IN 441 Case Principles SP 2019

IN 441 – Case Summaries: LEGAL RULES AND PRINCIPLES IN KEY CASES
1. Falcoal, Inc. v Kurumu

Rules: 1) Under the US Foreign Sovereign Immunities Act (FSIA), where a foreign sovereign entity agrees to US
jurisdiction in a forum-selection clause, that sovereign has “waived” sovereign immunity. However, where there are two
contradictory forum-selection clauses, the foreign sovereign cannot be deemed to have waived its sovereign immunity.
2) Where a foreign entity is involved in “commercial activity carried on in the US”, there is no sovereign immunity
3) In order for a US court to exercise personal jurisdiction over a foreign defendant, that defendant must have taken
some action that constitutes consent to jurisdiction. If the defendant has established “minimum contacts” with the
given jurisdiction, such as by doing regular business with the jurisdiction, or setting up a permanent office there, then
there is jurisdiction. In this case, the defendant did not have minimum contacts, so there was no jurisdiction.
2. Kern v. Dynalectron
Rules: Under US law, religious discrimination in employment is not unlawful when affiliation with a particular religion is
a bona fide occupational qualification (BFOQ) for a given job.
If belonging to a particular religion is reasonably necessary for the operation of the business, there is no discrimination.
3. U.S. v. Liebo
Issue: In an FCPA prosecution, was there sufficient evidence for a jury to conclude that the airline tickets were given
“corruptly” so as to “obtain business” If the relationship between the receiver of the gift and the government officials
was such that a reasonable jury could have inferred that the gift was given to buy help in landing the contract, then the
jury was justified in its verdict.
4. Finnish Fur Sales Co v. Juliette Shulof Furs, George Shulof and Juliette Shulof
Rules: Under New York law, an authorized representative of a company will be personally bound by a contract or
document unless she expressly indicates that she was signing in a representative capacity, as by signing “Juliet Shulof,
President JSF”. Juliette Shulof is personally liable for the amount of the bill of exchange.
5. De Sanchez v. Banco de Nicaragua
Rule – The US courts will not assert jurisdiction in a case between a Nicaraguan citizen and the Nicaraguan government
on the basis of a human rights violation if the only violation is to seize someone’s money; crimes against humanity are
things like torture, imprisonment, execution, etc.
[NOT READ BUT DISCUSSED IN CLASS] 6. NICARAGUA VS. UNITED STATES
Rule – A country must agree to submit itself to ICJ jurisdiction. Through its optional clause, the US has submitted itself
to ICJ jurisdiction. Although “self-judging” clauses (clauses which allow a country to decide whether or not it wants to
escape jurisdiction in a particular case) within the optional clause are not technically allowed by the ICJ statutes, they
have always been tacitly recognized by the ICJ. The case against the US was allowed to proceed (but the US did not
participate). Dissenting Opinion of US Justice – The US Justice on the ICJ argued that the use of a self-judging clause
invalidates a country’s acceptance of ICJ jurisdiction. Therefore, the US’s original acceptance of ICJ jurisdiction in 1948
was invalid and the US had never submitted itself to ICJ jurisdiction.
7. ISRAEL V. EICHMANN
Can a court hear a case when the defendant was illegally kidnapped and forcibly brought into the country?
Rule – 1) Israel has “universal” jurisdiction over the accused by virtue of holding him in custody. Israel has jurisdiction
under the passive personality (victim) principle because many victims were Jews. Also, Israel has jurisdiction under the
protective principle because if it does not act its citizens will not be safe from similar barbarities in the future. However,
there must be a linking point between the crimes and Israel. 2) The way in which an accused is brought into the country
of trial is not relevant to the country’s jurisdiction over the accused.
8. REGINA V. BARTLE (PINOCHET)
Rule: 1) The systematic use of torture is one of the crimes which was outlawed by the Convention Against Torture (1984)
which was implemented in the UK in 1988. 2) International law recognizes two kinds of immunity: a) immunity ratione
personae, under which an acting head of state and such representatives as ambassadors are immune from arrest and
trial, and b) immunity ratione materiae (similar to the Act of State doctrine) under which officials are immune from
prosecution for governmental or official acts. Immunity ratione personae does not apply because Pinochet is no longer
head of state, and immunity ratione materiae does not apply in cases involving war crimes or crimes against humanity.
Pinochet may be extradited to Spain.
9. Nelson Bunker Hunt v. BP Exploitation Company (Libya) Ltd.
Issues: Must a US court enforce an English judgment? If an appeal is pending, should enforcement be stayed pending
the outcome of the appeal?
Rules: The US will enforce foreign judgments unless the defendant can show that there was a lack of judicial safeguards
in the foreign proceeding. Reciprocity is no longer a requirement of US law for the enforcement of foreign judgments.
However, a judgment shall not be enforced while an appeal is still pending in the foreign court.
[NOT READ BUT DISCUSSED IN CLASS] 10. Bhopal v Union Carbide
Rule – A US Court may dismiss a case on grounds of forum non conveniens if a) an adequate alternative forum exists and
b) a balancing of the convenience factors, such as access to witnesses, testimony, evidence, burden on respective court
systems, weighs in favor of dismissal.
11. Iran Aircraft Industries v. Avco Corporation
Rule: Ordinarily, under the NY Convention on the Recognition and Enforcement of Foreign Arbitral Awards, of which the
US is a party, courts must enforce arbitral awards. However, according to the Convention, a court may refuse
enforcement if the defendant was not allowed to present his case. Since Avco had not been told of the proof
requirements during arbitration, this amounted to not being allowed to present their case, and the award did not have
to be enforced. WARNING: THIS SEEMS LIKE A PRETTY DUBIOUS CASE TO ME.
12. Tennessee Imports, Inc. v. Pier Paulo
Rule: US courts must ordinarily respect arbitration clauses, provided the issues to be arbitrated fall within the scope of
the arbitration clause. Parties that want to avoid an arbitration clause will often claim that the arbitration clause does
not cover a certain type of dispute; in this case the court did not buy that argument.
13. Yahoo v. La Ligue Contre le Racisme
Rule – The US Courts will normally enforce French court judgments, but not if doing so would require them to overrule
US legal principles such as those enshrined in the First Amendment.
14. Milanovich v. Costa Crociere
Rule – Choice of law provisions contained in contracts (in this case, on the back of a ticket] are enforceable in the
absence of unreasonableness.

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IN 441 – Case Summaries: LEGAL RULES AND PRINCIPLES IN KEY CASES

1. Falcoal, Inc. v Kurumu

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