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 CHAPTER 8

INTERNATIONAL LAW IN A GLOBAL ECONOMY

ANSWER TO CRITICAL ANALYSIS QUESTION

IN THE FEATURE

INSIGHT INTO THE TECHNOLOGICAL ENVIRONMENT—CRITICAL THINKING— (PAGE 167)

What are some steps that businesspersons can take to avoid any issues at the border
with respect to the contents of their electronic devices? Obviously, the easiest way to avoid
having the government access sensitive information on your electronic devices is to not put that
sensitive information on them in the first place. One way to do this is to have your information
reside in the cloud as well as on backup hard drives at your place of business and even at your
home. In other words, it is now possible to have virtually all data accessible in the cloud without
having it reside on any of your hard drives or mobile devices.

ANSWERS TO QUESTIONS
AT THE ENDS OF THE CASES

CASE 8.1—LEGAL REASONING QUESTIONS (PAGE 171)

1A. How is the principle of comity applied? Like the act of state doctrine and the doctrine
of sovereign immunity, the principle of comity is based primarily on courtesy and respect, and is
applied in the interest of maintaining harmonious relations among nations. And like the states in
our federal form of government, in which each state honors the legal obligations formed in other
states, as well as the judicial decisions with respect to such obligations, on a global basis,
nations aim to honor judgments rendered in other countries when it is feasible to do so.
But nations are not required to honor the actions of other nations. Under the principle of
comity, a nation will not give effect to an executive, legislative, or judicial act of another country
if the act is inconsistent with the nation’s own law and public policy.

1
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2 UNIT TWO: THE PUBLIC AND INTERNATIONAL ENVIRONMENT

2A. What considerations can take precedence over comity? A nation’s own laws and
public policies take precedence over the principle of comity. If an executive, legislative, or
judicial act of another country is inconsistent with the law and public policy of the nation being
asked to give it effect, the nation is not likely to defer to it.
And, as the court in the Linde case, stated, “International comity calls for more than an
examination of only some of the interests of some foreign states. Rather, the concept of
international comity requires a particularized analysis of the respective interests of the foreign
nation and the requesting nation. In other words, the analysis invites a weighing of all of the
relevant interests of all of the nations affected by the court's decision.”

3A. What interests were at stake at the heart of the dispute of this case? In the Linde
case, the court was asked to balance interests that were significant and serious to all of the
parties. Among those interests was the conflict that the defendant Arab Bank faced between
complying with the discovery orders of a U.S. court and the bank secrecy laws of its host
countries. The interests of those nations, (Jordan and Lebanon) in enforcing their secrecy laws
conflicted with their own interest in deterring financial support for terrorism. Other interests
include the plaintiffs' and the United States' interests in seeking relief for and deterring acts of
terrorism. The bank also had interests in avoiding liability for damages and an impaired
reputation at being labeled a supporter of terror. And the U.S. courts that heard the Linde case
and its appeal were faced with comity concerns in balancing all of these interests.

4A. Did this court apply the principle of comity? Why or why not? The trial court in the
Linde case recognized that an interest in deterring the financial support of terrorism has often
outweighed the enforcement of bank secrecy laws, even in foreign states. And the court took
into account U.S. interests in the effective prosecution of civil claims under the federal Anti–
Terrorism Act and the Alien Tort Claims Act. With these considerations in mind, the court
concluded that “the interests of other sovereigns in enforcing bank secrecy laws are outweighed
by the need to impede terrorism financing as embodied in the tort remedies provided by U.S.
civil law and the stated commitments of the foreign nations.” The court did not apply the
principle of comity and give effect to the other nations’ bank secrecy laws, but imposed
sanctions on the defendant Arab Bank for failing to comply with the court’s order to disclose
certain documents.
In the words of the U.S. Court of Appeals for the Second Circuit, to which the lower
court’s decision and order was appealed, “This type of holistic, multi-factored analysis does not
so obviously offend international comity.” The appellate court affirmed the judgment of the lower
court.

CASE 8.2—QUESTIONS (PAGE 177)

THE GLOBAL DIMENSION
What would happen if Congress did not require a reasonable relationship with a foreign
state for arbitration agreements between U.S. citizens? Would there be more or fewer
agreements to arbitrate disputes abroad? There would be more agreements to arbitrate

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in whole or in part.
 CHAPTER 8: INTERNATIONAL LAW IN A GLOBAL ECONOMY 3

disputes abroad. Under the Convention’s implementing legislation, the parties must have some
connection to a foreign country to arbitrate disputes outside the United States. Without such a
requirement, more parties would choose to arbitrate disputes in countries with which they have
no real relationships, meaning that more disputes would be arbitrated abroad.

THE TECHNOLOGICAL DIMENSION

How might these parties have avoided the time and expense of settling their dispute in a
foreign jurisdiction? These parties might have most effectively avoided the cost and time of
settling their dispute in a foreign jurisdiction by fully complying with the terms of their contract.
Once a dispute arose, the parties could have fully cooperated with each other to come to a
resolution. If this option did not prove sufficient to bring their dispute to a conclusion, the parties
might have turned to an online forum. There are a number of Web sites that offer online dispute
resolution, with or without involving third parties.

CASE 8.3—QUESTIONS (PAGE 180)

THE LEGAL ENVIRONMENT DIMENSION
What are the ramifications for the respondents of the ruling in this case? Royal Dutch
Petroleum Co. and Shell Petroleum Development Company of Nigeria, Ltd. (the respondents)
were not exonerated by the decision in the Kiobel case, but they did avoid liability under the
Court’s ruling. Otherwise, they might have been subject to huge claims for aiding and abetting
the Nigerian government’s alleged atrocities. Of course, the petitioners might still seek other
laws in other forums to obtain relief.

THE GLOBAL DIMENSION

If the Court had adopted the petitioners’ view, how might U.S. citizens have been
affected? If the Court had adopted the petitioners’ view in the Kiobel case, the decision would
have provided the plaintiffs—foreign citizens—with a cause of action against foreign defendants
for events occurring on foreign soil. Instead of preventing diplomatic conflicts, such recognition
could generate it. There have already been objections to the extraterritorial application of the
Alien Tort Statute by the United Kingdom, Germany, Canada, and other countries. And if the
United States expanded this application, other nations could serve as forums for alleged
violations of their laws by U.S. citizens in the United States, or anywhere else.

ANSWERS TO QUESTIONS
IN THE REVIEWING FEATURE AT THE END OF THE CHAPTER

1A. Foreign Sovereign Immunities Act

Because the armed forces of Honduras contracted to purchase weapons from a U.S. company
(Robco), this would fall under the commercial activity exception to the FSIA. The sales contract
was an action taken in connection with a commercial activity carried on in the United States, and
the sale has a direct effect in the United States. Therefore, the FSIA would not bar this lawsuit.

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4 UNIT TWO: THE PUBLIC AND INTERNATIONAL ENVIRONMENT

2A. Act of state doctrine

The act of state doctrine provides that the judicial branch of one country will not examine the
validity of public acts committed by a recognized foreign government within its own territory.
Here, the newly democratic government of Honduras is seeking to reduce the size of its military.
The U.S. government likely recognized the new democratic regime since the U.S. supports
democratization globally. The U.S. is also likely to be supportive of its efforts to reduce the size
of its military and its inventory of weapons. Because the Honduran government’s policy decision
is public act within its own territory, the U.S. judicial branch will most likely be unwilling to
intervene and force the government to fulfill its contract to purchase arms. There is more at
stake than a simple contract because enforcing an arms deal may harm international relations
between the U.S. and the new government of Honduras.

3A. Doctrine of deference

The principle of comity is a doctrine of deference. Under this principle, one nation will defer and
give effect to the laws and judicial decrees of another country, as long as those laws are
consistent with the law and public policy of the accommodating nation. The principle of comity
is based on respect and is a customary courtesy extended to other nations. If a U.S. court
extends comity to the new Honduran government’s law pertaining to arms dealing, then it would
dismiss Robco’s case.

4A. Doctrine to collect damages

Under the principle of comity, one nation will defer and give effect to the laws and judicial
decrees of another country, as long as those laws are consistent with the law and public policy
of the accommodating nation. This would be very useful to Robco in its attempt to collect
damages under the award. Robco could take the judgment issued by a U.S. court to any nation
in which the government of Honduras does have assets and ask that nation’s court to enforce
the judgment under the principle of comity.

ANSWER TO DEBATE THIS QUESTION

IN THE REVIEWING FEATURE AT THE END OF THE CHAPTER

The U.S. federal courts are accepting too many lawsuits initiated by foreigners that
concern matters not relevant to this country. Our federal courts are already overwhelmed by
normal lawsuits that concern purported wrongs committed on U.S. soil that involve residents of
this country. Why should we become the preferred jurisdiction for lawsuits that involve human
rights issues in other countries? Why should we become the preferred jurisdiction for purported
employment discrimination that might have taken place outside of the U.S.? We are not the
world’s conscience.
The U.S. has one of the best-run and most fair federal judiciaries in the world. We still
support freedom and democracy. Therefore, it is appropriate that when, for example, human

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 CHAPTER 8: INTERNATIONAL LAW IN A GLOBAL ECONOMY 5

rights are violated by companies that operate in other countries, the aggrieved can avail
themselves of our federal courts. Also, if a U.S. company that operates abroad violates our
employment discrimination or antitrust laws, then that company should be sued in the
U.S. Obviously, other countries do not have the same high standards that we have in these
matters.

ANSWERS TO ISSUE SPOTTERS

IN THE EXAMPREP FEATURE AT THE END OF THE CHAPTER

1A. Café Rojo, Ltd., an Ecuadoran firm, agrees to sell coffee beans to Dark Roast
Coffee Company, a U.S. firm. Dark Roast accepts the beans but refuses to pay. Café Rojo
sues Dark Roast in an Ecuadoran court and is awarded dam ages, but Dark Roast’s as
sets are in the United States. Under what circumstances would a U.S. court enforce the
judgment of the Ecuadoran court? Under the principle of comity, a U.S court would defer and
give effect to foreign laws and judicial decrees that are consistent with U.S. law and public
policy.

2A. Gems International, Ltd., is a foreign firm that has a 12 percent share of the U.S.
market for diamonds. To capture a larger share, Gems offers its products at a below-cost
discount to U.S. buyers (and inflates the prices in its own country to make up the
difference). How can this attempt to undersell U.S. businesses be defeated? The practice
described in this problem is known as dumping, which is regarded as an unfair international
trade practice. Dumping is the sale of imported goods at “less than fair value.” Based on the
price of those goods in the exporting country, an extra tariff—known as an antidumping duty—
can be imposed on the imports.

ANSWERS TO BUSINESS SCENARIOS AND BUSINESS CASE PROBLEMS

AT THE END OF THE CHAPTER

8-1A. Doing business internationally

(Chapter 8—Page 172)
An alternative to exporting is the establishment of foreign manufacturing facilities, which
Macrotech does not want to do in this problem. A U.S. firm can also manufacture goods in other
countries by licensing, franchising, and investing in a wholly-owned subsidiary or joint venture.
Licensing is an attractive alternative to establishing a foreign production facility when a process
or product has been patented, because the patent protects against the possibility that the
innovation could be pirated. Licensing generally involves a payment of royalties such as a
percentage of profits from units sold. Licensing can benefit all of the parties involved. A firm
that receives a license gains an established reputation for quality, and a firm that grants a
license gets income from foreign sales and expands the scope of its reputation and possible

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6 UNIT TWO: THE PUBLIC AND INTERNATIONAL ENVIRONMENT

demand for its products. Franchising is a form of licensing that generally involves trademarks
more than patented products. If Macrotech had not obtained a patent on its chip but had
trademarked the brand name “Flash,” for example, the firm could license Nitron to use the mark,
probably under certain conditions or limitations, in exchange for a fee, based on a percentage of
sales. Another way to expand into the Pacifica market would be to establish a wholly-owned
subsidiary in Pacifica. Macrotech would own the facility, and could maintain authority and
control over all phases of the operation. Macrotech might alternatively enter into a joint venture
with Nitron. In a joint venture, Macrotech and Nitron would each own only part of the operation,
and they would both share responsibilities, profits, and liabilities.

8-2A. Dumping
(Chapter 8—Page 175)
Yes, it is a reasonable approach to rely on the producers’ financial re-cords, which are
reasonably reflective of their costs because their normal allocation methodologies were used for
a number of years. These records are historically re-lied upon to present important financial
information to share-holders, lenders, tax authorities, auditors, and other third parties. Provided
that the producers’ records and books comply with generally accepted accounting principles and
were verified by independent auditors, it is reasonable to use them to determine the production
costs and fair market value of canned pineapple in the United States.

8-3A. Sovereign immunity

(Chapter 8—Page 171)
The court denied the motion to dismiss. The doctrine of sovereign immunity immunizes foreign
nations from the jurisdiction of U.S. courts. The Foreign Sovereign Immunity Act (FSIA) of 1976
codified this doctrine. A nation is not immune if it has waived its immunity or if the action against
it is based on a “commercial activity carried on in the United States.” The court recognized that
whether the commercial activity exception applies depends on two factors. “First, the lawsuit
must be based upon commercial activity of the foreign state defendants. Second, that activity
must be carried on in the United States.” A particular act qualifies as commercial activity “when
the state acts * * * as a private player in the marketplace.” Here, the defendant undertook a
guarantee that allowed it to “step into the shoes” of a “private player,” the German construction
firm, to insure that the tent project was completed. To be “based upon” a commercial activity, a
suit “must have something more than a mere connection with, or relation to, the commercial
activity.” Because Taconic’s claim was premised on the defendant’s breach of its guarantee, the
suit had more than a “mere connection” to the commercial activity. Finally, a commercial activity
is carried on in the United States when it has “substantial contact” with this country. When a
commercial activity centers on the formation of a contract, the United States will be found to
have substantial contact if “substantial aspects of the contract were to be performed here.”
Under this principle, “it is apparent that the alleged guarantees had substantial contact with this
country,” because most of the material was manufactured in the United States.

8–4A. Dumping
(Chapter 8—Page 175)

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 CHAPTER 8: INTERNATIONAL LAW IN A GLOBAL ECONOMY 7

Dumping is the sale of imported goods at “less than fair value.” “Fair value” can be determined
from the price of the goods in the exporting country. (The goal is to undersell the businesses in
the importing country to obtain a larger share of its markets.) In the United States, an added
tariff, known as an antidumping duty, is sometimes assessed on the imported goods. The pivotal
question is whether the SWU contracts should be considered contracts for sales of goods or for
provisions of services (to which the dumping concept does not apply). Because the feed
uranium delivered by a utility to an enricher was not always returned as LEU to the utility and
the contracts did not provide for the tracking of unenriched uranium that the utility delivered to
the enricher, but treated it as fungible commodity, it seems most reasonable to interpret the
transactions as sales of goods. Under that interpretation, given the other facts—the enrichers
are foreign, the LEU is imported, its price is “less than fair value”—this situation constitutes
dumping. An antidumping duty could be assessed on the LEU.
In the events on which this problem is based, the U.S. Commerce Department interpreted
the SWU contracts as contracts for sales of goods and determined that the LEU the domestic
utilities received under their SWU contracts with foreign enrichers was being sold at “less than
fair value” and thus subject to the antidumping provision. Federal courts reversed this ruling, but
the United States Supreme Court reversed these judgments and remanded the case.

8–5A. International agreements and jurisdiction

(Chapter 8—Page 171)
The Supreme Court explained in an earlier case (Garamendi, 533 U.S. 396) that “state law
‘must give way’ to the foreign policy of the United States, as set by the President, where there is
‘evidence of clear conflict between the policies adopted by the two.’” Hence, litigation of the
plaintiffs’ benefits claims in court in the U.S. was preempted by executive branch policy favoring
resolution of claims by the ICHEIC. The district court was correct to deny the claims. Although
Italy was not a party to the agreement with Germany, the U.S. had determined that, as a matter
of public policy, all such Holocaust-era claims filed in the U.S. would be subject to ICHEIC
resolution as the exclusive remedy.

8–6A. BUSINESS CASE PROBLEM WITH SAMPLE ANSWER—Sovereign immunity

The doctrine of sovereign immunity exempts foreign nations from the jurisdiction of U.S. courts,
subject to certain conditions. The Foreign Sovereign Immunities Act (FSIA) of 1976 codifies this
doctrine and exclusively governs the circumstances in which an action may be brought in a U.S.
court against a foreign nation. A foreign state is not immune from the jurisdiction of U.S. courts
when the state (1) waives immunity, (2) engages in commercial activity, or (3) commits a tort in
the United States or violates certain international laws. Under the FSAI, a foreign state includes
its political subdivisions and “instrumentalities”—departments and agencies. A commercial
activity is a regular course of commercial conduct, transaction, or act that is carried out by the
foreign state within the United States or has a direct effect in the United States.
The details of what constitutes a commercial activity are left to the courts. But it seems
clear that a foreign government can be considered to engage in commercial activity when,
instead of regulating a market, the government participates in it. In other words, when a foreign
state, or its political subdivisions or instrumentalities, performs the type of actions in which a

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8 UNIT TWO: THE PUBLIC AND INTERNATIONAL ENVIRONMENT

private party engages in commerce, the state’s actions are likewise commercial.

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 CHAPTER 8: INTERNATIONAL LAW IN A GLOBAL ECONOMY 9

In the facts of this problem, Iran engaged in commercial activity outside the United States
by making and marketing its counterfeit versions of Bell’s Model 206 Series helicopters. This
activity caused a direct effect in the United States by the consumer confusion that will likely
result from Iran’s unauthorized use of Bell’s trade dress. Thus, the court can exercise jurisdiction
in these circumstances, and Iran may be as liable as a private party would be for the same acts.
In the actual case on which this problem is based, Iran did not respond to Bell’s
complaint. The court held that it had jurisdiction under the FSIA’s commercial activity exception,
as explained above. The court entered a default judgment against Iran and awarded damages
and an injunction to Bell.

8–7A. Commercial activity exception

(Chapter 8—Page 171)
TIETS could still be subject to the jurisdiction of U.S. courts. Section 1605 of the FSIA provides
that a foreign state does not enjoy sovereign immunity if it has engaged in commercial activity
outside the United States that has “a direct effect in the United States.” In this case, TIETS
engaged in commercial activity by entering into a joint-venture agreement for commercial
purposes. Moreover, the commercial activity had a direct effect in the United States because
both Farhang and M.A. Mobile were based in California. Thus, TIETS did not enjoy sovereign
immunity under the commercial activity exception.

8–8A. Sovereign immunity

(Chapter 8—Page 171)
No, a U.S. court does not have jurisdiction in the Santivanez case. When applicable, the
doctrine of sovereign immunity shields a foreign nation from the jurisdiction of a U.S. court. In
such a case, individuals who own (or owned) property overseas generally have little legal
protection against government actions with resp3ect to their property in those countries. The
federal Foreign Sovereign Immunities Act (FSIA) exclusively governs the circumstances in
which an action may be brought in the United States against a foreign nation, including attempts
to attach a foreign nation’s property. Under the law, a plaintiff generally has the burden of
showing that a defendant is not entitled to sovereign immunity. An exception exists when a
foreign nation has (1) waived its immunity, (2) engaged in commercial activity in the United
States, or (3) committed a tort here.
In this problem, the government of Bolivia expropriated land from Francisco Loza for
public projects and directed compensation in exchange for his land, but never paid. His heirs,
Genoveva and Marcel Loza, filed a suit in a U.S. federal district court against Bolivia, seeking
damages for the taking. The FSIA provides for U.S. jurisdiction over cases in which rights in
property are taken in violation of international law. But when a foreign nation confiscates the
property of its own citizens, a U.S. court does not have jurisdiction. None of the exceptions
under the FSIA apply here.
In the actual case on which this problem is based, a federal district court ruled in Bolivia’s
favor. On the Lozas’ appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed, based
on the reasoning above.

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10 UNIT TWO: THE PUBLIC AND INTERNATIONAL ENVIRONMENT

8-9A. A QUESTION OF ETHICS—Terrorism

(a) The doctrine of sovereign immunity, which is codified in the Foreign Sovereign
Immunities Act (FSIA), generally provides foreign states with immunity from suit in U.S. courts.
This statute includes a “state-sponsored terrorism exception,” which abrogates a foreign
state’s immunity for personal injuries caused by terrorist acts committed by a state’s officials or
agents. Under this exception, a foreign state is subject to suit if (1) the U.S. Department of State
designated it as a “state sponsor of terrorism” before the incident out of which the suit arises; (2)
the foreign state had a reasonable opportunity to arbitrate any claim in the suit based on acts
that occurred in that state; and (3) either the victim or the claimant was a U.S. national at the
time those acts took place. In the Hurst case, the plaintiffs met those requirements: Libya was
designated as a sponsor of terrorism at the time of the incident; Libya was not denied a chance
to arbitrate; and all of the victims were U.S. citizens.
(Note: The FSIA does not create a cause of action against a foreign state. The state-
sponsored terror exception only waives the immunity of a foreign state without creating a cause
of action against it. This exception, however, does allow a cause of action to be brought against
a foreign state under another source of law.)
Arguments in favor of such a “state-sponsored terrorism exception” are probably obvious
in light of events that have occurred since this exception was added to the FSIA in the 1990s.
Reasons in support of such an exception might include the provision to victims of an avenue
through which they can obtain damages, the reduction of the number of “safe harbors” through
which a terrorist might avoid liability, and the discouraging of foreign states’ sponsorship of, and
cooperation with, terrorists. Arguments against such an exception might include the adage that
“one person’s terrorist is another’s freedom fighter,” but this statement might find few adherents
in the United States.
(b) The contention that the plaintiffs’ claims should be barred by the settlement
between the defendants and the other plaintiffs “is unavailing,” according to the court in the
Hurst case. The court explained that “[t]he settlement concerned only the injuries to the victims
and/or their legal representatives. The [settlement] specifically provides that it covers
‘compensatory death damages’ for those entitled to recover ‘on behalf of the 270 decedents'
estates.’ “ The plaintiffs who were excluded from that settlement and continued the suit against
the defendants were not parties to that settlement and these plaintiffs’ claims were specifically
excluded. “Thus, Plaintiffs may proceed.”

8–10A. LEGAL REASONING GROUP ACTIVITY—Globalization

(a) Factors to consider when expanding operations into another country by advertising
online include (1) business costs such as Web site design and maintenance; (2) marketing
considerations such as which business model to use; (3) security concerns such as the safety of
company and customer information; (4) practical elements such as inventory storage and
product shipping; and (5) cultural characteristics such as language and customs. The benefits of
Internet advertising include that it is relatively inexpensive to reach a vast market, compared to
the cost of traditional marketing. And because the operation can be digitized, “testing the
waters” of a potential market, as well as tracking consumers and accumulating market data, can
be easier and less costly.

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 CHAPTER 8: INTERNATIONAL LAW IN A GLOBAL ECONOMY 11

(b) A partnership in another country typically requires local participation—nationals of

the other country must own a specific share of the business. Of course, if the partnership
dissolves, the firm’s technology and other expertise may fall into in the hands of a foreign
competitor. The domestic firm that initiated the partnership may have little recourse in the
foreign country against their former partner’s use of this expertise.
Thus, to take in a partner in a foreign nation, a domestic business firm should define each
party’s duties and risks in a written contract, including the object or subject of the partnership,
the assets that each party contributes to the firm, what is expected of each party with respect to
the firm’s intellectual property, and the sharing of profits and losses. Important provisions would
also cover forum selection, choice of law, choice of language, and the resolution of disputes, as
well as remedies and the division of assets on the firm’s dissolution.
(c) Problems that may arise when a domestic business company decides to
manufacture its products in a foreign location include the costs and other considerations in
obtaining and using foreign labor, shipping, and raw materials. There may also be different
cultural, economic, legal, political, and social conditions to take into account.

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