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"Judgments, Foreign"
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Litigation Isolationism
Over the past two decades, U.S. courts have pursued a studied avoidance of transnational litigation. The resulting litigation isolationism appears to be driven by courts' desire to promote separation of powers, international comity, and the interests of defendants. This Article demonstrates, however, that this new kind of \"avoidance\" in fact frequently undermines not only these values but also other significant U.S. interests by continuing to interfere with foreign relations and driving plaintiffs to sue in foreign courts. This Article offers four contributions: First, it focuses the conversation about transnational litigation on those doctrines designed to avoid it—that is, doctrines that permit or require courts to dismiss a case based on its \"foreignness.\" Doing so helps to identify the particular concerns justifying this kind of avoidance and to evaluate them on their own terms. Second, the Article presents evidence of emerging foreign trends that increasingly (and surprisingly) permit traditionally American, plaintiff-friendly procedures, including higher damages awards, aggregate litigation, and third-party litigation financing. Third, the Article demonstrates that, particularly in light of these foreign trends, avoidance has failed to achieve its stated goals, and in many instances has undermined them. Finally, the Article suggests ways to refine avoidance doctrines to address these unintended consequences. Its more basic and urgent task, however, is to identify the growing phenomenon of litigation isolationism, highlight its perversities, and caution against its further expansion.
Journal Article
The Hague Conference Adopts a New Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters
On July 2, 2019, the Hague Conference on Private International Law (HCCH) adopted a new multilateral Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. When brought into force, the Convention will commit contracting states to recognize and enforce civil and commercial judgments rendered by the courts of other contracting states, and to do so without a substantive review of the merits of the underlying dispute.
Journal Article
COMPARING THE INTERNATIONAL COMMERCIAL COURTS OF CHINA WITH THE SINGAPORE INTERNATIONAL COMMERCIAL COURT
The article critically reviews the litigation framework of the Chinese International Commercial Court (‘CICC’) using a comparative approach, taking as a benchmark the Singapore International Commercial Court (‘SICC’)—another Asian international commercial court situated within the Belt and Road Initiative (‘BRI’) geography. It argues that the CICC, despite being lauded as a visionary step toward an innovative, efficient and trustworthy dispute resolution system, does not live up to those grand claims on closer scrutiny. The discussion shows that the CICC is in many respects insular and conservative when compared with the SICC. The distinctions between the two litigation frameworks may be explained by the differences in objectives. Whereas the SICC was created to compete for international judicial business and bolster Singapore as a leading dispute resolution hub, the CICC is presently designed to provide a legal safeguard in BRI disputes with Chinese elements. This article also identifies major challenges confronting the CICC and sets out proposals for change.
Journal Article
Foreign relations law: Chevron Corp. v. Donziger, Second Circuit upholds equitable relief from a foreign judgment under RICO
Foreign judgments, unlike domestic interstate judgments, are not entitled to full faith and credit under the Constitution. Rather, a plaintiff seeking to enforce a foreign judgment within the United States must first have it recognized by a domestic court. For years, foreign judgment recognition was governed under federal general common law. Since 'Erie Railroad Co. v. Tompkins' and 'Klaxon Co. v. Stentor Electric Manufacturing Co.,' however, foreign judgment recognition has been governed by state law.6 Commentators have questioned the wisdom of leaving recognition to the states. Some have called for the political branches to federalize judgment recognition law through statute or treaty. Others have argued that courts could treat judgment recognition as part of the federal common law of foreign relations. Now, the Second Circuit has pointed the way to another approach to federalization: adapting extant federal statutory law to serve recognition-related ends.
Journal Article
RESPECTFUL CONSIDERATION
In June 2018, the Supreme Court decided Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. and resolved a circuit split regarding the amount of deference courts must give to amicus briefs filed by foreign sovereign governments. The Court articulated a new standard of deference, “respectful consideration,” but did not take the opportunity to give weight or meaning to it. This Note argues that more must be done to develop the respectful consideration standard. Foreign governments unequivocally demonstrate their interest in a case when they file an amicus brief with a U.S. court. If a court comes to a determination contrary to foreign interests, this can have foreign policy effects that spread far beyond the litigation at hand. Even so, courts must decide the cases before them and resist misrepresentations or undue influence from foreign governments. A more structured respectful consideration standard would serve as a transparent and reliable method to bring together the competing interests that arise when foreign sovereigns participate in U.S. proceedings.
Journal Article
Consumer Protection Under the HCCH 2019 Judgments Convention
The Hague Conference on Private International Law has signed the Final Act of a new international convention designed to circumvent the usual obstacles to the international circulation of judgments. The 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters aims at mitigating uncertainties and risks associated with international trade and other civil relationships by setting forth a simple and safe system according to which foreign judgments can easily circulate from country to country. The purpose of this article is to record the historical moment of the negotiations that took place at The Hague Conference, as well as to pinpoint how consumer cases will be dealt with by the Convention, as regulated in Article 5(2).
Journal Article
Parochial Procedure
The federal courts are often accused of being too parochial, favoring U.S. parties over foreigners and U.S. law over relevant foreign or international law. According to what this Article terms the \"parochial critique,\" the courts' U.S.-centrism generates unnecessary friction with allies, regulatory conflict, and access-to-justice gaps. This parochialism is assumed to reflect the preferences of individual judges: persuade judges to like international law and transnational cases better, the standard story goes, and the courts will reach more cosmopolitan results. This Article challenges that assumption. I argue instead that parochial doctrines can develop even in the absence of parochial judges. Our sometimes-parochial procedure may be the unintended result of decisionmaking pressures that mount over time within poorly designed doctrines. As such, it reflects not so much the personal views of individual judges but the limits of institutional capacity, the realities of behavioral decisionmaking, and the path dependence of the common law. This Article shows how open-ended decisionmaking in the midst of complexity encourages the use of heuristics that tend to emphasize the local, the familiar, and the concrete. These decisionmaking shortcuts, by disfavoring the foreign, put a parochial thumb on the scale—but that tilt is not limited to individual cases. Rather, it is locked in and amplified through the accumulation of precedent, as later judges rely on existing decisions to resolve new cases. Over time, even judges with positive conceptions of international law and transnational order will find themselves, in applying these doctrines, consistently favoring U.S. litigants over foreigners and U.S. law over foreign or international law. To explore this theory, this Article traces the evolution of four procedural doctrines: discovery of foreign evidence, forum non conveniens, service of process abroad, and the recognition of foreign judgments. The decisionmaking pressures outlined here can explain why the first two doctrines (framed as open-ended standards) are often criticized as parochial while the latter two (framed in more rule-like terms) are not. And if that account is at least plausible, it supports the primary claim of this Article: the occasional parochialism of our courts does not necessarily reflect the personal prejudices of our judges. If so, then avoiding the costs of parochialism will require structural, not just personal, solutions.
Journal Article