PROBLEM 5.1: JURISDICTION IN FOREIGN COURTS

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PROBLEM 5.1 JURISDICTION IN FOREIGN COURTS

• Donikë Qerimi
• Carolyn Cicippio

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BACKGROUND

• Our Client Celsius Manufacturing, Inc.
• -Delaware corporation
• -Principle place of business Pittsburgh, PA
• -Oct. 2007
• -Celsius at trade fair in London
• -Plastic Maker (Germany) submitted purchase
  order for 1,000 IMDs at trade fair
• -Celsius President sent letter to PM
  acknowledging acceptance of order (still in
  London)
• Neither order nor acceptance letter contained
  choice of forum or choice of law clause

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BACKGROUND

• -Jan. 2008
• -Celsius IMDs shipped and arrived at PMs
  London warehouse
• -PM informed Celsius that the quality of IMDs
  was not the same as IMDs at trade fair and PM
  was rejecting them
• -PM would keep IMDs at London warehouse
  awaiting further instructions
• -Celsius engineers examined IMDs in London
  warehouse and found that they did conform to
  quality at trade fair, but were stored in
  location open to weather and were damaged as a
  result-Celsius could repair IMDs but would be
  expensive

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CLIENTS GOALS

• -Bring suit against PM to collect contract price
  of IMDs plus interest and other losses due to
  breach of contract by PM
• -If contract action is not successful, Celsius
  wants to file alternative tort claim for damage
  to IMDs due to PMs negligence

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IMPORTANT CONSIDERATIONS

• -Is there jurisdiction in U.S.?
• -Is there jurisdiction in Germany?
• -Is there jurisdiction in London (UK)?
• Choice of court can affect the enforcement of
  the judgment

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IS THERE JURISDICTION ABROAD?

• Look at Brussels Regulation
• First look at Art.2 for general jurisdiction
• Then look at Art.5 for special jurisdiction-contra
  ct or tort claim
• Applies if suit is brought in either Germany or
  London (UK)

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IS THERE JURISDICTION IN THE U.S.?

• Minimum contacts analysis
• Helicopteros case
• Likelihood of enforcing judgment

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IS THERE JURISDICTION IN GERMANY?

• General jurisdiction under Art. 2 of the
  Regulation/ Art. 60s definitions
• Court/defendant nexus
• hostility towards attribution of of jurisdiction
  to the courts of the plaintiffs domicile/
  Article 3 of the Regulation
• scheme and objectives of the Conventionagainst
  a proliferation of forums

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IS THERE JURISDICTION IN LONDON (UK)?

• Art 5.1 a) and b) (page 140)
• Art. 5.5 operations of other establishment
• Art. 5.3 in matters of torts place where the
  harmful even occurred of may occur
• CPR 6.20 (page 136)
• Enforcement Chapter III of the Regulation

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RECOMMENDATION

• -Under Brussels Regulation could bring either
  contract or tort suit
• -For contract suit-have to satisfy significant
  link test-place of delivery
• -In this case, London (UK) would have
  jurisdiction under contract suit
• -For tort suit- have to satisfy place of harmful
  occurrence test
• -In this case, London (UK) would have
  jurisdiction under tort suit

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CASES

• Color Drack GMBH v. Lexx International Vertriebs
  GMBH (2007)
• Contract case
• Significant link test-place of delivery
• Bier v. Mines De Potasse DAlsace (1741)
• Tort case
• Place of harmful occurrence test
• a)Place where the damage occurred
• b)Place of the event giving rise to it

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CHECKLIST

• -Must establish jurisdiction
• -If jurisdiction falls under Brussels Regulation
  need to refer to Art.2 for general jurisdiction
  and then refer to Art.5 for special jurisdiction
• -For contracts claims
• -Significant link test
• -For torts claims
• -Place of harmful occurrence test