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Abstract:
One trend developing in international competition regulation is the expansion of private antitrust litigation as an enforcement mechanism. This article examines Germany's response to that trend, investigating the extent to which it has roots in the country's legal and economic history. It begins by tracing the development of German competition law post-World War II - focusing in particular on the patterns of pressure and resistance within the transatlantic relationship - and identifies the emergence of an indigenous regulatory enforcement philosophy. It then turns to two recent developments that indicate the expansion of private enforcement in ways relevant to Germany's domestic regulatory scheme. The first is regional: a new European Council Regulation modernizing competition law enforcement. The second is transatlantic: a series of cases that threatened to expand further the jurisdiction of U.S. courts over extraterritorial anti-competitive conduct. In both contexts, Germany strongly protested the potential undermining of its local competition enforcement philosophy. The article examines the links between that resistance and the particular historical context of German competition law. It thereby suggests more generally that the search for transnational regulatory systems capable of addressing global conduct must continue to account for the diversity of historical and cultural contexts that underpin various national regimes.

Competition law, antitrust, private enforcement, globalization, legal culture

Abstract:
This article examines a form of securities class action that is growing increasingly popular in U.S. courts: the foreign cubed action, brought against a foreign issuer on behalf of a class that includes foreign investors who purchased securities on a foreign exchange. These cases are becoming an important part of the regulatory landscape (as evidenced by recent high-profile lawsuits involving issuers such as Vivendi, Bayer and Royal Ahold), and they create the potential for particularly severe conflict with other countries on the question of how best to regulate global economic activity. Yet they point out quite clearly that the traditional conduct and effects tests for subject-matter jurisdiction are inadequate to the task of delimiting the reach of U.S. securities laws in the global capital markets. The article draws on a study of almost 50 foreign cubed claims. It analyzes the arguments made by foreign investors seeking to justify the application of U.S. law to their claims - arguments that base an expansive theory of regulatory jurisdiction on the interconnections among the world's capital markets. It then turns to judicial disposition of such claims, examining the various stages of litigation (including class certification) at which courts confront jurisdictional questions and identifying a series of assumptions that courts make in attempting to draw jurisdictional lines. It then uses those assumptions to predict how courts will respond to multinational class actions in the continued absence of legislative guidance regarding subject-matter jurisdiction under the securities laws.

securities litigation, class action, class certification, jurisdiction, forum non conveniens, globalization, conduct, effects

Abstract:
Solutions to the problem of international bankruptcy are generally framed as either universalist (arguing that international bankruptcies should be administered in a single forum) or territorialist (arguing in favor of multiple local bankruptcies). This article seeks to expand this debate by using traditional conflicts theory to examine the problem of cross-border bankruptcy. It analyzes the current regime under which cross-border bankruptcies are administered in U.S. courts, concluding that this regime operates as a multilateralist (jurisdiction-selecting) regime. Concluding that multilateralism is an appropriate method for resolving choice-of-law issues in international insolvency, the article analyzes some possible refinements to the current system. It argues that a more pointedly multilateralist approach would better serve the goals of the international bankruptcy regime.

International bankruptcy, international insolvency, choice-of-law, comity

Abstract:
The United States is currently involved in negotiation of the Hague Convention on Exclusive Choice of Court Agreements, which would regulate the enforceability of forum-selection clauses in international contracts. That project - as well as the recent focus in globalization literature on more active judicial management of forum selection - draws attention to one unusual aspect of U.S. jurisdictional law: that dismissal on the basis of forum non conveniens is available even in cases arising out of contracts including negotiated forum selection clauses. This article examines the resulting tension between the right of contract parties to select a forum in advance of litigation and the right of judges to correct inappropriate forum selection. It argues that the availability of forum non conveniens in contract cases permits judges to overemphasize the appropriateness of a selected forum, diminishing the certainty and predictability necessary in international contracting. The article concludes that adopting the Convention - which would significantly curtail courts' ability to dismiss contract cases for reasons of convenience - would rationalize U.S. practice in this area.

Forum selection, forum non conveniens, international contract, contract litigation

Abstract:
Recent years have seen much debate about the role of national courts in addressing global harms. That debate has focused on the application by domestic courts of international law - for instance, in civil actions brought in U.S. courts to enforce human rights law. This article identifies a parallel development in the area of economic regulation. It classifies and analyzes a category of cases that seek the application of regulatory law by domestic courts in situations involving global economic misconduct. Like the public international law cases, these cases highlight the tension between the benefits to be gained by enhanced enforcement of global substantive norms and the need to observe the jurisdictional norms that order the exercise of authority within the international community. On the one hand, traditional jurisdictional rules unnecessarily foreclose valid arguments for marshaling the resources of national courts in order to improve the global welfare. On the other hand, however, those rules reflect legitimate concerns of foreign states about the exercise of power and authority within the international community. The Article seeks a resolution to that tension in the economic context. Situating transnational regulatory litigation within the broader framework of transgovernmental theory, it proposes a more functional approach to certain jurisdictional rules, as well as a procedural mechanism for use in cross-border class actions, that would legitimize the evolving role of national courts in implementing global regulatory strategies.

extraterritoriality, international jurisdiction, antitrust, securities, revenue rule, transnational, class action

Abstract:
This article examines how the globalization of economic markets, and attendant changes in international regulatory strategies, challenge the traditional framework of private international law. It examines a variety of developments in the areas of securities, antitrust, and bankruptcy law, analyzing the ways in which they undermine the conception of regulatory power as grounded in the territorial authority of sovereign states. Specifically, the article argues that these changes reflect a shift in conflicts jurisprudence away from the traditional jurisdiction-selecting model and toward a substance-based model, in which a state's economic policy interests can be protected simply through assurance that the substance of applicable law - whether foreign law, supranational law or lex mercatoria - is sufficiently similar to that of the state concerned. The article suggests that because such an approach does not view every conflict as a competition for regulatory authority among sovereigns, it can reduce the potential for friction in foreign relations. It also assesses the disadvantages of the substantivist approach, however, and concludes by suggesting some re-integration of territorial factors into private international law analysis.

Conflict of laws, private international law, globalization, territoriality, economic regulation

Abstract:
This article was published in connection with UNIDROIT's 75th anniversary conference on worldwide harmonization of private law and regional economic integration. It begins by addressing the commercial need for harmonization in the area of secured transactions, discussing both traditional conflicts analysis in that field and particular obstacles to reform. It then outlines the specific reform initiatives that have been implemented to date, grouping them into sectoral instruments and regional instruments. It concludes by speculating on the future of harmonization efforts in security law.

secured transactions, commercial law, harmonization, conflicts

Abstract:
This comment discusses the Supreme Court's recent decision in Hoffman-LaRoche v. Empagran, an action brought by foreign plaintiffs under U.S. antitrust law to recover damages caused by the activities of a global price-fixing cartel. It describes the jurisdictional issues raised by conduct that affects the global market for a particular good, and analyzes the Court's reliance on notions of comity to restrain the reach of U.S. antitrust law. It argues, however, that the decision does not in fact undermine the anti-comity approach adopted in the 1993 Hartford Fire case, as the Court here assumes that the cartel's effects in the United States were entirely independent of its effects in other countries and therefore unrelated to the plaintiffs' injuries. The comment concludes by noting that the Court left open a number of important questions, including the precise content of a comity analysis and the relationship between private and public enforcement of antitrust law.

Antitrust, comity

Abstract:
This short essay was prepared for a conference on economic law that focused in part on the development of inter-jurisdictional competition between regulatory systems. The essay addresses private enforcement of regulatory law, inquiring whether some form of competition might develop between national systems for the private damages claims of parties injured by regulatory violations. It considers some situations in which plaintiffs have a choice of legal regime in which to assert such claims, and the benefits that competition for them might bring. However, it notes that unlike the competition for corporate charters, this form of competition would necessarily remain quite limited, and concludes that its costs would therefore likely outweigh its benefits.

regulatory competition, private enforcement, antitrust, securities

Abstract:
Even in a climate of increased cooperation among regulatory authorities, jurisdictional conflict remains a prominent aspect of cross-border antitrust regulation. Much of this conflict is generated by private litigation - that is, lawsuits initiated under U.S. antitrust law by private attorneys general rather than by the government. This article examines two strands of jurisprudence relevant to the role of the private attorney general in cases with international aspects. First, it analyzes the cases, involving actions based on statutory violations of the antitrust laws, in which the extraterritorial reach of U.S. antitrust law has been delimited. It then turns to decisions on choice of forum and choice of law in international contracts, noting that those cases increasingly support party autonomy even when regulatory law issues are involved. The article notes that the former cases contemplate an expansive role for, and the latter cases marginalize, the private attorney general. It then argues that the disparate treatment accorded the private attorney general in these two settings illustrates a more general inconsistency in the value assigned to public regulatory interests of the United States in international cases - while the statutory cases suggest that U.S. antitrust interests cannot be weighed against other interests, the contract cases indicate otherwise. The article thus concludes that arguments against interest balancing in the statutory context have been undermined by developments in the international contract arena.

International antitrust, private attorney general, comity, extraterritoriality, jurisdiction to prescribe

Abstract:
Ever-increasing gaps and overlaps in the national regulation of cross-border events challenge territorial sovereignty as the conceptual basis for rules on legislative jurisdiction. At the same time, the work of scholars in a range of disciplines, including international relations and critical geography, has complicated our understanding of the relationship between territory and power in the age of globalization. As a result, emerging models of jurisdictional theory are moving away from territory, and territorially based concepts of regulatory power, as the basis for defining legislative authority. What risks being overlooked in this shift is the critical step between re-thinking the construction of territory and rejecting the salience of territoriality to jurisdictional frameworks. While territorial contacts may function as simple factual inputs in jurisdictional analysis, 'territoriality' and 'extraterritoriality' are legal constructs - claims made by particular actors, and assessed by particular institutions, within particular legal systems. The meaning of such claims is therefore dependent upon the local practices and understandings of specific regimes. This article uses a case study of the role of territory in U.S. and German competition law to uncover differences in those systems that affect their respective constructions of territoriality. It argues that local legal and institutional frameworks remain relevant in the transition from traditional conflicts models to newer regulatory strategies, and that the process of integrating critical reconceptualizations of territory into jurisdictional theories must account for differences in those frameworks across regimes.

territory, jurisdiction, competition law, extraterritoriality, globalization, antitrust, legislative jurisdiction

Abstract:
For all the scholarly attention paid to the role of mandatory rules in civil litigation, the doctrine regarding their use has never been fully developed. Certainly courts considering contracts governed by foreign law will sometimes override that law, applying a mandatory rule of the forum in its place. But in its most expansive articulation, the "mandatory rules" theory would also permit courts in certain circumstances to apply the mandatory law of a third country - a direction in which courts have declined to go. This article examines one of the justifications forwarded by early proponents of this more expansive approach: that ready application of foreign law would promote a form of judicial comity, effectuating the important interests of other nations. It inquires whether the international litigation climate today - in the age of globalization - might be hospitable to further development of the doctrine as a tool of judicial cooperation. It concludes that in fact the current trend is toward a contraction, not an expansion, of the doctrine, in part because forum courts increasingly forego application of even their own mandatory law in favor of party-chosen law. It suggests that arguments favoring broader application of foreign mandatory rules may be inextricably tied to political imperatives and to a base level of substantive similarity between the forum and foreign policies in question, and that for these reasons as well the doctrine will remain limited in scope.

mandatory rules, choice of law, international contract, rome convention, public policy

Abstract:
Securities litigation against non-U.S. companies – on the rise over the past decade – forces U.S. courts to address a variety of procedural and jurisdictional issues. This article considers one such issue: the circumstances under which the directors of foreign companies that engage in U.S. securities markets may be subject to the personal jurisdiction of U.S. courts. It argues that jurisdictional standards are sometimes applied in a way that undermines the effectiveness of private litigation in enforcing director accountability norms. This result is particularly problematic in cases based upon a director’s failure to meet an accountability obligation expressly imposed upon it by statute. The article considers possible ways of resolving this tension, and ultimately advocates that courts adopt a two-part presumption: (1) In a claim against a foreign director based upon a corporate filing with respect to which Congress has expressly created a director accountability requirement, there should be a strong presumption that the director is subject to the personal jurisdiction of the U.S. court; and (2) In a claim against a foreign director based only upon allegations that the director failed to meet his or her oversight responsibilities over management, there should be a strong presumption that the director is not subject to the personal jurisdiction of the U.S. court. The article argues that these presumptions will satisfy the due-process protections embodied in jurisdictional law while bringing that law into better alignment with regulatory expectations regarding the responsibility of corporate directors for an issuer’s securities activity.

securities enforcement, securities litigation, personal jurisdiction, director liability, foreign issuer, sarbanes-oxley, audit committee

Abstract:
The Hague Evidence Convention addresses a particular kind of jurisdictional conflict: the conflict between one nation's issuance of extraterritorial discovery orders and another nation's right to govern discovery activity taking place within its territory. The particular mechanisms that the Convention establishes for use in cross-border discovery proceedings, and the compromises between civil-law and common-law procedures for evidence gathering that it embodies, were effected with that system goal in mind. In Aerospatiale, the Supreme Court considered the scope of the Convention's application, addressing the interaction of Convention procedures and pre-existing federal rules on evidence gathering. As portions of the decision make clear, the Court was well aware of the international system needs served by the Convention. In establishing the test to be applied by lower courts in future cases concerning the Convention's applicability, however, the Court articulated it in a way that left no room for system concerns. Disregarding the interests in sovereignty voiced by the petitioner and echoed by a number of states party to the Convention, the Court crafted a test that considers only sovereign interests in the particular litigation. The paper begins by analyzing the Court's decision and identifying the means by which it de-emphasized interests in sovereignty. It then turns to lower-court decisions over the past fifteen years, examining certain trends that have developed as a result of the Aerospatiale approach and arguing that these trends have resulted in insufficient consideration of system needs. It concludes by examining post-Aerospatiale discovery practice in the context of today's international litigation environment.

Discovery, comity, international litigation, aerospatiale, sovereignty, hague evidence convention