Contract venue and US law re. liability
Thread poster: Joseph Hovan

Joseph Hovan  Identity Verified
Local time: 22:17
German to English
+ ...
Oct 19, 2009

Dear Colleagues,

2 questions:

1. Venue - if not specified in a contract, if an agency located in Germany gives work to someone located in the US, which country's laws apply regarding the court venue for disputes. I don't want to tell you what I think, rather hear your knowledge!

2. Liability - Statute of Limitations - in Germany, it's 2 years (reportedly) for delivered services such as translations, but what about the US, if US laws apply?

THANK YOU!!!

[Edited at 2009-10-19 22:46 GMT]


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WriuszTran
Germany
Local time: 04:17
Advice Oct 20, 2009

Get a lawyer if you have a concrete dispute.

1. Jurisdiction is a battle of motions.

2. Statutes of limitation are usually "procedural" (which means they only apply to litigation brought in that place). If an action is brought in Germany, the German statutes of limitation will apply. If an action is brought in the US, the US statutes of limitation will apply.

Usually.

Get a lawyer.


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Derek Gill Franßen  Identity Verified
Germany
Local time: 04:17
German to English
+ ...
Tough questions... Oct 20, 2009

Joseph Hovan wrote:
1. Venue - if not specified in a contract, if an agency located in Germany gives work to someone located in the US, which country's laws apply regarding the court venue for disputes.


The short answer is this: It depends. (Yes, this is the standard answer lawyers are trained to give.)

The long answer is this: It depends on who is suing and where they would like to sue. This is a procedural question and, in the absence of a jurisdiction clause, a court in the US would probably test its jurisdiction using their "long-arm" statutes to determine if "minimum contacts" with the venue State exist. A court in Germany will probably test its jurisdiction based on the "place of performance of the obligation in question." (See http://books.google.com/books?id=csUfnPswBkEC&pg=PA1&dq=The%20CISG%20is%20shorthand%20for%20the#v=onepage&q=The%20CISG%20is%20shorthand%20for%20the&f=false .)

Joseph Hovan wrote:
2. Liability - Statute of Limitations - in Germany, it's 2 years (reportedly) for delivered services such as translations, but what about the US, if US laws apply?


The short answer is this: It depends on what court has jurisdiction and what law that court decides to apply.

The long answer is this: Once a court decides whether it has jurisdiction, it must then decide what substantive law to apply, and that depends on the respective country's provisions related to the conflict of laws. In the case of Germany and America, the CISG would probably be deemed the applicable substantive law, but--as far as I know--the CISG does not explicitely mention a statue of limitations, though it could probably be construed (see http://www.cisg.law.pace.edu/cisg/text/treaty.html ).

According to the book I linked above, consideration would apparently be given the LPISG Convention (see http://www.uncitral.org/pdf/english/texts/sales/limit/limit-conv.pdf ), which was ratified by the US in 1994 and lays down a uniform 4-year statute of limitations for the commencement of legal actions concerning international sales, which also corresponds to the statue of limitations laid out in the UCC for legal actions concerning national sales (see http://www.law.cornell.edu/ucc/2/2-725.html).

Depending on what law a German court would decide to apply, it could actually go both ways, and it might just apply its own 2-year statute of limitations, but it could also arrive at the analogous application of a 4-year statute of limitations going the same route a US-court would, i.e., by way of the LPISG.


*Please note that I have not really looked into it in detail and every case is specific unto itself, so my view of it could be wrong, but suffice it to say that the matter is never as straight forward as it seems it should be.


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Joseph Hovan  Identity Verified
Local time: 22:17
German to English
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TOPIC STARTER
Thanks to all of you who wrote! Oct 20, 2009

Dear Colleagues,

Your knowledge and suggestions have been greatly appreciated!

Kind regards,

Joe


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