Transnational Legal Practice and Private International Law

n “all law which regulates actions or events that transcend national frontiers” n Resulted from the rise of international trade and commerce n Not necessarily a stand-alone research category but instead a process more attention paid to procedural aspects rather than substantive lawmore attention paid to procedural aspects rather than substantive law What is “transnational litigation”?

n US attorneys involved with transnational litigation most commonly work in one of the following areas: Drafting and/or enforcing contractsDrafting and/or enforcing contracts Foreign investment counselingForeign investment counseling International banking and financeInternational banking and finance International antitrustInternational antitrust International arbitrationInternational arbitration International tax planningInternational tax planning Trade lawTrade law

Example of a transnational issue: n 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!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 n Two step process to dealing with these issues: Identify procedural aspects and private international law concernsIdentify procedural aspects and private international law concerns –Forum –Service –Discovery –Local rules of civil procedure Identify applicable foreign lawsIdentify applicable foreign laws

International procedural issues n If the issue involves a US citizen or corporation, consult the State Dept’s collection of information n The Hague Convention has a number of treaties that provide guidance on international legal cooperation and litigation

Example #1 n 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?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 something related to litigation

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

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

What is private international law? n The body of international law that governs mainly commercial and business disputes among countries or private parties. n 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 n ASIL’s ERG for Private International Law n ASIL’s ERG for International Commercial Arbitration: n Globalex’s Guide to Harmonization of International Commercial Law cation_Harmonization.htmhttp:// cation_Harmonization.htm

Hague Conference on Private International Law and Conventions: n Active in development of conventions in various areas of private law (e.g. conflict of laws to inter-country adoption). n 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 conventionMost 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 n n work toward the harmonization of private international law. n has primary documents and status information about established int’l instruments (e.g. CISG) n CISG available at: n /uncitral_texts/sale_goods.html n g/text/treaty.html

Example #2 n 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”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 n 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 s/cisg.htmlhttp:// s/cisg.html n Also available on the Pace CISG site ml#ivhttp:// ml#iv n Abstracts/Decisions for UNCITRAL texts are available through the “CLOUT” database html html

Example #3 n 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-textAgain, retrieve Article 74 of the CISG using a link or another source for the full-text n Are there any cases that speak to this issue? Easiest way to locate cases that litigate a particular Article is to use UNCITRAL digestEasiest way to locate cases that litigate a particular Article is to use UNCITRAL digest

In the UNCITRAL 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

n 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 n n NOT a UN organization—preceded the UN, was a League of Nations initiative Difference between UNCITRAL and UNIDROIT explained here: between UNCITRAL and UNIDROIT explained here: n Best-known accomplishment is creating UNIDROIT Principles of International Commercial Contracts. n Website provides full text links to governing documents, current initiatives and legislative history of initiatives

UNILEX (again not a UN org) n 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 Contractsdatabase 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) n FDI Generally governed by bilateral treaties STEP 1: To determine if a country has a BIT with another country, check the ICSID’s listSTEP 1: To determine if a country has a BIT with another country, check the ICSID’s list – ype=ICSIDPublicationsRH&actionVal=ViewBilateral&re qFrom=Main STEP 2: To locate the text of a BIT, try the following:STEP 2: To locate the text of a BIT, try the following: –UNCTAD’s Investment Instrument database –Bilateral Investment Treaties (1995) Print only K D Print only K D

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

STEP 1 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

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

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

Foreign Investment n 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 jurisdictionsWill 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 n ICSID provides the full-text of selected cases and awards - ses.htm n 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 K I27Print K I27

Investment disputes – cont’d n 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 theseSUPER 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 elseAlso provides links to full text documents when available, including awards not reported anywhere else –Access through library catalog:

Int’l Commercial Arbitration n An important component of private international law n 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 supportAd-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 institutionInstitutional: 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 n Distrust of a foreign legal system by one or more parties n Avoid long delays in court systems n Resolution of dispute by someone w/expertise in a particular business n Exercise more control by specifying governing rules n Avoid problem of lack of international standard on the enforceability of foreign judgments

Major Arbitration Treaties n United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (New York Convention) Promoted by UNCITRALPromoted by UNCITRAL s/arbitration/NYConvention.htmlhttp:// s/arbitration/NYConvention.html n Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (Washington Convention) Maintained by the World BankMaintained by the World Bank ain.jsphttp://icsid.worldbank.org/ICSID/ICSID/RulesM ain.jsp

Major Arbitral Institutions n Permanent Court of Arbitration n Int’l Center for the Settlement of Investment Disputes n International Chamber of Commerce (ICC) n London Court of International Arbitration (LCIA) n American Arbitration Association (AAA)

Arbitration Rules n ICSID Rules of Arbitration/Conciliation - m. n LCIA Rules – BPrintable_versions.aspx n ICC Rules – n/other/rules_arb_english.pdf n UNCITRAL Rules – ex.htm.

Decisions/Awards n Extremely difficult to locate – most arbitral awards are confidential and are therefore never made publicly available n Best place to look is KluwerArbitration or ILM n 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

KluwerArbitration n 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 instrumentsTreaties and int’l instruments Court decisions and awardsCourt decisions and awards –Annotated digest of NY Convention articles National arbitration lawsNational arbitration laws Commentary (scholarly treatises and journals)Commentary (scholarly treatises and journals) n Access through library catalog: http://lawpac.lawnet.fordham.edu/search/o

Exercise #4 n 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?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?Are there any French cases that litigate this question?

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

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

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

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

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

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

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