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Abstract:
Transnational cases have become a prominent part of the litigation landscape in the United States. Class actions against foreign defendants are widespread, the Alien Tort Claims Act has emerged as a mainstay of proceedings to enforce international human rights law in U.S. courts, and the globalization of the economy has led to an increase in transnational regulatory litigation. In all these cases, however, the parties need to ask themselves whether an ensuing judgment or settlement can be recognized or enforced abroad. For quite some time, the perception in the United States has been that U.S. judgments do not fare very well when the time comes to recognize or enforce them abroad. If so, the resolution of a considerable number of transnational cases in this country would have no effect abroad, not exactly the result that lofty talk about "transnational adjudication" would seem to entail.

In this paper, I intend to provide some answers to the question how well U.S. judgments really fare in Europe, where many of the important trading partners of the United States are located. I conclude that, on average, the recognition and enforcement of U.S. judgments does indeed face more obstacle in Europe than do European judgments in the United States. However, much depends on the country, the subject matter involved, the person of the defendant, and the connection of the dispute to the recognition state, among other things. Thus, a multilateral judgments convention, such as the one initiated by the United States in 1992, could indeed bring similar improvements as have resulted from various conventions and EC regulations adopted by the Europeans regarding their own judgments. The same goes for the federal recognition statute recently proposed by the American Law Institute.

civil procedure, conflict of laws, transnational litigation, comparative civil procedure, European law

Abstract:
Class actions have gone global. Foreign parties are no longer a rarity in U.S. class litigation. In addition to being named as defendants, foreigners increasingly form a significant part of the group of absent class members. U.S. courts have thus begun to consider some novel issues, including whether due process requires foreigners to be treated as an opt-in rather than an opt-out class; whether a judgment or settlement in the suit is capable of being enforced or recognized as res judicata abroad and thus whether class certification is justified in the first place; and whether a foreign forum grants comparable access to justice in the form of group litigation and thus represents an adequate alternative forum for purposes of a forum non conveniens defense. Knowledge about the relevant foreign procedure, institutions, and jurisprudential values thus becomes crucial for decision-making in this area. In this Article, I attempt to contribute to that information with a look at group litigation devices in Switzerland. In discussing both proposals to introduce an American-style class action that were rejected in the present effort to draft a federal code of civil procedure and the workings of existing group litigation devices, I try to explore the major reasons for the Swiss reluctance to add the class action to the country's existing procedural vehicles.

civil procedure, class actions, comparative law, comparative jurisprudence

Abstract:
During the last fifteen years, there has been a growing interest in litigation transcending national borders. Yet, both in the United States and in Europe, where this interest is much older, a comprehensive intellectual framework to deal with this type of litigation is hard to find. In fact, courts and procedural law reformers still approach transnational cases in the same fashion as purely domestic ones, adjusting the concepts of domestic law where they believe it necessary. This has created significant problems both for litigants seeking justice in transnational cases and for lawmakers fashioning policy specifically for the transnational setting.

In light of recent developments in international trade law and in the European Union, this Article argues that, as a normative matter, we should begin to treat transnational litigation as a distinct field. It suggests that in-depth procedural comparison and international relations theory would have much to contribute to such a field. It uses a case study on judicial cooperation in Germany for litigation in the United States to demonstrate various ways in which lawmaking for transnational litigation is interconnected beyond national borders. The Article concludes that procedural law reformers who continue to disregard insights from both international politics and comparative procedure are apt to lose control over their lawmaking efforts to savvy groups, to international trade regimes such as the WTO and NAFTA, and to lawmakers abroad.

Abstract:
In this essay, I review the fourth edition of Gary Born's International Litigation in United States Courts (ICL), now co-authored by Peter Rutledge. This is a well-established case book/treatise that has influenced the thinking of many lawyers, both in the United States and abroad. In reviewing ICL, I explore some of the recent changes in cross-border litigation in the United States reflected in the fourth edition. Those changes demonstrate that transnational litigation has become a separate field of law in the sense that its independent study has acquired considerable practical importance. But there is more. The changes I review also support my argument that transnational litigation is different from domestic litigation in four distinct ways: (1) it involves widely different laws of other nations; (2) most attorneys, judges, and law reformers lack (adequate) knowledge about differences in those laws; (3) a limited number of transnational actors do possess such knowledge and thus have effective access to foreign litigation systems, legislatures, and executives; and (4) transnational litigation involves foreign nations and thus issues of sovereignty and relative state power. At the same time, there is considerable transnational interconnectedness in the enterprise of making and applying law in this area. Practicing lawyers, judges, and law reformers disregard these features at their peril. That in itself, I suggest, is sufficient reason to subject the distinct problems posed by cross-border proceedings to learned study. Thus, viewed properly, transnational litigation is emerging as a separate field of research. In this new field of research, scholarship in comparative law and international and comparative politics, both theoretical and empirical, will play a central role.

civil procedure, international law, comparative law, comparative jurisprudence

Abstract:
This is a comment on an article by Professor Burt Neuborne, in which he describes in detail the Holocaust assets litigation against Swiss, German, Austrian, and French corporations. In the comment, I attempt to put that litigation episode into the larger context of human rights enforcement through civil litigation in United States courts as seen from a theoretical concept drawn from international relations theory. I then try to gain some insights into such civil human-rights litigation from the Holocaust cases.

I conclude that the Holocaust-era litigation has done considerable good by creating a vast pool of assets for distribution among victims of the Holocaust whose claims had been submerged by the politics of the Cold War. At first blush, the litigation also appears to support the theory that granting individuals standing to sue for human-rights violations in national courts improves enforcement of human rights. Upon closer examination, however, the picture is less clear: All of the Holocaust cases were settled. Moreover, few, if any, of them led to pronouncements on the difficult questions of international human rights law at issue, thus leading one to wonder whether human rights were effectively enforced here. While Americans may insist that the settlements were surely negotiated "in the shadow of the law," the relevant actors in the European countries involved are convinced, and the evidence in these cases is quite strong, that the settlement outcomes were less the result of international law than of U.S. power. As I demonstrate, this perception may have considerable costs. It may breed resentment, which, in turn, may affect outcomes in cases and issue areas in which the United States and its litigants do not have the upper hand. It may also lead to protective action abroad that renders pursuing human rights claims more difficult, both in the United States and elsewhere. We are thus faced with a paradox: The same features that make civil litigation in the United States particularly attractive to human rights claimants - its ability to create new remedies, judicial discretion, liberal pleading, class actions, and the ability of parties to join every conceivable claim - may also make it ineffective in enforcing human rights and in fashioning new human rights norms, particularly when combined with measures by other branches of government. These are issues that need to be considered carefully by scholars in law and international politics when conceiving and empirically testing theories about the role of law and procedure in the behavior of nation states, groups, and individuals in the international sphere.

Abstract:
Despite common roots, litigation practice in the various European countries can be remarkably different. Attempts to create a common European code of civil procedure or at least to harmonize procedural law in Europe have been greeted with little enthusiasm and have stalled for a number of reasons. Three procedural scholars from Belgium and the Netherlands have thus decided to edit a series of books that describe and analyze in some detail individual parts of the litigation law in the various European countries in order to provide the necessary comparative groundwork from which to build a more harmonized European law of procedure.

This is the general report in the third book in this series, focusing on the recognition and enforcement of judgments. The report compiles and analyzes the information provided by individual contributors from eighteen European countries, including two non-EU states. The focus is on the recognition and enforcement outside of the framework of the Brussels Convention, now the Brussels Regulation, and the parallel Lugano Convention. Thus, our chapter deals with the recognition and enforcement of judgments that emanate from non-member states of the Conventions and with the recognition of judgments in subject matters that are not covered by the Conventions, such as family law and succession. Thus, both the book and our chapter should be of interest not only to Europeans but to all non-Europeans interested in a more detailed account of recognition law in Europe. We cover in some depth the sources of recognition law, recognizable judgments, recognition requirements, and, briefly, recognition procedure. We identify similarities, trends, regional specialties and differences in recognition laws, but we also realize that, due to a number of discretionary rules, there is perhaps a bigger gap between the written law and the law as applied by the courts in recognition law than in other parts of the law of procedure, at least in civil law countries. Thus, while we made some interesting discoveries with regard to actual practice, we also conclude that further comparative research is needed in this area.

Abstract:
In June 1993, a small working group of the Hague Conference on Private International Law concluded that it would be desirable to negotiate a convention on the recognition and enforcement of foreign judgments in civil and commercial matters. The suggestion was quickly taken up by the Hague Conference and the scope of the future treaty was extended to the question of personal jurisdiction in international civil and commercial matters. With this extended scope, a considerable number of countries, including the United States, showed great interest in the negotiations of the proposed Convention. At the beginning of the new millennium, however, negotiations began to stall. As of today, the scope of the proposed treaty has been radically scaled back to the enforcement of forum selection clauses and the recognition and enforcement of judgments based on such clauses. There are a number of reasons for the - at best temporary - setback of the larger jurisdiction and judgments project. One of the larger issues has been a clash between the legal cultures of the United States and that of continental Europe.

In this book I argue that negotiators from the United States on the one hand and from continental Europe on the other arrived at The Hague with very different jurisprudential assumptions. I attempt to trace these assumptions both regarding the treatment of transnational litigation in general and with respect to personal jurisdiction in particular. I argue that, because of these differences in outlook, negotiating a treaty in this area requires time and significant cross-systemic education before lunging into narrow issues of personal jurisdiction and recognition of judgments can prove beneficial. I also add a case study to demonstrate that, absent such cross-systemic education, both the lack of a treaty and the presence of a treaty that is not based on such education can lead to unexpected and unsatisfactory results for all states involved. Thus, on a more general level, this book intends to contribute to our understanding of the process of making and applying law for transnational litigation involving the United States on the one hand and continental Europe on the other.