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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
Workshop on Cross-border Protection of Cultural Property-Agenda
Workshop on Cross-border Protection of Cultural Property Agenda
2025.2.28, UTC 8:00 – 12:15 (London Time)
| 8:00 – 8:05 | Opening Remarks | ||
| Zheng Tang | professor of Law, editor in chief, Chinese Journal of Transnational Law; Associate Dean, Wuhan University Academy of International Law and Global Governance | ||
| 8:05 – 8:45 | Keynote Address | ||
| Christa Roodt | Senior Lecturer of History of Art, University of Glasgow | ||
| Zhengxin Huo | Professor of Law, China University of Political Science and Law | ||
| Panel 1: Legal Mechanisms of Cross-Border Cultural Property Protection | |||
| 8:45 – 9:00 | Elena Moustaira | The contribution of Postcolonial Theory to the cross-border protection of Indigenous cultural heritage | |
| 9:00 – 9:15 | Yehya Badr | Restitution of stolen foreign cultural property and hurdles in choice of law | |
| 9:15 – 9:30 | Maggie Fleming Cacot | Forfeiture and freezing orders in transborder cultural property litigation | |
| 9:30 – 9:50 | Commentary and Discussion | ||
| Panel 2: Regional Practices and Challenges in Cultural Property Restitution | |||
| 9:50 – 10:05 | Andrzej’s Jakubowski | Moving People, Shifting State Borders and the Return of Cultural Property: The Case of Poland | |
| 10:05 – 10:20 | Miroslaw Michal Sadowski | From freedom to restitution (with special focus on Central and Eastern Europe and the Lusophone community) | |
| 10:20 – 10:35 | Ekin Omeroglu | The Issue of Applicable Law in Disputes Arising from Violations of Private Law Regulations on Cultural Properties: The Case of Turkiye | |
| 10:35 – 10:50 | Ruida Chen | Restitution of cultural property in China: In search of a new paradigm for cross-border cultural property claims | |
| 10:50 – 11:10 | Commentary and Discussion | ||
| Panel 3: Looking to the Past and the Future | |||
| 11:10 – 11:25 | Dabbie De Girolamo | The Relevance of ADR for transnational cultural property disputes: A Survey and Analysis of China’s experience | |
| 11:25 – 11:40 | Andreas Giorgallis | Restitution of cultural objects unethically acquired during the colonial era: The intersection of Public and Private International Law | |
| 11:40 – 11:55 | Evelien Campfens | Evolving Legal Models of Restitution | |
| 11:55 – 12:15 | Commentary and Discussion | ||
Join Zoom Meeting:
https://zoom.us/j/87424891864?pwd=8rHX72dmzi7FCDWWnm7F2n1OLIOFaC.1
Meeting ID: 874 2489 1864 Password: 574150
Giustizia consensuale No 2/2024: Abstracts
The second issue of 2024 of Giustizia consensuale (published by Editoriale Scientifica) has just been released, and it features:
Tommaso dalla Massara (Professor at Università Roma Tre), Per un’ermeneutica della certezza nel processo civile romano: tra regula iuris e determinazione pecuniaria (For a Hermeneutics of Certainty in the Roman Civil Process: Between Regula Iuris and Pecuniary Determination; in Italian).
This contribution offers a reflection on procedural certainty, starting from the Roman classical process. In particular, crucial is the idea that, in this procedural system, certainty is to be related to the rule of ‘condemnatio pecuniaria’. Thus, certainty is translated into the determinacy of the pecuniary sentence. What emerges is a peculiar way of understanding judicial activity, which is characterised by the alternativeness between the groundedness and groundlessness of the claim (si paret/si non paret oriented to a certum), as opposed to the hypothesis in which the assessment is left entirely to the judge.
Beatrice Ficcarelli (Associate Professor at the University of Florence), L’acquisizione di informazioni e «prove» nella negoziazione assistita da avvocati: la tessera che mancava (The Acquisition of Information and ‘Evidence’ in Negotiation Assisted by Lawyers: The Missing Piece of the Puzzle; in Italian). Read more
Call for Participants: Quo Vadis Preferential Law Approach? A Survey on the Interpretation of Article 6(2) Rome I Regulation Across EU Member States
Benedikt Schmitz (University of Groningen) has shared the following call for participants with us:
Quo Vadis Preferential Law Approach? A Survey on the Interpretation of Article 6(2) Rome I Regulation Across EU Member States
Project description:
The Rome I Regulation plays a crucial role in determining the applicable law in cross-border consumer contracts within the European Union. Article 6(2) Rome I Regulation allows parties to choose the governing law while ensuring that consumers do not lose the protection granted by mandatory provisions of the law that would apply in the absence of such a choice. Despite its significance, the interpretation of this provision varies across Member States, leading to questions about its practical coherence and effectiveness. Read more