Archive for the ‘comparative law’ Category

Baumgartner on “Understanding the Obstacles to the Recognition and Enforcement of U.S. Judgments Abroad”

January 23, 2013

Samuel P. Baumgartner (University of Akron – School of Law) has posted “Understanding the Obstacles to the Recognition and Enforcement of U.S. Judgments Abroad”, New York University Journal of International Law and Politics (JILP), Vol. 44, 2013/U of Akron Legal Studies Research Paper No. 13-01. Here’s the abstract:

Questions of recognition and enforcement of foreign judgments have entered center stage. Recent empirical work suggests that there has been a marked increase in the frequency with which U.S. courts are asked to recognize and enforce foreign judgments. The U.S. litigation surrounding a multibillion-dollar Ecuadoran judgment against Chevron indicates that the stakes in some of these cases can be high indeed. This rising importance of questions of judgments recognition has not been lost on lawmakers. In November of 2011, the Subcommittee on Courts, Commercial and Administrative Law of the U.S. House of Representatives’ Judiciary Committee held hearings on whether to adopt federal legislation on the question of recognizing and enforcing foreign judgments in the United States. And at the Hague Conference of Private International Law, the project – begun in the 1990s and later shelved – to enter into a world-wide convention on the recognition of foreign judgments, has just been put on the agenda for further study.

In this Article, I focus on the major obstacles U.S. judgment holders have encountered abroad as a matter of foreign recognition doctrine and to analyze the reasons underlying those obstacles. This should help lawmakers and treaty negotiators better understand what sorts of problems U.S. judgments holders are likely to encounter and why. I propose that we distinguish those obstacles on the basis both of the purpose they are meant to serve and of the way in which they have developed. Thus, I submit that the doctrinal obstacles identified pursue three distinct purposes: the protection of the sovereignty of the recognition state; the protection of other public interests of the recognition state; and the protection of the party against whom the U.S. judgment is to be used from what the recognition state views as substandard legal norms or procedural treatment. I further suggest that we separate the doctrinal obstacles encountered by U.S. judgments holders abroad into two categories on the basis of how they have developed. The first category consists of doctrines that were set in place some time ago and that apply to all judgments from jurisdictions with which the relevant country does not have a recognition treaty, including the United States. The second category consists of slight changes to existing recognition doctrine that some foreign jurisdictions have adopted specifically in reaction to litigation in the United States. This second category has come about, I argue, through the operation of four factors: power politics, domestic legal and procedural culture, the preferences of groups and individuals inside and outside the state apparatus, and relevant information asymmetries.

A copy of the paper is available for download at SSRN here.

S.I. Strong, “Resolving Mass Legal Disputes Through Class Arbitration: The United States and Canada Compared”

December 6, 2011

 S.I. Strong (University of Missouri School of Law) has posted “Resolving Mass Legal Disputes Through Class Arbitration: The United States and Canada Compared”, North Carolina Journal of International Law and Commercial Regulation, forthcoming/University of Missouri School of Law Legal Studies Research Paper No. 2011-24.  The abstract reads:

Class arbitration is a dispute resolution device that takes certain procedures more commonly seen in judicial class actions and transplants them into arbitration. The mechanism is of great interest in North America right now, with both the U.S. Supreme Court and the Supreme Court of Canada having heard several relevant cases in the last few years.

Despite sharing a similarly liberal attitude toward both arbitration and judicial class actions, the two countries have taken different approaches to the question of class arbitration. However, neither nation has identified a completely satisfactory solution to the problems that arise when mass claims are asserted in the face of an arbitration agreement, suggesting that both states could benefit from a comparative analysis.

This Article compares three issues that have arisen as a result of recent Supreme Court decisions in both countries: the circumstances in which class arbitration is available; the procedures that must or may be used; and the nature of the right to proceed as a class. In so doing, the Article not only offers valuable lessons to parties in the U.S. and Canada, but also provides observers from other countries with a useful framework for considering issues relating to the intersection between collective relief and arbitration.

 The paper is available for download from SSRN here.

Dedek and Carbone, “Complexity of Transnational Sources: Reports to the XVIIIth International Congress of Comparative Law”

September 27, 2011

Helge Dedek (McGill University – Faculty of Law) and Alexandra Carbone, student-at-law (Osler Hoskin & Harcourt LLP) have posted “Complexity of Transnational Sources: Reports to the XVIIIth International Congress of Comparative Law”, ISAIDAT Law Review, Special Issue 3. The abstract reads:

In this report to the International Academy of Comparative Law, we describe the Canadian response to the transnational challenge while in particular focusing on the “complexity” of transnational law as one of its most challenging characteristics. Our inquiry is divided into two sections that address two different aspects of this complexity. First, we set out to find a trace of a specifically Canadian “legal culture” in response to the challenge that global legal pluralism poses to a legal discourse accustomed to thinking in terms of national positive law and national sovereignty; we will outline the reactions in academia, legal education, and the judiciary. Second, we turn to another, maybe less lofty aspect: the fact that the application of law is made technically more difficult by the proliferation of transnational legal sources. In this second section, we will outline the intricacies of the implementation of international instruments in Canadian law, and discuss the problematic repercussions of the technical complexification of law in core areas of private law, with a focus on the “plight” of the United Nations Convention on Contracts for the International Sale of Goods (CISG) in Canada.

A copy of the article is available for download on SSRN here.

Whytock and Quintanilla, “The New Multipolarity in Transnational Litigation: Foreign Courts, Foreign Judgments, and Foreign Law”

July 20, 2011

Christopher A. Whytock (University of California, Irvine, School of Law) and Marcus S. Quintanilla (O’Melveny & Myers LLP) have posted “The New Multipolarity in Transnational Litigation: Foreign Courts, Foreign Judgments, and Foreign Law”, Southwestern Journal of International Law, forthcoming. The abstract reads:

Conventional wisdom suggests that the transnational litigation system is essentially unipolar, or perhaps bipolar, with the United States and the United Kingdom acting as the leading providers of courts and law for transnational disputes. Our overarching conjecture is that this unipolar (or bipolar) era – if it ever existed at all – has passed, and that transnational litigation is entering an era of ever increasing multipolarity. If this intuition is correct, then it will be increasingly important for U.S. judges and lawyers to be comfortable handling a wide range of conflict-of-laws problems, and prepared to consult closely with their colleagues abroad.

In this Article – based on our remarks at the International Law Weekend-West Conference held at Southwestern Law School in February 2011 – we develop three aspects of this conjecture, corresponding to three dimensions of the new multipolarity in transnational litigation. In Part I, we discuss the growing relative importance of non-U.S. forums for transnational litigation. In Part II, we highlight the potential proliferation of foreign judgments brought to the United States for recognition or enforcement. And in Part III, we consider the pervasiveness of foreign law issues that are likely to confront U.S. judges and lawyers, and the accompanying challenges of making determinations of foreign law in the wake of the Seventh Circuit Court of Appeals’ recent decision in Bodum USA, Inc. v. La Cafetière, Inc.

A .pdf copy of the article may be downloaded from SSRN here.

Yanan Zhang, “Approaches to Resolving the International Documentary Letters of Credit Fraud Issue”

February 7, 2011

Yanan Zhang (University of Eastern Finland)  has published “Approaches to Resolving the International Documentary Letters of Credit Fraud Issue“, (Ph.D. Dissertation: Publications of the University of Eastern Finland, Social Sciences and Business Studies No. 15). Here is the abstract:

“The documentary letter of credit (L/C) is an important payment method and financial instrument in international trade. Two fundamental principles are independence and strict compliance. Its operation was standardised in UCP 600, which is used widely all over the world. However, the usage of L/C has been challenged by fraud. The approaches combine legal and business perspective.

The legal approach includes both criminal law approach and civil law approach. Fraud, as a crime, can be tackled under criminal law regime. The criminal legal remedy can be ineffective due to procedural problems between different jurisdictions. Fraud exception, as a judicial remedy to fraud in litigation, are examined under civil law regime.

The procedural instruments dealing with fraud exception are injunctions or stop-payment orders. We examine fraud exception rules in the UNCITRAL Convention at international level, and mainly in England and China at national level. With a comparative approach, we have found that the approach in China to fraud exception rules is to study different models in other countries and international rules, learn ideas from them, and then adapt them to its own context.

We claim that it is a phenomenon of legal transplant (a more proper term: legal adaptation), which is a common method of reforming law in China. Then we explore arbitration and other alternative methods for litigating international L/C fraud disputes. The research findings have shown that arbitration is possible, though several difficulties can occur in practice; the DOCDEX rules are not suitable for resolving L/C fraud disputes; negotiation or mediation is likely to be more effective when combined with some legal measures than being employed alone.

The final approach is a preventive and proactive approach, which is from business perspective. We have worked out several preventive measures for buyers, sellers, banks, and lawyers. Moreover, we have found that electronic L/C cannot totally protect L/C from the abuse of fraud.”

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