From: <[log in to unmask]>
Date: Fri, 5 Sep 2014 05:36:25 +0000

"The 11th Amendment does explicit deny the federal courts jurisdiction
over suits brought against a state by "citizens or subjects of any
Foreign State"" - in the specific case of working with an
international treaty organisation, I wonder how the law works since,
when I'm at work, I am no longer a citizen or subject of any state, I
am an official of an international treaty organisation and, as such,
have a sort of diplomatic status which comes with various legal
immunities that have been agreed to by the Member states (which, in
the case of the OECD includes the USA). Moreover, since USA is a
member of the OECD (in fact, thanks to JFK, one of our founding
fathers), I'm not sure we are a 'foreign vendor' when operating in any
of the 34 Member countries.

As Kevin says, more research needed - (and no wonder lawyers do well!)

Toby Green
Head of Publishing
OECD


> On 5 Sep 2014, at 01:28, "LIBLICENSE" <[log in to unmask]> wrote:
>
> From: Kevin Smith <[log in to unmask]>
> Date: Thu, 4 Sep 2014 12:40:30 +0000
>
> I am also not sure how relevant this information is to the specific
> question, although it is very interesting.
>
> Just by way of background, sovereign immunity refers to the idea,
> stated in the 11th Amendment to the U.S. Constitution, that the
> federal courts do not have jurisdiction over states or state entities,
> in most cases.  The idea, when the 11th Amendment was adopted, was to
> balance the power of the federal government against the independent
> prerogatives of the states.  The Constitution had struck this balance
> pretty carefully in regard to legislative powers, but an early court
> case (1793) let people to believe that the balance was not properly
> set regarding the judicial power, so the Eleventh Amendment was
> written and adopted.
>
> The 11th Amendment does explicit deny the federal courts jurisdiction
> over suits brought against a state by "citizens or subjects of any
> Foreign State" as well as suits brought by U.S. citizens.  So
> presumably a foreign vendor like OECD would have an interest in a
> waiver that was the same, but not any more urgent, than that of a
> domestic vendor.  In both cases the reason for seeking a waiver would
> be to gain the ability to sue the customer in federal court, for
> alleged violations of federal law or to avoid a "home court advantage"
> in state courts.
>
> Over the years there has been a complex set of rules developed around
> waivers of sovereign immunity.  I can think of four basic ways it can
> be waived.  First, Congress can waive this limitation on the
> jurisdiction of the federal courts, but only in very limited
> situations related to the 14th amendment guarantees of equal
> protection of the law and due process.  In other situations, including
> when Congress tried to waive sovereign immunity in regard to copyright
> or patent claims, the Supreme Court said that it lacked the power to
> do this.  Second, a state can waive its sovereign immunity, either
> explicitly or by taking actions that indicate a waiver, such as
> initiating a lawsuit in federal court itself.  Third, there is the
> exception known as Ex Parte Young (from the Supreme Court case on
> which it is based), which allows a lawsuit against a state or state
> entity in federal court when no monetary damages are sought and the
> only remedy is prospective -- an injunction to stop an ongoing
> violation of federal law.  This is the theory under which the
> publisher's lawsuit against Georgia State University has been
> proceeding.  Finally, there is the possibility that a state entity
> could waive sovereign immunity through a private contract, which is
> what the vendor Liane is working with wants her to do.  I am unaware
> of definitive rules about when and how such private waivers are
> effective, and who has authority to enter such contracts, which is why
> I urged Liane to be careful and seek authorization from a higher state
> authority before agreeing to such a contract.
>
> Sorry if this sounds like a lecture.  I am mostly just organizing my
> own thoughts to consider whether the Eleventh Amendment prevents a
> state entity from agreeing to an arbitration clause.  Both as a matter
> of explicit language and the policy behind the amendment, I do not see
> why a state entity could not agree to binding arbitration.  The only
> difficulty would be those situations where the parties decline to
> accept the decision of the arbitrator.  Such cases usually do then go
> before the federal courts (if federal jurisdiction is otherwise
> established).  So I wonder if agreement to an arbitration clause might
> somehow or sometimes be interpreted as a waiver of sovereign immunity
> by the state or, alternatively, if the other party to such a clause
> (i.e. the international treaty organization in Toby's example) would
> lack a remedy if the arbitration went against it, because it would be
> unable to seek review by the federal courts.
>
> More research is definitely called for.
>
> Kevin
>
> -----Original Message-----
>
> From: <[log in to unmask]>
> Date: Wed, 3 Sep 2014 07:36:12 +0000
>
> I'm not sure if this either helpful or relevant, but if the vendor is
> an international treaty organisation such as the one I work for, the
> OECD, then they will be legally unable to agree to submit themselves
> to any national or state law. This is a challenge for us whenever we
> engage with customers and suppliers because, unless they know us,
> their lawyers will be surprised that such a situation exists. The
> solution is to have an arbitration clause (I can supply a boilerplate
> clause if anyone is interested) - and this is the twist - stating
> clearly where arbitration is to take place. This is because if an
> arbitrator has to seek legal guidance on resolving a dispute, s/he
> will look first to the laws of the place where arbitration is taking
> place. So, if you agree to arbitration in your state and if an
> arbitrator needs guidance, your state's laws will be relevant.
>
> Toby Green
> Head of Publishing
> OECD
>
>
>> On 3 Sep 2014, at 01:04, "LIBLICENSE" <[log in to unmask]> wrote:
>>
>> From: "Taylor, Liane R" <[log in to unmask]>
>> Date: Tue, 2 Sep 2014 20:17:31 +0000
>>
>> Greetings all – I’m working with a vendor who has requested we waive
>> our sovereign immunity. I have never been asked to do this before.
>> They have not yet been willing to strike this clause. I am wondering
>> if anyone else has encountered this and if you have any negotiation
>> tips/effective arguments, before I have to send this off to our legal
>> counsel to try to manage? I am sending this to other listservs, sorry
>> for the duplication.
>>
>> –Liane
>>
>> Liane Taylor
>> Continuing Resources Librarian/
>> Interim Head Acquisitions Librarian
>> Texas State University
>> [log in to unmask] • 512.245.3009