1. Transnational Litigation and Arbitration

2. Choice of forum forum selection clauses multiple fora w/o clause
US perceived as pro-plaintiff

3. US as forum
“As a moth is drawn to the light, so is a litigant drawn to the United States.” –Lord Denning
Why
contingent fees
punitive, multiple damages
jury trials in civil cases
broader discovery
no “loser pays” rule
unique causes of action
class actions

4. US as forum—more
Defendants sometimes stipulate to liability if US suit dismissed
But US not always best—e.g., UK for defamation
Expense—for small amounts, plaintiff may be better off at home

5. Strategies for forum choice
Exclusive forum selection clause
Non-exclusive clauses permit but don’t require a forum
Must have agreement, but clause can cover torts arising from agreement

6. Forum choice w/o selection clause
First-to-file
can be defendant seeking “negative declaration”
filing status not dispositive (a factor)
Move for forum non conveniens dismissal
mostly US law question
some assessment of foreign law

7. Attacking foreign forum
substantive law inadequate
procedures inadequate
political/social circumstances

8. Service
start w/ FRCP
look for treaty (Hague Convention where applicable)
State Department website = best source
letters rogatory/letters of request

9. Discovery --various scenarios
unilateral application of US rules abroad
request for judicial assistance from foreign authorities—Hague Convention on Taking of Evidence Abroad
letters rogatory (28 USC § 178)

10. Judgments no multinational agreement for US
usually pursue separate action for enforcement in foreign juris.
Martindale-Hubbell = great starting point

11. Researching international litigation
Fairly good resources
US law often applies or discusses
treatises
CLE materials (PLI, ALI-ABA)
State Department
Martindale-Hubbell

12. International Commercial Arbitration (ICA)
Why favored
distrust of foreign legal system
speed
resolution by expert in business
control of rules
awards easier to enforce
secrecy

13. Types of arbitration institutional vs. ad hoc
specialized vs. general purpose institutions
state vs. private parties

14. Institutions Big players now many others specialized or general ICC
LCIA
AAA
now many others
specialized or general

15. Enforcement bilateral investment treaties (BITs)
separate bilateral agreement
New York Convention on Recognition and Enforcement of Foreign Arbitral Awards
limits grounds for attack
most attorneys limit venues to signatory countries

16. Case Law on UNCITRAL Texts--CLOUT
Digest arranged by article number
Rule statement with citations
Most CLOUT cases are on non-conformity of goods

17. Researching arbitration
arbitration traditionally confidential
some awards available
Transnational Law Database
Kluwer subscription database
Lexis and Westlaw
ICSID
CLOUT
Gloria Miccioli’s ASIL guide: International Commercial Arbitration