold that Raju had sufficient
minimum contacts with the United States such as to support the
exercise of personal jurisdiction?
2. Is the court’s distinction between interactive and passive
Websites valid? What factors determine whether a Website is
interactive or passive?
3. Is the Internet sufficiently different from non-
electronically-based businesses to merit different treatment for
purposes of jurisdiction? Why or why not?
Obtaining Jurisdiction by Service of Process.
As we have learned, a court must have personal jurisdiction
over individuals or corporate entities before they can be made
to appear and defend a civil case. Personal jurisdiction is
obtained through lawful service of process. Without proper
service, any judgment that might be taken will not be
enforceable. This is especially problematic when attempting to
enforce a judgment internationally. To illustrate, imagine that
an American plaintiff files suit in a U.S. court against a resident
of France on a contract that was performed in the United States.
Assume that the plaintiff’s attorney is able to obtain service of
28. process upon the defendant in France. The French citizen does
not appear in the United States and a default judgment is
entered. When the American attempts to enforce the U.S.
judgment in the courts of France, the defendant will claim that
the method of service of process upon him was unsatisfactory
under French law. If the French courts agree, the plaintiff’s
judgment may be worth nothing if the defendant’s only assets
are in France. Thus, international lawyers trying to obtain
jurisdiction over a foreign defendant are advised to consult an
attorney in the defendant’s country and to follow the
requirements of both U.S. and French law to the letter.
Service of process upon a foreign defendant is addressed in The
Hague Convention on the Service Abroad of Judicial and Extra-
judicial Documents in Civil and Commercial Matters, in force in
sixty countries. Authorized methods of service are different
even for countries that are members of the treaty. Some
countries permit service through the use of registered or
certified mail, with a return receipt signed by the defendant
being served, although other countries (e.g., Germany, Norway,
Egypt, China, and others) do not permit this method. Some
countries permit personal service by an agent or attorney of the
plaintiff located in the defendant’s country who signs an
“affidavit of service” at a nearby U.S. embassy affirming that
he or she has served the defendant with notice and a copy of the
complaint. Most countries require the complaint to be in the
local language as well as in English. Perhaps the safest method,
but one that can cause very long delays (up to a year, according
to the U.S. State Department), is a formal request for service
made through a letter rogatory (a “letter of request” sent
through diplomatic channels) that results in personal service on
the defendant by the courts of the country in which he or she is
found. Defendants located in countries not parties to this
convention can also be served with process with a letter
rogatory. Letters rogatory are discussed later in this chapter.
Venue
Jurisdiction is often confused with the concept of venue. Venue
29. refers to the geographical location of a court of competent
jurisdiction where a case can be heard. While the courts of
several different states, or countries, may have proper
jurisdiction, the concept of venue helps decide which one of
these should actually hear the case. For instance, in some civil
lawsuits between citizens of different states, we know that the
federal courts may have jurisdiction. But in which federal
district should it be tried? Imagine an automobile accident in
which the passengers of one car are residents of Pennsylvania,
while the driver of the other vehicle is a resident of North
Carolina, and the accident occurs while they are both on
vacation in California. We know that jurisdiction is proper in
the federal courts (and it may also be proper in some state
courts). But we certainly would not expect that the case could
be tried in a federal court located in Montana. Federal rules
generally permit the case to be heard either where all of the
plaintiffs reside, where all of the defendants reside, or where
the cause of action arose. (In complex transnational litigation, it
is not unusual that courts in several countries might attempt to
exercise jurisdiction over the matter.) While typically the
plaintiff will initially choose where to file its suit, it is not
unusual for a defendant to request a change of venue, asking
that the case be removed to a location that is more convenient
and that has a closer connection to the facts of the particular
case.
Forum Non Conveniens
The legal doctrine of forum non conveniens (meaning
“inconvenient forum”) refers to the discretionary power of a
court to refuse to hear a case, even though jurisdiction and
venue are otherwise proper, because a court in another
jurisdiction or location would be more convenient and justice
would be better served. According to this doctrine, whenever a
case is properly heard in the courts of more than one
jurisdiction, it should be heard in the jurisdiction that is more
convenient and has the closer connection to the cause of action
that led to the case. In deciding on where to hear a case, the
30. courts will examine both “private factors” (factors affecting the
convenience of the parties and their ability to pursue their
claims) and “public factors” (factors related to the public
interest). For example, it may be more convenient to hear a case
where the action arose, where witnesses and evidence are
located, where the parties reside, or in the state or country
whose law applies to the case.
Imagine an airline disaster in the United States, with many
plaintiffs and one airline. Jurisdiction may be proper in any
number of locations, including the airline’s principal place of
business. But would it not be more convenient to hold the trial
where the crash occurred? After all, that is where the wreckage
is located, and where the controllers and other witnesses live
and work. Forum non conveniens is applied by courts in the
United States, as well as in many other countries. In the United
States, it is applied by the federal courts in determining where
to hear lawsuits between citizens of different states. It is also
used in determining whether an international case should be
heard by U.S. courts or by the courts of some other country. It
is not unusual for one of the parties to a case to ask a court to
transfer the case to another judicial district or location for
reasons of convenience. The factors generally considered were
described by the U.S. Supreme Court in Gulf Oil v. Gilbert, 330
U.S. 501 (1947).
Important considerations are the relative ease of access to
sources of proof; availability of compulsory process for
attendance of unwilling [witnesses] and the cost of obtaining
attendance of willing witnesses;…and all other practical
problems that make trial of a case easy, expeditious and
inexpensive. There may also be questions as to the
enforceability of a judgment if one is obtained…. It is often
said that the plaintiff may not, by choice of an inconvenient
forum, “vex,” “harass,” or “oppress” the defendant by inflicting
upon him expense or trouble not necessary to his own right to
pursue his remedy. But unless the balance is strongly in favor of
the defendant, the plaintiff’s choice of forum should rarely be
31. disturbed…. There is a local interest in having localized
controversies decided at home. There is an appropriateness, too,
in having the trial of a diversity case in a forum that is at home
with the state law that must govern the case, rather than having
a court in some other forum untangle problems in conflict of
laws, and in law foreign to itself.
Forum non Conveniens in Action: In re Union Carbide Gas
Plant Disaster at Bhopal.
After a chemical leak at a plant in Bhopal, India, killed almost
2,000 people, Indian citizens filed suit in the United States
against Union Carbide. At one point, almost 145 legal actions
on behalf of some 200,000 plaintiffs had been consolidated for
trial in federal court in New York. However, the case was
subsequently dismissed on the basis of forum non conveniens in
favor of the case being heard in India. The judge gave many
reasons for the decision: the Indian legal system was better able
to determine the cause of accident and assign liability; the
overwhelming majority of witnesses and evidence were in India;
the records of plant design, safety procedures, and training were
located in India; most records were not in English and many
witnesses did not speak English; the court would be unable to
compel witnesses to appear and the cost to transport them to the
United States would be prohibitive; visits to the plant might be
necessary; there was the likelihood that the U.S. court would
have to apply Indian law (the tort law of the jurisdiction where
the accident occurred); and the undue burden of this immense
litigation would unfairly tax an American tribunal. Also
considered was India’s substantial interest in the accident and
the outcome of the litigation: The Indian government and Indian
citizens owned 49 percent of the plant, with Union Carbide
owning the rest. As the judge expressed in the opinion:
To retain litigation in this forum would be another example of
imperialism, another situation in which an established sovereign
inflicted its rules, its standards and values on a developing
nation. This Court declines to play such a role. The Union of
India is a world power in 1986, and its courts have the proven
32. capacity to mete out fair and equal justice. To deprive the
Indian judiciary of this opportunity to stand tall before the
world and to pass judgment on behalf of its own people would
be to revive a history of subservience and subjugation from
which India has emerged. India and its people can and must
vindicate their claims before the independent and legitimate
judiciary created there since the Independence of 1947. This
Court defers to the adequacy and ability of the courts of India.
Their interest in the sad events… in the City of Bhopal, State of
Madhya Pradesh, Union of India, is not subject to question or
challenge. In re Union Carbide Gas Plant Disaster at Bhopal,
634 F. Supp. 842, 867 (S.D.N.Y. 1986).
The case was settled in India prior to trial in 1989 when Union
Carbide agreed to pay $470 million in compensation. In 2010,
an Indian court convicted several former Union Carbide officers
of crimes arising from the accident.
Forum Shopping.
It is not unusual that requests to transfer on the basis of forum
non conveniens are in truth attempts by counsel to “shop
around” for a better legal deal. They may be looking for a law
that is more favorable to their case or for a jury that might be
more sympathetic to their side. After all, in federal lawsuits
between residents of different states, such as in tort cases, the
federal courts apply the law of the state in which they sit.
Although there are procedural rules that discourage “forum
shopping,” it still weighs on the minds of most trial lawyers.
The same is true, perhaps even more so, in international cases.
Forum shopping in international cases may involve several
considerations. For example, there may be procedural reasons
for forum shopping such as the availability of a jury trial, class
action procedures and liberal discovery rules. The availability
of property that may be readily attached may lead some litigants
to select a specific forum. Forum shopping may occur in order
to avoid resolution of a dispute in a country where the judicial
system suffers from a perceived lack of integrity. Provisions
affecting the compensation of attorneys, such as the availability
33. of contingent fees and awards of attorney’s fees, may also
encourage forum shopping.
A significant motivation for forum shopping is the perception
that U.S. courts will be more likely to award larger amounts of
damages to injured parties than courts in other countries. This
perception is very strong in the area of punitive damages, which
are designed to punish a defendant for particularly offensive
behavior (such as intentional torts, fraud, and bad faith) and
deter future misconduct. Punitive damages are recognized in
other common law countries such as Australia, Canada,
England, India, and New Zealand, although with different
restrictions and in lesser amounts than may be awarded in the
United States. The majority of the rest of the world’s legal
systems reject punitive damages. For example, punitive
damages are not awarded by Japanese courts as a matter of
public policy, and Japanese law prohibits the recognition of
foreign judgments containing punitive awards. Like most civil
law countries, France and Germany have long adhered to the
traditional rule that prohibits awards of punitive damages in
civil actions. Under the French Civil Code, damages in civil
actions are limited to placing the injured party in the position it
would have occupied had the defendant’s conduct not occurred.
German courts have traditionally considered the prohibition on
punitive damages to be a matter of fundamental public policy.
However, there has been a gradual move away from wholesale
rejection of punitive damages in states whose legal systems
derive from traditions other than common law. For example,
there have been efforts in France in the past few years to revise
the Civil Code to explicitly authorize non-compensatory
damages. Recent German court judgments have contained
elements that are not purely compensatory in nature. Although
Spanish courts do not award punitive damages in private
actions, the Tribunal Supremo recently enforced a Texas
judgment that included treble damages arising from misuse of a
U.S. trademark by a Spanish company.
Other countries, including Argentina and Russia, have adopted
34. punitive damages in limited circumstances through statutes.
Perhaps most importantly is the enactment of the People’s
Republic of China’s Tort Liability Law in December 2009.
Effective in July 2010, the law unifies tort law in numerous
fields including product liability, environmental pollution,
medical malpractice, and motor vehicle accidents. Of particular
importance is the section devoted to product liability. In
response to several tainted product scandals in the country, the
new law permits an award of punitive damages against a
manufacturer or seller who knows that a product is defective but
nevertheless continues to manufacture or sell the product if such
product subsequently results in death or serious physical injury
to consumers. The law represents the first time that the term
“punitive damages” has officially appeared in Chinese law.
However, the method by which such damages are to be
calculated and any limits on their amounts are undefined.
In the following case, Iragorri v. United Technologies, the
appellate court had to decide whether a case for wrongful death
should be heard in Connecticut or in Cali, Colombia. The
plaintiffs wanted the case heard in Connecticut because, as one
would expect, the possibility of winning a large damage award
was much greater than in Colombia.
Iragorri v. United Technologies Corp. & Otis Elevator Co.
274 F. 3d 65 (2001) United States Court of Appeals (2d Cir.)
BACKGROUND AND FACTS
Iragorri and his family had been residents of Florida since 1981,
and naturalized citizens of the United States since 1989. In
1993, while visiting his mother in Cali, Colombia, Iragorri fell
to his death through an open elevator shaft. Iragorri’s children
had been attending school there as exchange students from their
Florida high school. His surviving wife and children brought
this action in U.S. District Court in Connecticut for damages
against two American companies, Otis Elevator and its parent
corporation, United Technologies. They alleged that employees
of International Elevator had negligently wedged a door open
with a screwdriver during repairs, leaving the shaft open.
35. International Elevator was a Maine corporation doing business
in South America. Both Otis and United had their principal
place of business in Connecticut. The complaint alleged that
Otis and United were liable because (1) International had acted
as their agent in negligently repairing the elevator, and (2) Otis
and United were liable under Connecticut’s products liability
statute for the defective design and manufacture of the elevator
that had been sold and installed by their affiliate, Otis of Brazil.
Otis and United moved to dismiss the case on the basis of forum
non conveniens, arguing that it should be heard in the
Colombian courts. The U.S. District Court dismissed the case,
and the plaintiffs brought this appeal.
OPINION BY PIERRE N. LEVAL AND JOSÉ A. CABRANES,
CIRCUIT JUDGES FOR THE COURT SITTING EN BANC
We regard the Supreme Court’s instructions that (1) a plaintiff’s
choice of her home forum should be given great deference,
while (2) a foreign resident’s choice of a U.S. forum should
receive less consideration, as representing consistent
applications of a broader principle under which the degree of
deference to be given to a plaintiff’s choice of forum moves on
a sliding scale depending on several relevant considerations.
The Supreme Court explained in Piper Aircraft Co. v. Reyno,
[citation omitted] that the reason we give deference to a
plaintiff’s choice of her home forum is because it is presumed
to be convenient. (“When the home forum has been chosen, it is
reasonable to assume that this choice is convenient.”) In
contrast, when a foreign plaintiff chooses a U.S. forum, it “is
much less reasonable” to presume that the choice was made for
convenience. In such circumstances, a plausible likelihood
exists that the selection was made for forum-shopping reasons,
such as the perception that United States courts award higher
damages than are common in other countries. Even if the U.S.
district was not chosen for such forum-shopping reasons, there
is nonetheless little reason to assume that it is convenient for a
foreign plaintiff.
Based on the Supreme Court’s guidance, our understanding of
36. how courts should address the degree of deference to be given
to a plaintiff’s choice of a U.S. forum is essentially as follows:
The more it appears that a domestic or foreign plaintiff’s choice
of forum has been dictated by reasons that the law recognizes as
valid, the greater the deference that will be given to the
plaintiff’s forum choice. Stated differently, the greater the
plaintiff’s or the lawsuit’s bona fide connection to the United
States and to the forum of choice and the more it appears that
considerations of convenience favor the conduct of the lawsuit
in the United States, the more difficult it will be for the
defendant to gain dismissal for forum non conveniens. Thus,
factors that argue against forum non conveniens dismissal
include the convenience of the plaintiff’s residence in relation
to the chosen forum, the availability of witnesses or evidence to
the forum district, the defendant’s amenability to suit in the
forum district, the availability of appropriate legal assistance,
and other reasons relating to convenience or expense. On the
other hand, the more it appears that the plaintiff’s choice of a
U.S. forum was motivated by forum-shopping reasons—such as
attempts to win a tactical advantage resulting from local laws
that favor the plaintiff’s case, the habitual generosity of juries
in the United States or in the forum district, the plaintiff’s
popularity or the defendant’s unpopularity in the region, or the
inconvenience and expense to the defendant resulting from
litigation in that forum—the less deference the plaintiff’s
choice commands and, consequently, the easier it becomes for
the defendant to succeed on a forum non conveniens motion by
showing that convenience would be better served by litigating
in another country’s courts.
We believe that the District Court in the case before us, lacking
the benefit of our most recent opinions concerning forum non
conveniens, did not accord appropriate deference to the
plaintiff’s chosen forum. Although the plaintiffs had resided
temporarily in Bogota at the time of Mauricio Iragorri’s
accident, it appears that they had returned to their permanent,
long-time domicile in Florida by the time the suit was filed. The
37. fact that the children and their mother had spent a few school
terms in Colombia on a foreign exchange program seems to us
to present little reason for discrediting the bona fides of their
choice of the Connecticut forum. Heightened deference to the
plaintiffs’ chosen forum usually applies even where a plaintiff
has temporarily or intermittently resided in the foreign
jurisdiction. So far as the record reveals, there is little
indication that the plaintiffs chose the defendants’ principal
place of business for forum-shopping reasons. Plaintiffs were
apparently unable to obtain jurisdiction in Florida over the
original third defendant, International, but could obtain
jurisdiction over all three in Connecticut. It appears furthermore
that witnesses and documentary evidence relevant to plaintiffs’
defective design theory are to be found at the defendants’
installations in Connecticut. As we have explained, “live
testimony of key witnesses is necessary so that the trier of fact
can assess the witnesses’ demeanor.” Alfadda v. Fenn, 159 F.3d
41, 48 (2d Cir. 1998). Also, in assessing where the greater
convenience lies, the District Court must of course consider
how great would be the inconvenience and difficulty imposed
on the plaintiffs were they forced to litigate in Cali. Among
other factors, plaintiffs claim that they fear for their safety in
Cali and that various witnesses on both sides may be unwilling
to travel to Cali; if these concerns are warranted, they appear
highly relevant to the balancing inquiry that the District Court
must conduct.
Decision. Remanded to the U.S. District Court for a
determination in accordance with this opinion. In deciding
whether to hear the case, the district court should consider the
degree of deference to which plaintiffs’ choice is entitled, the
hardships of litigating in Colombia versus the United States,
and the public interest factors involved.
Case Questions
1. What were the court’s reasons for refusing to apply forum
non conveniens to this case and requiring refiling of the
litigation in Colombia?
38. 2. Does the court’s opinion reward forum shopping to the
extent the plaintiffs were likely to receive a larger damages
award in the United States than in Colombia? Why or why not?
3. The court cited concern regarding the unstable political
situation in Colombia as a reason for refusing to apply forum
non conveniens. Given the changes that have occurred in the
country in the past decade, would the court reach the same
conclusion today?
Forum Selection Clauses
Businesspeople and lawyers negotiating international contracts
can avoid much of the uncertainty over jurisdiction and venue
by including a forum selection clause in their contracts. A
forum selection clause is a provision in a contract that fixes in
advance the jurisdiction in which any disputes will be arbitrated
or litigated. It provides certainty because the parties know
where and how a dispute will be resolved in the event of a
breach. One of the major advantages of these clauses is that
they eliminate the last-minute attempt by lawyers to go “forum
shopping” by filing suits in jurisdictions that offer the best law
for their case. The last chance for forum shopping may very
well be during contract negotiations. This allows both parties to
agree on a forum, perhaps the courts of a certain country, which
they find acceptable. Of course, the reality is that these clauses
are often not open for negotiation at all—the party to the
contract with the greatest bargaining power will simply include
a fine print provision calling for disputes to be resolved in the
courts of the country where it is located.
Historically, any attempt by private parties to control
jurisdiction was viewed with hostility by the courts as an effort
to usurp their authority. However, the realities of the
international marketplace and the need to reduce uncertainty in
a dispute have persuaded many courts to accept forum selection
clauses. Today, they are generally accepted as valid provided
that the forum chosen has some reasonable connection to the
transaction. In the following case, M/S Bremen v. Zapata, 407
U.S. 1 (1972), the U.S. Supreme Court upheld a clause calling
39. for disputes to be resolved before the English courts, noting that
U.S. courts can no longer remain geocentric in light of modern-
day international trade.
CONFLICT OF LAWS
As a general rule, courts apply the law in force in their
jurisdiction to the cases before them. In the United States, state
courts usually apply their own state’s law. Federal courts
hearing diversity of citizenship cases, such as breach of contract
or tort actions between residents of different states, generally
apply the law of the state in which they sit (unless a federal
statute or treaty controls). But these are general rules only, and
there are many cases where courts apply the law of another
state, or even of a foreign country. The term conflict of laws
refers to the rules by which courts determine which
jurisdiction’s laws apply to a case and how differences between
laws will be reconciled. In turn, the choice of law will
ultimately determine whether a court has jurisdiction, the rights
and liabilities of the parties, and how a judgment or monetary
award will be enforced.
The Restatement (Second) of the Conflict of Laws
Conflict of laws rules are some of the most complex in
procedural law, with different jurisdictions following different
rules. However, the concepts found in the Restatement (Second)
of the Conflict of Laws, drafted under the auspices of the
American Law Institute in 1971, provide a clear and widely
accepted explanation of these rules. As a general rule, courts
will apply the law of the state, country, or jurisdiction that has
the closest relationship to the action before them. The
Restatement (Second) addresses different types of actions,
including actions for breach of contract and for tort.
M/S Bremen v. Zapata Off-Shore Co.
407 U.S. 1(1972) United States Supreme Court
BACKGROUND AND FACTS
In 1967, Zapata, a Houston-based corporation, entered into a
contract with Unterweser, a German corporation, to tow
Zapata’s drilling rig from Louisiana to Ravenna, Italy. The
40. contract the parties signed contained the clause “Any dispute
arising must be heard before the London Court of Justice.”
During a storm, the rig was damaged, and Zapata instructed
Unterweser’s tug, the Bremen, to tow instead to Tampa, Florida,
the nearest port. Immediately thereafter, Zapata filed suit
infederal district court in Tampa, Florida, on the basis of
admiralty jurisdiction, seeking $3,500,000 damages in personam
against Unterweser and in rem against the Bremen. Unterweser
moved to dismiss for lack of personal jurisdiction on the basis
of the forum selection clause and forum non conveniens.
Unterweser sought a stay of action pending resolution in the
London Court of Justice.
The U.S. District Court and Court of Appeals denied the motion
to stay, thus allowing the case to proceed in U.S. court despite
the forum selection clause. Unterweser filed a petition of
certiorari to the U.S. Supreme Court.
CHIEF JUSTICE BURGER
We hold, with the six dissenting members of the Court of
Appeals, that far too little weight and effect were given to the
forum clause in resolving this controversy. For at least two
decades we have witnessed an expansion of overseas
commercial activities by business enterprises based in the
United States. The barrier of distance that once tended to
confine a business concern to a modest territory no longer does
so. Here we see an American company with special expertise
contracting with a foreign company to tow a complex machine
thousands of miles across seas and oceans. The expansion of
American business and industry will hardly be encouraged if,
notwithstanding solemn contracts, we insist on a parochial
concept that all disputes must be resolved under our laws and in
our courts. Absent a contract forum, the considerations relied on
by the Court of Appeals would be persuasive reasons for
holding an American forum convenient in the traditional sense,
but in an era of expanding world trade and commerce, [prior
cases that have decided otherwise] have little place and would
be a heavy hand indeed on the future development of
41. international commercial dealings by Americans. We cannot
have trade and commerce in world markets and international
waters exclusively on our terms, governed by our laws, and
resolved in our courts.
Forum-selection clauses have historically not been favored by
American courts. Many courts, federal and state, have declined
to enforce such clauses on the ground that they were “contrary
to public policy,” or that their effect was to “oust the
jurisdiction” of the court. Although this view apparently still
has considerable acceptance, other courts are tending to adopt a
more hospitable attitude toward forum-selection clauses. This
view, advanced in the well-reasoned dissenting opinion in the
instant case, is that such clauses are prima facie valid and
should be enforced unless enforcement is shown by the resisting
party to be “unreasonable” under the circumstances. We believe
this is the correct doctrine to be followed by federal district
courts sitting in admiralty….
This approach is substantially what is followed in other
common-law countries including England. It is the view
advanced by noted scholars and that adopted by the Restatement
of the Conflict of Laws. It accords with ancient concepts of
freedom of contract and reflects an appreciation of the
expanding horizons of American contractors who seek business
in all parts of the world….The choice of that forum was made in
an arm’s length negotiation by experienced and sophisticated
businessmen, and absent some compelling and countervailing
reason it should be honored by the parties and enforced by the
courts.
The elimination of all such uncertainties by agreeing in advance
on a forum acceptable to both parties is an indispensable
element in international trade, commerce, and contracting.
There is strong evidence that the forum clause was a vital part
of the agreement, and it would be unrealistic to think that the
parties did not conduct their negotiations, including fixing the
monetary terms, with the consequences of the forum clause
figuring prominently in their calculations.
42. Thus, in the light of present-day commercial realities and
expanding international trade we conclude that the forum clause
should control absent a strong showing that it should be set
aside. Although their opinions are not altogether explicit, it
seems reasonably clear that the District Court and the Court of
Appeals placed the burden on Unterweser to show that London
would be a more convenient forum than Tampa, although the
contract expressly resolved that issue. The correct approach
would have been to enforce the forum clause specifically unless
Zapata could clearly show that enforcement would be
unreasonable and unjust, or that the clause was invalid for such
reasons as fraud or overreaching. Accordingly, the case must be
remanded for reconsideration.
Decision. Vacated and remanded for proceedings consistent
with the opinion.
Comment. The Supreme Court noted the possible reasons that a
forum selection clause could be unenforceable: (1) if it
contravenes strong public policy and (2) if the forum is
seriously inconvenient. These reasons still hold true today.
Other reasons forum selection clauses may be ignored by the
courts are because parties are of unequal bargaining power;
counselwas not consulted; the clause was written in a foreign
language; the clause violates federal law; or circumstances have
changed (where the forum is the site of a revolution hostile to
one party’s country—for example, a forum selection clause
choosing Iran after the Islamic Revolution). Many other
countries also support the validity of forum selection clauses,
including Austria, the United Kingdom, France, Germany, Italy,
and many Latin American and Scandinavian countries.
CASE QUESTIONS
1. What was the Court’s holding with respect to the general
enforceability of forum selection clauses?
2. How would you define “public policy reasons” or “serious
inconvenience” for purposes of refusing to uphold a forum
selection clause? What factors would you take into account in
making this determination?
43. Contracts.
It has been said that deciding which law governs a contract is
like finding its “center of gravity.” In other words, in the
absence of an agreement by the parties, contracts should be
governed by the law of the jurisdiction that has the most
significant relationship to the transaction and the parties. The
Restatement (Second) sets out five factors to be considered: (1)
the place of contracting (i.e., where the acceptance took place);
(2) the place where the contract was negotiated (particularly if
the parties met and negotiated at length); (3) the place where
the contract will be performed; (4) the location of the subject
matter of the contract; and (5) the domicile, residence,
nationality, place of incorporation, and place of business of the
parties. If the contract was both negotiated and performed in the
same jurisdiction, then the law of that jurisdiction will apply
(except for contracts involving real estate or life insurance,
which have special rules). Of these, the place of negotiation and
performance is often the most important factor, especially if
both parties are performing within the same jurisdiction. The
place of contracting and the domicile of the parties, while not
critical by themselves, are important when supporting other
factors.
Torts.
Traditionally, the law in the United States and in most countries
has been that tort actions, including personal injuries, product
liability, wrongful death, fraud, and business torts, should be
governed by the law of the place where the injury or damage
occurred (known as lex loci delicti). In the United States, many
courts are adopting the broader view taken by the Restatement
(Second): that tort liability should be governed by the law of
the jurisdiction that has the most significant relationship to the
tort and to the parties. The Restatement (Second) lists the
following factors to be considered: (1) the place where the
injury occurred; (2) the place where the conduct causing the
injury occurred; (3) the domicile, residence, nationality, place
of incorporation, and place of business of the parties; and (4)
44. the place where the relationship between the parties is centered.
Choice of Law Clauses
Choice of law clauses are contract provisions that stipulate the
country or jurisdiction whose law will apply in interpreting the
contract or enforcing its terms. Lawyers are quite aware that
laws can be very different from state to state or country to
country and will consider this in contract negotiations. Indeed,
the choice of law may well become a bargaining point in
international contract negotiations. As a general rule, the choice
of law selection will be upheld as long as there is a reasonable
relationship between the transaction and the jurisdiction chosen.
As one court put it, parties today have several choices of law
that could apply to their dealings, but they could not choose to
have their disputes decided under the ancient Code of
Hammurabi. For example, imagine a Japanese manufacturer who
enters into a contract with a buyer in New York for the
shipment of goods to New York. Both parties have offices in
California and sign the contract there. A clause making
California law applicable to the contract would be valid,
because there is a sufficient nexus, or connection, between the
contract and the state of California.
The Application of Foreign Law in American Courts
If an American court determines that it should apply foreign law
to the case, how does it know what that law is? At one time,
foreign law was required to be proven in court as fact. Today, in
the federal courts, that has changed. Courts are free to
determine as a matter of law what the foreign law is. The
federal courts will follow the Federal Rules of Civil Procedure.
Rule 44.1 states that
A party who intends to raise an issue about a foreign country’s
law must give notice by a pleading or other writing. In
determining foreign law, the court may consider any relevant
material or source, including testimony, whether or not
submitted by a party or admissible under the Federal Rules of
Evidence. The court’s determination must be treated as a ruling
on a question of law.
45. Accordingly, judges may conduct their own research on foreign
law, they may request briefs provided by the parties’ lawyers,
or they may rely on the testimony of foreign lawyers in or out
of court. The following case, Finnish Fur Sales Co., Ltd. v.
Juliette Shulof Furs, Inc., involves a U.S. court in New York
that had to decide a case under the laws of Finland. It offers an
explanation of how a choice of law clause works and shows how
a U.S. court applies the law of a foreign country to resolve a
contract dispute. Notice the interplay of federal and state law
and the application of Rule 44.1.
Judicial Assistance: Discovery and the Collection of Evidence
Countries have their own rules governing pretrial discovery,
obtaining access to documents and other evidence, and the
admissibility of that evidence at trial. In the United States, this
is governed by the Federal Rules of Civil Procedure. The United
States has very liberal rules permitting the pretrial oral
deposition of witnesses out of court and the submission of
written interrogatories that the parties must answer under oath.
The courts have broad subpoena powers over documents and
other tangible evidence. When that evidence is located outside
the jurisdiction of the court, such as in a foreign country,
special problems arise. The 1970 Hague Convention on the
Taking of Evidence Abroad in Civil or Commercial Matters
provides methods for collecting foreign evidence via formal
requests made by the courts of one country to the courts of
another country through diplomatic channels (such as a
department or ministry of justice). Although only thirty-one
countries are party to the convention, most countries cooperate
in the collection of civil evidence, some to a greater or lesser
degree than others.
Letters Rogatory.
When a court in one country wants to make a request of a court
in another country for judicial assistance, it does so in writing
through a formal request known as letters rogatory (letters of
request). It can be used to request a deposition, a response to
written interrogatories, or the production of documents. Most
46. countries do not have liberal rules of discovery like the United
States; for example, many countries do not permit oral
depositions to be taken before trial.
Japan and China are notable examples. China has declared that
it does not recognize the right of foreign attorneys to take
depositions, even of willing witnesses. Any foreigner caught
attempting to do so without prior authorization is subject to
arrest, detention, or deportation. Moreover, only certain
government officials may administer oaths, and anyone else
caught doing so is committing a crime. Requests for obtaining
evidence from U.S. courts must be addressed in the form of
letters rogatory to the Chinese Ministry of Foreign Affairs. The
last time a U.S. party was permitted to take a deposition in
China was in 1989.
Japan has a slightly more liberal view. According to the U.S.
State Department, Japanese law permits the taking of a
deposition of a willing witness for use by a court in the United
States, but only if the deposition is presided over by a U.S.
consular officer pursuant to a court order and is conducted on
U.S. consular premises. Videotaping of the deposition is
permissible, but depositions conducted through teleconferencing
or telephonically are prohibited. It is a violation of Japanese
law for anyone to travel to Japan for the purpose of taking a
deposition unless they have a special “deposition visa” from a
Japanese consulate.
Finnish Fur Sales Co., Ltd. v. Juliette Shulof Furs, Inc.
770 F. Supp. 139 (1991) United States District Court (S.D.N.Y.)
BACKGROUND AND FACTS
Juliette Shulof Furs (JSF) is a New York corporation that has
been in the fur-dealing business for fifteen years. George
Shulof, an officer of JSF, attended two auctions conducted by
Finnish Fur Sales (FFS) in Finland in 1987. He purchased more
than $1.2 million worth of skins at the auctions. Shulof attended
each auction and was the actual bidder. The conditions of sale
were listed in the auction catalog in English. JSF paid for the
majority of the skins purchased, leaving an unpaid balance of
47. $202,416.85. FFS brought this action to recover the contract
price of the skins from Shulof, claiming he was personally
liable for payment under Finnish law. Shulof responded that he
was acting only as the agent for JSF and that under New York
law he was not personally responsible for the contracts of the
corporation he represented at the auction.
LEISURE, DISTRICT JUDGE
Section 4 of the Conditions of Sale provides:
Any person bidding at the auction shall stand surety as for his
own debt until full payment is made for purchased merchandise.
If he has made the bid on behalf of another person, he is jointly
and severally liable with the person for the purchase.
George Shulof denies any personal liability on the grounds that
the provision is unenforceable under both New York and
Finnish law.
Section 15 of the Conditions of Sale provides that “[t]hese
conditions are governed by Finnish law.” Choice of law clauses
are routinely enforced by the courts of this Circuit, “if there is a
reasonable basis for the choice.” Morgan Guaranty Trust Co. v.
Republic of Palau, 693 F. Supp. 1479, 1494 (S.D.N.Y. 1988).
New York courts also generally defer to choice of law clauses if
the state or country whose law is thus selected has sufficient
contacts with the transaction. Under those circumstances, “New
York law requires the court to honor the parties’ choice insofar
as matters of substance are concerned, so long as fundamental
policies of New York law are not thereby violated.” Woodling
v. Garrett Corp., 813 F.2d 543, 551 (2d Cir. 1987). Finland’s
contacts with the transactions at issue are substantial, rendering
the choice of law clause enforceable unless a strong public
policy of New York is impaired by the application of Finnish
law. Plaintiff FFS is a Finnish resident, which held auctions of
Finnish-bred furs in Finland. All bids were made in Finnish
marks, with payment and delivery to take place in Finland. Mr.
Shulof voluntarily traveled to Finland in order to partake in
FFS’s auctions. Thus, virtually all of the significant events
related to these transactions took place in Finland. Finland also
48. has an obvious interest in applying its law to events taking
place within its borders relating to an important local industry,
and in applying uniform law to numerous transactions with
bidders from foreign countries.
Mr. Shulof argues that the choice of Finnish law provision
should be held invalid….According to Mr. Shulof, New York
has the following interests in this action: it is the place of
business and of incorporation of JSF; FFS has a representative
with a New York office who communicated with Mr. Shulof
about the fur auctions; and that New York is, allegedly, “the
economic and design center for the world’s fur industry.” Mr.
Shulof also argues that, under New York law, Section 4 of the
Conditions of Sale would be invalid as contravening New
York’s policy against imposing personal liability on corporate
officers….
Under Federal Rule of Civil Procedure 44.1, a court, “in
determining foreign law, may consider any relevant material or
source, including testimony.” Both parties have submitted
affidavits of Finnish attorneys on the issue of Mr. Shulof’s
liability under Finnish law. FFS’s expert, Vesa Majamaa, a
Doctor of Law and Professor of the Faculty of Law at the
University of Helsinki, gives as his opinion that the provision
of Section 4 of the Conditions of Sale imposing personal
liability upon the bidder, regardless of whether he bids on
behalf of another, is valid both as a term of the particular
auctions at issue and as a general principle of Finnish and
Scandinavian auction law. According to Majamaa, it is
“commonly accepted in Scandinavia that a bidder, by making a
bid, accepts those conditions which have been announced at the
auction.” Further, he states: According to the Finnish judicial
system, no one may use ignorance of the law as a
defense….This same principle is also… applicable when the
matter in question concerns… terms of trade….If the buyer is
not familiar with the terms observed in an auction, he is obliged
to familiarize himself with them. In this respect, failure to
inquire will result in a loss for the buyer…. If a businessman