Transnational Dispute Resolution

In the fall of 1989, I started offering a seminar on this subject because it seemed that the school’s curriculum needed it.  I had as Reporter to the Civil Rules Committee worked on the service of process problem, but there was at the time a vast amount that I did not know about the international law applicable to litigation in American courts.  In the intervening fifteen years, I have learned a lot, but it is an astonishingly complex subject.

In 1992, an old friend from Texas, Adair Dyer, wrote from the Hague Conference on Private International Law to suggest a conference and an issue of Law and Contemporary Problems on the subject of its work.  I readily agreed, the conference was held, and the papers were published in 1994.

Also in 1992, I was invited to attend a conference at the Department of State to discuss the possibility of an international convention on the law of judgments.  I was skeptical and was dropped from the list of consultants.  The American Law Institute took up the project under the leadership of my friend and classmate Andreas Lowenfeld.  They all did good work, the convention that was forthcoming was limited to contractual choices of forum.  Thought was given to writing the proposed text as a federal statute.  The problem is that the United States pretty freely recognizes foreign judgments, but its judgments are often resisted elsewhere on diverse grounds.  At last, it seems that consideration might be given to federal legislation that will impose a reciprocity requirement that may induce other nations to agree to enforce our judgments.  If I were an American judge, based on what little I know of law in China, I would be very reluctant to enforce a civil judgment rendered by a Chinese court.

I have taught a course covering in addition to the basics of conventional American civil procedure seven treaties and a smattering of admiralty law.  It includes a fairly elaborate treatment of the principles of international commercial arbitration.  It reflects the interest I took in the subject during my time as President of our belated Private Adjudication Center.  We then summoned lawyers from around Asia and from Canada to help us devise an attractive program.  It was not attractive enough to be viable, alas.

While some pretty good casebooks have been devised, I continued to use my own material because my course is more ambitious in scope than are the published works.  Transnational Dispute Resolution Syllabus.

In 2005, I was recruited by Jack McGehee of Houston to help him represent 700 Bangladeshi families whose properties were severely damaged or destroyed by gas well blowouts.  The wells were the work of diverse firms, all of whom would prefer to litigate outside the United States.  But there are connections to Texas and the Bangladesh courts are not, in my view, suitable alternative forums, for numerous reasons.  We were in a sense reliving the famous Bhopal disaster of 1984, albeit on a more modest scale. My experience in working on this case elevated by interest in both the problems of transnational corruption and transnational environmental torts, and thus resulted in my 2006 campaign noted above in the section on International and Comparative Law and summarized in Private Enforcement Intl Law.

My writings on this subject are few:

Collateral Estoppel and Foreign Judgments, 24 Ohio St. L. J. 381 (1963)

International Litigation in the Courts of the United States, in The International Symposium on Civil Justice In The Era of Globalization: Collected Reports (Tokyo 1993)

Reflections on the Interface of Treaties and Rules of Procedure: Time for Federal Long-Arm Jurisdiction, 57-3 Law & Contemp. Prob. 153 (1994) (with Dickson Phillips)

Moths to the Light: The Dubious Virtues of American Civil Procedure, 48 U. Kan. L. Rev. 1 (1998) and in Festschrift fur Bernhard Grossfeld zum 65. Geburtstag 129 (Ulrich Hubner & Werner Ebke ed., Frankfurt, 1999)

Harmonization of Civil Procedure in Diverse American Jurisdictions, in Discretionaire Bevoegheid van de Rechter: Grenzen en Controle (M. Storme & B. Hess eds. Maastricht 2004)

       Foreign Plaintiffs in U.S. Courts: Private Enforcement of Public Law, 1 Waseda J. Comp. L. --(2007)

      Civil Procedure to Enforce Transnational Rights, Proceedings of 2006 Conference on Civil Procedure Code, University of Ghent (2007)

      Law and Transnational Corruption: Globalizing Lincoln’s Law, to be published in L&CP (2007)