1. Transnational Legal Practice and Private 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).
Private International Law is the body of conventions, model laws, legal guides, and other documents and instruments that regulate private relationships across national borders. E.g. Restatement (Third) on Foreign Relations / Conflict of Laws often applies in litigation [private int’l law in the U.S.].
Increasingly, these international commercial transactions and resulting disputes are resolved via international commercial arbitration, which I will explain briefly and identify resources for research at the end of this lecture.
Bilateral relationships (e.g. Canada-United States Free Trade Agreement); Multilateral Arrangements (GATT and the WTO); Supranational (EU/EC); and regional agreements (NAFTA/MERCOSUR).

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
1. The Hague Conference traces its origins to a 1893 conference convened by the Government of the Netherlands. Presently, work continues on a future convention on the recognition and enforcement of foreign judgments in civil and commercial matters (see website – “Works in Progress”).

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:
Note: In addition to conventions and similar instruments that are enacted at the int’l level by States, UNCITRAL furthers the harmonization of int’l trade law through the creation of model laws and legal guides that inform domestic legislative drafters (e.g. UNCITRAL’s Model Laws on the Procurement of Goods, Construction and Services with Guide to Enactment (1994) and the well-known UNCITRAL Arbitration rules
The “CLOUT” (Case Law on UNCITRAL Texts) database (see provides abstracts of court decisions involving UNCITRAL documents such as the CISG or the UNCITRAL Model Arbitration Law. Sample Search: “non-conforming goods” OR CISG in CO = Canada.
Status information about UNCITRAL Conventions are also available a the United Nations Treaty Collection ( under the “Multilateral Treaties Deposited with the Secretary-General” heading.

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
Today, UNIDROIT is an autonomous int’l organization.
This site includes information about UNIDROIT Conventions and other Protocols.
The “Principles” are the gen’l rules of commercial contract law adapted from various legal systems, and may be used by private parties as the law governing their contract, as a supplementary source to be used in conjunction with the CISG, and as a codification of lex mercatoria for arbitration. The Principles have spurred much scholarly commentary/debate since 1994 (date of their release) and a Working Group has begun work on a second version.
The website has links to the status information of conventions, as well as links to current projects. Show them UNILEX [database of Int’l caselaw & Bibliography related to UNIDROIT].

25. UNILEX (again not a UN org)
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 K D

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 K 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
1958 “New York” Convention on the Recognition and Enforcement of Foreign Arbitral Awards first recognized it as significant.
Int’l commercial arbitration can be “ad hoc” (conducted independently without an organization, according to the rules specified by the parties and their attorneys, e.g., pursuant to the UNCITRAL arbitration rules) or “institutional” – following the rules of arbitration promulgated by private organizations/major arbitration institutions such as the Int’l Chamber of Commerce (ICC), the American Arbitration Association (AAA), or the LCIA.
Essentially, “ad hoc” = arbitration conducted independently without an overarching organization; “institutional” = pursuant to the rules of an overarching organization.
The Harvard site has a good description of the processes of Int’l Commercial Arbitration.

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
**There is a proposed Hague Convention on Jurisdiction, Recognition, and Enforcement of Judgments in Civil and Commercial Matters, but a number of issues still remain unresolved in negotiations. For EU member countries, this problem has been addressed through the EC Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial matters.

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
OTHERS: Inter-American Convention on International Commercial Arbitration (Panama Convention); European Convention on International Commercial Arbitration, World Trade Organization’s GATT.
NOTE: print treaty compilations too----Oceana’s “International Commercial Arbitration” (K2400.P ). A very good loose-leaf series on this topic!

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)
***NOTE: The Int’l Arbitral Centre of the Austrian Fed’l Economic Chamber has gained a reputation for the arbitration of disputes involving parties from Central Europe.
Look at “Basic Documents” / “UNCITRAL”.
ICSID “Basic Documents, ICSID “Cases”, and ICSID Documents / Publications.
Look at “Documentation” Sources.
The LCIA website provides a good overview of the Arbitration process (useful links) and primary documents of arbitration procedure.
The “Rules / Procedures” Tab is especially helpful for Arbitration in all jurisdictions.
Good for more general / basic information about arbitration / Contact numbers for Int’l Arbitration.

39. Arbitration Rules
ICSID Rules of Arbitration/Conciliation -
LCIA Rules –
ICC Rules –
UNCITRAL Rules –
The Permanent Court of Arbitration / the American Arb. Association / IBA also have the rules within the context of their websites.
“Institutions, Rules & Laws” & “Practitioner’s Workshop” are especially helpful. [Also, Institutions & Rules---Alphabetical List is helpful].
NOTE: All Bodies have their own sets of arbitral rules. “UNCITRAL” site has a great Online Resources list for research.

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
***See handout on UN Commission’s “User Guide” for “CLOUT” database.

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:
Identify Lexis/Westlaw databases from Int’l Commercial Arbitration Research Guide from Lyonette Louis-Jacques.
LEXIS – “Int’l ADR” database is under “CPR Institute for Dispute Resolution.” [Find through research path of “ADR Tab”----- “Model ADR Practices & Procedures” “CPR Institute for Dispute Resolution.”
ADR with Forms, 2nd edition (written by Jay Grenig).

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