Planning for International Business Disputes

This chapter prepares students to minimize the risks associated with cross-border litigation by taking precautionary measures in international business planning. It begins by introducing the general principles of jurisdiction to adjudicate (both in respect of personal and subject matter jurisdiction), to prescribe law, and to enforce law under public international law. It also briefly introduces the concept of forum non conveniens as a doctrine that might displace the jurisdiction chosen by a plaintiff. It then discusses the form and content of contractual forum selection clauses, as well as the treatment of such clauses by states, with a special focus on the United States and European Union, as well as the major treaty regime respecting such clauses. It then introduces the problem of determining the law applicable to an international dispute and discusses the contractual choice of law clause as a means for rendering the terms of international litigation more predictable. It outlines the options for enforcing the judgment of a foreign court outside the country, including through unilateral recognition and multilateral treaties. It discusses the challenges unique to litigating against a foreign sovereign, including opportunities available under the U.S. Foreign Sovereign Immunities Act. Finally, it details the nonbinding and binding alternatives to litigation, with special focus on international commercial arbitration and foreign investment arbitration, and discusses the advantages and disadvantages of these alternatives, especially with regard to enforceability. It concludes with practice essays and multiple choice questions.