Transnational Litigation In a Nutshell
Author:
Bermann, George A.
Edition:
1st
Copyright Date:
2003
18 chapters
have results for Transnational Litigation
Chapter One: The Sources of Transnational Litigation Law 13 results (showing 5 best matches)
- Transnational litigation in the US is marked by a remarkable multiplicity of sources. Although it might be desirable to have a common federal legislative regime for the conduct of transnational litigation in the US, the reality is that no such regime exists. Thus, the rules and principles governing such litigation are drawn from both federal and state law and from legislation, treaties and the common law alike. Before embarking on a consideration of any of the salient issues in transnational litigation, it will be useful to canvass the range of sources of transnational litigation law.
- The Federal Rules of Civil Procedure obviously play a central role in transnational litigation in the federal courts. Though adopted by delegation, the Rules are expressly authorized by Congress in the Rules Enabling Act of 1938, and transnational cases are as fully governed by them (for example on issues like joinder of parties, motion practice and summary judgment) as is any other category of federal court litigation. On occasion, the Federal Rules contain provisions that expressly address transnational scenarios. A good example is Rule 4(i) ). But these are the exception. For example, provisional relief in transnational cases in the federal courts (see Chapter 9 ) is governed by Federal Rules of Civil Procedure 64 and 65, just as in domestic cases. All in all, due to the range of litigation issues they address, the Federal Rules are a proper starting point for understanding the procedural context of transnational litigation. But by the same token, and by their nature, they only...
- The reasons for the fragmentary treatment of transnational litigation in US legislation and treaties are several. The issues that are salient in the field are not ones that necessarily occupy a high rank on the federal legislative or executive agendas. Nor does there appear to be a strong constituency for codification of transnational litigation law at any level, be it state or federal. Finally, it may be that the courts are considered thus far to have performed reasonably well in the transnational litigation gap-filling role that has necessarily fallen to them.
- creates for federal courts to establish procedural common law in diversity cases should not, however, be exaggerated. There are certain issues crucial to transnational litigation that will be deemed committed under the doctrine to state law. As examples, take the rules governing choice of law in transnational litigation (see of the state in which they sit. Differences among state choice of law or recognition of judgment policies commonly cause the outcome of transnational litigation in diversity cases to vary according to the state in which the federal district court sits.
- Clearly, Congress has not chosen to occupy the field of transnational litigation—not even in the federal courts.
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Chapter Seven: Choice of Law and the Applicable Law 17 results (showing 5 best matches)
- Transnational litigation, by its nature, entails the possibility of applying to a case the substantive law of more than one jurisdiction. Choice of law issues are of course generally endemic to domestic US litigation, due to our federal system. US courts are accordingly accustomed to consulting forum choice of law principles for the purpose of determining, in cases subject to state law, the state whose substantive law should be applied to the case or to one or more issues within it. Transnational litigation, however, invites consideration of the application of foreign rather than sister-state law. Just as the doctrine has heightened interest in transnational litigation, due to the profound differences between litigation in different countries, so too does choice of law have heightened interest, due to the profound differences among the substantive laws that courts in transnational litigation may feel called upon to apply.
- More difficult is the question whether the choice of law clause applies equally to specific statutory claims related to the contract, whether federal (e.g., securities law, antitrust law, RICO) or state (e.g., laws protecting consumers, investors, distributors, franchisees, insured persons etc.). Among crucial questions of transnational litigation, this remains one whose answers are among the most elusive.
- As we have seen in other contexts, differences in substantive law among nations tend to make the choice of law issue in transnational litigation generally more salient than in domestic cases, and the determination as to whose law to apply particularly critical. But those differences may sometimes cause courts to “bend” seemingly neutral conflicts rules
- taking them as the starting point for discussion of choice of law in transnational litigation. But it is also necessary to contemplate the possibility that no such selection will have been made, particularly where a tort (or other unplanned transaction) rather than a contract (or other planned transaction) is concerned. The choice of law to be made in the absence of a selection by the parties will be a function of the largely unwritten conflicts of law rules prevailing in the US forum—rules that do not fundamentally differ from those that the forum employs in sister-state conflicts of law situations.
- Even before deciding whether US or foreign law should be applied to a given claim or issue in a case, a court may need to consider whether the American rule of law—be it common law or statutory, be it state or federal—has territorial application to the facts in the first place. This is not lightly to be assumed in transnational litigation. The scenarios to which the potentially applicable US law stands to be applied by definition will present contacts with several jurisdictions. It is entirely possible that a statute is properly interpreted as having a territorially limited sphere of application; in that event, its application to a scenario falling outside that sphere will be impermissibly “extraterritorial.” But even if a statute has potential application to multi-state situations, a court may or may not apply it, depending on whether it would be “reasonable” from an international comity point of view to do so.
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Chapter Four: Parallel Litigation 22 results (showing 5 best matches)
- in transnational litigation also explain the frequency of actual parallel litigation. As we have seen, transnational litigation by definition may be instituted in multiple jurisdictions, and the procedural and substantive law differences among fora commonly give each party to a dispute a strong incentive to prefer a different forum.
- may prove to be quite a high-stakes game indeed when deployed in the transnational litigation context. It is little wonder that dismissal motions on convenience grounds have become a staple of the practice and are likely to be vigorously contested by the opposing party. Interestingly, transfers for convenience within the federal court system under Section 1404(a) are not infrequently followed in transnational cases almost
- In a related scenario, the plaintiff, having instituted litigation in the US, asks the same (or possibly a different) court to enjoin the defendant from instituting “mirror-image” litigation in the courts of another country. The plaintiff may take a similar step upon winning judgment in the US forum, with a view to preventing relitigation of the dispute in a foreign court. As just noted, mirror-image litigation is becoming especially common in transnational litigation, with one Party X to a transaction seeking to impose liability on Party Y in forum A, and Party Y seeking a declaration of non-liability to Party X in forum B.
- This chapter deals with three scenarios that arise with frequency in transnational litigation in US courts. In the first scenario, only one forum has been invoked, but that forum has serious doubts as to whether it is the most appropriate forum in which to have the claim at issue adjudicated. In many jurisdictions around the world, this is a non-problem because the availability of a more appropriate forum elsewhere—even a vastly more appropriate one—is simply not a valid ground for declining to exercise jurisdiction over a dispute. Most civil law jurisdictions are quite unfamiliar with, and find odd, the notion of dismissals or stays for ; they tend to address problems of parallel litigation, if at all, through other instruments discussed below. But, in the US, as in numerous other common law jurisdictions, the discretionary doctrine of
- in transnational litigation are becoming especially hard to come by, as parties seek more and more to accelerate the race to litigation through such devices as actions for “reverse” declaratory relief, notably a declaration of non-liability, thereby instituting the “first-filed” action. They may even seek a declaration of the unenforceability of the eventual foreign country judgment. An example of this preemptive strategy is
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Chapter Nine: Transnational Provisional Relief 7 results (showing 5 best matches)
- Just as transnational litigation may occasion a need for cross-border service and cross-border evidence-gathering, so it may occasion a need for transnational provisional relief. The same purposes that are served by provisional relief in domestic litigation (e.g. ensuring the adequacy of an eventual judgment, preserving the pending the litigation) may be served by provisional relief in transnational cases. The difficulty that arises of course is that, in order for relief in transnational cases to be adequate, it may have to exert extraterritorial effects, which may in turn render it objectionable to the affected foreign States. Indeed the very prospect of objections may cause US courts to decline to order transnational provisional relief in the first place, even in situations in which, in entirely domestic cases, they ordinarily would.
- Conversely, US courts should expect that from time to time foreign courts, in the context of the transnational litigation before them, will order measures of provisional relief having consequences of some sort in the US. These may be most pronounced when a US court is called upon actually to “enforce” a measure of provisional relief that a
- In this chapter, we assume that the same general considerations that would in principle justify an order of provisional relief in domestic cases before US courts will be deemed to justify it in transnational cases. We therefore focus on the extent to which the transnational character of the case or of the relief sought might make a difference.
- The likelihood of enforcement in the US may be enhanced if the foreign court has itself awarded provisional relief, and the party benefitting from it then, so to speak, seeks “enforcement” of the order in the US. This is not unimaginable since foreign courts, like US courts, do award provisional relief in appropriate circumstances in domestic and transnational litigation alike. When a litigant before a foreign court seeks to have such an order of provisional relief enforced in the US, we find ourselves . efforts by a party prevailing in overseas litigation to have the resulting judgment enforced in the US. The principal difference—which flows from the very nature of provisional relief—is that the order does not reflect a final judgment on the merits (as in the standard enforcement of judgments situation), but rather an interim measure that the foreign court has seen fit, for reasons of justice or utility, to order during the pendency of the litigation. In fact, the instances in...
- US courts in domestic litigation regularly entertain, and grant, applications for provisional relief when equitable circumstances so suggest. There may be a need to protect persons or property from irreparable harm while litigation on the merits is pending, and there may be other reasons to preserve the status quo in the period before judgment is rendered. More specifically, there may be a need to secure a probable judgment. The prime instruments are preliminary injunctions and attachments.
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Chapter Ten: Recognition and Enforcement of Foreign Judgments 7 results (showing 5 best matches)
- If transnational litigation has culminated in a final judgment of a foreign court, the prevailing party may very likely seek to have that judgment either recognized or enforced abroad, including in a US forum. Conversely, a US judgment may turn out to be enforceable only abroad or to require recognition there. This is why a party introducing transnational litigation in any court needs, as earlier chapters have stressed, to anticipate the impact of their various procedural decisions on the prospects of the resulting judgment receiving recognition or enforcement abroad.
- (2d Cir.1980). But which jurisdictional standards will F2 apply in deciding the jurisdictional question? F1’s own jurisdictional standards or F2’s constitutional jurisdictional standards or, again, both? The answer to that question remains uncertain, precisely because the defaulting party never contested F1’s jurisdiction in F1’s court. In any case, defaulting in transnational litigation can be a risky strategy. A party who defaults in F1 and incurs an adverse judgment there may subsequently find that F2 sustains F1’s exercise of jurisdiction, not only on F1’s statutory grounds, but also according to F2’s due process criteria. In that event, F2 will then likely proceed to recognize and enforce the judgment (unless of course some independent statutory ground for refusal, like fraud or violation of forum public policy, is present), with the consequence that the defendant will never have taken the opportunity in any court to address the merits, whether as to the facts, the law, or...
- Let us begin by supposing that a party who is doubtful of the foreign court’s jurisdiction nevertheless appears in F1. If it fails to raise its jurisdictional defense at that time, it may be deemed to have waived its objection, not only in F1 but also in F2. Within a single legal system, waiver principles might ordinarily operate to prevent a party from “reserving” its objections for the recognition or enforcement stage, but matters are less clear in the transnational context. It may be that the court in
- Transnational litigators may be as interested in the enforceability of US judgments abroad as the enforceability of foreign country judgments in the US. In the absence of any treaty to which the US is a party, the applicable standards will be those in place in the foreign country. Every country sets some limits on the recognition and enforcement of foreign country judgments, including American ones. Under most circumstances, US judgments in civil cases will be received generously. Thanks to the well-established recognition and enforcement policies in the US, even those countries that condition their acceptance of foreign judgments on a showing of reciprocity are ordinarily satisfied by US practice.
- arises most squarely when, for example, the plaintiff in F2 seeks to prosecute a cause of action that that party has already prosecuted to an unsuccessful conclusion in F1, or when the defendant in F1, having lost, brings a “mirror-image” action for relief in F2. In truth, recognition and enforcement have just about the same meaning in the transnational context as they enjoy in the sister-state context under the Full Faith and Credit Clause (US Constitution, Art. IV, sec. 1). For example, we may assume that when foreign judgments are recognized, in the sense of being given
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Chapter Eight: Transnational Service and Production of Evidence 27 results (showing 5 best matches)
- Even if overseas service is authorized by the procedural law governing the US court in which an action is brought, parties to transnational litigation need also to consider the legitimacy of such service from the point of view of the law of the place of service. The Restatement (Third) of Foreign Relations Law, section 471(1), provides that “[u]nder international law, a state may determine the conditions for service of process in its territory in aid of litigation in another state, but the state where the litigation is pending may determine the effect of such service.”
- An especially common feature of transnational litigation is the necessity of making overseas service of documents and securing overseas production of evidence. Perhaps more than any other area of transnational litigation, this one entails the direct interaction of legal systems and, more specifically, between courts of different jurisdictions. The subject is accordingly governed to a significant extent by international agreement, raising questions of interplay between treaty and domestic legislation. The subject is further complicated by the necessity, with respect to service and evidence alike, of considering the problems from the perspective of both the so-called “requesting” and “requested” states.
- Compared to overseas service, overseas production of evidence is a decidedly more problematic matter. We begin once again with the scenario of transnational litigation in US court, and the likelihood that one or both parties will find need or utility in obtaining evidence situated outside US territory. Once again, we must distinguish between a US court’s authority under its own law to order the production of documents or testimony, on the one hand, and the legality of that production under the law of the place where production may be deemed to be made, on the other.
- , which has been harshly criticized in foreign government circles as well as in academic writing, both domestic and foreign, reflects deep concern that, with the prevalence of Article 23 declarations, interpreting the Convention as exclusive could deprive litigants in US court, and transnational litigation in the US more generally, of the advantages of ample pretrial discovery. Lower courts have struggled with the individualized comity analysis that preference for justice Blackmun’s position). They are most likely to do so where the addressee is a non-party to the litigation.
- All of this serves as a reminder that transnational production needs to respect the law of both the requesting and the requested state. If a foreign state objects to the taking of evidence by non-nationals of that state, for example, direct use of an authorized local national or use of a letter rogatory may be the only safe and legal options.
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Introduction 5 results
- Notwithstanding the growth of transnational litigation in US courts, a significant volume of private international disputes are resolved not through adjudication in national (or sub-national) courts, but through international arbitral channels. Even if one wanted to, one could not ignore arbitration in a book of this sort—this, for the simple reason that courts have a significant role to play in many aspects of the international arbitral process, including compelling arbitration, awarding provisional relief in conjunction with arbitration, setting aside arbitral awards, and eventually recognizing and/or enforcing arbitral awards. On the other hand, the law of international arbitration presupposes a basic adudicatory procedure that differs in fundamental ways from the conduct of litigation (including transnational litigation) in a national court system. It has also become exceedingly complex. Accordingly, international arbitration will be dealt with in only a preliminary fashion...
- This book employs the term “transnational litigation” to denote the materials covered, primarily to avoid confusion with the resolution of “international” disputes between States or between a State and an international organization. To that extent, “private” rather than “public” international law disputes are this book’s subject.
- Clearly, the conduct of transnational litigation in the US is governed, and governed pervasively, by the usual rules of civil procedure that obtain in the forum, state or federal. It is not the mission of this book, or the courses to which it corresponds, to cover the usual civil procedure ground. Students, particularly those trained overseas or otherwise not acquainted with American civil procedure, are advised to consult a civil procedure text so as to place the issues dealt with in this book in their conventional procedural context.
- The reader will soon discover that, while there is obviously both a federal and an international dimension to our subject, the field is far from completely addressed either by federal legislation (or federal rules of civil procedure) or by international treaties, or by a combination of the two. On the contrary, the sources of transnational litigation law in the US are multiple. The common law—both federal and state—has a role to play. So too does state legislation.
- As transactions increasingly entail cross-border elements, so too does the litigation that those transactions tend to generate. Although virtually all litigation arising out of international transactions takes place in one national court or another (if not in an international arbitral venue), that litigation is unlikely to proceed in exactly the same fashion as litigation over purely domestic disputes proceeds in that forum. Hence, this book and the law school courses for which it is designed.
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Introduction Part 2 5 results
- Notwithstanding the growth of transnational litigation in US courts, a significant volume of private international disputes are resolved not through adjudication in national (or sub-national) courts, but through international arbitral channels. Even if one wanted to, one could not ignore arbitration in a book of this sort—this, for the simple reason that courts have a significant role to play in many aspects of the international arbitral process, including compelling arbitration, awarding provisional relief in conjunction with arbitration, setting aside arbitral awards, and eventually recognizing and/or enforcing arbitral awards. On the other hand, the law of international arbitration presupposes a basic adjudicatory procedure that differs in fundamental ways from the conduct of litigation (including transnational litigation) in a national court system. It has also become exceedingly complex. Accordingly, international arbitration will be dealt with in only a preliminary fashion...
- This book employs the term “transnational litigation” to denote the materials covered, primarily to avoid confusion with the resolution of “international” disputes between States or between a State and an international organization. To that extent, “private” rather than “public” international law disputes are this book’s principal subject.
- Clearly, the conduct of transnational litigation in the US is governed, and governed pervasively, by the usual rules of civil procedure that obtain in the forum, state or federal. It is not the mission of this book, or the courses to which it corresponds, to cover the usual civil procedure ground. Students, particularly those trained overseas or otherwise not acquainted with American civil procedure, are advised to consult a civil procedure text so as to place the issues dealt with in this book in their conventional procedural context.
- The reader will soon discover that, while there is obviously both a federal and an international dimension to our subject, the field is far from completely addressed either by federal legislation (or federal rules of civil procedure) or by international treaties, or by a combination of the two. On the contrary, the sources of transnational litigation law in the US are multiple. The common law—both federal and state—has a role to play. So too does
- As transactions increasingly entail cross-border elements, so too does the litigation that those transactions tend to generate. Although virtually all litigation arising out of international transactions takes place in one national court or another (if not in an international arbitral venue), that litigation is unlikely to proceed in exactly the same fashion as litigation over purely domestic disputes proceeds in that forum. Hence, this book and the law school courses for which it is designed.
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Chapter Two: Jurisdiction Over Non–Nationals and Non–Residents 12 results (showing 5 best matches)
- Satisfaction of a long-arm basis of personal jurisdiction, though essential to the exercise of jurisdiction over a non-resident, is not sufficient to establish it. Service is invariably also necessary, not only as a constitutional but also as a statutory matter. (Service in transnational litigation is treated in Chapter 8
- In transnational litigation, however, the defendant may well have no US domicile or residence. The question has arisen whether, in such a case, it is appropriate to continue measuring the defendant’s contacts on a state-by-state basis, or whether it is preferable instead to assess the defendants’s contacts with the US as a whole. In the latter event, a court—after establishing that it has statutory jurisdiction over the defendant—would inquire whether the defendant’s “national” or “aggregate” contacts are such as to justify in fairness the assertion of jurisdiction.
- The claim that a court lacks personal jurisdiction is usually asserted at the threshold of litigation. Particularly in transnational litigation, however, such an objection may re-surface at the stage when a judgment of State X is brought for recognition and enforcement in State Y. Indeed, the defendant may not have interposed that objection in State X in the first place. Because a court’s consideration of jurisdictional objections is understandably somewhat different when raised at the recognition or enforcement stage—whether or not previously raised—we defer its treatment to Chapter 10, which deals with problems arising at that point in time.
- contacts are fundamentally irrelevant to that inquiry. The question arises whether different presumptions should operate in the transnational, as opposed to the sister-state, context.
- If the plaintiff’s nationality and residence are basically irrelevant to a court’s subject matter jurisdiction, they may nevertheless be relevant to the court’s determination whether to exercise that jurisdiction. As the next chapter shows, for example, the readiness of a US court to dismiss a transnational case on
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Chapter Three: Subject Matter Jurisdiction Over Transnational Disputes 8 results (showing 5 best matches)
- Federal question jurisdiction opens the way for transnational litigation to take place in the federal courts irrespective of the alienage of one or more of the parties. That the dispute “arises under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority” (to quote Article III of the Constitution) is constitutionally sufficient.
- Transnational, like domestic, litigation requires proper venue as well as proper subject matter jurisdiction. We can tell from most federal venue provisions that their purpose is to identify the court, within the competent jurisdictional system, which is the most convenient one for trying a case falling within the subject matter jurisdiction of the federal courts.
- The previous chapter dealt with personal jurisdiction over non-nationals and non-residents. US courts, state and federal alike, also of course need to have subject matter jurisdiction in order validly to entertain a case, and are required to verify its existence whether or not a party raises the issue. While one might have supposed that the federal courts in the US would necessarily enjoy subject matter jurisdiction over transnational disputes, that is by no means the case. It is entirely possible that a piece of transnational litigation may be heard in the US, if at all, only in state court. This is because the jurisdiction of the state courts in the US is in principle plenary, while the jurisdiction of the federal courts is not. At the same time, as we shall see, “transnational law cases” is simply not, as such, a category of federal court jurisdiction. Moreover, subject matter jurisdiction (unlike personal jurisdiction) is regarded as affecting the court’s very power to hear a...
- all disputes we would regard as transnational. We can establish this by examining the various components of federal subject matter jurisdiction. In the first place, Article III contemplates federal court jurisdiction of claims “arising under” federal law (commonly known as “federal question” jurisdiction). Although many cases that we would consider to be transnational do in fact arise under the US Constitution, a federal statute or a treaty, not all of them do. The fact that a dispute contains a foreign element—even an important one—does not necessarily suffice to render the dispute a “federal question” case within the meaning of Article III.
- jurisdiction over federal question and diversity (including “alienage”) cases. As noted, these may indeed cover transnational disputes. Congress has also made a very large number of grants of specific subject matter jurisdiction, many of which (the antitrust acts, for example) may well have application to transnational cases. See, e.g., 28 U.S.C.A. sec. 1337. Some of this legislation makes federal court jurisdiction exclusive, so that actions thereunder may not be brought in state court. These include admiralty, bankruptcy, and patent and copyright claims (28 U.S.C.A. secs. 1333, 1334 and 1338, respectively), as well as suits against foreign diplomatic and consular officers (28 U.S.C.A. sec. 1351). But two statutory grants are particularly relevant to transnational cases. They are, in order of enactment, the Alien Tort Claim Statute and the Foreign Sovereign Immunities Act, dealt with briefly below and in greater depth in Chapters 6 and 5
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- International commercial arbitration as a whole is far too large a subject for treatment in this volume on transnational litigation in US courts, and is accordingly the subject of a separate Nutshell. But arbitration disputes do represent an important and growing component of the US courts’ transnational litigation diet, thus necessitating at least some coverage here. And because international arbitration cases cannot be understood in a vacuum, we necessarily begin with a look at arbitration’s overall legal framework. We then turn to consider in a more focused way the principal points of intersection between the judicial and the arbitral process.
- A hallmark of international arbitration is the submission of transnational disputes to the exclusive jurisdiction of one or a panel of arbitrators acting in the fashion of “private judges.” By including arbitration agreements in their contracts, parties to international transactions seek, among other things, to avoid subjecting their disputes to the jurisdiction of national judges. They may also seek to achieve speed, flexibility, expertise, neutrality, confidentiality, and heightened enforceability.
- Most jurisdictions—the US among them—provide a procedure whereby an award rendered locally may be “confirmed.” By confirmation is basically meant a reduction of the award to judgment, so that it has the same executory force and effect as a judgment of a local court. In fact, in the US an arbitral award is not self-executing and needs confirmation, or its equivalent, prior to any local enforcement procedure. This is usually accomplished by commencing an action to confirm under FAA Sections 9, 207, or 304, as the case may be. Strictly speaking, US courts are limited to confirming local awards, i.e., awards that were issued in the US, including awards arising out of transnational disputes. A judgment confirming an award, like any other local judgment, may then be enforced locally. Alternatively, it may be brought to the courts of another
- in US litigation will therefore depend upon statutory provisions and public policies. But, as to this issue, there is a prior choice of law question—one that is complicated in that its answer tends to vary according to the stage of the arbitral process at which the issue arises. The choice of law question matters because different jurisdictions treat different categories of disputes as legally incapable of arbitration, typically depending on whether they regard the underlying claims as embodying a powerful public interest and thus requiring judicial rather than arbitral resolution. Their notions of what constitutes a compelling public interest simply tend to differ.
- (2d Cir. 1993), the Second Circuit ordered claims by US investors against Lloyd’s arising under the Securities Act, the Securities Exchange Act and RICO to be sent for litigation or arbitration in London, pursuant to a choice of forum clause designating a London court or arbitral tribunal as the exclusive
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Subject Index 8 results (showing 5 best matches)
Outline 6 results (showing 5 best matches)
- Chapter One. The Sources of Transnational Litigation Law
- Chapter Three. Subject Matter Jurisdiction Over Transnational Disputes
- (b) Forum public policy in the transnational context
- Chapter Eight. Transnational Service and Production of Evidence
- Chapter Nine. Transnational Provisional Relief
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Chapter Five: “Sovereignty” Limitations on the Exercise of Jurisdiction 7 results (showing 5 best matches)
- Parallel litigation is only one of several scenarios in which a US court may consider declining an exercise of judicial jurisdiction that it indubitably possesses, being the prime examples. There are a range of other abstention doctrines that characterize the US law of transnational litigation. The act of state doctrine and, more generally, the political question doctrine and international comity also play an important prudential role in this field.
- salient in transnational litigation. The jurisdiction thereby created extends to all claims as to which foreign states and their instrumentalities do not enjoy sovereign immunity under the FSIA’s “substantive” provisions (28 U.S.C.A. sec. 1330(a)). Basically the same may be said about personal jurisdiction; its exercise over foreign states and their instrumentalities is statutorily authorized in all circumstances in which those states and instrumentalities lack sovereign immunity under the FSIA (28 U.S.C.A. sec. 1330(b)), provided they have been properly served. (It may also be necessary, however, to ensure that any exercise of that authority comports with jurisdictional due process, measured by minimum contacts and reasonableness.)
- The act of state doctrine reflects judicial sensitivity to the impact that litigation may have on the conduct of US foreign relations. In that sense, it may be regarded, at least in part, as an expression of international comity. But international comity has a broader range of application. Thus, for example, litigation may risk embarrassment to our foreign relations even though no issue of the legality of an act of a foreign government is presented to the court. It certainly may do so, even though the act of state doctrine is not itself technically applicable, due to the absence of one or more of its preconditions, for example, the situs requirement. A good example is
- Even where immunity under the FSIA does not obtain, the sovereign’s exposure to litigation and
- and other litigation strategy issues. Forum shopping is a distinct possibility, since even if US forum were to apply foreign law to the underlying cause of action, the determination of damages would be treated as procedural, giving claimants the benefit of generally high US damages levels. In fact, suits under the FSIA have, on rare occasion, been dismissed on
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Table of Cases 4 results
- Ferdinand E. Marcos Human Rights Litigation, In re Estate of, 978 F.2d 493 (9th Cir.1992), cert. denied Marcos–Manotoc v.
- Perrier Bottled Water Litigation, In re, 138 F.R.D. 348 (D.Conn. 1991),
- Uranium Antitrust Litigation, In re, 480 F.Supp. 1138 (N.D.Ill. 1979),
- Vitamins Antitrust Litigation, In re, 120 F.Supp.2d 45 (D.D.C. 2000),
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- The Alien Tort Claim Statute does not by its terms identify who is a proper defendant. All cases thus far have been brought against persons who were foreign government officials at the time of the actions complained, or were arguably acting under “color” of foreign authority. A good example is the class action litigation against the estate of the former president of the Philippines for human rights abuses by the military under his command.
- that in the absence of “affirmative action by Congress,” the ATCS should not be applied in human rights litigation that the drafters of the Act could not have contemplated. Congress provided such “affirmative action” through the TVPA. Congress did not expressly provide that the TVPA should be applied
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- Publication Date: July 14th, 2003
- ISBN: 9780314145840
- Subject: International - Litigation
- Series: Nutshells
- Type: Overviews
- Description: This title identifies and explores recurring problems caused by private cross-border disputes, while presenting the solutions that appear to be emerging, whether in the form of legislation, case law, treaty or Restatement enumeration. It covers personal and subject matter jurisdiction, parallel litigation, choice of forum, choice of law, extraterritorial discovery, extraterritorial provisional relief, recognition of foreign judgments, pleading, and proof of foreign law. International arbitration is also dealt with, with special emphasis on the role of courts in enforcing international arbitration agreements and effectuating international arbitral awards.
