PRIVATE INTERNATIONAL LAW
FINAL EXAMINATION
PROFESSOR HELEN E. HARTNELL
14 MAY 2003
INSTRUCTIONS
1. This is an open-book examination. You are permitted to refer to the
following written materials: casebook, class handouts, class notes, and
an outline prepared by you or your study group. Students whose native
language is not English may also use an English-foreign language
dictionary. USE DURING THE EXAMINATION OF ANY OTHER
MATERIALS IS PROHIBITED.
2. You have three (3) hours to complete this examination.
3. This exam consists of two (2) questions, both of which have multiple
parts. The suggested times correspond to the importance and point
value of each question. Thus, a question where I suggest 60 minutes
would be twice as important -- and thus worth twice as many points --
as a question where I suggest only 30 minutes.
4. You may either type your exam or write your answers in the blue books
provided to you. In either case, no credit will be given for any answers
written on the exam itself. Typed exams should be double-spaced and
should have one-inch margins. Exams that are hand-written in blue
books should be written in ink, on only one side of the page (preferably
the right-hand side), single-spaced, and numbered (e.g., 1 of 2, 2 of 2).
5. Write your exam number on your exam envelope, at the top of this exam
question packet, and either on the cover of each blue book used, or on
each page of a typed exam. Do not use your name, student ID number
or Social Security Number on any exam materials.
6. At the conclusion of the exam, return all exam materials to the exam
envelope and submit it to the proctor. Do not seal the envelope.
QUESTION 1 Recommended Time: 120 Minutes (includes 20 to read)
Jack Flash Ltd. is a limited liability company that is incorporated under the
laws of Ireland and has its main office in Dublin. Mr. Flash himself ("Jack")
was born and raised in New York City, where he owns his family home.
However, Jack lives full time in Ireland and is a dual U.S.-Irish citizen. Jack is
the sole owner of Jack Flash Ltd. ("Flash Ltd.").
Flash Ltd. is in the business of designing, manufacturing, and selling atomic
clocks and watches. These atomic timepieces tell the exact time by receiving
radio signals from the Global Institute of Standards and Technology ("GIST").
GIST is an agency of the United Nations, which broadcasts the radio signals
from various mountain tops around the world. Flash Ltd. owns a number of
patents on the radio receiver that enables atomic clocks and watches to receive
these signals from the GIST broadcasts. In particular, Flash Ltd. has valid
patents in the U.S. and in Europe on the atomic timepiece receiver ("ATR").
Flash Ltd. produces ATRs and sells them to Ora Kft. ("Ora"), a Hungarian
company, which incorporates the receivers into clocks and watches, then sells
them throughout Europe, Africa, the Middle East, and the Asia-Pacific region
under Ora's own "Ora" trademark. However, Flash Ltd. has a different
arrangement in place to serve North, Central and South America ("the
Americas").
Flash Ltd. has concluded a 10-year contract with Tiempo Inc., an independent
(i.e., unaffiliated) company that is incorporated in New York but has its main
office and plant in Denver, Colorado. Under its contract with Flash Ltd.,
Tiempo manufactures the patented ATRs under license from Flash Ltd.,
incorporates the receivers into atomic clocks and watches, then sells the
finished timepieces throughout the Americas under its own "Tiempo"
trademark. (Under a license contract, the owner of an exclusive right, such as
a patent, authorizes another party to use the patented invention, such as the
ATR, for a designated purpose, in exchange for payment of a royalty fee. The
royalty is normally measured as a percentage of the proceeds from sale of the
patented good.) There are no other authorized manufacturers of patented ATRs
in the world. Thus, it is possible to know who manufactured a particular ATR
by the trademark on the finished atomic clock or watch: if "Ora" then Flash
Ltd. made it in Dublin, if "Tiempo" then Tiempo made it in Denver.
In April 2003, Jack was in New York to attend a wedding. Just after clearing
customs at the airport, he was personally served with a summons and
complaint in connection with a lawsuit filed in the state of New York. The
lawsuit was filed by Petunia Peeve, an Irish national who lives in New York.
Petunia was struck by lightening while wearing her Ora watch. She was
injured while playing golf during her holiday in Jamaica. It turns out that
atomic clocks and watches have an unfortunate tendency to attract lightening,
and Petunia is not the only person who has been struck by lightening while
using a timepiece containing an ATR. In addition to her own serious personal
injuries, Petunia's dog Sparky, which she was holding at the time lightening
struck, was killed. Petunia's lawsuit names Flash Ltd. as the defendant who is
responsible for putting a defective product onto the market, since she believes
it was the patented ATR, and not the watch itself, which was dangerous. She
is seeking to recover damages for her personal injuries and for the loss of her
dog, as well as punitive damages.
It would be wise to answer the following five sub-questions in order (A-B-C-D-E), since they are arranged chronologically. Pay careful attention to who is
your client in each of the following questions.
1.A. As counsel for Petunia, argue that New York's exercise of jurisdiction
over this case is proper. New York's long-arm statute is reproduced on
pages 418-419 of your Documents Supplement. Be sure to anticipate
and respond to arguments that you expect Jack's and Flash Ltd.'s lawyer
to raise. (30 minutes)
1.B. Assume for purposes of Question 1 (B) that your arguments under
Question 1 (A) were partly successful, and that the federal District Court
for the Southern District of New York decided to exercise jurisdiction over
Flash Ltd., though not over Jack personally. Now, as counsel for Flash
Ltd., argue that the court should dismiss Petunia's case on the grounds
of forum non conveniens. (15 minutes)
1.C. Assume for purposes of Question 1(C) that, however brilliant, your
arguments under Question 1 (B) were unsuccessful, and that the District
Court refused to dismiss the case. Now, as counsel for Petunia, argue
that the New York court is not bound by the following provision:
"Congratulations! You have just purchased an
atomic watch from Ora Kft ("Ora"). ...
If defective,
return the product to Ora within one year from
date of purchase, and
you will receive a new
watch. All other remedies are excluded. Any
lawsuit pertaining
to this product shall be
brought in the Metropolitan Court of Budapest,
Hungary,
and shall be subject to Hungarian
law."
This provision was printed on a piece of paper that was in the box
containing the atomic watch when Petunia bought it. She never read the
paper, since it was written entirely in Hungarian, except for the quoted
English language text. (20 minutes)
1.D. Assume for purposes of Question 1 (D) that, however brilliant, your
arguments under Question 1 (C) were unsuccessful, and that the District
Court refused to enforce the choice of forum agreement. Petunia's
counsel has commenced discovery and has mailed to Flash Ltd. a
demand that Flash Ltd. produce all documents relating to the design and
manufacture of the ATR. As counsel for Flash Ltd., argue that Petunia's
demand is improper. Assume further that Ireland has adopted the Hague
Convention on the Taking of Evidence Abroad in Civil or Commercial
Matters. (20 minutes)
1.E. Assume that Petunia has argued that the District Court should apply the
law of New York to resolve her claims against Flash Ltd., rather than the
laws of Jamaica or Ireland. New York law would allow Petunia to recover
all expenses related to her personal injury, including for her pain and
suffering, as well as punitive damages. Under Jamaican law, her
recovery for personal injury would be limited to $2,500. Under Irish law,
she could not recover for her pain and suffering, nor could she recover
punitive damages, but she would be reimbursed for all costs she
incurred in connection with her injuries. (15 minutes)
QUESTION 2 Recommended Time: 50 Minutes (including 10 to read)
Eureka Inc. ("Eureka") is a company that is incorporated in, and owned by the
State of California. It is in the business of purchasing or licensing patent
rights that can be used in the biotech industry. Eureka has a research
department that tracks the grant of patents world-wide, and seeks to identify
those that might be useful for developing California's biotech industry. Once it
has identified an interesting patent, Eureka contacts the owner and begins
negotiations to buy or license the right to use the patent in the U.S.
>After identifying a new patent owned by Timoteo Tullio ("TT"), a citizen of
Venezuela, Eureka contacted the inventor and commenced negotiations to buy
or license the right to use his patent in the U.S. TT's patent would
revolutionize the treatment of Alzheimer's and other memory-related illnesses.
After six months, TT broke off negotiations with Eureka, on the basis that
Eureka was not negotiating in good faith. While not recognized as a cause of
action in the U.S., Venezuela -- as well as many other civil law countries --
recognizes claims based on bad faith negotiations and failure to make
reasonable efforts to conclude an agreement. TT filed suit against Eureka in
Venezuela, asserting these claims. In particular, TT asked the court to order
Eureka to conclude a reasonable agreement, as well as to compensate TT for
the harm that he had suffered as a result of Eureka's bad faith negotiations.
Venezuelan law provides that negotiating business with a citizen of that
country is a sufficient basis for an assertion of specific jurisdiction. The
Venezuelan court served process on Eureka by publishing a copy of the
summons and complaint in Spanish in the Diario, which is the main daily
newspaper in Caracas, Venezuela's capital city. Under Venezuelan law, this is
an appropriate method of service.
Eureka never received notice of TT's lawsuit, and thus never appeared to
defend itself. The Venezuelan court rendered a judgment ordering Eureka to
resume negotiations with TT and make reasonable efforts to conclude an
agreement, as well as to pay him the equivalent of $150,000 damages to
compensate for having negotiated with TT in bad faith.
TT has brought his Venezuelan judgment to California and asked the
appropriate court to recognize and enforce it against Eureka. Argue the case
against recognition and enforcement of the Venezuelan judgment on behalf of
Eureka.
END OF EXAM