Transnational Dispute Resolution
In 1985, I was consulted by a notable Filipino lawyer about the rights of sugar growers on the island of Negros. They had been very badly treated by the Marcos regime, especially in the person of Minister Benedicto, who had been empowered to control the sugar market. He was the only buyer and the official who set the price. Inspired by OPEC, he had also tried to organize an international monopoly with associates from Tokyo, Hong Kong, and New York. On their behalf, I enlisted tow major American law firms who would serve for contingent fees. One would pursue a claim against Benedicto, who had acquired buildings in New York and a bank in Los Angeles, and who had taken refuge in Venezuela. The other would advance a claim against the price-fixing conspirators. I did go to Bagolod on the island to organize a class action, and to Manila to negotiate with the leadership of the new regime. Alas, we never secured their agreement that we could keep any assets recovered from either claim, and so the matter was dropped.
In the fall of 1989, I started offering a seminar on this subject because it seemed that the schoolís 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.
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 were 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. But we failed to persuade the Texas state court to deny the defendants' motion to dismiss the case and send it to Bangladesh for resolution. My memorandum on Bangladesh is available on request.
In 2008, I was retained by the London office Steptoe & Johnson to assist in persuading an international arbitral panel sitting in Paris that it should give no effect to a judgment of a court in Equatorial Guinea. That memorandum is also available on request.
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:
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, 9 Waseda Proceedings of. Comp. L. 149 (2007)
Civil Procedure to Enforce Transnational Rights, (van Rhee ed. 2008)
Law and Transnational Corruption: The Need for Lincolnís Law, 70-3 Law & Contemp Prob 109 (2008) and in The Civil Consequences of Corruption (Olaf Meyer ed., 2008)