An attorney called me this morning from the Office of Immigration Litigation (OIL). That’s the group of attorney who represent the government when an immigrant appeals an adverse decision by an Immigration Judge to the BIA and then to the federal circuit court with jurisdiction over the immigrant’s state of residence. The OIL atty said he is suggesting this case go to mediation. The Ninth Circuit–and presumably the other circuit courts–has a process by which certain cases on appeal can be “mediated.” Generally the Court will only let an immigration case be mediated if the govermnent requests it. As a matter of strategy, the only reason for the government to request mediation is to avoid decision in the case that goes against the govermnent’s goals and/or policies. Thus, I was glad to hear the case was selected for mediation.

In the second recent decision of its kind, the First Department on December 22, 2009 affirmed the dismissal of products liability actions brought against Pfizer for its drug, Lipitor, by foreign residents.  The first occasion occurred in November 2008, and involved residents of Michigan. In that case, the Michigan plaintiffs brought the action in New York State to avoid Michigan’s defense-friendly laws. Jurisdiction in New York was predicated on Pfizer’s New York headquarters. At the time, the Court found that the litigation lacked a sufficient nexus to New York.

The more recent decision, involving Georgia residents who brought product liability claims in New York against Pfizer for Lipitor, is essentially a reiteration of the decision against the Michigan plaintiffs. Like their Michigan predecessors, the Georgia plaintiffs brought their products liability actions in New York to avoid the less plaintiff-friendly laws in Georgia. And once again, the New York Courts have chosen to dismiss the actions.

New York County Supreme Court Justice Martin Shulman, in a June 2008 opinion, initially granted the dismissal. The Appellate Division, First Department affirmed the dismissal on December 22, 2009.

The First Department’s decision emphasized the fact that there was an insufficient nexus with New York, as compared to the plaintiffs’ home state of Georgia. The only connection to New York cited in the Court Order was Pfizer’s New York headquarters. In contrast, there were numerous connections with Georgia, including the residence of the plaintiffs, the location where the prescriptions were made, the location where the product (drug) was used, and the location of all witnesses, including treating physicians.  Accordingly, the Court dismissed the Georgia plaintiffs’ actions on forum non conveniens grounds.

Choosing the proper jurisdiction and venue for products liability litigation is a crucial step in the litigation process.  Because of the Georgia plaintiffs’ (or more likely, their counsels’) decision to bring the litigation in New York, the Georgia plaintiffs have effectively wasted months if not years.*  Products liability litigation can easily take two or more years before trial, so choosing the correct jurisdiction and venue is important to avoid further delays to litigation.  The recent economic climate, particularly in light of the many bankruptcies this past year, means that any significant delay could either cause further delays (stays of action when a defendant files for bankruptcy) or a complete loss of recovery (in the event that the bankrupt defendant liquidates with insufficient assets or insurance).

*This may be one of the situations where the Georgia plaintiffs could not have won even if they did initially bring the litigation in Georgia, depending on Georgia’s products liability law.

There is an interesting document published in the Official Journal today. Professor Fausto Pocar, holder of the Chair of International Law at the University of Milan, has provided an explanatory report to the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Lugano Convention).

The report follows on from the report that accompanied the Lugano Convention of 1988 (the ‘Jenard-Möller report’). It provides a point of reference to clarify the meaning of the Convention and facilitate uniform application.

Sec 28 of the Indian Contract Act :

“Every agreement,(a) by which any party there to is restricted absolutely from enforcing his rights underor in respect of any contract, by the usual legal proceedings in the ordinary tribunals,or which limits the time with in which he may thus enforce his rights;…………….” is void to that extent.

The issues surrounding exclusive jurisdiction clauses in India are to two folded. One is the affect of Sec 28 on exclusive jurisdiction clauses in India and another is the affect on cross border contracts.
Are the clauses which restrict the right of parties to approach any court in India which has competent jurisdiction to grant the relief void?

Domestic Jurisdiction of Civil courts in India

All civil courts in India below High court derive their authority to try all kinds of civil suits from

Section 9 of the Code of Civil Procedure.

“The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.”

So Courts in India unlike some American Courts derive jurisdiction solely from the Code. This jurisdiction is normally subject to territorial and pecuniary limitations further set out in the code and the concerned State law creating the civil court.

In Hakam Singh Vs Gammon (India) Ltd AIR1971SC740, (1971)1SCC286, [1971]3SCR314, Supreme court of India discussed the issue of jurisdiction of Courts in India as follows:

“By Clause 13 of the agreement it was expressly stipulated between the parties that the contract shall be deemed to have been entered into by the parties concerned in the City of Bombay. In any event the respondant have their principal office in Bombay and they were liable in respect of a cause of action arising under the terms of the tender to be sued in the Courts at Bombay. It is not open to the parties by agreement to confer by their agreement jurisdiction on a Court which it does not possess under the Code. But where two courts or more have under the CPC jurisdiction to try a suit or proceeding an agreement between the parties that the dispute between them shall be tried in one of such Courts is not contrary to public policy. Such an agreement does not contravene Section 28 of the Contract Act.”<

The Supreme Court in British Steam Navigation case [19902CompLJ1(SC), 1990(48)ELT481(SC), JT1990(1)SC528case] had further interpreted S28 of the Contract Act as applied to cross border transactions. The key to this interpretation are the words “absolutely” in Section 28. Court considered that Sec 28 while declaring clauses which are in restraint of judicial/legal proceedings are void is applicable only if the restraint is absolute.

So If the contract is domestic one and the parties are both Indian nationals any clause in contract which confers jurisdiction on some specific court to the exclusion of others is not hit by S28 . However, in such a case the specific court referred to in the contract should have jurisdiction (under the code) i.e ‘competent to try the suit’. Since partial restraint of the party to limit his legal relief to one court is not against public policy (waiver of private rights under a contract is lawful as long as such waiver is not against public policy) and only partial restraint the clause is enforceable.

Foreign Jurisdiction

Where the other party has an option to get a remedy in another jurisdiction and not necessarily in India the clause holds good as the condition is not absolute restraint. Court had essentially considered whether one party to the contract would be left absolutely remedy less of the exclusive jurisdiction clause is enforced. In a proceeding before the Indian Court if it is proved as a matter of fact by evidence that the other party to the contract has legal remedy in foreign jurisdiction then the Indian court would not further interfere in the matter since the plaintiff still has some legal remedy albeit in foreign jurisdiction. However, in case of cross border transactions the issue is little more complicated. Every Indian Court as per Indian Evidence Act takes judicial notice of all laws of Republic of India. Laws of foreign countries need to be proved in a court of law by production of relevant evidence. So in case of foreign jurisdiction clauses excluding jurisdiction Indian Courts, the defendant has to prove by production of documentary and other evidence that the foreign country referred to in the contract in fact has laws which provide adequate legal remedy to him. In case of domestic contracts since the court already takes judicial notice of the laws, it will only check if the other court in India is competent to try to the suit or not. If the other court is competent to try the suit it will not further entertain the suit arising from the contract.

Length: 6:43

Related: Constitution; State; Sovereignty

KULLMANN, KLEIN AND DIONEDA, ATTORNEYS AT LAW – TRAFFIC VIOLATIONS, SPEEDING TICKETS, CITATIONS, DRIVER’S LICENSE REVOCATION, POINTS VIOLATIONS, TRAFFIC OFFENSES, CONVICTIONS, SUSPENSION OF DRIVER’S LICENSE, DUI, DWI,

The Saint Louis Post-Dispatch submitted an analysis for local law enforcement officers who write the most traffic tickets for their jurisdiction per square mile.  Conclusions for this analysis issued by the Post-Dispatch are as follows:

     1.  Bella Villa

     2.  Upland Park

     3.  Beverly Hills

     4.  Pine Lawn

     5.  Velda Village

KULLMANN, KLEIN & DIONEDA

The experienced attorneys at Kullmann, Klein & Dioneda represent and defend drivers charged with traffic violations.  To speak with an attorney about fighting your traffic ticket, please call our law firm at:  (314) 772-0000.  Our traffic violation defense attorneys will provide you with the legal services you need.

MISSOURI AND ILLINOIS

Gary Kullmann, Andrew Klein and Steve Dioneda, Attorneys At Law

“One of us will meet with you and personally handle your case.”

THREE LOCATIONS TO SERVE YOU:  Saint Louis: (314) 772-0000

St. Charles:  (636) 946-1033

and

Granite City:  (618) 931-3000

KULLMANN, KLEIN AND DIONEDA:  www.kkdpc.com

Note: Throughout this series, items that are hyperlinked were in the Constitution as written in 1787 but have since been amended or superseded.

Article III of the Constitution of the United States established the Judicial Branch.  Here is Article III, Section II:

Section. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;– between a State and Citizens of another State,–between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Welcome!  This first post is only an introduction.  Though there are many ‘blawgs’ out there, I hope this one will serve a unique purpose.  #law tag is intended to be a source of information on legal issues surrounding new media, web 2.0, and social networking.

The goal here is to present complex legal concepts like copyright ownership, libel, and jurisdiction (among others) in a way that the non-lawyer (or law student, in my case) can understand.  Hopefully, in time, it will become useful to anyone with a blog, Twitter, or Facebook account.

That said, I am not an attorney and the laws surrounding social media are still developing.  Nothing on this site should be read as legal advice.

Prosecuting American ‘War Crimes’ The International Criminal Court claims jurisdiction over U.S. soldiers in Afghanistan.

It was clear who the targets of these particular inquiries are but the chief prosecutor shied away from spelling it out.

Asked repeatedly whether the examination of bombings and torture allegations refers to NATO and U.S. soldiers, Mr. Ocampo finally stated that “we are investigating whoever commits war crimes, including the group you mentioned.”

The fact that he avoided a straightforward “I am looking into possible war crimes committed by American soldiers” showed that Mr. Ocampo is aware of the enormity of crossing this legal and political bridge. Appointed in 2003 for a nine-year period, the 57-year-old Argentinian has—so far—established a record of cautious jurisprudence.

Apparently you all didn’t find the special congressional race in upstate New York — or its would-be recount, and the potential fallout for New York’s new voting systems — all that interesting. For shame! That stuff was cool. Anyways, in partial atonement for my sins, this commentary on Phyllis Schlafly’s latest insanity (h/t Pi).  – Ed.

Federal courts play a curious part in modern America. Post-Brown, they can be engines of great good, leading the nation to justice in spite of herself, or, with just as much nobility of purpose, they can push too hard, galvanizing a dying movement and forcing culture war combatants back to the trenches.

What’s to be done? For hard-line conservatives, the answer, as in so many other cases, is to give up. Hence the far-right fascination with “jurisdiction-stripping,” the process by which Congress restricts the federal courts’ trial or appellate jurisdiction over particular issues. Strip all federal jurisdiction over school prayer, and bam! Problem solved, so much for that pesky First Amendment!

While a move like that would be troubling indeed, jurisdiction stripping has its uses. It’s a hell of a way to control docket congestion: with one stroke, Congress could (but won’t) eliminate wasteful and insulting litigation. And it’s not without history: during Reconstruction, Congress revoked military detainees’ rights to petition the Supreme Court directly for habeas corpus (ordinary habeas remained undisturbed). See Ex Parte McCardle, 74 U.S. 506 (1869). More recently, the Military Commissions Act of 2006 stripped federal courts of the ability to hear habeas petitions brought by Guantanamo detainees (§ 7) — before this provision, specifically, was ruled unconstitutional. Boumediene v. Bush, 558 U.S. ___ (2008).

Schlafly’s article — advocating for a re-stripping of federal jurisdiction over detainee trials — is thus a fascinating look at what happens when one ignores recent Supreme Court decisions, and glosses over earlier history. Boumediene, decided just over a year ago, explicitly forbids her proposed solution, and McCardle, upon which better-educated advocates of her position usually rely, doesn’t help, if you look just below the surface. The McCardle Court did little more than eliminate a novel vehicle for habeas corpus — it never terminated habeas altogether.

Besides, fear — be it of the deranged ramblings of a madman, or of a potential acquittal that’ll never happen — is a poor reason to do anything, and a particularly abysmal reason to surrender our values, and begin putting conditions on our faith in democracy.

Under American law, the Defense Base Act, they’ll still be allowed to kill, maim, or allow their employees to be raped, just not anyone else.

Courthouse News Service

by Nick Wilson

WASHINGTON (CN) – Senators introduced legislation Wednesday that would bring foreign military contractors under the jurisdiction of American laws following an appeal from the parents of a soldier allegedly killed by a contractor in Iraq.
In introducing the legislation, Subcommittee on Contracting Oversight Chair Claire McCaskill from Missouri told the story of Lt. Col. Dominic Baragona who was allegedly killed when a contractor’s truck slammed into him in 2003. The man’s parents spent years appealing to the Defense Department, the Bush administration and the Army to seek accountability and information regarding their son’s death.
The family sued Kuwait & Gulf Link Transport Company (KGL), the contracting company, in 2006. McCaskill said the contracting firm did not show up before the court until after the family won a $4.9 million judgment. The contractor then argued that the government does not have jurisdiction over it and the court vacated the judgment.
“The need for Congress to act with this legislation has raised serious questions for me about the systematic failures that have allowed companies like KGL to escape accountability for their actions,” McCaskill said.
The subcommittee also released a report showing that federal agencies rarely dismiss abusive contractors.
The investigation revealed that over the last five years, the Defense Department Office of Inspector General reported 2,700 convictions, but the Defense Department only debarred 708 contractors.
The Department of Homeland Security did not debar any contractors in 2006, despite widespread reports of waste, fraud and abuse following Hurricane Katrina.
The “Lieutenant General Dominic ‘Rocky’ Baragona Justice for American Heroes Harmed by Contractors Act” would require foreign companies that enter into contracts with the United States to consent to personal jurisdiction in cases involving serious injury, death or rape.

What most people want to know from a California contract lawyer is whether they or the other party have broken that agreement and whether they are obligated to pay for breaking that contract or agreement in California.

If you have an issue with a contract in California visit our law firm website at http://www.sebastiangibsonlaw.com for more information and call us at any of the numbers easily found on our website.

If you’re in business in California and even if you’re not, you already know what a contract is. It’s that thing you signed when you or another party agreed to pay something in return for something else.

In order to determine the answer to who’s entitled to what, a contract attorney in California must read the contract and learn what happened from the client. If the contract is in writing, for the most part, the written terms of the contract determine the answers to those questions. But it is still usually necessary for a California contract lawyer to advise a client how the law looks at such terms.

If the agreement was not in writing, then the client’s statements and those made by the other party when the agreement was made become of more significance. In other cases, the question of whether a contract exists or not, may depend on whether there was an offer and an acceptance of that offer.

A contract can also be implied by the conduct of the parties. However, implied contracts and oral contracts are usually the most difficult types of contracts to prove. A written contract is the easiest, and this is why contract attorneys advise everyone to always put their agreements into writing.

In determining whether there has been a breach of the contract under California contract law, or in other words, whether one of the parties broke their agreement, it is required to determine if one of the parties performed their promises under the contract agreement.

For one party to obtain damages from the other, the performing party must have performed his or her obligations under the contract, or there must have been what the law allows as a valid excuse to his or her performance. The performing party also may allege that the other party waived the performing party’s performance. However, a party claiming that his or her performance was excused or waived has a much more difficult burden of proof, in most cases, to be successful and obtain damages

The crux of a breach of contract claim is the other party’s breach. The breach may be a failure to pay money, or the failure to perform some service, deliver goods or take some other action.

Since the object of a claim for breach of contract is the damages suffered by a party, the person claiming he or she was wronged, must have also suffered some financial damages.

The next question for clients is what are they entitled as a result of the breach of the contract by the other party.

The general rule is that the injured party is entitled to the benefits he or she would have received if the contract had been performed. This is generally the amount that would compensate the aggrieved party for all the detriment he or she suffered as a result of the breach.

That doesn’t mean, however, you can claim emotional stress, punitive damages, try to inflate your damages unfairly, or obtain damages which cannot be clearly ascertained.

However, an injured party may obtain damages for lost profits, for his or her expenditures, for interest, and if the contract provided for them, even for attorneys’ fees and costs and again, if the contract provides for a specific amount of damages, for these “liquidated” damages.

Each case rests on its own merits and there are different ways to plead and prove a person’s damages. Some remedies under the law are exclusive while in other cases, a client must choose which damages he or she would prefer to obtain, for example specific performance of the contract. On the other hand, a party, may have the option of rescinding the contract (the remedy of rescission) when it has been breached by the other party, and seek restitution of the price he or she paid, in other words, his or her consideration.

While the terms of a written contract are extremely important where there is one, there is much more to contract law than simply reading a contract or writing down simple terms such as “if I do this, you agree to pay me that.” If you want the right to be paid for your attorney’s fees and costs in the event of a breach, for instance, some additional language must be added to the contract.

In California, a prevailing party in a contract dispute is entitled to attorneys’ fees only if the contract provides for this. If the contract is silent, each party is responsible for their own attorneys’ fees and costs. This is often crucial to a decision by a client of whether or not to go forward with litigation.

There are also many other issues a California contract lawyer must analyze in a contract case, among which. are whether a California court would have jurisdiction over the case. This may depend on issues such as where the contract was formed, where it was to be performed and the locations of the parties involved. If the contract was agreed to over the Internet, there are another whole set of facts and issues that must be considered.

There is also the issue of which statutes of limitations apply and determining if an aggrieved party can still file a lawsuit in court or whether the time has run out on such a claim. There are different statutes dealing with written contracts and oral contracts and those statutes vary from state to state. There are also different rules dealing with contracts involving land or real estate, minors, and other situations.

If you have a contract that’s been breached by another party or if you are being sued by someone over a contract, visit our law firm website at http://www.sebastiangibsonlaw.com and call the law firm of R. Sebastian Gibson today.

Farish Noor of the Malaysian Insider weighs in on the issue of Aceh’s autonomy  which has taken on a new dimension in being granted legal autonomy but limited political and economic independence, which he claims is what the Acehnese really want. In the end however, even the concessions to Islamic law seemed very limited or not agreed upon by wide sections of society, so the question as to the shape of Acehnese autonomy still remains unanswered.He concludes thus -

“The sad story of state-manipulated Islamisation in Aceh is a sound lesson for all. It should remind political elites that real political and economic demands that are articulated by marginalised communities ought to be taken seriously, rather than met with token cosmetic concessions that do not address the causes of revolt and dissatisfaction. Worse of all, by toying about with Islam thus, Jakarta may have created a parallel Islamic bureaucracy in Aceh that has no credibility (as it is seen as a tool of the central government) and may one day get out of control. As the religious authorities in Aceh contemplate more and more laws such as stoning to death and the like, it would appear that the nightmare scenario has become more real than ever; and Aceh is nowhere nearer getting the recognition and respect it demands and deserve.”

]]> http://lawandadat.wordpress.com/2009/11/14/more-on-caning/ Sat, 14 Nov 2009 03:31:42 +0000 Fadzilah http://lawandadat.wordpress.com/2009/11/14/more-on-caning/

The caning of Kartika Sari Dewi Shukarno in the Malaysian state of Pahang has been further postponed, after the sentence was challenged by someone who suggested that it was meted out not according to Islamic law. In addition, it has been argued the Pahang court had no jurisdiction over hudud sentences.

By Bob Steiner

This week  the town of Edgewood hosted a meeting where the Boundary commission appointed by Governor Richardson was present.  This was an open meeting where some thirty-odd citizens were present to hear the town present its request to annex several parcels of land adjacent to or within the town’s present borders. Several citizens spoke out against the annexation and the commission decided not to approve the request.

The main reason given for not wanting to be annexed was  that residents felt their rural lifestyle would be impacted  negatively, if they became part of the town. Also raised during the meeting  was the concern that the police protection provided by the town’s police force was inadequate and that Santa Fe County Sheriff’s Department presently  provided adequate service to the Edgewood Area. One citizen even went so far as to say he thought that the Police Department was only a nine to five weekday operation.  Unfortunately because of the many other aspects addressed by the petition, town staff did not  have an opportunity to clarify  this “mis-information’.

While I certainly do not purport to be a  spokesman for the Edgewood Police Department, I believe that I have had occasion to view the department in operation and I can comment  on its operating hours, as well as some of the internal support agreements it operates under.  First off, the Police Support office (tel. 505-281-5717), located just South of the town’s municipal offices on Route 66,  is open week days from 8 A.M. to 4 P.M.  This office is open for non-emergency business, such as processing  accident reports and performing other support services to the community at large.

24/7 emergency calls to the 911   number are routed directly to the regional dispatch center in Santa Fe.  Such calls would normally be responded to by the closest available unit from  the Edgewood  Police Department.  Santa Fe County Sheriff, or the State Police would respond if  an Edgewood  unit could not answer the call.   All three agencies seem to work well together and our citizens seem to be getting the most for their tax dollars with this arrangement.

In the event you have need for service from our police, please note the following:

• FOR NON EMERGENCY weekday service, Call the Edgewood Police at 281-5717.

• FOR NON-EMERGENCY  calls during other than normal business hours, please call the Regional Dispatch Center at 1-800- 742-1144 .

• FOR  ALL EMERGENCY Calls (at all times) please call 911!

Rest assured Edgewood, your town leaders are keeping your safety in mind!