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dda9f7b1
Community Member

Court jurisdiction in a lawsuit

Which court will have jurisdiction over a lawsuit by a client of an Upwork freelancer?

15 REPLIES 15
prestonhunter
Community Member

re: "Which court will have jurisdiction over a lawsuit by a client of an Upwork freelancer?"

 

There is no real way that we can answer that.

You will need to consult and attorney, and provide him with the details of your situation, in order to get anything resembling a valid answer. Or consult multiple attorneys, so that you can get multiple answers.

 

But the most realistic answer is:

none.

 

Because if you are an Upwork client, you are not going to pay to take an Upwork freelancer to court.

 

And if you are an Upwork freelancer, you are not going to pay to take an Upwork client to court.

 

The costs involved in going to court, filing court fees, hiring an attorney, etc., are so much more than the amounts of money involved in most Upwork contracts that (statistically speaking) there will be no lawsuit. Thus, matters of jurisdiction are irrelevant.

Thank you for feedback.

But sir what should we do if its a million dollar deal with client?

claudiacezy
Community Member

Generally, a lawsuit should be filed in the country/court where the respondent is a resident.


Are you in the U.S.? There may be long-arm statute that allows a court to obtain personal jurisdiction over a non-resident. The U.S. domestic regulations and international agreements are vast, very likely to be possible to obtain jurisdiction in a U.S. court over an Upwork freelancer in any country in the world.

Thank you for your feedback. Filing in the court where the respondent is resident was on the books long before the proliferation of freelance/virtual/internet work. So I wondered whether the new work environment resulted in changes in the court system as well. Here is why: I am in California; my contract is through Upwork (headquartered in California), with an Upwork verified freelancer from Florida, who actually lives in Brazil; and all the work was done on cloud.  Based on all the above, I am more inclined to say that the jurisdiction should be California, not because I am there, but because the client - freelancer relationship is governed by terms of a California corporation. I would love to hear your comments. Thank you.

How much money in total have you paid this freelancer?

petra_r
Community Member

Ultimately, it doesn't matter, because even if you managed to take a freelancer who lives in Brazil to court in California (ask a laywer if that is even possible) and even if you were to win, how would you enforce that in Brazil? And even if by some absolute miracle you could somehow get the money from someone in Brazil, would anything be left after you paid all the costs? 

Speaking from a personal matter experience, not related to Upwork or business. I filed under an international convention a civil lawsuit in a U.S. court while I was living in Romania. The other party was working and living in another country, not an actual resident in that U.S. state. It took some time until I figured it out but a decision was issued in my favor, while I was no longer a resident in Romania. A twisted case on both subject matter and personal jurisdiction.


In the U.S. courts that long-arm may be exercised also based on internet activities, online transactions, the place where the wrong-doing was caused. You'd need someone to look exactly in the specifics of the contract, the other party ties to the state where you file.


Both Brazil and the U.S. are members/ratified the Hague Service Convention, an act that facilitates the service of process.


I'm not sure exactly which international act would fit best this scenario but there are different international agreements on recognition and enforcement of foreign orders.

Multumesc!

You really, really need an attorney's advice on this.  No one on the forum, except maybe Claudia!, has the experience and expertise to answer you appropriately.

The original poster may not need an attorney's advice at all.

 

He only needs an attorney if he wants to get involved in the legal system with this situation, such as by filing a lawsuit.

 

But most client/freelancer conflicts are resolved without going that route, and without ever involving an attorney.

 

If the original poster were to tell us what his goals are, we could offer pertinent advice.

 


For example, if he said:

 

"Well, my main goal isn't to file a lawsuit. My main goal is to complete a certain web application development project."

 

...Then we could offer advice about how to go about accomplishing that goal.

 

We don't know enough about what the original poster wants, or how much money he has spent thus far, to be able to say whether he should hire an attorney to discuss this matter with. For example, if the original poster has paid $100 to a freeancer, we could offer advice that he he won't be able to recoup that money through an international lawsuit without spending far more than the amount of money he has lost.


Preston H wrote:

We don't know enough about what the original poster wants, or how much money he has spent thus far, to be able to say whether he should hire an attorney to discuss this matter with. For example, if the original poster has paid $100 to a freeancer, we could offer advice that he he won't be able to recoup that money through an international lawsuit without spending far more than the amount of money he has lost.


 

How do you know that it wouldn't cost less than $100 to go through an international lawsuit?


There's this paradox I've experienced ... from a plaintiff position, a domestic lawsuit may be more costly than an international one. For example the service of process, court filling fees ... you'd think it must cost alot in a international case ... in fact, under some international agreements it may cost you nothing, such costs are waived, or services facilitated at very low rates, or supported by the responding country authorities which will oblige the respondent to repay.


I don't dismiss the importance of an attorney in a lawsuit but some matters can be dealt without involving one. The amount owed may be insignifiant but the plaintiff's expenses incurred with the lawsuit may be ordered to be supported by the respondent.


In some countries, like the U.S., you may be able to request by phone the procedures and the forms to file with a court, in person, by mail or via online platforms, and it's free of charge, regardless if it's a domestic case or international. It isn't legal advice but it's information that it could cost from the start at least a few hundreds to obtain from a lawyer. Some may pay less than $100 to achieve the same result for which some may pay tens of thousands, it may take three months while others may finalize after three years. Chances are that there are alot more people not taking an action overthinking how much it would cost, as well that an order may not be enforceable if the other party lives in another country.

 

International agreements are a framework of collaboration between countries. These agreements are implemented in a country by enacting domestic regulations. Some countries may not even require a party to be from a country member of that international agreement to file a lawsuit. Domestic legislature is enacted before ratifying an agreement. It's a complex system, while at the same time very simple. It's complex when you think of what it would take to achive a result in a lawsuit ... it's simple because the legislator already thought and solved through regulations all those things before enacting. In practice things may be complicated because you may not be able to find a lawyer to advice you, or find that little piece of information you need.


Anyways, in commercial and civil matters there are already means to file lawsuits and enforce regardless of location. At present, there may be agreements/regulations for specific matters but the laws are changing, evolving ... for example the EU already started the process of preparing for accession to the Hague Judgements Convention (civil and commercial matters), this act would make things even more easier in the next few years on enforcing civil and commercial foreign orders.

6df6be4c
Community Member

From Upwork's TOS

14.2 CHOICE OF LAW
This Agreement, the Site Terms of Use, the other Terms of Service, and any Claim will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions; provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resided at the time the dispute arose.
However, notwithstanding the foregoing sentence, this Arbitration Provision is governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.).
kbadeau
Community Member

This seems to be specific to claims between freelancers and Upwork, and not disputes between freelancers and clients.

f068b996
Community Member

Ma'am i think when we are accepting the contract with clients rather its hourly based or price project its our duty to check client's profile, his verified payment method, and reviews of freelancers. And setting milestones Will ensure that he / she is a real client. So its also our resposibility to accept work with open eye.

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