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Abstract:
The possibility of wide ratification of and accession to the 2005 Hague Convention on Choice of Court Agreements presents important issues for those drafting international commercial contracts. Transactions lawyers have rather easily justified the inclusion of arbitration agreements in international commercial contracts because the New York Arbitration Convention insures both compliance with the agreement to arbitrate and the recognition and enforcement of any resulting arbitral award. When the Hague Convention becomes effective in a significant number of states, choice of court clauses will be more easily enforced, and court judgments will more easily recognized in other states. Thus, the choice between arbitration and litigation will hinge on the real differences between these two dispute settlement options, and not merely on the fact that one is more easily enforced than the other. This article compares the choices for both private parties and states under the Hague Convention with those existing under the New York Arbitration Convention.

choice of court, choice of forum, arbitration, litigation, enforcement of judgments, party autonomy, Hague Convention, New York Convention, private international law, transnational contracts, international contracts, jurisdiction, recognition and enforcement of judgments

Abstract:
This article considers ten developments in private international law that occurred in 2008. In doing so, it focuses on the way in which these developments demonstrate a parallel convergence of power for private international in the institutions of the European Community and dispersal of power for private international law in the United States. This process carries with it important implications for the future roles of both the European Union and the United States in the multilateral development of rules of private international law, with the EU moving toward an enhanced leadership role and the United States restricting its own ability to continue in to exert leadership.

private international law, conflict of laws, choice of law, Rome Convention, Rome Regulation, European Court of Justice, CISG, Medell¿n, Hall Street, forum non conveniens, Hague Convention on Choice of Court Agreements, Uniform Law Commission

Abstract:
On October 19, 2004, the European Court of Justice held its first en banc hearing since the 2004 enlargement to twenty-five Member States. The case was Opinion 1/03, involving a request by the Council of the European Union on whether the Community has exclusive or shared competence to conclude the Lugano Convention. While the case on its face deals only with a single convention, it has far broader implications and is likely to influence the development of private international law and private law on a Community level for years to come. This brief article traces the origins of the issues faced in the Lugano case and provides comment on some of its implications for the future.

private international law, private law, Lugano Case, European Court of Justice, Council of the European Union, competence, recognition, enforcement, Hague Conference on Private International Law, Brussels Convention

Abstract:
This article considers Chief Justice Roberts' majority opinion in the case of Medellin v. Texas. Like much of the commentary on this case, the article considers the international law implications of the opinion and its consideration of the doctrine of self-executing treaties. The primary focus here, however, consistent with the symposium in which this paper was presented, is on the opinion's implications for the separation of powers and for federalism. While the opinion's discussion of international law and treaty implementation can be considered dicta, the separation of powers and federalism portions may be seen as more directly necessary to the outcome in the case. Nonetheless, the way in which Chief Justice Roberts addresses treaty law within the U.S. legal system raises important questions about settled assumptions regarding the powers of Congress and the President, as well as about the role of the states in implementing (or frustrating) the application of treaty law in U.S. courts.

Separation of powers, Medellin, Federalism, Treaties, Treaty power, Supremacy clause, Law of the land, International law

Abstract:
This essay proposes that an understanding of original concepts of sovereignty both helps explain twentieth century developments in international law and provides a proper context for coming changes in the ways in which persons relate to states, states relate to states within the international legal system, and ultimately and most importantly-the way international law affects and applies to persons. The most important developments in international law in the new century are likely not to be in state-state relationships but rather in the status and rights of the person in international law. The twentieth century process of globalization brought us back to the importance of the individual in determining both what sovereignty is and its proper exercise by those acting on behalf of states.

This essay reviews the original meaning of the term "sovereignty," and provides examples of twentieth century developments in the application of international law to individuals and the application of municipal law to states. These examples demonstrate that international law has moved beyond contemporary notions of sovereignty, that concerns about "giving up sovereignty" through participation in multilateral organizations often are misplaced, and that the ultimate propriety of new international norms will in many cases be determined by the manner in which they deal with relationships between individuals and the state-which is the relationship addressed by the original concept of sovereignty.

sovereignty, international law, municipal law, individual rights, globalization, self-government

Abstract:
Recent decisions by the United States Supreme Court and extracurricular discussions between some of the Justices have fueled a debate regarding whether and when it is appropriate for the Court to make reference to foreign law in cases involving the interpretation and application of the United States Constitution. This debate has, to some extent, paralleled the argument over whether the Constitution is best interpreted by looking at the intent of the original drafters - an originalist approach - or by considering it to be a "living" document that must be interpreted to take account of contemporary realities. This article considers the rather limited nature of the real differences on these issues, the limited purpose of references that are made to foreign law in United States Supreme Court decisions, and the problem of being able to make comparisons without making reference to what it is that is being compared.

judicial review, foreign law, international law, constitutional interpretation

Abstract:
This article reviews the work of the Special Commission of the Hague Conference on Private International Law, which meet during the first nine days of December 2003 to consider a Draft Text on Choice of Court Agreements. Negotiations originally sought a rather comprehensive convention on jurisdiction and the recognition and enforcement of judgments, with a preliminary draft convention being prepared in October 1999, and further revised at the first part of a Diplomatic Conference in June 2001. When it became clear that some countries, particularly the United States, could not agree to the convention being considered, negotiations were redirected at a convention focused on bases of jurisdiction upon which consensus could be achieved. The result was a text limited to one basis of jurisdiction: consent of the parties.

The 2003 Draft Text offered the possibility of both realistic success in its conclusion and adoption, and a foundation from which to consider possible future work on multilateral harmonization of jurisdiction and the enforcement of judgments. This article reviews the substance of the Draft Text in order to explain its purpose, recognize its limits and acknowledge issues then yet to be decided.

private international law, litigation, choice of court agreements, jurisdiction, judgments; Hague Conference on Private International Law

Abstract:
This article begins with a discussion of the application of the forum non conveniens doctrine in four common law legal systems. It then briefly notes related concepts applied in the courts of two civil law systems. This discussion is followed in Part IV by a brief history of the negotiations at the Hague Conference on Private International Law for a Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters and a review of Articles 21 and 22 of the Interim Text of that Convention created at the June 2001 portion of the Diplomatic Conference. This review allows conclusions dealing with both the role of the forum non conveniens doctrine in contemporary transnational litigation and the effort to bring traditional common law and civil law approaches to parallel litigation closer together.

orum non conveniens, common law legal systems, civil law legal systems, Hague Conference on Private International Law, Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, transnational litigation, recognition, enforcement, parallel litigation, judicial cooperation, priv

Abstract:
Any discussion of federalism necessarily runs headlong into concepts of sovereignty, with both terms being subject to Tocqueville's statement that, in discussing federalism, "the human understanding more easily invents new things than new words." Thus, just as systems previously considered to have been "federal" at the dawn of the United States of America were something much different from what was developed for our nation at that time, so is the "federal" system of today's United States different from anything to which we make comparisons.

This article reviews a paper by Professor Peter Tettinger's, and extends his analysis. As Professor Tettinger indicates, the German Basic Law incorporates both divisions of competence internally and opportunities for granting competence externally that set it apart from most other systems. In particular, the role of Germany in the European Union ("ED") and the resulting opportunity for consideration of levels of federalism provide special grist for discussion.

From the provisions of the German Basic Law, we can make helpful comparisons with federalism in the United States, as well as with each other countries. This chapter provides specific focus on some specific aspects of the allocation of competence for internal "sovereign" functions within Germany, and external sovereign functions on behalf of the German people.

federalism, sovereignty, national system, federal system, United States, German Basic Law, European Union, comparative law, Germany, competence

Abstract:
Punitive damages have been a controversial aspect of U.S. law; often criticized both at home and abroad. Neither U.S. law on punitive damages nor the foreign climate regarding their reception has remained static. This article notes the continuing legislative attack on punitive damages in the United States at both the state and federal level, and focuses on recent developments in case law and treaty negotiations concerning the reception of punitive damages abroad.

The article begins with a brief review of the background against which current punitive damages law in the United States continues to operate, followed by consideration of the continuing evolution of U.S. Supreme Court jurisprudence on punitive damages. The Beals case in the Supreme Court of Canada and new uniform Canadian legislation on the enforcement of foreign judgments demonstrate two very different approaches to U.S. punitive damages by foreign courts. The issue is also the focus of Article 11 of the new Hague Convention on Choice of Court Agreements, which offers a much more moderate approach than the Canadian uniform act, which, if widely adopted, would constitute a major step back in terms of predictability in business and judicial relationships.

punitive damages, jurisdiction, conflict of laws, Hague Convention on Exclusive Choice of Court Agreements, recognition of judgments, enforcement, exemplary damages

Abstract:
While international judicial forums such as the International Court of Justice ("ICJ"), the International Criminal Court ("ICC"), and regional criminal courts have been important developments, based on actual use and successful results the dispute settlement system of the World Trade Organization ("WTO") has had much greater impact. Most settlement of disputes between persons of different countries takes place, however, not at the ICJ, or the ICC, or the WTO, but in private arbitration and in litigation before national courts. Peace (and justice) are promoted and kept on a regular basis through the process of reaching decisions in specific cases involving specific parties. In all of this, lawyers play the central role-as advocates, as judges, as arbitrators. Lawyers are day-to-day peacemakers. This article considers one part of the evolution of Europe: the developing competence of the European Union over matters of private law, private international law, and judicial cooperation - in other words, the role of the European Union (through the institutions of the European Community) in private litigation.

European Union, private litigation, foreign policy, private law, private international law, judicial cooperation, European Community, dispute resolution

Abstract:
On October 30, 1999, a Special Commission of the Hague Conference on Private International Law adopted a Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters ("Preliminary Draft Convention," or "PDC") which was further developed in June of 2001.Originally scheduled for a final diplomatic conference in the fall of 2000, the negotiating process was delayed as a result of serious questions raised about the draft language.

After a discussion of the history of the convention, this paper presents a review of the Preliminary Draft Convention text, describing its structure and scope. It then provides a focus on provisions of particular concern in the areas of intellectual property rights and electronic commerce.

intellectual property, electronic commerce, jurisdiction, foreign judgments, Hague Convention on Private International Law, Preliminary Draft Convention, uniformity, enforcement of judgments, private international law

Abstract:
The Amsterdam Treaty's introduction of Article 65 into the European Community Treaty took little time to achieve practical importance. In fact, the questions were practical as early as they were theoretical. A 1992 request by the United States that the Hague Conference on Private International Law negotiate a global convention on jurisdiction and the recognition of civil judgments resulted in a laboratory for the new-found competence of the Community. Thus, negotiations already underway--which included delegations from all 15 EU Member States--were affected significantly by the transfer of competence from those states to the Community institutions for matters under consideration at The Hague.

The transfer of competence for judicial cooperation resulted in tensions internal to the Community and at the same time changed the dynamics at the Hague Conference, where other delegations were left for several years to consider just what the source of authority was for potential conclusion of a global treaty that would be effective in the Community. This article traces the history of the negotiations at The Hague, considers the parallel changes on the same issues within the Community, and reviews from a U.S. perspective the resulting cross-currents. While the evolution of Community competence concurrent with ongoing negotiations at The Hague caused uncertainty for negotiators, it also served to highlight the developing role of the European Union as a player in an area previously untouched by Community institutions on an external basis. It also tested the global role of the Hague Conference as a traditionally Euro-centric organization that now must expand its reach in order to remain viable when private international law for Europe will be developed in Brussels. Finally, it accented further the differences in conceptual approaches to judicial jurisdiction, especially between the United States and continental civil law systems. In doing so, it demonstrated that Community competence for external relations in judicial cooperation requires special attention to the relationship between the United States and the European Union.

judicial jurisdiction, Amsterdam Treaty, Article 65, European Community Treaty, judicial cooperation, private international law, civil judgments, competence, civil law systems, Hague Conference on Private International Law

Abstract:
This collection is the multifaceted result of an effort to learn from those who have been educated in an American law school and who then returned to their home countries to apply the lessons of that experience in nations experiencing social, economic, governmental, and legal transition. Written by an international group of scholars and practitioners, this work provides a unique insight into the ways in which legal education impacts the legal system in the recipient’s home country, addressing such topics as efforts to influence the current style of legal education in a country and the resistance faced from entrenched senior faculty and the use of U.S. legal education methods in government and private legal practice. This book will be of significant interest not only to legal educators in the United States and internationally, and to administrators of legal education policy and reform, but also to scholars seeking a more in-depth understanding of the connections between legal education and socio-political change.

legal education, international legal education, U.S. legal education methods, international legal systems, international impact, socio-political change, U.S. LL.M education, LLM education, LL.M., policy formulation, reform, rule of law, commerce, exports, international education

Abstract:
Judicial application of Article 31 of the U.N. Sales Convention has proved that the determination of the place of performance of the seller's obligation can have implications beyond just the substantive effect of that obligation. In fact, many of the cases dealing with this article apply its substantive rules primarily for purposes of determining jurisdictional outcome. This raises important questions of uniformity in the application of the Convention.

CISG Article 31 provides four rather specific rules for determining the¿ place of performance of the seller's delivery obligation, each depending on party choices and the type of contract relationship-involved. These rules are important for both contract formation and dispute resolution purposes. The fact that parties may structure a transaction to avoid the three default rules of Article 31 makes important a clear understanding of the import and effect of these rules.

This paper begins with a review of the substantive rules found in CISG Article 31. It then discusses the cases under the Brussels and Lugano Conventions that rely on Article 31 to help determine the existence of jurisdiction in a court other than a court in the state of the defendant's domicile. This is compared with the approach to jurisdiction in the United States that makes the Article 31 rules less likely to have significance for jurisdictional purposes. Finally, a series of hypothetical cases is used in order to explore these differences and to consider further aspects of the relationship between CISG rules of substantive law and rules of jurisdiction. The paper concludes that Article 31 is an example of a CISG provision for which the "homeward trend" will have different impact in differing legal systems, particularly in its application to jurisdictional questions.

CISG, U.N. Sales Convention, Brussels Convention, jurisdiction

Abstract:
This article addresses how a lawyer may ethically engage in a transnational practice given the current structure of state-by-state bar admission. Part II examines the ethical pitfalls of a transnational practice, including an examination of applicable APA Model Rules of Professional Conduct. This section also addresses different tests for determining whether a lawyer has committed the unauthorized practice of law. Part III makes use of examples to illustrate the legal framework for determining whether a lawyer has committed the unauthorized practice of law. In Part IV, the author concludes by making suggestions for how to better address the ethical dilemma of transnational lawyers.

ethics, professional responsibility, transnational practice, international law, foreign law, cross-border transactions, Birbrower test, Estate of Condon, Fought

Abstract:
The distinction between public law and private law does not carry the same significance in the U.S. legal system as is the case in other countries. This is in part a result of historical developments that provide a public law role for private litigation. Private litigation is used in the United States in ways not common or even possible in other countries. Paul Carrington has written that the private law/public law distinction "is in America seldom noticed," in part because "American judicial institutions ... were not designed merely to resolve civil disputes, but were fashioned for the additional purpose of facilitating private enforcement of what in other nations would generally be denoted as public law." This characteristic of the U.S. judicial system has particular importance for the development of specific aspects of U.S. law, and provides context for consideration of cooperation with other nations in the areas of private law, private international law, and judicial cooperation. In this paper I explore a bit of the history behind these aspects of U.S. law, as well as the resulting unique legal characteristics that history has produced.

impact litigation; private international law; U.S. law; American law

Abstract:
Law not only regulates competition, it is both the result of competition and creates opportunities for competition. States compete to have their legal system models become the norm on a regional and global basis. Thus there is value in considering the manner in which this competition is carried out. This has occurred both within the European Union, where member states also competed with Community institutions for competence over the area of private international law. The EU and the United States are now major competitors on the global front in the process of multilateralization of rules of private international law. This was evident in the negotiation of the 2005 Hague Convention on Choice of Court Agreements. Such multilateralization of rules also creates new opportunities for competition of courts in becoming magnets for commercial dispute resolution. This chapter in the book edited by Karl M. Meessen, Economic Law as an Economic Good: Its Rule Function and its Tool Function in the Competition of Systems (Sellier European Law Publishers 2009), discusses all of these levels of competition.

competition, law and economics, private international law, European Union, European Community, Hague Conference on Private International Law, harmonization, unification, external competence, recognition of judgments

Abstract:
Due process is perhaps one of the most misunderstood concepts in the U.S. legal system, especially as it appears to those outside the United States. For lawyers trained in the United States, 'due process' becomes a phrase with special meaning resulting from the study of a number of judicial decisions, especially those of the U.S. Supreme Court. For lay persons, and for lawyers from other countries, discussions of 'due process' may not always provide a clear understanding of what that phrase means in the U.S. legal system. This paper discusses the historical development of the concept of due process in U.S. law, particularly as it relates to issues of jurisdiction and the recognition and enforcement of judgments in U.S. courts. Like many aspects of amendments to the United States Constitution, the Due Process Clauses of the Fifth and Fourteenth Amendments provide limitations on the federal and state governments. This paper provides a historical look at the term as applied in U.S. jurisdiction decisions, and compares that approach with the due process implications of jurisdictional issues under the Brussels Convention in Europe. It also explains how due process limitations on jurisdiction result in limitations on the negotiating authority of the United States in the context of multilateral conventions on jurisdiction and the recognition and enforcement of judgments.

due process, due process clauses, United States, U.S. legal system, United States constitution, Fifth Amendment, Fourteenth Amendment, U.S. Supreme Court, treaty negotiations, multilateral convention on jurisdiction and the recognition and enforcement of judgments, Hague Conference on Private Intern