Airflow is a U.S. entity; Huss is German. The business dispute
is over defective cement substrates for use in manufacturing
catalytic converters. The operative agreements contained neither a
choice of forum nor choice of law clause. To support a change of
forum to Germany, the defendant argued, among other things, that
Defendant is located in Germany, and it manufactured and shipped
the subject product in Germany; 2) [Plaintiff] traveled to Germany
prior to executing the contract; 3) pursuant to the contract,
purchase orders were to be emailed to Defendant in Germany; 4)
payment was made through a German bank; 5) three of Defendant's
anticipated witnesses are located in Germany; 6) some of the
unshipped product remains in Germany; 7) German law should apply to
this dispute; and 8) judgments are executed in Germany through a
separate court proceeding, and there is a possibility that a German
court might refuse to enforce a judgment against Defendant, if it
is found that this Court did not have jurisdiction.
The first seven issues are much more common — and a
competent corporate lawyer or draftsman could have anticipated them
and made provision for the issue of choice of law/forum in the
operative contract. With respect to the eighth issue, however, the
Defendant offered a German law expert to opine that there was a
possibility that a U.S. judgment would not be enforced by a German
court. The Court did independent research into the question (saying
that the parties had not briefed the issue) and cited numerous
instances where doubts have been raised about whether a German
court would enforce a U.S. judgment. Under Fed. R. Civ. P. 44.1,
the Court was permitted to do independent research (a topic we have
posted on frequently, for example,
here), and wasn't required to credit the defendant's
German law expert. On analysis, the Court found the proof
inconclusive and was unwilling to dismiss the case on that
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