Shea - PowerPoint - Transnational litigation

Transnational Legal Practice
Private International Law
What is “transnational litigation”?
“all law which regulates actions or
events that transcend national frontiers”
 Resulted from the rise of international
trade and commerce
 Not necessarily a stand-alone research
category but instead a process
• more attention paid to procedural aspects
rather than substantive law
What is “transnational litigation”?
US attorneys involved with transnational
litigation most commonly work in one of
the following areas:
Drafting and/or enforcing contracts
Foreign investment counseling
International banking and finance
International antitrust
International arbitration
International tax planning
Trade law
Example of a transnational issue:
A loan (in Euros) made in London and
equity capital raised in Saudi Arabia may
serve to finance a Sudanese sugar
plantation that will be constructed by an
English contractor, equipped by a French
manufacturer, managed by an American
consultant, and whose production will be
distributed throughout the world by a
Japanese trading company
• If you are US attorney, you have to know
applicable US laws, pertinent treaties, and a
solid grounding in the domestic laws of all the
above-mentioned countries!
How to research transnational law
Two step process to dealing with these
• Identify procedural aspects and private
international law concerns
– Forum
– Service
– Discovery
– Local rules of civil procedure
• Identify applicable foreign laws
International procedural issues
If the issue involves a US citizen or
corporation, consult the State Dept’s
collection of information
The Hague Convention has a number of
treaties that provide guidance on
international legal cooperation and
Example #1
In the headache-inducing hypothetical a
few slides back, imagine that the French
manufacturer failed to deliver the
equipment to the Sudanese plant on time
and now the American consultant is
blaming the English contractor. The
contractor (in England) now wants to sue
the manufacturer (in France) for breach of
• Would the parties be bound by Hague
convention rules on service? What about
rules on taking evidence?
Upon reaching the Hague
Conference site, select the area
of law which you are looking to
find a Convention—in this
example, we are looking for
Browse the listing of
available to locate
the one most relevant
to your issue—in this
example, it’s
“Service”—and click
on the hyperlinked
You can now read
the full text of the
convention here
(albeit with no official
cite listed). To
determine if your
countries are party to
this treaty, click on
“Status Table”
Use the status table just like the
ones we saw on the MTDSG—
locate your country and see if
there is a date listed in the
Succession” column. Then check
the second country’s status
What is private international law?
The body of international law that
governs mainly commercial and
business disputes among countries or
private parties.
 International jurisdiction through treaty
application or national courts apply
concepts of international law, depending
on the type of dispute (could be several
claims in one suit).
Research guides in PIL
ASIL’s ERG for Private International
ASIL’s ERG for International
Commercial Arbitration:
Globalex’s Guide to Harmonization of
International Commercial Law
Hague Conference on Private
International Law and Conventions:
Active in development of conventions in
various areas of private law (e.g. conflict of
laws to inter-country adoption).
Full-text conventions, status and
bibliographic information, and explanatory
reports, when available
• Most useful are the status (where you can see
who is a party), and the background/interpretive
documents for each convention
UNCITRAL – UN Commission for
International Trade Law
 work toward the harmonization of
private international law.
 has primary documents and status
information about established int’l
instruments (e.g. CISG)
 CISG available at:
Example #2
What remedies may be available to the
English contractor under the CISG?
• Retrieve a full-text version of the CISG,
either using the links on the previous slide,
or the official version from UNTS, and
simply browse the table of contents section
for “remedies”
– Alternatively, you can do a CTRL+F search for
“remedies” but be sure you understand what
section your hits fall under, as there may be
different applications of “remedies” in the CISG
How to Locate UNCITRAL decisions
UNCITRAL Digest of case law on the United
Nations Convention on the International Sales
of Goods provides an Article-by-Article analysis
of the CISG
Also available on the Pace CISG site
Abstracts/Decisions for UNCITRAL texts are
available through the “CLOUT” database
Example #3
If the contractor wanted to claim
damages under Article 74 of the CISG,
who bears the burden of proof?
• Again, retrieve Article 74 of the CISG using
a link or another source for the full-text
Are there any cases that speak to this
• Easiest way to locate cases that litigate a
particular Article is to use UNCITRAL digest
Digest, simply select
the CISG Article
which you want to
find case law on
Read the Digest
entry IN ITS
ENTIRITY to get the
full picture of how this
Article has been
interpreted by
member courts
If you find a footnote of
interest, note the CLOUT
case number for that case
and retrieve it in the
CLOUT database
To retrieve a case
mentioned in the
Digest, or to locate
additional cases
involving the CISG,
run a search in the
CLOUT database
Easiest way to
retrieve a case from
the Digest is to enter
the CLOUT Case No.
in the “Case Number”
field. Otherwise, you
can also try
searching by Article #
or country
In this slide should be a record for Case
#345, but the site is apparently down
right now. If you were to get to it, you
would have to determine if they had an
actual copy of the case itself, or if it was
simply an abstract you would have to try
and locate a full text version of the case
in that country’s official reporter
UNIDROIT – Int’l Institute for
the Unification of Private Law
NOT a UN organization—preceded the
UN, was a League of Nations initiative
• Difference between UNCITRAL and
UNIDROIT explained here:
Best-known accomplishment is creating
UNIDROIT Principles of International
Commercial Contracts.
Website provides full text links to
governing documents, current initiatives
and legislative history of initiatives
UNILEX (again not a UN org)
• database of international case law and
bibliography on the United Nations
Convention on Contracts for the
International Sale of Goods (CISG) and on
the UNIDROIT Principles of International
Commercial Contracts
Foreign Investment (FDI)
FDI Generally governed by bilateral treaties
• STEP 1: To determine if a country has a BIT with
another country, check the ICSID’s list
• STEP 2: To locate the text of a BIT, try the
– UNCTAD’s Investment Instrument database
– Bilateral Investment Treaties (1995)
• Print only K3830.4 .D65 1995
Exercise #4
With whom does Ireland have a BIT
with? Can you locate the full text of this
To locate a BIT, start
first with the ICSID
listing to determine
which countries have
BITs with whom
Results show that
Ireland only has 1
BIT—it is with the
Czech Republic, and
it has been in force
since 1997
To locate a copy of a
BIT, try the UNCTAD
BIT Instruments
Online database
first—much easier
than trying to locate
through a domestic
treaty source
If there is a copy
available, it will show
up below the search
box with a hyperlink
to the version in the
listed language—
sometimes you can
have a copy for each
official language
Foreign Investment
In addition to locating BITs, it is
necessary to also locate the domestic
law on investment
• Will discuss how to find domestic laws in a
few weeks but one good compiled source
is Investment Laws of the World which
provides English translations of relevant
laws from a number of jurisdictions
– Print K1112 .A47 I59
Investment disputes
ICSID provides the full-text of selected
cases and awards
 Official print reporter: ICSID Reports:
Reports of Cases Decided under the
Convention on the Settlement of
Investment Disputes between States
and Nationals of Other States
• Print K3829.23 .I27
Investment disputes – cont’d
Investment Arbitration Reporter
• SUPER expensive database, can only be
accessed on a desktop computer in the
library, very useful in highlighting current
disputes and provides commentary and
analysis of these
• Also provides links to full text documents
when available, including awards not
reported anywhere else
– Access through library catalog:
Int’l Commercial Arbitration
An important component of private
international law
 Two types:
• Ad-hoc: a proceeding that is not
administered by others and requires the
parties to make their own arrangements for
selection of arbitrators and for designation of
rules, applicable law, procedures and
administrative support
• Institutional: a specialized institution with a
permanent character intervenes and
assumes the functions of aiding and
administering the arbitral process, as
according to the rules of that institution
Reasons for Choosing Arbitration
Distrust of a foreign legal system by one or
more parties
Avoid long delays in court systems
Resolution of dispute by someone
w/expertise in a particular business
Exercise more control by specifying
governing rules
Avoid problem of lack of international
standard on the enforceability of foreign
Major Arbitration Treaties
United Nations Convention on the
Recognition and Enforcement of Foreign
Arbitral Awards of 1958 (New York
• Promoted by UNCITRAL
Convention on the Settlement of
Investment Disputes Between States and
Nationals of Other States (Washington
• Maintained by the World Bank
Major Arbitral Institutions
 Permanent Court of Arbitration
Int’l Center for the Settlement of Investment Disputes
International Chamber of Commerce (ICC)
London Court of International Arbitration (LCIA)
American Arbitration Association (AAA)
Arbitration Rules
ICSID Rules of Arbitration/Conciliation
LCIA Rules –
ICC Rules –
Extremely difficult to locate – most arbitral
awards are confidential and are therefore
never made publicly available
Best place to look is KluwerArbitration or ILM
If you don’t have access to these, try the
Trans-Lex—allows you to locate arbitral
awards in a variety of locations, as well as
articles and national laws on the topic
One of the most comprehensive databases
for researching int’l arbitration (Kluwer is the
big name in arbitration publishing), provides a
searchable database to locate summaries
and full text versions of
• Treaties and int’l instruments
• Court decisions and awards
– Annotated digest of NY Convention articles
• National arbitration laws
• Commentary (scholarly treatises and journals)
Access through library catalog:
Exercise #4
The English contractor and French
manufacturer are now currently engaged in
arbitration, but the manufacturer is claiming
that the English contractor never had an
“agreement in writing”
• Which article under the NY Convention would
govern this question?
– To locate this article, consult either a secondary
source or the full text document (a link to an official
copy can be found in slide #37). Answer is: Art. II.2
• Are there any French cases that litigate this
To locate cases on
the NY Convention,
go to
KluwerArbitration and
select the “NY
Decisions” database
which is essentially
the “Digest” to the NY
Next, select the relevant Article you wish to locate cas
on—in our case we are looking for Article II cases o
“agreement in writing”. When I select Article II here,
brings up the text of the Article. To locate case law o
Article II, select the tab for “case law”—you may have
change the tab to a different topic here
Now you can browse through all collected cases
that discuss Article II—agreement in writing as
contained in the Kluwer database. You may
have to select the ones that “look” French to
determine jurisdiction
Use the “Advanced Search” function for
KluwerArbitration to search by topic, key number,
jurisdiction, etc
Select the
in this
example, I
ance, Applied
and then
“agreement in
There appear to be 4
cases from France
which address the
term “agreement in
writing” under the NY
Online arbitration resources
• Int’l Arbitration: Mealy’s Litigation Report
– Legal > Area of Law - By Topic > International
• More extensive coverage than Lexis
• International Commercial Arbitration case
database: ICA-CASES
– However, most are US cases with no aspects
of international arbitration
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