Transnational Legal PracticeTransnational Legal Practiceandand

Private International LawPrivate International Law

““all law which regulates actions or all law which regulates actions or events that transcend national frontiers”events that transcend national frontiers”

Resulted from the rise of international Resulted from the rise of international trade and commercetrade and commerce

Not necessarily a stand-alone research Not necessarily a stand-alone research category but instead a processcategory but instead a process• more attention paid to procedural aspects more attention paid to procedural aspects

rather than substantive lawrather than substantive law

What is “transnational litigation”?What is “transnational litigation”?

What is “transnational litigation”?What is “transnational litigation”? US attorneys involved with transnational US attorneys involved with transnational

litigation most commonly work in one of litigation most commonly work in one of the following areas: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:Example of a transnational issue: A loan (in Euros) made in London and A loan (in Euros) made in London and

equity capital raised in Saudi Arabia may equity capital raised in Saudi Arabia may serve to finance a Sudanese sugar serve to finance a Sudanese sugar plantation that will be constructed by an plantation that will be constructed by an English contractor, equipped by a French English contractor, equipped by a French manufacturer, managed by an American manufacturer, managed by an American consultant, and whose production will be consultant, and whose production will be distributed throughout the world by a distributed throughout the world by a Japanese trading companyJapanese trading company• If you are US attorney, you have to know If you are US attorney, you have to know

applicable US laws, pertinent treaties, and a applicable US laws, pertinent treaties, and a solid grounding in the domestic laws of all the solid grounding in the domestic laws of all the above-mentioned countries!above-mentioned countries!

How to research transnational lawHow to research transnational law

Two step process to dealing with these Two step process to dealing with these issues:issues:• Identify procedural aspects and private Identify procedural aspects and private

international law concernsinternational law concerns– ForumForum– ServiceService– DiscoveryDiscovery– Local rules of civil procedureLocal rules of civil procedure

• Identify applicable foreign lawsIdentify applicable foreign laws

International procedural issuesInternational procedural issues

If the issue involves a US citizen or If the issue involves a US citizen or corporation, consult the State Dept’s corporation, consult the State Dept’s collection of informationcollection of information• http://travel.state.gov/law/law_1734.htmlhttp://travel.state.gov/law/law_1734.html

The Hague Convention has a number of The Hague Convention has a number of treaties that provide guidance on treaties that provide guidance on international legal cooperation and litigationinternational legal cooperation and litigation• http://www.hcch.net/index_en.php?http://www.hcch.net/index_en.php?

act=text.display&tid=10#litigationact=text.display&tid=10#litigation

Example #1Example #1 In the headache-inducing hypothetical a In the headache-inducing hypothetical a

few slides back, imagine that the French few slides back, imagine that the French manufacturer failed to deliver the manufacturer failed to deliver the equipment to the Sudanese plant on time equipment to the Sudanese plant on time and now the American consultant is and now the American consultant is blaming the English contractor. The blaming the English contractor. The contractor (in England) now wants to sue contractor (in England) now wants to sue the manufacturer (in France) for breach of the manufacturer (in France) for breach of contract.contract.• Would the parties be bound by Hague Would the parties be bound by Hague

convention rules on service? What about convention rules on service? What about rules on taking evidence?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?What is private international law? The body of international law that The body of international law that

governs mainly commercial and governs mainly commercial and business disputes among countries or business disputes among countries or private parties.private parties.

International jurisdiction through treaty International jurisdiction through treaty application or national courts apply application or national courts apply concepts of international law, depending concepts of international law, depending on the type of dispute (could be several on the type of dispute (could be several claims in one suit).claims in one suit).

Research guides in PILResearch guides in PIL ASIL’s ERG for Private International LawASIL’s ERG for Private International Law

• http://www.asil.org/pil1.cfmhttp://www.asil.org/pil1.cfm ASIL’s ERG for International Commercial ASIL’s ERG for International Commercial

Arbitration:Arbitration:• http://www.asil.org/arb1.cfmhttp://www.asil.org/arb1.cfm

Globalex’s Guide to Harmonization of Globalex’s Guide to Harmonization of International Commercial LawInternational Commercial Law• http://www.nyulawglobal.org/globalex/http://www.nyulawglobal.org/globalex/

Unification_Harmonization.htmUnification_Harmonization.htm

Hague Conference on Private Hague Conference on Private International Law and Conventions:International Law and Conventions:

Active in development of conventions in Active in development of conventions in various areas of private law (various areas of private law (e.g.e.g. conflict of conflict of laws to inter-country adoption).laws to inter-country adoption).• http://www.hcch.net/index_en.php.http://www.hcch.net/index_en.php.

Full-text conventions, status and Full-text conventions, status and bibliographic information, and explanatory bibliographic information, and explanatory reports, when availablereports, when available• Most useful are the status (where you can see Most useful are the status (where you can see

who is a party), and the background/interpretive who is a party), and the background/interpretive documents for each conventiondocuments for each convention

UNCITRAL – UN Commission for UNCITRAL – UN Commission for International Trade LawInternational Trade Law

http://www.uncitral.orghttp://www.uncitral.org work toward the harmonization of work toward the harmonization of

private international law.private international law. has primary documents and status has primary documents and status

information about established int’l information about established int’l instruments (e.g. CISG)instruments (e.g. CISG) CISG available at:CISG available at:

http://www.uncitral.org/uncitral/http://www.uncitral.org/uncitral/en/uncitral_texts/en/uncitral_texts/sale_goods.htmlsale_goods.html

http://www.cisg.law.pace.edu/http://www.cisg.law.pace.edu/cisg/text/treaty.htmlcisg/text/treaty.html

Example #2Example #2

What remedies may be available to the What remedies may be available to the English contractor under the CISG?English contractor under the CISG?• Retrieve a full-text version of the CISG, either Retrieve a full-text version of the CISG, either

using the links on the previous slide, or the using the links on the previous slide, or the official version from UNTS, and simply browse official version from UNTS, and simply browse the table of contents section for “remedies”the table of contents section for “remedies”– Alternatively, you can do a CTRL+F search for Alternatively, you can do a CTRL+F search for

“remedies” but be sure you understand what “remedies” but be sure you understand what section your hits fall under, as there may be section your hits fall under, as there may be different applications of “remedies” in the CISGdifferent applications of “remedies” in the CISG

How to Locate UNCITRAL decisionsHow to Locate UNCITRAL decisions

UNCITRAL Digest of case law on the United UNCITRAL Digest of case law on the United Nations Convention on the International Sales Nations Convention on the International Sales of Goods provides an Article-by-Article analysis of Goods provides an Article-by-Article analysis of the CISGof the CISG• http://www.uncitral.org/uncitral/en/case_law/http://www.uncitral.org/uncitral/en/case_law/

digests/cisg.htmldigests/cisg.html Also available on the Pace CISG siteAlso available on the Pace CISG site

• http://www.cisg.law.pace.edu/cisg/biblio/http://www.cisg.law.pace.edu/cisg/biblio/farns2.html#ivfarns2.html#iv

Abstracts/Decisions for UNCITRAL texts are Abstracts/Decisions for UNCITRAL texts are available through the “CLOUT” databaseavailable through the “CLOUT” database• http://www.uncitral.org/uncitral/en/http://www.uncitral.org/uncitral/en/

case_law.htmlcase_law.html

Example #3Example #3

If the contractor wanted to claim If the contractor wanted to claim damages under Article 74 of the CISG, damages under Article 74 of the CISG, who bears the burden of proof? who bears the burden of proof? • Again, retrieve Article 74 of the CISG using Again, retrieve Article 74 of the CISG using

a link or another source for the full-texta link or another source for the full-text Are there any cases that speak to this Are there any cases that speak to this

issue?issue?• Easiest way to locate cases that litigate a Easiest way to locate cases that litigate a

particular Article is to use UNCITRAL digestparticular 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

In this slide should be a record for Case In this slide should be a record for Case #345, but the site is apparently down #345, but the site is apparently down right now. If you were to get to it, you right now. If you were to get to it, you would have to determine if they had an would have to determine if they had an actual copy of the case itself, or if it was actual copy of the case itself, or if it was simply an abstract you would have to try simply an abstract you would have to try and locate a full text version of the case and locate a full text version of the case in that country’s official reporterin that country’s official reporter

UNIDROIT – Int’l Institute for UNIDROIT – Int’l Institute for the Unification of Private Lawthe Unification of Private Law

http://www.unidroit.orghttp://www.unidroit.org NOT a UN organization—preceded the NOT a UN organization—preceded the

UN, was a League of Nations initiativeUN, was a League of Nations initiative• Difference between UNCITRAL and Difference between UNCITRAL and

UNIDROIT explained here: UNIDROIT explained here: http://www.cisg.law.pace.edu/cisg/biblio/farns2http://www.cisg.law.pace.edu/cisg/biblio/farns2.html#iv.html#iv

Best-known accomplishment is creating Best-known accomplishment is creating UNIDROIT Principles of International UNIDROIT Principles of International Commercial Contracts.Commercial Contracts.

Website provides full text links to Website provides full text links to governing documents, current initiatives governing documents, current initiatives and legislative history of initiativesand legislative history of initiatives

UNILEX (again not a UN org)UNILEX (again not a UN org)

UNILEXUNILEX• http://www.unilex.infohttp://www.unilex.info• database of international case law and database of international case law and

bibliography on the United Nations bibliography on the United Nations Convention on Contracts for the Convention on Contracts for the International Sale of Goods (CISG) and on International Sale of Goods (CISG) and on the UNIDROIT Principles of International the UNIDROIT Principles of International Commercial ContractsCommercial Contracts

Foreign Investment (FDI)Foreign Investment (FDI) FDI Generally governed by bilateral treatiesFDI Generally governed by bilateral treaties

• STEP 1: To determine STEP 1: To determine ifif a country has a BIT with a country has a BIT with another country, check the ICSID’s listanother country, check the ICSID’s list

– http://icsid.worldbank.org/ICSID/FrontServlet?http://icsid.worldbank.org/ICSID/FrontServlet?requestType=ICSIDPublicationsRH&actionVal=ViewBilrequestType=ICSIDPublicationsRH&actionVal=ViewBilateral&reqFrom=Mainateral&reqFrom=Main

• STEP 2: To locate the text of a BIT, try the STEP 2: To locate the text of a BIT, try the following:following:

– UNCTAD’s Investment Instrument databaseUNCTAD’s Investment Instrument database• http://www.unctadxi.org/templates/docsearch____779.aspxhttp://www.unctadxi.org/templates/docsearch____779.aspx

– Bilateral Investment Treaties (1995)Bilateral Investment Treaties (1995)• Print only K3830.4 .D65 1995Print only K3830.4 .D65 1995

Exercise #4Exercise #4

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

STEP 1To 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 2To 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 InvestmentForeign Investment

In addition to locating BITs, it is In addition to locating BITs, it is necessary to also locate the domestic necessary to also locate the domestic law on investmentlaw on investment• Will discuss how to find domestic laws in a Will discuss how to find domestic laws in a

few weeks but one good compiled source few weeks but one good compiled source is Investment Laws of the World which is Investment Laws of the World which provides English translations of relevant provides English translations of relevant laws from a number of jurisdictionslaws from a number of jurisdictions– Print K1112 .A47 I59Print K1112 .A47 I59

Investment disputesInvestment disputes

ICSID provides the full-text of ICSID provides the full-text of selectedselected cases cases and awards - and awards - http://www.worldbank.org/icsid/cases/cases.hhttp://www.worldbank.org/icsid/cases/cases.htmtm

Official print reporter: ICSID Reports: Reports Official print reporter: ICSID Reports: Reports of Cases Decided under the Convention on of Cases Decided under the Convention on the Settlement of Investment Disputes the Settlement of Investment Disputes between States and Nationals of Other Statesbetween States and Nationals of Other States• Print K3829.23 .I27Print K3829.23 .I27

Investment disputes – cont’dInvestment disputes – cont’d Investment Arbitration ReporterInvestment Arbitration Reporter

• SUPER expensive database, can only be SUPER expensive database, can only be accessed on a desktop computer in the library, accessed on a desktop computer in the library, very useful in highlighting current disputes and very useful in highlighting current disputes and provides commentary and analysis of theseprovides commentary and analysis of these

• Also provides links to full text documents when Also provides links to full text documents when available, including awards not reported available, including awards not reported anywhere elseanywhere else– Access through library catalog: Access through library catalog:

http://lawpac.lawnet.fordham.edu/search/30366169http://lawpac.lawnet.fordham.edu/search/3036616922

Int’l Commercial Arbitration Int’l Commercial Arbitration An important component of private An important component of private

international lawinternational law Two types:Two types:

• Ad-hoc: a proceeding that is not Ad-hoc: a proceeding that is not administered by others and requires the administered by others and requires the parties to make their own arrangements for parties to make their own arrangements for selection of arbitrators and for designation of selection of arbitrators and for designation of rules, applicable law, procedures and rules, applicable law, procedures and administrative supportadministrative support

• Institutional: a specialized institution with a Institutional: a specialized institution with a permanent character intervenes and permanent character intervenes and assumes the functions of aiding and assumes the functions of aiding and administering the arbitral process, as administering the arbitral process, as according to the rules of that institutionaccording to the rules of that institution

Reasons for Choosing ArbitrationReasons for Choosing Arbitration

Distrust of a foreign legal system by one or Distrust of a foreign legal system by one or more partiesmore parties

Avoid long delays in court systemsAvoid long delays in court systems Resolution of dispute by someone Resolution of dispute by someone

w/expertise in a particular businessw/expertise in a particular business Exercise more control by specifying Exercise more control by specifying

governing rulesgoverning rules Avoid problem of lack of international Avoid problem of lack of international

standard on the enforceability of foreign standard on the enforceability of foreign judgments judgments

Major Arbitration Treaties Major Arbitration Treaties United Nations Convention on the United Nations Convention on the

Recognition and Enforcement of Foreign Recognition and Enforcement of Foreign Arbitral Awards of 1958 (New York Arbitral Awards of 1958 (New York Convention)Convention)• Promoted by UNCITRALPromoted by UNCITRAL• http://www.uncitral.org/uncitral/en/http://www.uncitral.org/uncitral/en/

uncitral_texts/arbitration/NYConvention.htmluncitral_texts/arbitration/NYConvention.html Convention on the Settlement of Convention on the Settlement of

Investment Disputes Between States and Investment Disputes Between States and Nationals of Other States (Washington Nationals of Other States (Washington Convention)Convention)• Maintained by the World BankMaintained by the World Bank• http://icsid.worldbank.org/ICSID/ICSID/http://icsid.worldbank.org/ICSID/ICSID/

RulesMain.jspRulesMain.jsp

Major Arbitral InstitutionsMajor Arbitral Institutions

Permanent Court of ArbitrationPermanent Court of Arbitration• http://www.pca-cpa.orghttp://www.pca-cpa.org

Int’l Center for the Settlement of Investment DisputesInt’l Center for the Settlement of Investment Disputes• http://www.worldbank.org/icsid/http://www.worldbank.org/icsid/

International Chamber of Commerce (ICC)International Chamber of Commerce (ICC)• http://www.iccwbo.org/index_court.asphttp://www.iccwbo.org/index_court.asp

London Court of International Arbitration (LCIA)London Court of International Arbitration (LCIA)• http://www.lcia-arbitration.com/lcia/lcia/index.htmhttp://www.lcia-arbitration.com/lcia/lcia/index.htm

American Arbitration Association (AAA)American Arbitration Association (AAA)• http://www.adr.org/index2.1.jsphttp://www.adr.org/index2.1.jsp

Arbitration Rules Arbitration Rules

ICSID Rules of Arbitration/Conciliation - ICSID Rules of Arbitration/Conciliation - http://www.worldbank.org/icsid/basicdoc/basicdoc.hthttp://www.worldbank.org/icsid/basicdoc/basicdoc.htm.m.

LCIA Rules – LCIA Rules – http://www.lcia.org/Dispute_Resolution_Services/ARhttp://www.lcia.org/Dispute_Resolution_Services/ARBPrintable_versions.aspxBPrintable_versions.aspx

ICC Rules – ICC Rules – http://www.iccwbo.org/uploadedFiles/Court/Arbitratiohttp://www.iccwbo.org/uploadedFiles/Court/Arbitration/other/rules_arb_english.pdfn/other/rules_arb_english.pdf

UNCITRAL Rules – UNCITRAL Rules – http://www.uncitral.org/english/texts/arbitration/adrindhttp://www.uncitral.org/english/texts/arbitration/adrindex.htm. ex.htm.

Decisions/Awards Decisions/Awards

Extremely difficult to locate – most arbitral Extremely difficult to locate – most arbitral awards are confidential and are therefore awards are confidential and are therefore never made publicly availablenever made publicly available

Best place to look is KluwerArbitration or ILMBest place to look is KluwerArbitration or ILM If you don’t have access to these, try the If you don’t have access to these, try the

Trans-Lex—allows you to locate arbitral Trans-Lex—allows you to locate arbitral awards in a variety of locations, as well as awards in a variety of locations, as well as articles and national laws on the topicarticles and national laws on the topic• http://www.trans-lex.orghttp://www.trans-lex.org

KluwerArbitrationKluwerArbitration One of the most comprehensive databases for One of the most comprehensive databases for

researching int’l arbitration (Kluwer is the big researching int’l arbitration (Kluwer is the big name in arbitration publishing), provides a name in arbitration publishing), provides a searchable database to locate summaries and full searchable database to locate summaries and full text versions oftext versions of• Treaties and int’l instrumentsTreaties and int’l instruments• Court decisions and awardsCourt decisions and awards

– Annotated digest of NY Convention articlesAnnotated digest of NY Convention articles

• National arbitration lawsNational arbitration laws• Commentary (scholarly treatises and journals) Commentary (scholarly treatises and journals)

Access through library catalog:Access through library catalog:• http://lawpac.lawnet.fordham.edu/search/o 58413765http://lawpac.lawnet.fordham.edu/search/o 58413765

Exercise #4Exercise #4 The English contractor and French The English contractor and French

manufacturer are now currently engaged in manufacturer are now currently engaged in arbitration, but the manufacturer is claiming arbitration, but the manufacturer is claiming that the English contractor never had an that the English contractor never had an “agreement in writing”“agreement in writing”• Which article under the NY Convention would Which article under the NY Convention would

govern this question?govern this question?– To locate this article, consult either a secondary To locate this article, consult either a secondary

source or the full text document (a link to an official source or the full text document (a link to an official copy can be found in slide #37). Answer is: Art. II.2 copy can be found in slide #37). Answer is: Art. II.2

• Are there any French cases that litigate this Are there any French cases that litigate this question?question?

OPTION 1To 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 2Use the “Advanced Search” function for

KluwerArbitration to search by topic, key number, jurisdiction, etc

Select the relevant

parameters—in this

example, I selected

jurisdiction=France, 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 resourcesOnline arbitration resources

LexisLexis• Int’l Arbitration: Mealy’s Litigation ReportInt’l Arbitration: Mealy’s Litigation Report

– Legal Legal >> Area of Law - By Topic  Area of Law - By Topic >> International International ArbitrationArbitration

WestlawWestlaw• More extensive coverage than LexisMore extensive coverage than Lexis• International Commercial Arbitration case International Commercial Arbitration case

database: ICA-CASESdatabase: ICA-CASES– However, most are US cases with no aspects of However, most are US cases with no aspects of

international arbitrationinternational arbitration