International Law

Rethinking the Harmonization of Jurisdictional Rules

In the aftermath of the various unsuccessful attempts by the Hague Conference to devise an international convention on jurisdiction and recognition and enforcement of judgments, this work examines what the common law and civil law delegations to the Conference considered irreconcilable differences between their respective jurisdictional laws. This Article studies the historical and functional evolution of these allegedly irreconcilable jurisdictional categories, examines their underlying ideas (for example, “minimum contacts” and due process analysis, forum non conveniens, and tag jurisdiction), and suggests a new method of analysis, which generates a unified approach to jurisdictional law and choice of law rules.
The analysis unearths the original symmetries between jurisdictional law and choice of law rules in common law and civil law systems that existed in the past, as well as the various similarities still existing today despite the different labels sometimes used, and it exposes some preconceptions that make some of these categories and principles falsely appear to be irreconcilable. In fact, by solving some representative problem situations under both of the allegedly different regimes, this Article shows that the solutions these systems offer are, most of the time, similar. This is because there is a strong interaction between jurisdictional law and choice of law rules within each individual system and across legal systems, and because the existing differences are not irreconcilable but merely the product of recent developments.
This Article posits that conflict of laws rules governing civil and commercial matters should be harmonized and that such harmonization is feasible and worth pursuing. Therefore, rather than once more suggesting to adopt an international convention only on jurisdiction and recognition and enforcement of judgments, this work suggests the adoption of an international convention on conflict of laws rules. The proposed convention could adopt similar criteria or “connecting factors” to identify the judge with jurisdiction over a controversy and the law to govern it. This will eventually make the judgment rendered at the end of the proceeding suitable for recognition and enforcement in the countries that ratify the convention. Such a convention would only apply to litigation on civil and commercial matters. The identification of the judge and of the governing law would significantly enhance the efficiency and fairness of these types of litigation.

Transnational Class Actions and the Illusory Search for Res Judicata

The transnational class action—a class action in which a portion of the class consists of non-U.S. claimants—is here to stay. Defendants typically resist the certification of transnational class actions on the basis that such actions provide no assurance of finality for a defendant, as it will always be possible for a non-U.S. class member to initiate subsequent proceedings in a foreign court. In response to this concern, many U.S. courts will analyze whether the “home” courts of the foreign class members would accord res judicata effect to an eventual U.S. judgment prior to certifying a U.S. class action containing foreign class members. The more likely the foreign court is to recognize a U.S. class judgment, the more likely an American court will include those foreigners in the U.S. class action.

Current scholarship accepts propriety of the res judicata analysis but questions the manner in which the analysis is carried out. This Article breaks from the existing literature by arguing that the dynamics of class litigation render the res judicata effect of an eventual U.S. class judgment inherently unknowable to a U.S. court ex ante. In particular, I argue that certain “litigation dynamics”--specifically the process of proving foreign law via experts, the principle of party prosecution, and the litigation posture of the action--complicate the transnational class action landscape and prevent a court from accurately analyzing the res judicata issues at play. This is exacerbated by the “structural dynamics” of class litigation: the complexity of foreign law on the recognition and enforcement of judgments, the newness of class action law in most foreign countries, and the distinction between general and fact-specific grounds for nonenforcement of a U.S. class judgment. Accordingly, I argue that U.S. courts should abandon their illusory search for res judicata.
Instead, courts should avoid the res judicata problem altogether by employing an opt-in mechanism for foreign class plaintiffs, whereby such plaintiffs are not bound unless they  affirmatively undertake to be bound by U.S. class judgment. An opt-in mechanism for foreign plaintiffs also provides several advantages over the current opt-out mechanism: it allows all foreign claimants to participate in U.S. litigation if they so choose; it provides additional due process protections for absent foreign claimants; it respects international comity; and it sufficiently deters defendant misconduct.

 

"Sports Law": Implications for the Development of International, Comparative, and National Law and Global Dispute Resolution

In this Article, we observe that legal regulation of national and international sports competition has become extremely complex and has entered a new era, which provides fertile ground for the creation and evolution of broader legal jurisprudence with potentially widespread influence and application. Our principal aim is to draw these developments to the attention of legal scholars and attorneys not necessarily familiar with sports law. Specifically, the evolving law of sports is having a significant influence on the development of international and national laws, is establishing a body of substantive legal doctrine ripe for analysis from a comparative law perspective, and has important implications for global dispute resolution. For example, the global processes used to establish an international sports antidoping code and to resolve a broad range of Olympic and international sports disputes (which is rapidly creating a body of global private law) provide paradigms of international cooperation and global lawmaking. In addition, judicial resolution of sports-related cases may develop jurisprudence with new applications and influence. Our objective is to generate greater awareness of the importance of sports, not only as a worldwide cultural phenomenon and a significant part of the twenty-first-century global economy, but as a rich source of international and national public and private laws that provide models for establishing, implementing, and enforcing global legal norms.

The Rome II Regulation: A Comparative Perspective on Federalizing Choice of Law

This Article analyzes the Rome II Regulation, which entered into effect on January 11, 2009, and established uniform choice-of-law rules for noncontractual obligations in the European Union. Rome II is of particular interest to U.S. scholars because its federal and international character and nearly comprehensive scope make it a potential model for a new U.S. Restatement or federal statute. Beginning with its text, context, and legislative history, this Article examines Rome II in the comparative light of state-level codifications in the United States and the general theory of state-interest analysis developed during the American “conflicts revolution.” The Article tests the new EU regulation against the facts of influential conflicts cases of the New York Court of Appeals and argues that it performs well by an interest-analysis standard. An assessment of Rome II as a model for a U.S. codification concludes the Article.

Saving Civil Justice: Judging Civil Justice By Hazel Glenn

Asking the right question can be as important as giving the right answer. In her book Judging Civil Justice, Dame Hazel Genn forcefully argues that the right question about the civil justice system is not “[h]ow much justice can we afford” but “how much justice can we afford to forego.”Genn has spent her professional lifetime studying methods for resolving civil disputes. A pioneer in empirical legal studies, she has for thirty years interviewed litigants, lawyers, and judges and studied courts, tribunals, and ADR methods. Genn is a clear-eyed observer, deeply sympathetic to the plight of modern courts but unwilling to ignore the politics that underlie the rhetoric of court reform today.. . .