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Transnational Legal Practice and 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

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Transnational Legal Practice and Private International Law

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    1. Transnational Legal PracticeandPrivate International Law

    2. 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

    3. 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

    4. 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!

    5. How to research transnational law • Two step process to dealing with these issues: • Identify procedural aspects and private international law concerns • Forum • Service • Discovery • Local rules of civil procedure • Identify applicable foreign laws

    6. 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 litigation •

    7. 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 contract. • Would the parties be bound by Hague convention rules on service? What about rules on taking evidence?

    8. 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 something related to litigation

    9. Browse the listing of Conventions available to locate the one most relevant to your issue—in this example, it’s “Service”—and click on the hyperlinked number

    10. 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”

    11. 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 “Ratification/Accession/ Succession” column. Then check the second country’s status

    12. 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).

    13. Research guides in PIL • ASIL’s ERG for Private International Law • • ASIL’s ERG for International Commercial Arbitration: • • Globalex’s Guide to Harmonization of International Commercial Law •

    14. 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

    15. 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: • •

    16. 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

    17. 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 •

    18. 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 issue? • Easiest way to locate cases that litigate a particular Article is to use UNCITRAL digest

    19. In the UNCITRAL Digest, simply select the CISG Article which you want to find case law on

    20. 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

    21. To retrieve a case mentioned in the Digest, or to locate additional cases involving the CISG, run a search in the CLOUT database

    22. 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

    23. 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

    24. 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

    25. UNILEX (again not a UN org) • UNILEX • • 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

    26. 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 following: • UNCTAD’s Investment Instrument database • • Bilateral Investment Treaties (1995) • Print only K3830.4 .D65 1995

    27. Exercise #4 • With whom does Ireland have a BIT with? Can you locate the full text of this treaty?

    28. STEP 1 To locate a BIT, start first with the ICSID listing to determine which countries have BITs with whom

    29. Results show that Ireland only has 1 BIT—it is with the Czech Republic, and it has been in force since 1997

    30. STEP 2 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

    31. 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 listed

    32. 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

    33. 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

    34. 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:

    35. 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

    36. 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 judgments

    37. Major Arbitration Treaties • United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (New York Convention) • Promoted by UNCITRAL • • Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (Washington Convention) • Maintained by the World Bank •

    38. 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) •

    39. Arbitration Rules • ICSID Rules of Arbitration/Conciliation - • LCIA Rules – • ICC Rules – • UNCITRAL Rules –

    40. Decisions/Awards • 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 •

    41. KluwerArbitration • 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: • 58413765

    42. 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 question?

    43. OPTION 1 To locate cases on the NY Convention, go to KluwerArbitration and select the “NY Convention Decisions” database which is essentially the “Digest” to the NY Convention

    44. Next, select the relevant Article you wish to locate cases on—in our case we are looking for Article II cases on “agreement in writing”. When I select Article II here, it brings up the text of the Article. To locate case law on Article II, select the tab for “case law”—you may have to change the tab to a different topic here

    45. 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

    46. OPTION 2 Use the “Advanced Search” function for KluwerArbitration to search by topic, key number, jurisdiction, etc

    47. Select the relevant parameters—in this example, I selected jurisdiction=France, Applied legislation=NY Convention, and then added “agreement in writing”

    48. There appear to be 4 cases from France which address the term “agreement in writing” under the NY Convention

    49. Online arbitration resources • Lexis • Int’l Arbitration: Mealy’s Litigation Report • Legal > Area of Law - By Topic > International Arbitration • Westlaw • More extensive coverage than Lexis • International Commercial Arbitration case database: ICA-CASES • However, most are US cases with no aspects of international arbitration