Comparative Method and International Litigation
21 Pages Posted: 6 Feb 2020 Last revised: 22 Jul 2020
Date Written: February 4, 2020
In this article, resulting from a presentation at the 2019 Annual Meeting of the American Society of Comparative Law, I apply comparative method to international litigation. I do so from the perspective of a U.S.-trained lawyer who has been involved for over 25 years in the negotiations that produced both the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. The law of jurisdiction and judgments recognition is probably most often taught in a litigation context. Nonetheless, that law has as much or more importance to the transaction planning lawyer as to the litigator, and affects my focus here for comparative study of developments both in the Hague Conference process and in national (and regional) legal systems during the negotiation of the two treaties with which I have been involved. I look not only at domestic law, but also at treaties and other international legal instruments–the comparative evolution of the law. Moreover, I look at both legal rules and legal systems, addressing the comparative evolution of the institutions that make the law. This includes a comparison of the most influential legal systems at the start of the Hague negotiations. The differences resulting from that comparison ultimately affected the focus of the negotiations and the text of the resulting legal instruments. I end with a set of four conclusions based on these observations and comparisons.
Keywords: jurisdiction, judgments recognition, private international law, dispute settlement, European Union, international litigation, international economic law, comparative law, international law, conflict of laws, choice of court agreements, Court of Justice of the European Union, Brussels I Regulation
JEL Classification: K00, K12, K33, K39, K41
Suggested Citation: Suggested Citation