Foreign Plaintiffs Research Articles

Challenges Faced by Foreign Plaintiffs in Initiating Civil Litigation in Taiwan:Practical Issues Regarding the Application of Article 96 of the Code of Civil Procedure on Litigation Security

Challenges Faced by Foreign Plaintiffs in Initiating Civil Litigation in Taiwan:Practical Issues Regarding the Application of Article 96 of the Code of Civil Procedure on Litigation Security

Winning intellectual property rights lawsuits in China

What influences foreign plaintiffs’ likelihood of winning intellectual property rights (IPR) lawsuits in an emerging economy such as China? From an institution-based view, prior scholarly debate presents two competing perspectives on the evolving IPR regime in China, focusing on the incentives of internal development and the pressures of external legitimacy respectively. We integrate these two perspectives to examine the effects of regional research and development (R&D) investment on the likelihood of foreign plaintiffs winning IPR lawsuits. We identify a direct effect reflecting the evolving economic incentives of host regions, and two mediating pathways that correspond to the legal strategies employed by foreign plaintiffs to apply external legitimacy pressure on host region legal institutions. Our analyses of a sample of 1103 IPR disputes between foreign plaintiffs and local defendants in Chinese courts from 2008 to 2017 provide support to our arguments.

The Alien Tort Statute of 1789 is no longer available to foreigners toclaim for wrongdoings on foreign soil

The Alien Tort Statute (“ATS”) of 1789 was part of the first law to be enacted by the First Congress of the USA. Its original purpose was primarily to remedy harms suffered by aliens at the hands of US citizens. For two centuries it remained dormant. Then it became a vehicle to advance human rights. Sosa v Humberto Alvarez-Machain 542 US 692 (2004) was the first of four ATS cases decided by the Supreme Court of the United States (SCOTUS). Kiobel v Royal Dutch Petroleum Co 569 US 108 (2013) followed and with it, the court limited the application of the ATS. It coined the term “touch and concern” whereby only those with a nexus with the US could pursue grievances. It also enforced the principle of extraterritoriality. Jesner v Arab Bank, PLC 584 US ___ (2018); 138 S Ct 1386 (2018) brought further clarity by imposing clear limits on which parties may be defendants in ATS cases. Nestlé USA, Inc v John Doe I; Cargill, Inc v John Doe I 593 US ___ (2021); 141 S Ct 1931 (2021) precluded future cases of human rights abuses against corporations when allegations can only be made that general corporate decision-making occurred in the US. In future, plaintiffs will have to establish a strong domestic nexus with the US for a claim under the ATS to be successful. Eventually the statute lost its attractiveness for foreign plaintiffs wanting to settle in US courts human rights scores committed in foreign places. Yet some aggrieved Namibians tried to pursue a case against Germany in an attempt to extricate monetary compensation from the former colonial power as restitutional compensation on the basis of the provisions in the ATS. Their attempts failed. Compensation for German atrocities committed during the colonial era in German South West Africa was pursued by the Namibian government outside of the courts. This article illustrates that, at the hand of decisions by the highest court in the US involving particular groups of foreigners, legal avenues using the ATS as a basis have now been closed.

Forumless: Why Victims of the Uyghur Crisis Should Be Able to Vindicate Their Claims in Federal Court

U.S. courts can serve as forums for victims of international human rights abuses to litigate claims against foreign defendants. Oftentimes, U.S. courts are the only option for foreign litigants who are unable to seek remedies in their own countries or in international courts. This Comment discusses the difficulties a victim of the Uyghur crisis would face attempting to use U.S. courts to litigate claims against the Chinese government or government officials under existing law. The purpose of this Comment is not to address any potential challenge to a claim but rather to address the claim preclusions common to foreign plaintiffs seeking to litigate international human rights claims in U.S. courts. In light of recent Supreme Court decisions limiting the ability of foreign plaintiffs to do so, this Comment argues that Congress should pass legislation authorizing Uyghur victims to use U.S. courts as forums for claims against perpetrators within the Chinese government.

Lessons for International Small and Medium-Sized Enterprises from Counterfeiting Civil Litigations in China

AbstractThis study aims to assess the effect of the 2013 trademark law revision (2013 law revision) on judicial remedies in China. The 2013 law revision increased the remedies Chinese courts can grant to plaintiffs, including small and medium enterprise (SME) plaintiffs, thus leading to higher remedies granted to plaintiffs compared to the past years in prevailing cases. This study finds that right after the law revision, the average amount of judicial remedies granted to plaintiffs increased temporarily. Meanwhile, the detailed judicial reasonings, foreign plaintiffs, and company defendants have stronger positive effects than product types and the year of decisions on the amount of monetary relief. These findings suggest that certain factors in cases may increase the remedies in trademark civil litigation. Therefore, SME plaintiffs should pay attention to core factors for litigation strategies, including preliminary injunctions, choice of defendant, choice of venue, and evidence in remedy collection.

Transnational Litigation in U.S. Courts: A Theoretical and Empirical Reassessment

It is widely claimed that the level of transnational litigation in U.S. courts is high and increasing, primarily due to forum shopping by foreign plaintiffs. This “transnational forum shopping claim” reflects the conventional wisdom among transnational litigation scholars. Lawyers use the claim in briefs; judges use it in court opinions; and interest groups use it to promote law reform. This article reassesses the transnational forum shopping claim theoretically and empirically. It argues that despite globalization, there are reasons to doubt the claim. Changes in procedural and substantive law have made the U.S. legal system less attractive to plaintiffs than it supposedly once was. Meanwhile, other legal systems have been adopting features similar to those that are said to have made the United States a “magnet forum” for foreign plaintiffs, and arbitration is growing as an alternative to transnational litigation. Empirically, using data on approximately 8 million civil actions filed in the U.S. district courts since 1988, the article shows that transnational diversity cases represent only a small portion of overall litigation, their level has decreased overall, and U.S., not foreign, plaintiffs file most of them. The data also reveal that federal question filings by foreign resident plaintiffs are not extensive or increasing either. These findings challenge the transnational forum shopping claim and law reforms based on it, and suggest that it should no longer be used by lawyers, judges, and scholars—at least not without supporting data. The article’s analysis also suggests new directions for transnational litigation as a field of scholarship that would move it beyond its current focus on U.S. courts toward a focus on understanding the dynamics of transnational litigation in global context.

МЕХАНІЗМИ ДОСЯГНЕННЯ СПРАВЕДЛИВОСТІ У ВОЄННИЙ ТА ПІСЛЯВОЄННИЙ ЧАС: МІЖНАРОДНИЙ ДОСВІД І ПЕРСПЕКТИВИ ДЛЯ УКРАЇНИ

The paper addresses the content and legal nature of mechanisms for the administration of justice for war crimes, as well as crimes against humanity. The comparative method was extensively applied in the article. The paper uncovers the importance of the legal profession as one that needs to prove that justice is not something abstract, but rather an achievable thing; this contributes to the work's relevancy. The article also provides the lay persons, who are directly or indirectly influenced by military aggression with the simplified manner of the issue under investigation and attempts to assure that the administration of justice after the war is due to be performed. The article offers an overview of the existing legal acts of various countries worldwide applied to prosecute war crimes, as well as to prosecute perpetrators of crimes against humanity. A considerable notice is given to the ways of administering justice to foreign plaintiffs, foreign defendants, in cases when the crime committed and its prosecution are not within the jurisdiction of the state where the latter took place. The paper highlights the measures to be taken to prevent criminals from committing crimes on the territories, referring to state states with constant violation of fundamental human rights. Specific attention is awarded to the mechanism of filing the collective lawsuits as an effective tool for bringing the perpetrators to justice which is supported by the examples. Keywords: genocide, crimes against humanity, class action, Alien Tort Claims Act, Torture Victim Protection Act, war criminals.

Transnational Liability in U.S. Courts for Environmental Harms Abroad

Modern energy and natural resource development has always been, at heart, a global enterprise. Energy companies and developers, by necessity, frequently work in far-flung locations scattered among nations with vastly different legal systems and environmental regulatory systems. If one of their operations causes spills or releases that injure the local environment, they can quickly find themselves facing legal actions to force them to pay for damages or to remediate the contamination. Those lawsuits can take place in the nation where the spill occurred under that nation’s laws; alternatively, a liability claim can dog the developers back to their own countries and their domestic courts. With resolute tenacity, many foreign plaintiffs have also sought to enlist the U.S. domestic legal system to enforce foreign tort judgments based on the plaintiff’s local laws to seek large payments or remediation commitments. This type of border-jumping liability litigation has always had its own complex rules, and recent decisions in the United States have made these claims even more opaque. This paper explores developments in case law on the use of U.S. courts to impose transnational environmental liabilities, and it examines how courts in differing nations sort out the responsibilities imposed by competing jurisdictions. In particular, it focuses on two scenarios: collection lawsuits in the United States to enforce foreign environmental tort judgments obtained under the plaintiff’s domestic laws, and lawsuits brought directly in the United States to hold defendants responsible for damages caused by their actions outside the United States.

The Empagran Exception: Between Illinois Brick and a Hard Place

Before it was uncovered and prosecuted, the international vitamin cartel, known as “Vitamins, Inc.” by its perpetrators, was extraordinarily successful. Estimates of cartel profits run as high as $18 billion (in 2003 dollars). In addition to substantial criminal sanctions, cartel members paid over $2 billion to American plaintiffs. When foreign plaintiffs tried to sue the foreign defendants in American courts, however, they encountered resistance. A trial court read the Foreign Trade Antitrust Improvements Act (“FTAIA”) to restrict the reach of the Sherman Act and preclude foreign purchasers from suing the foreign defendants. The D.C. Circuit reversed, holding that the facts brought the case within FTAIA’s exceptions. [FN6] There already being a circuit split, the Supreme Court granted certiorari. In its unanimous decision, the Court ruled that the FTAIA exception did not apply where a claim rested solely on foreign harm that was independent of any adverse domestic effect. The FTAIA excludes most anti-competitive foreign trade and commercial activity from the Sherman Act’s reach. However, the Act carves out an exception to this general rule, though the parameters of the exception are less than clear. In this article, I identify one narrow class of cases that would satisfy the statutory exception. I must emphasize the modest scope of this inquiry. I am not suggesting that this is a socially optimal policy, or, indeed, even a wise one. Instead of focusing on the interrelatedness of the foreign and domestic prices, the inquiry centers on the resale of goods to the domestic market. The argument, hinted at by Justice Scalia at oral argument, is a variant on Illinois Brick Co. v. Illinois, the Supreme Court’s landmark ruling rejecting a passing-on theory of injury suffered by indirect purchasers. Before developing this argument in Section III, I first briefly detail the Empagran decisions.

Post-<i>Kiobel v. Royal Dutch Petroleum Co.</i>: Is Canada Poised to Become an Alternative Jurisdiction for Extraterritorial Human Rights Litigation?

The globalization of business affects the lives of citizens around the globe, both positively and negatively. With multinational corporations transcending national boundaries with their business operations comes the risk of adverse human rights impacts, particularly in regions of the world with high conflict, instability, and low governmental capacity. The risk of human rights violations has led to an increased emphasis on corporate social responsibility measures at industry, national, and international levels. One such protective measure includes statutory grants of jurisdiction to courts to adjudicate claims brought by foreign nationals alleging wrongdoings abroad in the defendant’s home jurisdiction. This measure allows foreign plaintiffs who have suffered abuse at the hands of a multinational corporation in their home jurisdiction to seek justice and compensation from that corporate defendant in the jurisdiction where the corporation’s assets are located and where the system of law is well-equipped to redress the violations. This article first explores the United States’ Alien Tort Statute and the seminal case of Kiobel v. Royal Dutch Petroleum Co. to illustrate the potential scope of extraterritorial human rights litigation in America. Then the article canvasses recent human rights litigation brought by foreign nationals in Canada and concludes with the future of Canadian law in this area.

Reviving Human Rights Litigation After Kiobel

In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court held that “the presumption against extraterritoriality applies to claims under the [Alien Tort Statute (ATS)], and that nothing in the statute rebuts that presumption.” The Court preserved the possibility that claims arising from conduct outside the United States might be actionable under the ATS “where the claims touch and concern the territory of the United States ... with sufficient force to displace the presumption against extraterritorial application.” However, the Court’s decision apparently sounds the death knell for “foreign-cubed” human rights claims under the ATS—that is, cases in which foreign defendants committed human rights abuses against foreign plaintiffs in foreign countries.

Global Deterrence of Wrongful Behaviors: The Quest for a Single Forum in Cross-Border Consumer’s Disputes

This paper aims at analyzing current developments in transnational class actions and class arbitration by assessing whether it is currently possible to aggregate cross-border consumer’s disputes in a single forum. The work begins by justifying the quest for a single forum with the positive effects of an effective global deterrence, before turning to U.S. and Europe. The trend in the U.S. seems to go along two paths: limiting foreign plaintiffs and foreign class actions; and allowing mandatory bilateral arbitration agreements in standard consumer’s contracts. In this sense, U.S. courts are diminishing their appeal as sorts of ‘global courts’ for the world’s wrong. Europe, on the contrary, is slowing and gradually discovering the notion of ‘private attorney general’, starting to focus on the private dimension of the enforcement of public interests. However, redress mechanisms modeled on the U.S. class action are still relatively new and in an initial phase, while class arbitration does not seem a likely development in the foreseeable future.Cautious hopes have been recently raised by the broad scope of a handful Canadian securities class actions and some applications of the Dutch Collective Settlement of Mass Claims (WCAM), but in the meantime the quest for a single forum in cross-border consumer’s disputes will have to continue.

Kiobel's Broader Significance: Implications for International Legal Theory

The U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co. has ushered in a new era for human rights enforcement. Unanimously, the Court ended so–called foreigncubed human rights cases, that is, litigation where foreign plaintiffs sue foreign defendants for activity occurring abroad. The broadest form of universal civil jurisdiction that the Second Circuit's decision in Filártiga v.Pena–Irala once appeared to promise is over. Alien Tort Statute (ATS) litigation, while not foreclosed, has become more limited.

Sosa v. Alvarez-Machain and Human Rights Claims against Corporations under the Alien Tort Statute

Contrary to the claims of some observers, the Supreme Court's decision in Sosa v. Alvarez-Machain does not sound the death knell for the use of the Alien Tort Statute to maintain human rights claims against private corporations in the U.S. courts. The decision clarifies the nature of claims under the Alien Tort Statue to some extent, and places some limits on the theories available in actions against private corporations, but for the most part such suits remain as viable after Sosa as they were before. That is not to say, however, that victims of corporate human rights violations in developing countries should hold out much hope that their lot will be bettered through Alien Tort Statute litigation in the United States. Even before Sosa, such suits had a chance of producing results favorable to foreign plaintiffs only with respect to a very narrow category of human rights violations. This paper first briefly describes the evolution of the Alien Tort Statute from the time it was reinvigorated in Filartiga v. Pena-Irala to the Supreme Court's decision in Sosa. It then discusses the implications of Sosa for human rights claims against private corporations and assesses the potential significance of federal human rights litigation as a mechanism for addressing the problems of those whose human rights are adversely affected by US corporations operating abroad.

On Their Best Behaviour: Foreign Plaintiffs in Chinese Administrative Litigation

Supporters of the rights hypothesis argue that rule of law is a prerequisite for development while others cite East Asian examples to argue that appropriate institutions have allowed for growth without a strong legal system. Empirical studies have found evidence for both theories, but tend to be narrowly focused on the initial decision of when, where, and how much to invest. Based on 178 interviews and newly analyzed official data, this paper examines how foreign investors actually interact with the legal system of the world’s largest developing country, the People’s Republic of China. It finds that the presence of foreign investors and legal professionals has facilitated the creation of an impartial intellectual property tribunal in Beijing. Outside this tribunal, multinationals fail to make use of administrative courts, preferring extralegal special treatment that sometimes allows them to skirt inconvenient laws and limits their potential contribution to China’s rule of law.

Foreign Plaintiffs, Forum Non Conveniens, and the 1999 Montreal Convention

The purpose of this article is not so much to focus on the multitude of successful forum non conveniens motions that have been granted in recent years by US courts, but rather to focus on the increasing frequency of foreigners (i.e., non-citizens and non-residents) opting to sue in the United States. They do this because in many instances they are aggressively solicited by US-employed so-called 'consultants' who tell them that they can not only enjoy contingency fee arrangements in retaining their US lawyers, but that they can also enjoy the likelihood of much larger financial recoveries than could be expected from the courts in their own countries. Even if these representations are in fact true, the issue addressed by the author is the propriety of foreigners seeking access to US courts for these purposes. The author briefly examines the decisions in several of the more recent aviation accident cases. A disproportionate number of them, as can be seen, involve accidents that occurred abroad, on foreign airlines - many of which do no business in the United States and, hence, are not subject to US jurisdiction - and with victims that are mostly or all citizens of foreign countries. Finally, the author proposes an approach that he believes would help to eliminate or, at the least, lessen the frequency with which foreign citizens resort to US courts following aviation accidents abroad while, at the same time, providing foreign plaintiffs who are victims of international air mishaps with faster and more certain resolution of their claims. The author also proposes what he believes is a much better and more efficient system for determining whether courts abroad are available and adequate for purposes of allowing a US court to grant a forum non conveniens dismissal.

The Dodd-Frank Extraterritorial Jurisdiction Provision: Was It Effective, Needed or Sufficient?

In Morrison v. National Australia Bank, the U.S. Supreme Court ruled in June 2010 that securities fraud suits could not be brought under Section 10(b) of the Exchange Act against foreign defendants by foreign plaintiffs who bought their securities outside the United States (so called, “f-cubed,” securities litigation). The Court held that Section 10(b) reaches only fraud in connection with the, “purchase or sale of a security listed on an American stock exchange, and the purchase or sale of any other security in the United States.” Congress responded to Morrison with Section 929P of the Dodd-Frank Act, which gives federal courts jurisdiction over some similar cases if they are brought by the SEC or the Department of Justice (DOJ).This article discusses alternative explanations for why Congress used extraterritorial jurisdiction language in Section 929P instead of directly addressing the reach of Section 10(b) on the merits, and whether as a result Section 929P does nothing more than confer jurisdiction on federal courts that the Morrison opinion already recognized courts have over all Section 10(b) cases. This article also discusses whether Section 929P reinstates for SEC and DOJ suits some of the case law in the courts of appeals that was overturned by Morrison, and if so, how that case law is to be applied. This article discusses whether Section 929P is retroactive, and how Section 929P likely will be used by the SEC and DOJ in insider trading and other cases. Finally, this article discusses whether Section 929P was necessary given the SEC’s already expansive enforcement authority under Section 10(b) and whether Congress should have taken the opportunity to address other more pressing post-Morrison issues in Dodd Frank. These issues include the status under Morrison of securities listed both in the United States and outside the United States, and the status of off-exchange traded security-based swap agreements, as well as other private transactions where identifying a transaction location is not as easy as it is for exchange traded securities.

The Empagran Exception: Between Illinois Brick and a Hard Place

In F. Hoffmann-La Roche Ltd. v. Empagran S.A., the Supreme Court interpreted the Foreign Trade Antitrust Improvements Act (FTAIA) to bar an antitrust suit by foreign plaintiffs against foreign defendants despite the fact that the foreign and domestic markets were interconnected. I identify one narrow class of cases that would satisfy the statutory exception. Rather than focusing on the interrelatedness of the foreign and domestic prices, the inquiry centers on the resale of goods to the domestic market. The argument is a variant on Illinois Brick.

How to Block Cartel Formation and Price Fixing: Using Extraterritorial Application of the Antitrust Laws as a Deterrence Mechanism

This article examines the nature of the effect of the U.S. Supreme Court's Empagran decision through the lens of the global vitamins cartel, using legal and economic analysis and also empirical data to describe the effect. The article commences with a discussion of the analytic approach adopted by the courts prior to the Empagran decision, with a focus on the issues of the degree to which effects on domestic commerce are necessary in order for U.S. courts to obtain jurisdiction over a matter involving foreign plaintiffs and the role of comity in the determination of jurisdiction. The article next describes the Empagran story from a legal perspective, discussing the various positions taken by the courts below and the Supreme Court, in the context of not only the issues of economic effects and comity, but also the role of foreign plaintiff private antitrust suits in deterring international cartels. The article then examines the empirical evidence related to the vitamins cartel at the heart of the Empagran matter, describing empirical research done by Author Connor and others. This research suggests a fundamental and important link between a cartel's activity here and abroad, as well as the importance of domestic antitrust enforcement on cartel recidivism. The article proposes a methodology that would harmonize the needs for vigorous antitrust enforcement to deter international cartel activity and reduce recidivism with comity issues obviously at the forefront of the Court's concerns in Empagran.

Forum Non Conveniens and Retaliatory Legislation: The Impact on the Available Alternative Forum Inquiry and on the Desirability of Forum Non Conveniens as a Defense Tactic

A motion to dismiss on grounds of forum non conveniens has become the primary response of domestic defendants to tort actions brought by foreign plaintiffs in U.S. courts. The motion is not only filed, but also granted, in nearly every case. Various elements of the modern doctrine of forum non conveniens almost guarantee this outcome where the alleged wrongful act and injury occurred in another country. A forum non conveniens dismissal typically means that a foreign plaintiff must seek relief in the courts of his own country. As a result, a foreign plaintiff will likely recover much less than a domestic plaintiff injured by a domestic company. The various procedural and substantive