Peter Bert on Damages for Violations of Choice of Court Agreements in Germany

Friend of Letters Blogatory Peter Bert brings us a report of a very recent case from the Bundesgerichtshof on the question of damages for violations of a choice of court agreement. Peter has cross-posted this on his blog, Dispute Resolution in Germany.


In a judgment last week, the Federal Supreme Court (Bundesgerichtshof) has found a US party liable for damages for bringing an action against its German contractual counterparty in the US in violation of an agreement on the jurisdiction of the German courts. With this judgment, the Federal Supreme Court decided an issue that so far had been controversially debated in the German legal literature. Until this decision, it was not clear whether the violation of a choice of court agreement does not only have a procedural effect, but does also render the violating party liable for monetary damages. (Disclosure: This post is based on the Federal Supreme Court’s press release only, as the full judgment is not yet available. I will provide an update when the judgment comes out.) (more…)

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Case of the Day: Vischer AG v. Apollo Enterprise Solutions

The case of the day is Vischer AG v. Apollo Enterprise Solutions, Inc. (Cal. Ct. App. 2019). Vischler, a Swiss firm, had obtained a judgment for $160,000 for breach of contract against Apollo in the Commercial Court in Zurich. Vischer sought recognition in California and asserted that the Swiss judgment entitled it to damages in the judgment amount, interest, attorney’s fees, and costs. The parties settled the case for $90,000. The settlement agreement stated that nothing in the settlement precluded either party from filing a motion for attorney’s fees. Visccher did bring a motion for fees, and Apollo opposed the motion and argued that it should receive an award of fees. The Superior Court denied both motions, and Vischer appealed. Apollo cross-appealed, too, arguing that the lower court’s decision was correct but that if either party should be entitled to fees as the prevailing party, it was Apollo, not Vischer. (more…)

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Cert. Watch: Merlini v. Canada

The First Circuit, in a 3-3 vote, has denied Canada’s petition for a rehearing en banc in Merlini v. Canada, the FSIA case I’ve written about before in which I’m representing the plaintiff. I last wrote about the case in June 2019, when I reported on the First Circuit decision in Merlini’s favor. To recap, this is the case of the clerical worker at Canada’s consulate in Boston who was injured on the job when she tripped over an unsecured cord. We brought a claim under the Massachusetts statute providing that employers who, like the Canadian government, fail to purchase workers’ compensation insurance for their workers, are strictly liable in tort. The First Circuit rejected Canada’s argument that our case was “based on” its policy decision not to comply with local workers’ compensation laws at its foreign consulates but instead to apply its own statutory scheme. It also rejected the US State Department’s argument that our case was “based on” the negligence of the co-worker who failed to secure the cord to the carpet. Instead, the First Circuit said, correctly in my view, that the case was based on “the fact that [Merlini] is an employee who was injured during the course of her employment while her employer failed to possess” the insurance required by law. Once it reached that conclusion, the conclusion that Canada had acted commercially, both because Merlini’s employment was plainly on the “commercial” side of the line and because many private businesses also fail to buy insurance when required, was easy. (more…)

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Case of the Day: G2A v. United States

The case of the day is G2A.com Sp. z.o.o. v. United States (3d Cir. 2019). I previously wrote about the case in September 2018. The Polish authorities were conducting a tax investigation of G2a, a Polish video game company. The Polish government made a request under the US/Poland tax treaty for help obtaining evidence from Gate Arena, a Delaware limited liability company. The IRS served a summons on the Corporation Trust Co., which was listed as Gate Arena’s registered agent, and the next day, it sent notice of service of the subpoena to G2A in Poland via registered mail. Before G2A received the notice, CTC informed the IRS that although it was listed as the registered agent, it had no record showing that it actually was the registered agent, and that it had no responsive documents. The IRS therefore withdrew its summons. The IRS nevertheless intends to make a report to the Polish tax authorities, which G2A says will make it appear that Gate Arena is a “shell company” and which will therefore be bad for G2A’s position in the Polish tax investigation. The judge refused to quash the summons. On appeal the interesting issue was whether the notice, sent by registered mail, violated the Hague Service Convention. (more…)

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Belfast Project: Ivor Bell Acquitted

Ivor Bell, who was accused of soliciting the murder of Jean McConville, was acquitted last week in a Northern Ireland court after the judge directed a verdict in his favor. The charges against Bell had resulted from his taped confession, given to researchers at the Belfast Project, an oral history project about the Troubles that I’ve written about extensively over the years. The tapes were the subject of years of litigation after the Northern Ireland authorities requested legal assistance from the US government to obtain them from Boston College under the US/UK mutual legal assistance treaty. After the challenges to the subpoenas were finally, and in my view correctly, rejected and the tapes were produced, there were further challenges in the Northern Ireland courts to their use, which again were rejected, and thus the tapes were offered in evidence at Bell’s trial. But the judge excluded them from evidence, and as the confession was the only real evidence of guilt, decided that the jury could not convict. (more…)

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Read more about the article Looking Ahead
President Trump writing his inaugural address. Credit: Donald Trump

Looking Ahead

In the summer of 2016 I applied for and was offered a very cool low-level job at the Department of Justice. I’ve never written publicly about this before. I won’t say any more about what the job was, which office, and so forth, except to say it was a career appointment, not a political appointment, and I was excited by the prospects. We were looking at schools and towns in Maryland, contemplating the sad thought of uprooting ourselves from Boston, filling out extremely burdensome security clearance paperwork, contemplating the need to shut down this blog. Then the election happened, and a few days later I rescinded my acceptance. It wasn’t about Democrats and Republicans. I would not have taken that step in 2000 or 2004, or in 1980, 1984, or 1988. But it was immediately and abundantly clear to me that I could not go to work for Donald Trump. (more…)

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Case of the Day: Signify North America v. Axis Lighting

The case of the day is Signify North America Corp. v. Axis Lighting Inc. (S.D.N.Y. 2019). Signify sued Axis, a Quebec firm, for patent infringement. A Quebec bailiff or huissier served the summons and complaint on a person in Axis’s department of human resources who, according to the bailiff, “appear[ed] in care and in control and/or management and authorized to accept service of legal process on behalf of [Axis].” Axis did not answer, and the clerk entered its default. Axis then moved to dismiss for insufficient service of process. (more…)

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Case of the Day: Application of Del Valle Ruiz

The case of the day is In re Application of del Valle Ruiz (2d Cir. 2019). I’ve written about the case twice before, first in a October 2018 post on the district court decision, and then in an April 2019 post after oral argument. This is the latest in a line of recent important § 1782 decisions. Today’s decision addresses two important points: how the Due Process Clause applies to personal jurisdiction challenges in § 1782 cases, and whether the statute permits extraterritorial discovery, i.e., whether the documents sought have to be within the United States. (more…)

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Case of the Day: State Farm v. Gree USA

The case of the day is State Farm Fire & Casualty Co. v. Gree USA, Inc. (S.D. Ind. 2019). State Farm sued Gree Electric Appliances, Inc. and Gree Electric Appliance Sales, both located in Hong Kong, as subrogee for its insured, Dennis Holdren, alleging that a fire in Holdren’s house was caused by a defect in a dehumidifier manufactured by Gree. State Farm served process on Gree by serving its US subsidiary (actually, a second-level subsidiary) in California. Gree moved to dismiss for insufficient service of process. (more…)

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