Deck 4: International Commercial Dispute Resolution

Question 1

Litigation is the most common vehicle for dispute resolution in international commercial transactions.

Answer 1

False

Question 2

A choice of law clause in a contract determines which country's law would be applied in case of a transnational contractual dispute.

Answer 2

True

Question 3

A forum selection clause in a contract determines what type of alternative resolution forums are available to parties in a dispute.

Answer 3

False

Question 4

International commercial arbitration is not a viable alternative to litigation in most transnational disputes.

Question 5

The service of process requirements are fairly harmonized throughout the countries of the world.

Question 6

Service by mail is generally recognized by foreign court systems.

Question 7

The purpose of the Hague Service Convention is to provide signatory countries the means to ensure an effective service of process in transnational commercial and civil matters.

Question 8

Discovery is the process of gathering evidence from one's adversary and other third parties in a lawsuit.

Question 9

The forum non conveniens doctrine holds that a U.S. court will find inadequate an alternative forum if that alternative forum does not provide the same legal remedies as a U.S. court.

Question 10

Arbitral awards are often easier to enforce than international litigation judgments.

Question 11

The rule of reciprocity holds that a country will not enforce the judgments rendered in a foreign country that does not likewise enforce its judgments.

Question 12

The rule of reciprocity is frequently used as a defense against the enforcement of foreign judgments.

Question 13

The United States will generally not enforce foreign courts' penal or tax judgments.

Question 14

Comity is the rule of law in which one nation recognizes the legislative, executive, or judicial acts of another nation.

Question 15

Foreign arbitral awards have been widely accepted and enforced through the adoption of the New York Convention.

Question 16

Absent a choice of law clause in a disputed contract, generally the law of the state most closely connected to the agreement will govern.

Question 17

Conflict of law rules are used by courts to determine the country with the closest connection to a case.

Question 18

Arbitration tribunals usually require that a choice of law clause have some connection to the parties or contract involved in the dispute.

Question 19

The doctrine of renvoi is when a court uses another country's conflict of law rules that direct the court to apply its own country's law.

Question 20

A party to arbitration may appeal the arbitral decision to a court of law.

Question 21

U.S. courts will generally void forum selection clauses as a usurpation of the court's jurisdiction.

Question 22

A contractual clause that allows a party to request a revision in a contract because of a change in circumstances that places an excessive burden on one party is known as a Force Majeure clause.

Question 23

A government approval clause requires that a government approve the terms of a contract before it is binding on the parties.

Question 24

Liquidated damages clauses are pre-agreed damages that the parties agree to voluntarily pay upon breaching the contract.

Question 25

Under the civil law, courts will recognize liquidated damage clauses that serve as a means of just compensation as well as a penalty to induce performance.

Question 26

Litigation is the preferred method of dispute resolution in Japan.

Question 27

The disadvantages of arbitration include limited pre-trial discovery and limited rights to appeal.

Question 28

Foreign arbitration decisions need the cooperation of the court system in order to properly function.

Question 29

A Med-Arb clause in a contract requires mediation or conciliation as a precursor to any arbitration.

Question 30

Under the Convention for the International Sale of Goods (CISG), work stoppages and strikes are generally considered impediments and are sufficient causes for a party to fail to perform.

Question 31

A clause in an international contract which determines where a future lawsuit will be argued or settled is known as a:

A) Choice of law clause
B) Forum selection clause
C) Dispute resolution clause
D) Transnational recognition clause

Question 32

The formal notification of a defendant that he needs to defend himself in court is:

A) Service of process
B) Jurisdictional process
C) Habeas Corpus
D) None of the above

Question 33

In order to require a foreign party to defend itself in a suit brought in the United States, the service of process should meet the requirements of:

A) The United States
B) The foreign country of the party being served
C) Both A & B
D) None of the above

Question 34

In cases where the court determines that there is a more convenient forum to hear the case, the court is applying:

A) The alter ego theory
B) The forum non conveniens doctrine
C) The stream of commerce doctrine
D) The specific jurisdiction doctrine

Question 35

In Central Bank of the Philippines v. Ferdinand E. Marcos the court held that:

A) Foreign sovereign immunity, as provided for under the Foreign Sovereign Immunity Act, can be applied to officials of foreign governments and its agencies
B) Diplomatic immunity is a discretionary decision of the Executive branch through certification by the Department of State
C) Head of State immunity applies to all officials and agents of a foreign government
D) All of the above
E) None of the above

Question 36

The Hague Evidence Convention provides for the use of all of the following methods of evidence collection except:

A) Letters of Request
B) Depositions
C) Diplomatic officers
D) Consular agents

Question 37

In Hilton v. Guyot the Supreme Court held that a foreign judgment is entitled to enforcement if the defendant had an opportunity for a 'fair trial'. A 'fair trial' requires that a foreign court do all of the following except:

A) Possess personal and subject matter jurisdiction
B) Conduct trials using regular procedures
C) Act under a system of jurisprudence that offers an impartial administration of justice
D) Allow for the presentation of witnesses by the defense

Question 38

Under the Uniform Foreign Money Judgment Recognition Act:

A) Reciprocity is considered a factor to consider when deciding whether to recognize foreign money judgments.
B) A foreign judgment is not due recognition while in the process of being appealed
C) The principle of comity requires that foreign judgments be recognized
D) None of the above

Question 39

All of the following conventions have been effective in facilitating the enforcement of judgments internationally except:

A) Recognition and Enforcement of Foreign Judgments
B) Lugano Convention
C) Brussels Convention on Jurisdiction and Judgments in Civil and Commercial Matters
D) Inter-American Convention on the Extraterritorial Validity of Foreign Judgments

Question 40

Alternate Dispute Resolution processes include all of the following except:

A) Mediation
B) Conciliation
C) Litigation
D) Arbitration
E) None of the above

Question 41

If a court applies different governing laws to different parts of a contract, it is applying the principle of:

A) Choice of law
B) Conflict of law
C) Depecage
D) Renvoi

Question 42

In evaluating the law of jurisdiction in tort claims, the Restatement (Second) of Conflicts of Laws says that all of the following factors are relevant except:

A) The place where a tort occurred
B) The place where the relationship of the parties is centered
C) The place where the injury occurred.
D) The place of negotiation
E) None of the above

Question 43

The growth of arbitration in international business disputes can be attributed to:

A) New York Convention
B) Hague Convention
C) Lugano Convention
D) None of the above

Question 44

Frequently cited advantages of arbitration over litigation include all of the following except:

A) Savings in time and expense
B) Confidentiality of the proceedings
C) Expertise of the arbitrators
D) Liberal discovery rules

Question 45

Parties to a dispute may use which of the following organizations to control the arbitration process:

A) American Arbitration Association
B) International Chamber of Commerce
C) International Arbitration Committee
D) A & B only
E) All of the above

Question 46

The New York Convention provides a narrow set of grounds for which a court may not enforce an arbitration award. All of the following are reasons for a court to vacate an award except:

A) Arbitration was held in the incorrect forum
B) The award was procured by corruption or fraud
C) The arbitrators have awarded on a matter not submitted to them
D) None of the above

Question 47

As a dispute resolution device, mediation refers to the process whereby:

A) Two parties in a dispute agree to binding arbitration
B) Two parties in a dispute attempt to find a mutually satisfactory solution through the use of a third party
C) Two parties in a dispute agree to have their case heard by a mutually agreed upon court
D) None of the above

Question 48

A clause in a contract which allows a party to terminate its obligations under the contract due to an event expressly designated by the parties is known as a:

A) Liquidated damages clause
B) Unforeseen events clause
C) Force Majeure clause
D) Hardship clause

Question 49

In Iran Aircraft Industries v. Avco Corporation, the court held that:

A) The New York Convention required the court to enforce the foreign arbitration award against Avco
B) Foreign arbitration awards may be denied by U.S. courts if the losing party was denied due process
C) Avco was given full notice and opportunity to present its claims and therefore must abide by the arbitration ruling.
D) None of the above

Question 50

Under the International Chamber of Commerce Force Majeure clause, a party is not liable for failure to perform if he/she can prove that:

A) The failure was due to an impediment beyond control
B) He/she could not have reasonably foreseen the impediment at the time of contract formation
C) He/she could not have reasonably avoided or overcome its effects
D) A & B only
E) All of the above

Question 51

Discuss U.S. law in regard to the enforcement of foreign judgments. Under what circumstances will a U.S. court likely enforce/not enforce a foreign judgment?

Question 52

What are 'conflict of law' rules and how do courts use them to assist in making choice of law decisions? Discuss the relevant factors that the courts consider in evaluating tort or contract claims under the Restatement (Second) of Conflicts of Laws.

Question 53

What are the advantages to arbitrating an international dispute rather pursuing litigation?

Question 54

Discuss the New York Convention and its importance. Under what circumstances does the Convention allow for the non-enforcement or vacating of an arbitral award?

Question 55

What issues should one keep in mind when drafting an arbitration clause for an international contract?

Question 56

What is a force majeure clause? What criteria need to be satisfied in order for an event to qualify as a force majeure under most national laws?