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The International Law Section Gazette
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SAVE THE DATE - New Retreat Dates Confirmed and Big News About Our 2018 Annual Section Meeting
The Florida Bar ILS has confirmed new dates for the Section's Retreat at the Hyatt Regency Coconut Point Resort & Spa in Bonita Springs. Our Section Retreat will take place on May 18-20, 2018. Because of the proximity of the new Retreat dates to our annual Section meeting at the Florida Bar's Annual Convention, the Florida Bar ILS annual Section meeting will take place at the Retreat on May 18-20, 2018, in Bonita Springs. More details and registration information to follow.
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iLaw 2018 Steering Committee Meeting
The next iLaw2018 Steering Committee meeting will take place on October 18, 2017, at 6:30 p.m. at Harper Meyer, 201 S. Biscayne Blvd, Suite 800, Miami FL 33131. To RSVP, contact Jackie Villalba (jvillalba@harpermeyer.com).
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Call for committee members - Vis Pre Moot
The Vis Pre Moot Planning Committee is in search of additional members to help organize the event, which will take place on February 17, 2018. The Committee's tasks include organizing the logistics of the competition, liaising with coaches and teams, planning the rounds, and engaging volunteer arbitrators. If you would like to be part of the Committee, please email Cristina Vicens at cvicens@sequorlaw.com
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A Seat @ The Table Panel
The Women in International Law Committee and JAMS, invite you to A Seat @ The Table. Join us on Wednesday, November 1, 2017, for an interactive panel discussion on diversity and the unique challenges women face in developing themselves as leading practitioners in the field of international law. The event will be held at JAMS Miami Resolution Center, 600 Brickell Avenue, Suite 2600, Miami, Florida 33131 from 8:00 a.m. to 9:30 a.m. Space is limited. For more information, please refer to the event's brochure. Register today by visiting https://seatatthetablepanel.eventbrite.com
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Application of Forum Non Conveniens to Foreign Forum Selection Clauses
By Ava Borrasso*
Does application of the federal doctrine of forum non conveniens vary according to whether a forum selection clause calls for a state, federal or foreign forum?
This precise issue was addressed recently in AAP Implantate AG v. MI Global Grp. USA LLC, 2017 U.S. Dist. LEXIS 116167, Case No. 1:17-cv-21888-UU (S.D. Fla. July 24, 2017). There, the defendant in an international contract dispute arising under the United Nations Convention on the International Sale of Goods ("CISG") filed a motion to dismiss a case filed in the U.S. District Court for the Southern District of Florida based on the doctrine of forum non conveniens.
The underlying dispute alleged the breach of an international distribution agreement in which the plaintiff German corporation appointed the defendant Florida company to act as its exclusive distributor in Venezuela. The contract called for application of German law to any ensuing dispute and further provided "Place of jurisdiction is Berlin, Germany."
The German corporation filed suit to enforce the contract in the southern district of Florida. The Florida defendant then moved to dismiss the suit based on the German forum selection clause. The defendant argued, in part, that the clause was mandatory, and, therefore subject to dismissal pursuant to 28 U.S.C. §1404 ("Change of Venue"). The plaintiff responded that the clause was permissive and factors of convenience, among others, favored litigation in Florida.
The court first determined that 28 U.S.C. §1404(a) did not apply. The court relied on a 2013 U.S. Supreme Court decision holding that Section 1404 only applies to transfers between federal district courts. When transfer to a state or foreign forum is sought and "particularly when a foreign forum selection clause is present," the analysis turns on application of the traditional doctrine of forum non conveniens.
Because the Defendant sought transfer to a foreign forum pursuant to the contract forum selection clause, the court declined to consider Section 1404.
Rather than addressing whether the clause was mandatory or permissive along with public and private factors of 28 U.S.C. §1404, the Court instead addressed a different issue - whether the forum selection clause itself was valid and enforceable.
Given the presumptive validity of such clauses, the burden to defeat one is rather high. Essentially, "forum selection clauses in international contracts will be deemed unenforceable 'only when: (1) their formation was induced by fraud or overreaching; (2) the plaintiff effectively would be deprived of its day in court of the inconvenience or unfairness of the chosen forum; (3) the fundamental unfairness of the chosen law would deprive the plaintiff of a remedy; or (4) enforcement of such provisions would contravene a strong public policy.'" (citation omitted).
The Court held the contract, though ambiguous, was enforceable, construed that ambiguity against the plaintiff drafter, and dismissed the case in favor of proceedings in Germany.
*Ava J Borrasso is the principal of Ava J Borrasso, P.A., a Miami-based law firm that concentrates on business and international litigation and arbitration. She also serves as an arbitrator and is a member of the panel of arbitrators of the International Centre for Dispute Resolution and the American Arbitration Association's commercial panel.
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Richard Montes De Oca Joins UM Law Faculty
Richard Montes De Oca,
Managing Partner
of MDO Partners, will be joining the faculty of the University of Miami School of Law. He will begin this new role in the Fall 2017 semester serving as an Adjunct Professor, Transactional Externship, teaching Contract Drafting, Mergers and Acquisitions, and Corporate Compliance.
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October 22-23, 2017
Will the push or pull of nationalist sentiments affect where and how businesses resolve cross-border disputes? Might the relationship between national courts and arbitral tribunals shift? Will the backlash against globalism encompass or impact the world of international arbitration? These and more questions will be topics of debate at the ATLAS - Atlanta International Arbitration Society 6th annual conference titled International Business Disputes in an Era of Receding Globalism. Additional details will follow soon.
October 24-28, 2017
The ABA Section of International Law Fall Conference on the Americas will be held in Miami at the JW Marriott Marquis, October 24- 28, 2017 with the topic "Doing business in the Americas in the New Global Economy: A New Dawn in the Hemisphere".
October 28, 2017
Join AIJA - International Association of Young Lawyers and the ABA Section of International Law for the traditional brunch
following the Fall Meeting of the ABA Section of International Law Spring Meeting in Miami, Florida! Meet up with other international lawyers 45 years old and under for a final networking event. Rusty Pelican, located at 3201 Rickenbacker Cwy, Key Biscayne, FL, will host the event from 10.30 AM to 2 PM. For more information or to register, click here. For additional details you can also contact Arnie Lacayo (alacayo@sequorlaw.com) or Stephanie Reed-Traband (srt@lklsg.com)
November 1, 2017
The Women in International Law Committee and JAMS, invite you to A Seat @ The Table. Join us on Wednesday, November 1, 2017, for an interactive panel discussion on diversity and the unique challenges women face in developing themselves as leading practitioners in the field of international law. The event will be held at JAMS Miami Resolution Center, 600 Brickell Avenue, Suite 2600, Miami, Florida 33131 from 8:00 a.m. to 9:30 a.m. Please see attached invitation for more information. Space is limited. For more information, please refer to the event's
brochure. Register today by visiting
https://seatatthetablepanel.eventbrite.com
November 2, 2017
Join the Tampa Hispanic Bar Association for their 11th Annual Scholarship Gala, November 2, 2017, at the Palma Ceia Golf and Country Club, Tampa. For additional information contact Astrid Guardado at AGuardado@bplegal.com.
November 5-7, 2018
November 14, 2018
February 15, 2018.
The ILS Executive Council Mid-Year Meeting will take place in Miami on February 15, 2018. Save the date! More details will be posted in the next weeks.
February 16, 2018
The iLaw2018 - The ILS Forum on International Law will take place at the Conrad Hotel, 1395 Brickell Avenue, Miami, Florida 33131. Join the ILS for its annual flagship event in which leading practitioners, experts and neutrals present cutting-edge topics related to international arbitration, litigation, and business transactions. Once again, the ILS has partnered with the International Centre for Dispute Resolution (ICDR) for its arbitration track. Stay tuned for an agenda and registration details. For sponsorship or other inquiries, please contact any of the iLaw2018 Co-Chairs: Ana Barton (
abarton@reedsmith.com
), Jacqueline Villalba (
jvillalba@harpermeyer.com
), or Kristin Drecktrah Paz (
kpaz@shutts.com
).
February 17, 2018
Florida Bar International Law Section 2018 - Richard Dewitt Memorial Vis Pre Moot
June 5-6, 2018
The German Bar Association (DAV) will be hosting its first International Bar Leaders Symposium on June 5th and 6th in the historic city of Heidelberg, Germany.
Don't miss this chance to benefit from inspiring presentations and to engage in a fruitful dialogue with legal professionals and experts from all over the world. Registration details are forthcoming.
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International Law Quarterly (ILQ)
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The
Spring 2017 ILQ -
Focus on International Aspects of Cybersecurity and Data Privacy
is now available to view and download
.
Our next ILQ will focus on
international litigation and arbitration, and we look forward to your submissions. Please write the ILQ's Editor-in-Chief, Rafael Ribeiro (
rafael.ribeiro@hoganlovells.com) if you would like to contribute or have any questions.
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