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Data on Choice-of-Court Clause Enforcement in US
The United States legal system is immensely complex. There are state courts and federal courts, state statutes and federal statutes, state common law and federal common law. When I imagine a foreign lawyer trying to explain this system to a foreign client, my heart fills with pity.
This feeling of pity is compounded when I imagine this same lawyer trying to advise her client as to whether a choice-of-court clause will be enforced by a court in the United States. The law on this subject is complicated. It is, moreover, not easy to determine how it is applied in practice. Are there differences in clause enforcement rates across the states? Across federal circuits? Do state courts enforce these clauses at the same rate as federal courts? Until recently, there was no data that would allow a foreign lawyer – or a U.S. lawyer, for that matter – to answer any of these questions.
Over the past several years, I have authored or co-authored several empirical articles that seek to answer the questions posed above. This post provides a summary of the data gathered for these articles. All of the cases referenced involve outbound choice-of-court clauses, i.e. clauses that select a jurisdiction other than the one where the suit was filed. Readers interested in the data collection process, the caveats to which the data is subject, or other methodological issues should consult the articles and their appendices. This post first describes state court practice. It then describes federal court practice. It concludes with a brief discussion comparing the two.
Polish Constitutional Court about to review the constitutionality of the jurisdictional immunity of a foreign State?
Written by Zuzanna Nowicka, lawyer at the Helsinki Foundation for Human Rights and lecturer at Department of Logic and Legal Argumentation at University of Warsaw
In the aftermath of the judgment of the ICJ of 2012 in the case of the Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) that needs no presentation here (for details see, in particular, the post by Burkhard Hess), by its judgment of 2014, the Italian Constitutional Court recognized the duty of Italy to comply with the ICJ judgment of 2012 but subjected that duty to the “fundamental principle of judicial protection of fundamental rights” under Italian constitutional law (for a more detailed account of those developments see this post on EAPIL by Pietro Franzina and further references detailed there). In a nutshell, according to the Italian Constitutional Court, the fundamental human rights cannot be automatically and unconditionally sacrificed in each and every case in order to uphold the jurisdiction immunity of a foreign State allegedly responsible for serious international crimes.
Since then, the Italian courts have reasserted their jurisdiction in such cases, in some even going so far as to decide on the substance and award compensation from Germany. The saga continues, as Germany took Italy to the ICJ again in 2022 (for the status of the case pending before the ICJ see here). It even seems not to end there as it can be provocatively argued that this saga has its spin-off currently taking place before the Polish courts.
The Greek Supreme Court has decided: Relatives of persons killed in accidents are immediate victims
A groundbreaking judgment was rendered last October by the Greek Supreme Court. Relatives of two Greek crew members killed in Los Llanos Air Base, Spain, initiated proceedings before Athens courts for pain and suffering damages (solatium). Although the action was dismissed by the Athens court of first instance, and the latter decision was confirmed by the Athens court of appeal, the cassation was successful: The Supreme Court held that both the Brussels I bis Regulation and the Lugano Convention are establishing international jurisdiction in the country where the relatives of persons killed are domiciled, because they must be considered as direct victims.
THE FACTS
On 26 January 2015, an F-16D Fighting Falcon jet fighter of the Hellenic Air Force crashed into the flight line at Los Llanos Air Base in Albacete, Spain, killing 11 people: the two crew members and nine on the ground.
The relatives of the Greek crew members filed actions for pain and suffering damages before the Athens court of first instance against a US (manufacturer of the aircraft) and a Swiss (subsidiary of the manufacturer) company. The action was dismissed in 2019 for lack of international jurisdiction. The appeals lodged by the relatives before had the same luck: the Athens court of appeal confirmed in 2020 the first instance ruling. The relatives filed a cassation, which led to the judgment nr. 1658/5.10.2022 of the Supreme Court.
News
Chinese Journal of Transnational Law (Vol. 1, Issue 2) was released
We are pleased to announce the publication of the latest issue of the Chinese Journal of Transnational Law (Volume 1, Issue 2, September 2024). The special issue titled “Legalization of Foreign Relations in China” was guest-edited by Professor Congyan Cai.
The full issue is now available with free access for a limited time. You can explore the table of contents and access the articles at this link: Chinese Journal of Transnational Law – Volume 1, Issue 2.
Table of Contents
Special Issue Articles
Legalization of Foreign Relations in China
Zheng Tang and Congyan Cai
pp. 89
Milestone of China’s Foreign-Related Legislation – A Review of the Law of the People’s Republic of China on Foreign Relations
Huang Huikang
pp. 95
Political Framing in China’s Foreign Relations Law: International Law and ‘Fundamental Norms Governing International Relations’
Malcolm Jorgensen
pp. 117
China’s Foreign State Immunity Law: A View from the United States
William S. Dodge
pp. 137
A Critical Appraisal on China’s Blocking Statutes from a Private Actor’s Perspective
Guiqiang Liu
pp. 154
Original Research Article
A Future Uniform Regime of International Commercial Mediator Immunity: Limited, Party-Agreed and Statute-Required
Meng Lin
pp. 176
Short Article and Recent Development
Reading China’s Global Security Initiative Through an International Legal Lens
Ka Lok Yip
pp. 198
Book Review
Liang Xi, Updated and Augmented by Yang Zewei, Liangxi Guojizuzhifa
Gang Tang
pp. 211
Journal of Private International Law 20th Anniversary Conference: Call for Paper Proposals
The following information on the Journal of Private International Law 20th Anniversary Conference, to be held at the Faculty of Laws, University College London, Thursday 11 – Saturday 13 September 2025, has kindly been provided by Ugljesa Grusic.
We are pleased to invite the submission of paper proposals for the conference. Submission is open to anyone regardless of seniority or academic affiliation, including postgraduate students and practitioners, with an expectation that you will produce a paper for submission to the Journal of Private International Law by the end of the 2025 calendar year (with publication subject to the usual peer review process). Proposals are welcome on any topic within the scope of the Journal. A proposal should include an abstract of no more than 500 words, as well as details of the name and affiliation(s) of the author(s).
Announcement – Save the Date: Conference on Private International Law and Sustainable Development in Asia
Prof. Zheng Sophia Tang will be hosting a hybrid conference on Private International Law and Sustainable Development in Asia at Wuhan University on 23rd November 2024. This conference will be held both in person and online.