1. International Civil Litigation Procedure
General Introduction:
Conflict of Laws & Litigation Strategy

2. Overview Introduction Stages in a conflict case Pre-dispute provisions
Jurisdiction
Choice of law rules
The status of foreign law
International harmonization efforts

3. Revision Explain a relationship between an obligation and a contract?
Describe Agreement and its parts
What is a consideration in common law?
Capacity to contract – different kinds.
Explain a difference between legality of form and legality of purpose
When is the contract terminated?
What are main remedies in case of a breach of Contract?

4. 1. Introduction - International Civil Litigation
“Private international law” or“conflict of laws”
is a set of procedural rules that determines which law and jurisdiction are appropriate for a given dispute.
It shall be distinguished from“public international law”
which governs disputes between States or between a State and an international organization.
International Conflict of laws
arises when a legal dispute has a“foreign” element
Litigation - the process of taking legal actions.
International commercial litigation – a litigation which takes place in a court of the State of one or other of the disputing parties, or in a “neutral” third State

5. International Litigations
Litigation between states (for example, proceedings before the ICJ or the World Trade Organisation);
Temple of Preah Vihear (Cambodia v. Thailand)
Litigation between a State and an individual or corporation (for example, in a case before a human rights court, or an investor-state arbitration);
Proceedings in international criminal courts and tribunals;
Litigation before national courts concerning international law issues.
litigation of international commercial disputes before domestic courts

6. The common law and civil law divide
The common law doctrine of forum non conveniens, while aimed at litigation being conducted in the most appropriate forum
The civil law doctrine of lis pendens, where the court first seised of the matter has priority

7. Litigation risk
Cross-border trade, commerce and investment involve two principal species of risk: transaction risk and litigation risk.
the risk to each party that any dispute will not be resolved in their preferred forum. It is the risk that a claimant is prevented for suing in its preferred court, or that a defendant is forced to defend proceedings where it does not wish to do so
the risk that a judgment obtained in one court will be unenforceable elsewhere
businesses seek ways to reduce or altogether eliminate these risks through strategic decisions.

8. Litigation and arbitration
Commercial arbitration is a private form of binding dispute resolution, conducted before an impartial tribunal, which emanates from the agreement of the parties, but which is regulated and enforced by the State.

9. 2. Stages in a conflict case
Jurisdiction: the court must first decide whether it has jurisdiction and, if so, whether it is the appropriate venue for litigation.
Admissibility: the next step is the characterization of the cause of action to determine if the particular claims can be heard by the court.
Applicable law: the court must then decide which of the competing national laws is applicable to each legal category.
Evidence of applicable law: once the applicable law is decided, that law must be proven before the court and applied to reach a judgment.
Recognition and enforcement: the successful party must then enforce the judgment, which will first involve the objective of securing cross- border recognition.

10. 3. Pre-dispute provisions
Many contracts and other forms of legally binding agreement include:
a choice of law clause
a forum selection clause: jurisdiction or arbitration clause specifying the parties’ choice of venue for any litigation
Many countries have accepted that the principle of party autonomy allows the parties to select the law most appropriate to their transaction:
Europe: pursuant to article 3(1) of the EC Regulation 593/2008 of 17 June 2008 on the law applicable to contractual obligations (« Rome I  Regulation »), « a contract shall be governed by the law chosen by the parties »
U.S.: Section 187 of the Restatement (Second) of Conflict of Laws

11. 4. Jurisdiction
Jurisdiction rationae materiae: otherwise known as subject-matter jurisdiction refers to the court’s authority to decide a particular type of case. It is the jurisdiction over the nature of the case and the type of relief sought.
Jurisdiction rationae personae: jurisdiction ratione personae refers to a court’s power to bring a person into its adjudicative process – i.e. personal jurisdiction. It is the jurisdiction over a defendant’s personal rights, rather than merely over property interests.
Territorial Jurisdiction
Temporal Jurisdiction

12. Jurisdiction and admissibility?
Jurisdiction is about the scope of the tribunal’s authority, admissibility is about the particular case
Case is often inadmissible if is being investigated by another court
There was already a judgement on that case.

13. 5. Choice of law rules
Courts faced with a choice of law issue engage in a two-step process:
Procedural matters: the court will apply the law of the forum (lex fori)
Merits: the court generally considers the factors that connect or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection, e.g.:
the law of nationality (lex patriae) or domicile (lex domicilii) will generally define legal status and capacity
the law of the state in which land is situated (lex situs) will generally be applied to determine all questions of title
the law of the place where a transaction physically takes place or of the occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the matter is substantive

14. 6. The status of foreign law
Generally, when a given tribunal is to apply a foreign law, that law must be proved by foreign law experts, since the tribunal does not have expertise in the laws of foreign countries.
The issue of public order or public policy (ordre public):
Public order refers to mandatory rules from which private parties have no freedom to derogate and fundamental principles pertaining to public policy of a given state. It covers many areas such as antitrust regulations, labor law, criminal law etc.
Under French law, for example:
Article 6 of the Civil Code: “In private agreements, one cannot violate laws and regulation relating to public policy and moral.”
Article 1514 of the Civil Code: “Arbitral awards are recognized and enforced in France if they are evidenced by claimant and if such recognition or enforcement does not obviously violate international public order.”

15. 7. Harmonization efforts
It is generally recognized that a need exists for an international law of contracts
The Hague Conference on Private International Law is a treaty organization that oversees conventions designed to develop a uniform, cross- border system of private international law (
There are numerous international instruments in force aimed at harmonization, for example:
The Vienna Convention on the International Sale of Goods 
The United Nation Convention on the Assignment of Receivables in International Trade
The New-York Convention on the Recognition and Enforcement of Foreign Arbitral Awards
Several institutions work to produce international standards as the Internet and other technologies result in a growing number of interstate disputes:
United Nations Commission on International Trade Law (UNCITRAL):
UNIDROIT Principles of International Commercial Contracts:

16. 9. Course outline
This course will primarily focus on the following issues:
Jurisdiction issues :
Conflicts of law and jurisdiction under EC law
Jurisdictional clauses: choice of court agreement and arbitration clause
Jurisdiction: parallel procedures, forum non conveniens, anti-suit injunctions
“Sovereignty” limitations on the exercise of jurisdiction
Choice of law and the applicable law : which law is applicable to the dispute (procedurally and on the merits)
Transnational service and taking of evidence in civil & commercial matters
Recognition and enforcement of judgments:
Recognition and enforcement of judgments in Europe: general rules
Recognition and enforcement of awards
Sovereign litigation: immunity issues