This course covers the basic procedural problems that occur in disputes arising out of commercial transactions that cross national boundaries. The focus of the first half of the course is access to American courts by foreign litigants, jurisdiction over foreign defendants, parallel litigation, pleading and proof of foreign law, effecting service and obtaining evidence abroad (particularly in light of foreign blocking measures), transnational provisional relief, immunities and defenses (e.g., foreign sovereign immunity, sovereign compulsion, and act of state), international human rights litigation in US courts, and the enforcement of foreign judicial judgments. The second half of the course is devoted to all major aspects of international commercial arbitration including the U.S. and international law frameworks of arbitration, the conduct of international commercial arbitration, issues of international arbitral ethics, and the relationship between arbitral tribunals and courts. Occasional reference will be made throughout to the current ALI Restatement of the U.S. Law of International Arbitration, of which the instructor is chief reporter.
All these issues have planning, counseling and drafting implications: choice of law, choice of forum, waivers of immunities, litigation versus arbitration, arbitration agreements, etc. The course means to equip students to make various strategic decisions regarding the structuring of dispute resolution aspects of international transactions.
Since there is no single source of transnational litigation and arbitration law, we examine multiple sources: federal and state law, statute and common law, international treaties, Restatements, model or uniform laws, and of course party agreements.
Students who are without prior instruction in basic US civil procedure may want to avail themselves of an elementary book on US civil procedure as background.
The course does not systematically examine the conduct of transnational litigation or arbitration in other countries. But aspects of foreign comparative law will be considered for purposes of illuminating U.S. practice and policy.