Deck 52: International Law Appendices

Question 1

For updated links to resources available on the Web, as well as a variety of other materials, visit this text's Web site at
academic.cengage.com/blaw/clarkson
FindLaw, which is now a part of West Group, includes an extensive array of links to international doctrines and treaties, as well as to the laws of other nations, on its Web site. Go to
www.findlaw.com/12international
For information on the legal requirements of doing business internationally, a good source is the Internet Law Library's collection of laws of other countries. You can access this source at
www.lawguru.com/ilawlib/ id=52

Answer 1

Not Answer

Question 2

On December 21, 1988, Pan Am Flight 103 exploded 31,000 feet in the air over Lockerbie, Scotland, killing all 259 passengers and crew on board and 11 people on the ground. Among those killed was Roger Hurst, a U.S. citizen. An investigation determined that a portable radio-cassette player packed in a brown Samsonite suitcase smuggled onto the plane was the source of the explosion. The explosive device was constructed with a digital timer specially made for, and bought by, Libya. Abdel Basset Ali Al-Megrahi, a Libyan government official and an employee of the Libyan Arab Airline (LAA), was convicted by the Scottish High Court of Justiciary on criminal charges that he planned and executed the bombing in association with members of the Jamahiriya Security Organization (JSO) (an agency of the Libyan government that performs security and intelligence functions) or the Libyan military. Members of the victims' families fi led a suit in a U.S. district court against the JSO, the LAA, Al-Megrahi, and others. The plaintiffs claimed violations of U.S. federal law, including the Anti-Terrorism Act, and state law, including the intentional infl iction of emotional distress. [ Hurst v. Socialist People's Libyan Arab Jamahiriya, 474 F.Supp.2d 19 (D.D.C. 2007)]
(a) Under what doctrine, codified in which federal statute, might the defendants claim to be immune from the jurisdiction of a U.S. court Should this law include an exception for "state-sponsored terrorism" Why or why not
(b) The defendants agreed to pay $2.7 billion, or $10 million per victim, to settle all claims for "compensatory death damages." The families of eleven victims, including Hurst, were excluded from the settlement because they were "not wrongful death beneficiaries under applicable state law." These plaintiffs continued the suit. The defendants filed a motion to dismiss. Should the motion be granted on the ground that the settlement bars the plaintiffs' claims Explain.

Answer 2

Ethics related to the Plane Accident
a.
The defendants claim should be immune under the foreign sovereign immunity doctrine which is embodied under the Foreign Sovereign Immunities Act which governs any action brought in the US against foreign nationals which also includes the attempt to attach the foreign property. The doctrine also contains certain exceptions which are as follows:
1. When the foreign state expressly or impliedly waived its immunity.
2. When the foreign state is involved with the US regarding commercial activity or any activity outside the state which has direct effects on the US.
3. When tort was committed by foreign in US.
Therefore, this law does also include the exception related to the state sponsored terrorism.
b.
The motion should not be granted to dismiss the suit as settlement is not the bar to the plaintiff's claim. The families of eleven victims including H were not the wrongful beneficiary as they were the US nationals and the sovereign immunity will not apply on the defendant as they are state sponsored terrorism and this abrogates their immunity for not being tried under US courts.

Question 3

Comity In 1995, France implemented a law that makes the use of the French language mandatory in certain legal documents. Documents relating to securities offerings, such as prospectuses, for example, must be written in French. So must instruction manuals and warranties for goods and services offered for sale in France. Additionally, all agreements entered into with French state or local authorities, with entities controlled by state or local authorities, and with private entities carrying out a public service (such as providing utilities) must be written in French. What kinds of problems might this law pose for U.S. businesspersons who wish to form contracts with French individuals or business firms

Answer 3

Laws Posed for US Businessmen Forming Contracts with French Business Firms
If all the contracts were in foreign language, that is, French (F), then it might create a huge problem with the US businessman who wished to form contract with F individual or businessman. The problems that the law might imply in this case are discussed as follows:
a.
It is very difficult for the US nationals to understand the F language therefore, it will cause problem while determining the terms and conditions of contract.
b.
It will be most likely that F businessman will take undue advantage of this weakness and will commit fraud or breach of contract as it will be difficult for the US businessman to understand the terms and conditions.
c.
This language hurdle will directly affect the relations among the state and will also affect the commercial relationship between both the countries as US businessman then desist in entering contract with the F businessman.
d.
It will be difficult to understand the laws of France when forming contracts with them for the US businessmen as the F laws differ from those of US depending on the political and other perspectives.

Question 4

Robco, Inc., was a Florida arms dealer. The armed forces of Honduras contracted to purchase weapons from Robco over a six-year period. After the government was replaced and a democracy installed, the Honduran government sought to reduce the size of its military, and its relationship with Robco deteriorated. Honduras refused to honor the contract and purchase the inventory of arms, which Robco could sell only at a much lower price. Robco filed a suit in a federal district court in the United States to recover damages for this breach of contract by the government of Honduras. Using the information presented in the chapter, answer the following questions.
Should the Foreign Sovereign Immunities Act (FSIA) preclude this lawsuit Why or why not
DEBATE THIS: The U.S. federal courts are accepting too many lawsuits initiated by foreigners that concern matters not relevant to this country.

Question 5

Carnero v. Boston Scientific Corp.
United States Court of Appeals, First Circuit, 2006. 433 F.3d 1.
www.ca1.uscourts.gov a
• Background and Facts Boston Scientific Corporation (BSC) is a Delaware corporation with headquarters in Natick, Massachusetts. BSC, which makes medical equipment, operates in many countries throughout the world. BSC's subsidiaries include Boston Scientific Argentina S.A. (BSA) in Argentina and Boston Scientific Do Brasil Ltda. (BSB) in Brazil. In 1997, Ruben Carnero, a citizen of Argentina, began working for BSA in Buenos Aires. Four years later, Carnero accepted a simultaneous assignment with BSB. Soon afterward, he reported to BSC that its Latin American subsidiaries were improperly inflating sales figures and engaging in other accounting misconduct. His employment with BSA and BSB was terminated. Carnero filed a complaint with the U.S. Department of Labor (DOL) against BSC under the Sarbanes-Oxley Act, seeking reinstatement. The DOL rejected the claim. Carnero filed a suit in a federal district court against BSC on the same basis. The court dismissed the complaint. Carnero appealed to the U.S. Court of Appeals for the First Circuit.
a. In the right-hand column, click on "Opinions." When that page opens, in the "Short Title contains " box, type "Carnero" and click on "Submit Search." In the result, in the "Click for Opinion" column, click on one of the numbers to access the opinion.
* * * *
Carnero argues that [18 U.S.C. Section 1514A] should be given extraterritorial effect, so as to allow him to pursue in federal court his whistleblower claim brought under its provisions. He says his claim not only fits within the literal language of the statute but that to limit the operation of the statute to purely domestic conduct in the United States would improperly insulate the foreign operations of covered companies. This, he says, would frustrate the basic purpose of the Sarbanes-Oxley Act of which the whistleblower protection statute at issue is a part, to protect both the investors in U.S. securities markets and the integrity of those markets.
While Carnero's argument has some force, it faces a high and we think insurmountable hurdle in the well-established presumption against the extraterritorial application of Congressional statutes. Where, as here, a statute is silent as to its territorial reach, and no contrary congressional intent clearly appears, there is generally a presumption against its extraterritorial application.* * *
* * * *
The presumption serves at least two purposes. It protects against unintended clashes between our laws and those of other nations which could result in international discord, and it reflects the notion that when Congress legislates, it is primarily concerned with domestic conditions. * * * [Emphasis added.]
* * * *
* * * [P]ertinent factors run strongly counter to finding an extraterritorial legislative intent. These contrary indicia [signs, or indications] prevent our determining that Congress has evidenced its "clear intent" for extraterritorial application. Not only is the text of 18 U.S.C. Section 1514A silent as to any intent to apply it abroad, the statute's legislative history indicates that Congress gave no consideration to either the possibility or the problems of overseas application. In sharp contrast with this silence, Congress has provided expressly elsewhere in the Sarbanes-Oxley Act for extraterritorial enforcement of a different, criminal, whistleblower statute. By so providing, Congress demonstrated that it was well able to call for extraterritorial application when it so desired. Also in the Act, Congress has provided expressly for the exterritorial application of certain other unrelated statutes, tailoring these so as to cope with problems of sovereignty and the like-again demonstrating Congress's ability to provide for foreign application when it wished. Here, however, while placing the whistleblower provision's enforcement in the hands of the DOL, a domestic agency, Congress has made no provision for possible problems arising when that agency seeks to regulate employment relationships in foreign nations, nor has Congress provided the DOL with special powers and resources to conduct investigations abroad. Furthermore, judicial venue provisions written into the whistleblower protection statute were made expressly applicable only to whistleblower violations within the United States and to complainants residing here on the date of violation, with no corresponding basis being provided for venue as to foreign complainants claiming violations in foreign countries.
These factors * * * not only fail to imply a clear congressional intent for extraterritorial application, but indicate that Congress never expected such application.
• Decision and Remedy The U.S. Court of Appeals for the First Circuit affirmed the lower court's dismissal of Carnero's complaint under 18 U.S.C. Section 1514A. Congress "made no reference to [the statute's] application abroad and tailored the * * * statute to purely domestic application." This section of the act "does not reflect the necessary clear expression of congressional intent to extend its reach beyond our nation's borders."
• What If the Facts Were Different Suppose that Carnero had been an American working for BSA and BSB. Would the result in this case have been the same Discuss.
• The Legal Environment Dimension How might the court's decision in this case frustrate the basic purpose of the Sarbanes-Oxley Act, which is to protect investors in U.S. securities markets and the integrity of those markets

Question 6

Go to academic.cengage.com/blaw/clarkson , the Web site that accompanies this text. Select "Chapter 52" and click on "Internet Exercises." There you will find the following Internet research exercises that you can perform to learn more about the topics covered in this chapter.
Management Perspective
Overseas Business Opportunities

Question 7

QUESTION WITH SAMPLE ANSWER
As China and formerly Communist nations move toward free enterprise, they must develop a new set of business laws. If you could start from scratch, what kind of business law system would you adopt, a civil law system or a common law system What kind of business regulations would you impose

Question 8

Robco, Inc., was a Florida arms dealer. The armed forces of Honduras contracted to purchase weapons from Robco over a six-year period. After the government was replaced and a democracy installed, the Honduran government sought to reduce the size of its military, and its relationship with Robco deteriorated. Honduras refused to honor the contract and purchase the inventory of arms, which Robco could sell only at a much lower price. Robco filed a suit in a federal district court in the United States to recover damages for this breach of contract by the government of Honduras. Using the information presented in the chapter, answer the following questions.
Does the act of state doctrine bar Robco from seeking to enforce the contract Explain.
DEBATE THIS: The U.S. federal courts are accepting too many lawsuits initiated by foreigners that concern matters not relevant to this country.

Question 9

Khulumani v. Barclay National Bank, Ltd.
United States Court of Appeals, Second Circuit, 2007. 504 F.3d 254.
PER CURIAM [By the whole court].
* * * *
The plaintiffs in this action bring claims under the Alien Tort Claims Act ("ATCA") against approximately fifty corporate defendants and hundreds of "corporate Does" [including Bank of America, N.A.; Barclay National Bank, Ltd.; Citigroup, Inc.; Credit Suisse Group; Deutsche Bank A.G.; General Electric Company; IBM Corporation; and Shell Oil Company]. The plaintiffs argue that these defendants actively and willingly collaborated with the government of South Africa in maintaining a repressive, racially based system known as "apartheid," which restricted the majority black African population in all areas of life while providing benefits for the minority white population.
Three groups of plaintiffs filed ten separate actions in multiple federal district courts asserting these apartheid-related claims. One group, the Khulumani Plaintiffs, filed a complaint against twenty-three domestic and foreign corporations, charging them with various violations of international law. The other two groups, the Ntsebeza and Digwamaje Plaintiffs, brought class action claims on behalf of the "victims of the apartheid related atrocities, human rights' violations, crimes against humanity and unfair [and] discriminatory forced labor practices." * * *
* * * [A]ll of the actions [were transferred to a federal district court in] the Southern District of New York * * *. [T]hirty-one of the fifty-five defendants in the Ntsebeza and Digwamaje actions * * * [and] eighteen of the twenty-three defendants in [the Khulumani] action * * * filed * * * motion[s] to dismiss.
* * * *
Ruling on the defendants' motions to dismiss, the district court held that the plaintiffs failed to establish subject matter jurisdiction under the ATCA. * * * The district court therefore dismissed the plaintiffs' complaints in their entirety. * * * [T]he plaintiffs filed timely notices of appeal [with the U.S. Court of Appeals for the Second Circuit].
* * * *
* * * [This court] vacate[s] the district court's dismissal of the plaintiffs' ATCA claims because the district court erred in holding that aiding and abetting violations of customary international law cannot provide a basis for ATCA jurisdiction. We hold that * * * a plaintiff may plead a theory of aiding and abetting liability under the ATCA. * * * [The majority of the judges on the panel that heard this case agreed on the result but differed on the reasons, which were presented in two concurring opinions. One judge believed that liability on these facts is "well established in international law," citing such examples as the Rome Statute of the International Criminal Court. Another judge stated that grounds existed in such resources of U.S. law as Section 876(b) of the Restatement (Second) of Torts, under which liability could be assessed in part for "facilitating the commission of human rights violations by providing the principal tortfeasor with the tools, instrumentalities, or services to commit those violations."] [Emphasis added.]
* * * *
* * * [W]e decline to affirm the dismissal of plaintiffs'ATCA claims on the basis of the prudential concerns a raised by the defendants. * * * [T]he Supreme Court [has] identified two different respects in which courts should consider prudential concerns [exercise great caution and carefully evaluate international norms and potential adverse foreign policy consequences] in deciding whether to hear claims brought under the ATCA. b First,* * * courts should consider prudential concerns in the context of determining whether to recognize a cause of action under the ATCA. Specifically, * * * the determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts. Second, * * * in certain cases, other prudential principles might operate to limit the availability of relief in the federal courts for violations of customary international law.
a. The term prudential concerns refers to the defendants' arguments that the plaintiffs do not have standing to pursue their case in a U.S. court. Here, prudential means that the arguments are based on judicially (or legislatively) created principles rather than on the constitutionally based requirements set forth in Article III of the U.S. Constitution (the case or controversy clause).
b. The court is referring to the decision of the United States Supreme Court in Sosa v. Alvarez-Machain, 542 U.S.692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). In the Sosa case, the Supreme Court outlined the need for caution in deciding actions under the Alien Tort Claims Act and said that the "potential implications for the foreign relations of the United States of recognizing such causes should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs."
* * * *
One such principle * * * [is] a policy of case-specific deference to the political branches [of the U.S. government]. This policy of judicial deference to the Executive Branch on questions of foreign policy has long been established under the prudential justiciability [appropriate for a court to resolve] doctrine known as the political question doctrine. Another prudential doctrine that the defendants raise in this case is international comity. This doctrine * * * asks whether adjudication of the case by a United States court would offend amicable working relationships with a foreign country. [Emphasis added.]
* * * *
We decline to address these case-specific prudential doctrines now and instead remand to the district court to allow it to engage in the first instance in the careful "case-by-case" analysis that questions of this type require.* * *
* * * *
* * * We VACATE the district court's dismissal of the plaintiffs' ATCA claims * * * and REMAND for further proceedings consistent with this opinion.
1. What are the ramifications for the defendants of the ruling in this case
2. How might such "prudential concerns" as the principle of comity affect the eventual outcome

Question 10

Sovereign Immunity. Tonoga, Ltd., doing business as Taconic Plastics, Ltd., is a manufacturer incorporated in Ireland with its principal place of business in New York. In 1997, Taconic entered into a contract with a German con- struction company to supply special material for a tent project designed to shelter religious pilgrims visiting holy sites in Saudi Arabia. Most of the material was made in, and shipped from, New York. The company did not pay Taconic and eventually filed for bankruptcy. Another German firm, Werner Voss Architects and Engineers, acting as an agent for the government of Saudi Arabia, guaranteed the payments due Taconic to induce it to complete the project. When Taconic received all but the final payment, the firm filed a suit in a federal district court against the government of Saudi Arabia, claiming a breach of the guaranty and seeking to collect, in part, about $3 million. The defendant filed a motion to dismiss based on the doctrine of sovereign immunity, among other things. Under what circumstances does this doctrine apply What are its exceptions Should this suit be dismissed under the "commercial activity" exception Explain. [ Tonoga, Ltd. v. Ministry of Public Works and Housing of Kingdom of Saudi Arabia, 135 F.Supp.2d 350 (N.D.N.Y. 2001)]

Question 11

Robco, Inc., was a Florida arms dealer. The armed forces of Honduras contracted to purchase weapons from Robco over a six-year period. After the government was replaced and a democracy installed, the Honduran government sought to reduce the size of its military, and its relationship with Robco deteriorated. Honduras refused to honor the contract and purchase the inventory of arms, which Robco could sell only at a much lower price. Robco filed a suit in a federal district court in the United States to recover damages for this breach of contract by the government of Honduras. Using the information presented in the chapter, answer the following questions.
Suppose that prior to this lawsuit, the new government of Honduras had enacted a law making it illegal to purchase weapons from foreign arms dealers. What doctrine of deference might lead a U.S. court to dismiss Robco's case in that situation
DEBATE THIS: The U.S. federal courts are accepting too many lawsuits initiated by foreigners that concern matters not relevant to this country.

Question 12

Import Controls. DaimlerChrysler Corp. made and marketed motor vehicles. DaimlerChrysler assembled the 1993 and 1994 model years of its trucks at plants in Mexico. Assembly involved sheet metal components sent from the United States. DaimlerChrysler subjected some of the parts to a complicated treatment process, which included the application of coats of paint to prevent corrosion, impart color, and protect the finish. Under federal law, goods that are assembled abroad using U.S.-made parts can be imported tariff free. A federal statute provides that painting is "incidental" to assembly and does not affect the status of the goods. A federal regulation states that "painting primarily intended to enhance the appearance of an article or to impart distinctive features or characteristics" is not incidental. The U.S. Customs Service levied a tariff on the trucks. DaimlerChrysler filed a suit in the U.S. Court of International Trade, challenging the levy. Should the court rule in DaimlerChrysler's favor Why or why not [ DaimlerChrysler Corp. v. United States, 361 F.3d 1378 (Fed.Cir. 2004)]

Question 13

Robco, Inc., was a Florida arms dealer. The armed forces of Honduras contracted to purchase weapons from Robco over a six-year period. After the government was replaced and a democracy installed, the Honduran government sought to reduce the size of its military, and its relationship with Robco deteriorated. Honduras refused to honor the contract and purchase the inventory of arms, which Robco could sell only at a much lower price. Robco filed a suit in a federal district court in the United States to recover damages for this breach of contract by the government of Honduras. Using the information presented in the chapter, answer the following questions.
Now suppose that the U.S. court hears the case and awards damages to Robco, but the government of Honduras has no assets in the United States that can be used to satisfy the judgment. Under which doctrine might Robco be able to collect the damages by asking another nation's court to enforce the U.S. judgment
DEBATE THIS: The U.S. federal courts are accepting too many lawsuits initiated by foreigners that concern matters not relevant to this country.

Question 14

Comity E L Consulting, Ltd., is a U.S. corporation that sells lumber products in New Jersey, New York, and Pennsylvania. Doman Industries, Ltd., is a Canadian corporation that also sells lumber products, including green hem-fir, a durable product used for home building. Doman supplies more than 95 percent of the green hem-fir for sale in the northeastern United States. In 1990, Doman contracted to sell green hem-fi r through E L, which received monthly payments plus commissions. In 1998, Sherwood Lumber Corp., a New York firm and an E L competitor, approached E L about a merger. The negotiations were unsuccessful. According to E L, Sherwood and Doman then conspired to monopolize the green hem-fir market in the United States. When Doman terminated its contract with E L, the latter filed a suit in a federal district court against Doman, alleging violations of U.S. antitrust law. Doman filed for bankruptcy in a Canadian court and asked the U.S. court to dismiss E L's suit, in part, under the principle of comity. What is the principle of comity On what basis would it apply in this case What would be the likely result Discuss. [E L Consulting, Ltd. v. Doman Industries, Ltd., 360 F.Supp.2d 465 (E.D.N.Y. 2005)]

Question 15

Dumping A newspaper printing press system is more than a hundred feet long, stands four or five stories tall, and weighs 2 million pounds. Only about ten of the systems are sold each year in the United States. Because of the size and cost, a newspaper may update its system, rather than replace it, by buying "additions." By the 1990s, Goss International Corp. was the only domestic maker of the equipment in the United States and represented the entire U.S. market. Tokyo Kikai Seisakusho (TKSC), a Japanese corporation, makes the systems in Japan. In the 1990s, TKSC began to compete in the U.S. market, forcing Goss to cut its prices below cost. TKSC's tactics included offering its customers "secret" rebates on prices that were ultimately substantially less than the products' actual market value in Japan. According to TKSC office memos, the goal was to "win completely this survival game" against Goss, the "enemy." Goss filed a suit in a federal district court against TKSC and others, alleging illegal dumping. At what point does a foreign firm's attempt to compete with a domestic manufacturer in the United States become illegal dumping Was that point reached in this case Discuss. [Goss International Corp. v. Man Roland Druckmaschinen Aktiengesellschaft, 434 F.3d 1081 (8th Cir. 2006)]

Question 16

Fuji Photo Film Co. v. International Trade Commission
United States Court of Appeals, Federal Circuit, 2007. 474 F.3d 1281.
• Background and Facts Fuji Photo Film Company owns fifteen patents for "lens-fitted film packages" (LFFPs), popularly known as disposable cameras. An LFFP consists of a plastic shell preloaded with film. To develop the film, a consumer gives the LFFP to a film processor and receives back the negatives and prints, but not the shell. Fuji makes and sells LFFPs. Jazz Photo Corporation collected used LFFP shells in the United States and shipped them abroad to insert new film and import them back into the United States for sale. The International Trade Commission (ITC) determined that Jazz's resale of shells originally sold outside the United States infringed Fuji's patents. In 1999, the ITC issued a ceaseand- desist order to stop the imports. While the order was being disputed at the ITC and in the courts, between August 2001 and December 2003 Jazz imported and sold 27 million refurbished LFFPs. Fuji complained to the ITC, which fined Jazz more than $13.5 million. Jack Benun, Jazz's chief operating officer, appealed to the U.S. Court of Appeals for the Federal Circuit.
* * * *
* * * The Commission concluded that 40% of the LFFPs in issue were first sold abroad * * *. This conclusion was supported by substantial evidence. It was based on * * * the identifying numbers printed on the LFFPs and Fuji's production and shipping databases to determine where samples of Fuji-type LFFPs with Jazz packaging (i.e., ones that were refurbished by Jazz) were first sold.
Benun urges that the Commission's decision in this respect was not supported by substantial evidence, primarily arguing that Jazz's so-called informed compliance program required a finding in Jazz's favor. Benun asserts that this program tracked shells from collection through the refurbishment process to sale and insured that only shells collected from the United States were refurbished for sale here. The Commission rejected this argument for two reasons. First, it concluded that the program was too disorganized and incomplete to provide credible evidence that Jazz only refurbished shells collected from the United States. Second, the Commission concluded that at most the program could insure that Jazz only refurbished LFFPs collected from the United States, not LFFPs that were first sold here.
Responding to the second ground, Benun urges that proof that Jazz limited its activities to shells collected in the United States was sufficient * * * because Fuji "infected the pool" of camera shells collected in the United States by taking actions that made it difficult for Jazz and Benun to ensure that these shells were from LFFPs first sold here. These actions allegedly included allowing [one company] to import cameras with Japanese writing on them for sale in the United States; allowing [that company] to import spent shells into the United States for recycling; and allowing tourists to bring cameras first sold abroad into the United States for personal use. Under these circumstances, Benun argues that a presumption should arise that shells collected in the United States were first sold here. However, the Commission found that the number of shells falling into these categories was insignificant, and that finding was supported by substantial evidence. Moreover, there was evidence that Jazz treated substantial numbers of its own shells collected in the United States * * * as having been sold in the United States even though it knew that 90% of these shells were first sold abroad * * *.
In any event, the Commission's first ground-that the program was too incomplete and disorganized to be credible-was supported by substantial evidence. Since there was no suggestion that the incomplete and disorganized nature of the program was due to Fuji's actions, this ground alone was sufficient to justify a conclusion that Benun had not carried his burden to prove [the refurbished LFFPs had been sold first in the United States].
• Decision and Remedy The U.S. Court of Appeals for the Federal Circuit held that Jazz had violated the cease-and-desist order, affirming this part of the ITC's decision. The court concluded, among other things, that "substantial evidence supports the finding that the majority of the cameras were first sold abroad."
• What If the Facts Were Different Suppose that, after this decision, Jazz fully compensated Fuji for the infringing sales of LFFPs. Would Jazz have acquired the right to refurbish those LFFPs in the future Explain.
• The Global Dimension How does prohibiting the importing of goods that infringe U.S patents protect those patents outside the United States

Question 17

Comity Jan Voda, M.D., a resident of Oklahoma City, Oklahoma, owns three U.S. patents related to guiding catheters for use in interventional cardiology, as well as corresponding foreign patents issued by the European Patent Office, Canada, France, Germany, and Great Britain. Voda filed a suit in a federal district court against Cordis Corp., a U.S. firm, alleging infringement of the U.S. patents under U.S. patent law and of the corresponding foreign patents under the patent law of the various foreign countries. Cordis admitted, "The XB catheters have been sold domestically and internationally since 1994. The XB catheters were manufactured in Miami Lakes, from 1993 to 2001 and have been manufactured in Juarez, Mexico, since 2001." Cordis argued, however, that Voda could not assert infringement claims under foreign patent law because the court did not have jurisdiction over such claims. Which one of the important international legal principles discussed in this chapter would be most likely to apply in this case How should the court apply it Explain. [Voda v. Cordis Corp., 476 F.3d 887 (Fed.Cir. 2007)]

Question 18

Go to academic.cengage.com/blaw/clarkson , the Web site that accompanies this text. Select "Chapter 52" and click on "Internet Exercises." There you will find the following Internet research exercises that you can perform to learn more about the topics covered in this chapter.
Legal Perspective
The World Trade Organization

Question 19

SPECIAL CASE ANALYSIS
Go to Case 52.3, Khulumani v. Barclay National Bank, Ltd., 504 F.3d 254 (2d Cir. 2007), on pages 1078-1079. Read the excerpt and answer the following questions.
(a) Issue: What was the plaintiffs' claim in this case
(b) Rule of Law: On what U.S. law did the plaintiffs base this claim, and what was the defendants' response
(c) Applying the Rule of Law: How did the trial court respond to the parties' contentions, what was the appellate court's position, and why
(d) Conclusion: Did the court issue an ultimate ruling with respect to the plaintiffs' claim in this case Explain.
Case 52.3
Khulumani v. Barclay National Bank, Ltd.
United States Court of Appeals, Second Circuit, 2007. 504 F.3d 254.
PER CURIAM [By the whole court].
* * * *
The plaintiffs in this action bring claims under the Alien Tort Claims Act ("ATCA") against approximately fifty corporate defendants and hundreds of "corporate Does" [including Bank of America, N.A.; Barclay National Bank, Ltd.; Citigroup, Inc.; Credit Suisse Group; Deutsche Bank A.G.; General Electric Company; IBM Corporation; and Shell Oil Company]. The plaintiffs argue that these defendants actively and willingly collaborated with the government of South Africa in maintaining a repressive, racially based system known as "apartheid," which restricted the majority black African population in all areas of life while providing benefits for the minority white population.
Three groups of plaintiffs filed ten separate actions in multiple federal district courts asserting these apartheid-related claims. One group, the Khulumani Plaintiffs, filed a complaint against twenty-three domestic and foreign corporations, charging them with various violations of international law. The other two groups, the Ntsebeza and Digwamaje Plaintiffs, brought class action claims on behalf of the "victims of the apartheid related atrocities, human rights' violations, crimes against humanity and unfair [and] discriminatory forced labor practices." * * *
* * * [A]ll of the actions [were transferred to a federal district court in] the Southern District of New York * * *. [T]hirty-one of the fifty-five defendants in the Ntsebeza and Digwamaje actions * * * [and] eighteen of the twenty-three defendants in [the Khulumani] action * * * filed * * * motion[s] to dismiss.
* * * *
Ruling on the defendants' motions to dismiss, the district court held that the plaintiffs failed to establish subject matter jurisdiction under the ATCA. * * * The district court therefore dismissed the plaintiffs' complaints in their entirety. * * * [T]he plaintiffs filed timely notices of appeal [with the U.S. Court of Appeals for the Second Circuit].
* * * *
* * * [This court] vacate[s] the district court's dismissal of the plaintiffs' ATCA claims because the district court erred in holding that aiding and abetting violations of customary international law cannot provide a basis for ATCA jurisdiction. We hold that * * * a plaintiff may plead a theory of aiding and abetting liability under the ATCA. * * * [The majority of the judges on the panel that heard this case agreed on the result but differed on the reasons, which were presented in two concurring opinions. One judge believed that liability on these facts is "well established in international law," citing such examples as the Rome Statute of the International Criminal Court. Another judge stated that grounds existed in such resources of U.S. law as Section 876(b) of the Restatement (Second) of Torts, under which liability could be assessed in part for "facilitating the commission of human rights violations by providing the principal tortfeasor with the tools, instrumentalities, or services to commit those violations."] [Emphasis added.]
* * * *
* * * [W]e decline to affirm the dismissal of plaintiffs'ATCA claims on the basis of the prudential concerns a raised by the defendants. * * * [T]he Supreme Court [has] identified two different respects in which courts should consider prudential concerns [exercise great caution and carefully evaluate international norms and potential adverse foreign policy consequences] in deciding whether to hear claims brought under the ATCA. b First,* * * courts should consider prudential concerns in the context of determining whether to recognize a cause of action under the ATCA. Specifically, * * * the determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts. Second, * * * in certain cases, other prudential principles might operate to limit the availability of relief in the federal courts for violations of customary international law.
a. The term prudential concerns refers to the defendants' arguments that the plaintiffs do not have standing to pursue their case in a U.S. court. Here, prudential means that the arguments are based on judicially (or legislatively) created principles rather than on the constitutionally based requirements set forth in Article III of the U.S. Constitution (the case or controversy clause).
b. The court is referring to the decision of the United States Supreme Court in Sosa v. Alvarez-Machain, 542 U.S.692,124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). In the Sosa case, the Supreme Court outlined the need for caution in deciding actions under the Alien Tort Claims Act and said that the "potential implications for the foreign relations of the United States of recognizing such causes should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs."
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One such principle * * * [is] a policy of case-specific deference to the political branches [of the U.S. government]. This policy of judicial deference to the Executive Branch on questions of foreign policy has long been established under the prudential justiciability [appropriate for a court to resolve] doctrine known as the political question doctrine. Another prudential doctrine that the defendants raise in this case is international comity. This doctrine * * * asks whether adjudication of the case by a United States court would offend amicable working relationships with a foreign country. [Emphasis added.]
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We decline to address these case-specific prudential doctrines now and instead remand to the district court to allow it to engage in the first instance in the careful "case-by-case" analysis that questions of this type require.* * *
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* * * We VACATE the district court's dismissal of the plaintiffs' ATCA claims * * * and REMAND for further proceedings consistent with this opinion.
1. What are the ramifications for the defendants of the ruling in this case
2. How might such "prudential concerns" as the principle of comity affect the eventual outcome