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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
XVIII ASADIP Conference – Rio de Janeiro, 7-9 August
Registration has now opened to participate in the XVIII ASADIP Conference – Regional Imaginaries, Global Resonance: Inter-American Private International Law and the World Stage, to be held in the city of Rio de Janeiro, Brazil from 7 to 9 August 2025. This year, ASADIP is organising the Conference in collaboration with the Organisation of American States, on the occasion of the 50th anniversary of the Inter-American Conference on Private International Law and the OAS Course on International Law. Preliminary programme, registration link and further info.
HCCH Monthly Update: April 2025
HCCH Monthly Update: April 2025
Membership
On 10 April 2025, Qatar applied to become a Member of the HCCH. On the same day, the Secretary General of the HCCH opened the six-month voting period during which all current Members of the HCCH may cast their vote on the proposal. Following this voting period, and provided a majority of votes are cast in favour, Qatar will be invited to become a Member by depositing an instrument of acceptance of the Statute of the HCCH. More information is available here.
Meetings & Events
From 2 to 4 April 2025, the conference “15 Years of the HCCH Washington Declaration: Progress and Perspectives on International Family Relocation” was held at the Embassy of Canada in Washington, D.C., United States of America. The conference was jointly organised by the Embassy of Canada, the International Academy of Family Lawyers (IAFL), and the HCCH. More information is available here.
From 7 to 11 April 2025, the Working Group on Parentage / Surrogacy met for the fourth time. Pursuant to its mandate, the Working Group continued its consideration of draft provisions for one new instrument on legal parentage generally, including legal parentage resulting from an international surrogacy agreement. More information is available here.
On 30 April 2025, the seventh meeting of the Working Group established to complete the Country Profile and work on the draft Cooperation Request Recommended Model Form for the 1996 Child Protection Convention was held online, hosted by the Permanent Bureau. More information is available here.
Upcoming Events
The webinar “HCCH 2019 Judgments Convention: Bridging Global Justice” will be held via Zoom on Tuesday 6 May 2025 from 4.00 p.m. to 5.30 p.m. (Hong Kong time), hosted by the HCCH’s Regional Office for Asia and the Pacific. Interested persons should register no later than this Friday, 2 May 2025, at 5.00 p.m. (Hong Kong time). More information is available here.
These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.
Report from the inaugural conference of the Australasian Association of Private International Law (AAPrIL)
On 16 and 17 April 2025, the Australasian Association of Private International Law (AAPrIL) held its inaugural conference in Brisbane, Australia. Hosted by Griffith University—the home of AAPrIL President Mary Keyes—the conference featured stimulating panel presentations from speakers from around Australia and abroad.
The conference started with a panel on jurisdiction and judgments, chaired by Richard Garnett of Melbourne Law School. Reid Mortensen of USQ kicked things off with a presentation on Australia’s cross-vesting scheme. Priskila Penasthika of the Universitas Indonesia then spoke on ‘The Indonesian Language Contract Requirements versus Arbitration as a Choice of Forum’. Read more