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PRINCIPLES OF JURISDICTION
I. Principles of jurisdiction
a. Territoriality
i. Objective Territoriality - where did the case begin?
ii.Subjective Territoriality (another name for effects jurisdiction) – where did the
effects occur?
iii.Status as an alien doesn’t affect the territoriality except if you're a diplomat etc.
b. Nationality
i. May also be referred to as personality jurisdiction
ii.Sometimes thought of as 2 types of personality jurisdiction
1. Active – plaintiff
2. Passive – victim
c. Protective (pg 780) - related to effects jurisdiction
i. If there is some fact pattern that has grave consequences for a country’s interests,
then they have this jurisdiction under a protective principle. Similar to effects
principle, b/c of spatial interest. But an interest doesn’t necessarily have to e
within the "space" of that country.
ii.Not as settled as areas of law as territoriality and nationality
d. Universal
i. Jus cogens, like piracy. It can be dealt with anywhere.
ii.rises to a level where any tribunal court can exercise jurisdiction, because it’s so
universally applied
iii.Highly controversial.
iv.What narrow set of cases should it be applied to?
1. Some countries that are members of ICC, so individual actors of these
countries commit grave acts against int'l principle, who should here these
cases?
v.Not as settled as areas of law as territoriality and nationality
e. Territoriality and nationality and effects are all very much accepted in the US and as
general principles of international law. Universal jurisdiction and protection principle are
not widely accepted.
II. Territoriality Principle
American Banana Co. v. United Fruit Co. (pg 768)
Facts: Pl, a U.S. citizen, has banana plantation in Panama. Df monopolizing the
banana trade, interferes w/ Pl’s business, driving him out of business with wrongful
conspiracy.
1. Law allegedly broken – Sherman Antitrust Act (Df trying to monopolize
banana trade)
ii.No jurisdiction for U.S. court: Territoriality principle – where did this happen? In
Panama
1. Although the acts were illegal in the United States, they were permitted by
the local law in the foreign jurisdiction at issue.
*Predates jurisprudence on effects jurisdiction - now may go the other way b/c of
effects jurisdiction
III. Nationality Principle
Blackmer v. United States (pg 772)
Facts: Blackmer, U.S. citizen, resident of France. Found guilty of contempt of court
in US by refusing to appear as a witness in US crim trial, and fined. He challenges
the fine under due process clause of 5th amendment.
ii.US says there's a nationality principle.
1. But there are some situations where we wouldn’t extend nationality
2. But here, US says there are overriding principles, why US can extend its
jurisprudential arm to elsewhere
iii.Doesn’t violate due process b/c he has notice etc. Fine affirmed.
iv.Why nationality? – Blackmer was as a witness. If he was a Df in crim proceeding in
US, there would be a diff basis for jurisdiction – territoriality if he committed crime
in US
The Effects Principle (Subjective Territoriality)
United States v. Aluminum Co. of America (pg 774)
Issue: Sherman antitrust – Aluminium monopolizing industry.
ii.What is the test that famous Judge Learned Hand used?
1. 1st - did congress intend to regulate activity beyond its borders (that
doesn’t satisfy territoriality). Learned Hand said, that in passing the
Sherman Act, Congress intended that even when not taking place in US, ...
2. Effects test
a. b/c imports to US, then it has effects in the US
b. The activity abroad had significant economic effects on US
Party Choice - Let parties choose where dispute will be settled and the applicable law.
The Bremen v. Zapata Off-Shore Co. (pg 781)
Facts: German & U.S. corps contracted to transport an oil rig. Rig damaged &
towed to Florida. U.S. sues in U.S. German corp argues there’s a forum-selection
clause that says England
ii.Court holds forum selection clause valid
1. Freedom to contract
2. Globalization - Involves something being transported from one part of the
world to another. So, there are so many jurisdictions that may have a claim
a. It wouldn’t be fair to enforce jurisdiction anywhere in the world a
claim may arise. May not want a claim to be settled in countries with
different laws
3. Public policy argument –we don’t want companies not doing business with
U.S. if we don’t uphold our contracts
We're not looking for the most convenient, but there is a presumption
established with the forum selection clause
Scherk v. Alberto-Culver Co. (pg 789)
Facts: Breach of K btwn parties. There was an forum selection clause which
stipulated that any dispute would be brought in Int’l arbitration panel in Paris, but
would apply Illinois law. Claim brought in IL.
Forum Selection clause is enforced (although theywould have been hesitant to do
so in domestic case)
1. Int'l vs. domestic - Why are domestic transactions diff from int'l
transactions?
a. Easier to apply the law. Less of disincentive for businesses to enter
into agreements
b. But in int'l, more multiple laws, etc. more uncertainty of what law or
forum to be utilized may be a disincentive to enter into business
agreements, so important to uphold the forum selection clauses, so
that parties will enter into agreements more readily if they know
exactly the forum and the law
2. Especially strong claim for enforcement, b/c it was an arbitration panel
a. More neutrality, not tied to a particular govt
b. Parties may have a role in choosing the arbitrators
c. More incentive for parties to engage in transactions too
3. Freedom of K
a. Also important that this was negotiated
b. Court not so much persuaded by this, and instead goes further and
looks at public policies, etc.