A Unified Theory of Transnational Procedure
33 Pages Posted: 17 Dec 2009
Date Written: December 15, 1993
Transnational litigation in the United States is riddled with a set of overlapping doctrines which the courts must confront before actually adjudicating the merits of a dispute. The litigants and the courts frequently must address questions of subject matter jurisdiction or jurisdiction to prescribe, antisuit injunctions, service of process, personal jurisdiction, venue, choice of law, choice of discovery rules, forum non conveniens, and other preliminary questions.
This article contends that the separate and sequential analysis of these doctrines is outmoded, inefficient, and costly to the interests of the parties, the United States, and the transnational litigation process. Currently, courts repetitively analyze each of the various gate keeping doctrines through nearly identical open-ended balancing processes which the courts and the litigants are ill-equipped to handle. This process is wasteful and filled with error. It also fails to recognize that each of these doctrinally separate provisions is really part of the same fundamental inquiry-whether a United States court is an appropriate forum for the resolution of the dispute through rules of decision and procedure of its own choosing. All parties involved in transnational litigations would benefit from the abandonment of the current doctrinal confusion in favor of a single unified approach to the determination of the appropriateness of a United States court as the forum for resolving the merits of transnational disputes. I propose as that unified approach a single omnibus comity inquiry conducted as early as possible in the litigation process.
This unified approach offers the advantage of consolidating and accelerating consideration of the same group of factors which courts now consider at various stages of the litigation under different burdens of proof and standards of review. Parties and courts would be forced to confront, at the outset of the litigation, the real issue of whether the United States has any direct and substantial interest in the resolution of the dispute. The result would be less cost, less delay, as well as more domestic and international legitimacy for the resolution of disputes in the United States, if the courts were to make principled, evidence-based rulings of their interests and bases for adjudicating a transnational dispute.
Keywords: subject matter jurisdiction, personal jurisdiction, jurisdiction to prescribe, service of process, venue, choice of law, discovery, forum non conveniens, international litigation, transnational litigation, civil procedure, antisuit injunctions, comity, Erie
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