Thursday, February 16, 2012
U.C. Irvine School of Law is hosting a conference entitled Human Rights Litigation in State Courts and Under State Law on Friday, March 2, 2012.
The panels look great:
9:00 a.m.-10:30 a.m. Panel 1
Human Rights Litigation in State Courts and Under State Law: The Experience So Far
- Michael Goldhaber
- Paul Hoffman
- Austen Parrish
- Moderator: Michael Robinson-Dorn
10:30 a.m.-10:45 a.m. Break
10:45 a.m.-12:15 p.m. Panel 2
Federalism and Foreign Relations Issues Raised by Human Rights Litigation in State Courts and Under State Law
- David Kaye
- Chimène Keitner
- Julian Ku
- Ed Swaine
- Moderator: Michael Ramsey
12:15 p.m.-1:30 p.m. Lunch
1:30 p.m.-3:00 p.m. Panel 3
Conflict of Laws and Doctrinal Issues in Human Rights Litigation in State Courts and Under State Law
- Patrick Borchers
- Anthony Colangelo
- Symeon Symeonides
- Moderator: Trey Childress
3:00 p.m.-3:15 p.m. Break
3:15 p.m.-4:45 p.m. Panel 4
The Future of Human Rights Litigation in State Courts and Under State Law
- Roger Alford
- Lee Crawford-Boyd
- Kristin Myles
- Beth Stephens
- Moderator: Chris Whytock
Monday, November 14, 2011
James Maxeiner (University of Baltimore) has recently published a book entitled Failures of American Civil Justice in International Perspective.
Civil justice in the United States is neither civil nor just. Instead it embodies a maxim that the American legal system is a paragon of legal process which assures its citizens a fair and equal treatment under the law. Long have critics recognized the system's failings while offering abundant criticism but few solutions. This book provides a comparative-critical introduction to civil justice systems in the United States, Germany, and Korea. It shows the shortcomings of the American system and compares them with German and Korean successes in implementing the rule of law. The author argues that these shortcomings could easily be fixed if the American legal systems were open to seeing how other legal systems' civil justice processes handle cases more efficiently and fairly. Far from being a treatise for specialists, this book is an introductory text for civil justice in the three aforementioned legal systems. It is intended to be accessible to people with a general knowledge of a modern legal system.
Saturday, November 5, 2011
The Faculty of Law at the University of New South Wales is holding a conference entitled “Dispute Resolution in the Next 40 Years – Repertoire or Revolution.” It’s part of UNSW Law’s 40th Anniversary celebrations and will take place in Sydney, Australia on December 1-2, 2011. From the brochure:
Dispute Resolution is adapting and developing in response to the demands of Australian society and the global community. A greater range of dispute resolution mechanisms have developed and courts have sought to improve and streamline their procedures.
UNSW Law's 40th Anniversary Conference Dispute Resolution in the Next 40 Years – Repertoire or Revolution examines how dispute resolution may develop in the future and what the ramifications of those developments may be. This important question is addressed by the keynote speakers Lord Justice Jackson, Lord Justice of Appeal, UK Court of Appeal and author of the UK “Review of Civil Litigation Costs” and The Hon Thomas F Bathurst, Chief Justice, Supreme Court of NSW.
The conference brings together an outstanding collection of internationally and nationally renowned thoughtleaders to address important practical questions such as the future role of the judge, matching dispute resolution processes with disputes, the provision of access to justice to multiple claimants through class actions, the role of lawyers in alternative dispute resolution processes, the future options for international dispute resolution and reform of civil procedure through international comparisons.
More information available here.
(Hat Tip: Michael Legg)
Monday, July 11, 2011
Hot on the heels of last week’s D.C. Circuit decision on corporate liability under the Alien Tort Statute, the Seventh Circuit issued a decision today in Flomo v. Firestone Natural Rubber Co. (No. 10-3675). The opinion by Judge Richard Posner begins:
This suit under the Alien Tort Statute, 28 U.S.C. § 1350, pits 23 Liberian children against the Firestone Natural Rubber Company, which operates a 118,000-acre rubber plantation in Liberia through a subsidiary; various Firestone affiliates and officers were also joined as defendants. . . . The plaintiffs charge Firestone with utilizing hazardous child labor on the plantation in violation of customary international law. The Alien Tort Statute confers on the federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The principal issues presented by the appeal are whether a corporation or any other entity that is not a natural person (the defendant is a limited liability company rather than a conventional business corporation) can be liable under the Alien Tort Statute, and, if so, whether the evidence presented by the plaintiffs created a triable issue of whether the defendant has violated “customary international law.”
(Hat Tip: Howard Bashman)
Friday, July 8, 2011
D.C. Circuit Decision in Doe v. Exxon Mobil: The Alien Tort Statute, Justiciability, Standing and More
Today the U.S. Court of Appeals for the D.C. Circuit handed down its decision in Doe v. Exxon Mobil Corp. (No. 09-7125). The panel splits 2-1, with Judge Rogers writing the 112-page Opinion for the Court (joined by Judge Tatel) and Judge Kavanaugh writing a 39-page dissent. The majority opinion begins:
Pursuant to a contract with the Indonesian government, Exxon Mobil Corporation, a United States corporation, and several of its wholly owned subsidiaries (hereinafter “Exxon”) operated a large natural gas extraction and processing facility in the Aceh province of Indonesia in 2000–2001. Plaintiffs-appellants are fifteen Indonesian villagers from the Aceh territory. Eleven villagers filed a complaint in 2001 alleging that Exxon’s security forces committed murder, torture, sexual assault, battery, and false imprisonment in violation of the Alien Tort Statute (“ATS”) and the Torture Victim Protection Act (“TVPA”), and various common law torts. (The Doe I complaint.) Four other Aceh villagers alleged in 2007 that Exxon committed various common law torts. (The Doe VIII complaint.) All plaintiffs-appellants allege that Exxon took actions both in the United States and at its facility in the Aceh province that resulted in their injuries. The district court dismissed the statutory claims, see Doe I v. Exxon Mobil Corp., 393 F. Supp. 2d 20 (D.D.C. 2005), and discovery proceeded on the tort claims. Those claims, however, were subsequently dismissed for lack of prudential standing. See Doe VIII v. Exxon Mobil Corp., 658 F. Supp. 2d 131 (D.D.C. 2009). Plaintiffs-appellants challenge the dismissals of their complaints and Exxon filed a cross-appeal, inter alia raising for the first time that as a corporation it was immune from liability under the ATS.
For the reasons that follow, we conclude that aiding and abetting liability is well established under the ATS. We further conclude under our precedent that this court should address Exxon’s contention on appeal of corporate immunity and, contrary to its view and that of the Second Circuit, we join the Eleventh Circuit in holding that neither the text, history, nor purpose of the ATS supports corporate immunity for torts based on heinous conduct allegedly committed by its agents in violation of the law of nations. We affirm the dismissal of the TVPA claims in view of recent precedent of this court. We conclude, however, that Exxon’s objections to justiciability are unpersuasive and that the district court erred in ruling that appellants lack prudential standing to bring their non-federal tort claims and in the choice of law determination.
Thursday, June 16, 2011
Proficient in Italian? Now on SSRN is an article by Professor Antonio Gidi (University of Houston), Twombly e Iqbal: Il Ruolo Della Civil Procedure Nello Scontro Politico-Ideologico Della Società Statunitense (Twombly and Iqbal: The Role of Civil Procedure in the Political and Ideological Battle in American Society). It was recently published in Int’l Lis (Int’l Lis 104 (2010) (Italy)). Here’s the abstract:
L’autore indaga le sentenze “Twombly” (2007) e “Iqbal” (2009) della Suprema Corte federale degli Stati Uniti sotto un angolo visuale socio-politico, mettendo in evidenza il pericolo di una loro lettura strettamente tecnico-processuale e storico-comparata.
Con il conoscimento della struttura processual-giudiziaria e anche della sua complessità sociale e politica dell’ordinamento statunitense, si puó mettere in risalto da un lato, la prevedibilità delle due sentenze “Twombly” e “Iqbal” nel quadro politico attuale degli Stati Uniti e dall’altro, le significative e preoccupanti conseguenze del nuovo orientamento della suprema giurisprudenza federale statunitense sulla tutela, nel processo, delle parti meno abbienti e socialmente più deboli.
The author analyses the “Twombly” (2007) and “Iqbal” (2009) decisions from a socio-political perspective, highlighting the danger of a merely technical-procedural and historical-comparative analysis.
Only an in-depth knowledge of U. S. procedural and judiciary system as well as of its social and political complexity, highlights on the one hand, the foreseeability of the “Twombly” and “Iqbal” decisions in the present U. S. political situation and on the other hand, the meaningful and worrisome consequences of the U. S. Supreme Court’s new trend on the judicial protection of the poor and the weak.
Thursday, June 9, 2011
Professor Tanya Monestier (Roger Williams University) has posted on SSRN a draft of her article, Transnational Class Actions and the Illusory Search for Res Judicata, which is forthcoming in the Tulane Law Review. Here’s the abstract:
The transnational class action – a class action in which a portion of the class consists of non-U.S. claimants – is here to stay. Defendants typically resist the certification of transnational class actions on the basis that such actions provide no assurance of finality for a defendant, as it will always be possible for a non-U.S. class member to initiate subsequent proceedings in a foreign court. In response to this concern, many U.S. courts will analyze whether the “home” courts of the foreign class members would accord res judicata effect to an eventual U.S. judgment prior to certifying a U.S. class action containing foreign class members. The more likely the foreign court is to recognize a U.S. class judgment, the more likely that an American court will include those foreigners in the U.S. class action.
Current scholarship accepts propriety of the res judicata analysis, but questions the manner in which the analysis is carried out. This Article breaks from the existing literature by arguing that the dynamics of class litigation render the res judicata effect of an eventual U.S. class judgment inherently unknowable to a U.S. court ex ante. In particular, I argue that certain “litigation dynamics” – specifically the process of proving foreign law via experts, the principle of party prosecution, and the litigation posture of the action – complicate the transnational class action landscape and prevent a court from accurately analyzing the res judicata issues at play. This is exacerbated by the “structural dynamics” of class litigation: the complexity of foreign law on the recognition and enforcement of judgments; the newness of class action law in most foreign countries; and the distinction between general and fact-specific grounds for non-enforcement of a U.S. class judgment. Accordingly, I argue that U.S. courts should abandon their illusory search for res judicata. Instead, courts should avoid the res judicata problem altogether by employing an opt-in mechanism for foreign class plaintiffs, whereby such plaintiffs are not bound unless they affirmatively undertake to be bound by U.S. class judgment. An opt-in mechanism for foreign plaintiffs also provides several advantages over the current opt-out mechanism: it allows all foreign claimants to participate in U.S. litigation if they so choose; it provides additional protections for absent foreign claimants; it respects international comity; and it sufficiently deters defendant misconduct.
Thursday, May 19, 2011
Decision of Interest: Ninth Circuit Finds Personal Jurisdiction Over DaimlerChrysler in U.S. Lawsuit Arising From Argentina's "Dirty War"
Yesterday the U.S. Court of Appeals for the Ninth Circuit issued its decision in Bauman v. Daimler Chrysler Corp., No. 07-15386, ___ F.3d ___, 2011 WL 1879210. The unanimous opinion, authored by Judge Stephen Reinhardt, rejected the argument that DaimlerChrysler was not subject to personal jurisdiction in California. It begins:
Plaintiffs-Appellants (the “plaintiffs”), twenty-two Argentinian residents, bring suit against DaimlerChrysler Aktiengesellschaft (DCAG) alleging that one of DCAG’s subsidiaries, Mercedes-Benz Argentina (MBA) collaborated with state security forces to kidnap, detain, torture, and kill the plaintiffs and/or their relatives during Argentina’s “Dirty War.” Some of the plaintiffs are themselves former employees of MBA and the victims of the kidnapping, detention, and torture, while others are close relatives of MBA workers who were “disappeared” and are presumed to have been murdered. The only question before us is whether the district court had personal jurisdiction over DCAG. The district court granted DCAG’s motion to dismiss the case for lack of such jurisdiction. We conclude, however, that DCAG was subject to personal jurisdiction in California through the contacts of its subsidiary Mercedes-Benz USA (MBUSA). We hold that MBUSA was DCAG’s agent, at least for personal jurisdictional purposes, and that exercise of personal jurisdiction was reasonable under the circumstances of this case. [footnotes omitted]
The Ninth Circuit had issued an opinion in the case two years ago (from which Judge Reinhardt dissented), 579 F.3d 1088, but that opinion was vacated following the plaintiffs’ petition for rehearing. 603 F.3d 1141.
Wednesday, May 4, 2011
Call for Papers and Proposals: "Border Skirmishes: The Intersection Between Litigation and International Commercial Arbitration"
From Professor S.I. Strong (Missouri) comes the following announcement:
Gary Born will give the keynote address at a symposium entitled “Border Skirmishes: The Intersection Between Litigation and International Commercial Arbitration,” to be convened at the University of Missouri School of Law on October 21, 2011. A works-in-progress conference and a student writing competition is being organized in association with this event, and the University of Missouri School of Law is issuing a call for papers and proposals.
- Proposals for the works-in-progress conference are due by May 20, 2011, with responses anticipated in mid-June. The works-in-progress conference will be held at the University of Missouri on October 20, 2011, the day before the symposium itself.
Tuesday, March 15, 2011
Professors Linda Sandstrom Simard (Suffolk) and Jay Tidmarsh (Notre Dame) have posted on SSRN a draft of their article Foreign Citizens in Transnational Class Actions, which will be published in the Cornell Law Review. Here's the abstract:
This Article addresses an increasingly important question: When, if ever, should foreign citizens be included as members of an American class action? The existing consensus holds that courts should exclude from class membership those foreign citizens whose country does not recognize an American class judgment. Our analysis begins by establishing that this consensus is flawed. Rather, to minimize the costs associated with relitigation in a foreign forum, we must distinguish between foreign claimants who are likely to commence a subsequent foreign proceeding from those who are unlikely to do so; distinguishing between those who come from recognizing and nonrecognizing countries creates needless inefficiency. Using standard tools of economic analysis, we examine the benefits and costs of the consensus rule and compare them to the costs and benefits of other possible rules. In this comparison, the consensus rule tends to perform poorly. As a matter of theory, the most efficient rule for deciding which foreign citizens to include and exclude is evident, but real-world informational constraints frustrate the application of this rule in practice. Because no rule regarding the inclusion and exclusion of foreign citizens is the most efficient in all situations, we propose that courts use rebuttable presumptions: include foreign citizens with claims that are not individually viable and exclude foreign citizens with claims that are viable.
Friday, February 18, 2011
Professor Donald Earl Childress III (Pepperdine) has posted on SSRN a draft of his article When Erie Goes International, which will be published in the Northwestern University Law Review. Here's the abstract:
This Article challenges the widely held belief that the Erie doctrine automatically applies in private international law cases – namely, cases where a United States federal court is asked by private litigants to apply foreign, non-United States law. Under the conventional understanding, the Erie doctrine not only requires federal courts to apply the law of the state in which the court sits but also to apply that state’s conflict-of-laws rules, even when those rules direct the court to apply the law of a foreign country. This Article argues that courts should question the mechanistic application of a doctrine announced in the 1930s (and updated to conflict of laws in the 1940s and 1970s) to the realities of private international litigation today, especially in light of more recent Supreme Court cases concerning constitutional constraints on choice of law. Among other findings, the Article provides empirical evidence uncovering a previously unrecognized connection in the scholarly literature: internationalizing the Erie doctrine may in part explain the increased use of the forum non conveniens doctrine by federal district courts. The Article also reframes the ongoing and contested scholarly debate between Professors Curtis Bradley, Jack Goldsmith, Harold Koh, and others regarding the application of Erie to customary international law in light of Erie’s application in private international law cases. The Article not only provides a new empirical and scholarly lens through which to view the international application of the Erie doctrine but also offers a suggested approach to be employed by courts when faced with such cases.
Thursday, October 28, 2010
Daniel Halberstam and Mathias Reimann (University of Michigan) have posted Federalism and Legal Unification: A Comparative Empirical Investigation of 20 Legal Systems to SSRN.
How and to what degree do federations produce uniform law within their system? Our comparative empirical study addresses this question comprehensively for the first time by examining legal unification in twenty federal systems around the world. We present the means and methods of legal unification, the degree of legal unification of each system (and of particular areas of the law within each system), and a first attempt to explain the driving forces of legal unity and diversity in federations more generally.
Monday, October 18, 2010
Erik S. Knutsen (Queens University Faculty of Law) has posted The Cost of Costs: The Unfortunate Deterence of Everyday Litigation in Canada to SSRN.
Costs today play a disproportionate role in many civil litigation decisions in Canada because of the inherent unpredictability built into the current overly complex costs system. Canada’s civil litigation system utilizes a fee shifting regime whereby an unsuccessful litigant must pay a proportion of the successful litigant’s legal fees. This costs system is designed to regulate litigation behaviour by deterring unmeritorious cases, by indemnifying successful litigants, by fostering efficient lawyer behaviour, by promoting settlement of disputes, and by ensuring access to the civil litigation system so that the cost of litigating is not out of reach for litigants. In today’s economy, however, the system is trying to do too much, and with too much at stake. The original system was put in place at a time when litigation costs were very often in reasonable proportion to the amount in dispute. Presently, the cost to litigate can quickly eclipse the value of what is at stake in the dispute. A summary judgment motion, for example, may cost upwards of the cost of a family vehicle for the average Canadian. In the minds of litigants and lawyers, unpredictable issues of legal costs often replace issues of substance at the heart of a litigated dispute. While the cost of civil litigation to an individual litigant has certainly increased over time, the increase is not due solely to the cost a litigant pays his or her own lawyer. An increase in the overall cost of litigation thus means an additional increase in costs the loser in a case must pay to the successful litigant, as well as to the loser’s own lawyer. If the loser is an average, middle-income earning Canadian litigating a standard contract or injury dispute, such a loss can be economically impossible to bear. Litigation costs through fee shifting have thus become a fundamental driving force in the Canadian civil litigation.
Courts in Canada exercise wide discretion in assessing costs through fee shifting and costs awards have become unpredictable as a result. This has led to an inability of litigants to ex ante predict their exposure to adverse cost awards. Risk averse litigants, especially those middle income Canadians with some financial exposure such as a house to lose, tend to shy away from the civil litigation system. This is how concern for costs can often eclipse the substantive rights being asserted in a particular case. Everyday litigants who are non-corporate individuals whose litigation costs are not covered by insurance cannot easily defray the financial burden of an adverse cost award. They are most likely to have cost concerns weigh heavily in the decision to advance a claim at all. However, should costs be driving litigation results? Should costs be driving access to the civil litigation system, particularly for the everyday litigants in Canada who have a house or modest savings to potentially lose?
Part I of this Article details how Canada’s fee shifting costs regime operates in a fashion to create a complex and unpredictable litigation dynamic. The Article explains the myriad of variables informing how legal costs are calculated in Canada and how lawyers, clients, and courts have difficulty in estimating financial exposure to such costs. In addition to the fee shifting system, the amount a litigant must pay her own lawyer plus Canada’s pre-trial settlement cost incentives also play large roles in how costs affect litigation decision-making in Canada. Part II of the Article attempts to define the everyday Canadian litigant who is most negatively affected by the current costs system because of an inability to internalize a negative costs award. The everyday litigant is in the most precarious position of potential litigants because costs drive a myriad of access to justice concerns for that group. Part III critically evaluates the costs landscape in Canada and concludes that costs, not the substantive legal claims of the litigants, are disproportionately driving the civil litigation system in Canada for everyday Canadian litigants. In short, costs have subsumed the substance of much Canadian litigation. This leads to not only over-deterrence of litigation in the name of settlement but to concerns about the ability of average Canadians to access the civil justice system for. Part IV evaluates possible fee regime models with an eye to informing modifications to Canada’s fee system. It recommends that Canada’s fee regime be reformed to allow for a hybrid, two-track approach. As a default, courts should adopt a one-sided pro-plaintiff fee shifting system as long as the defendant in litigation is able to somehow defray adverse cost awards through assets or insurance. If both plaintiff and defendant are litigants who cannot reasonably defray the cost of costs, a more American-style costs system of no fee shifting should govern. Settlement incentives should not be based on actual costs to litigate but instead should be a 10% uplift on final damages awarded at trial or settled. Part V concludes.
Monday, September 27, 2010
Professor Maximo Langer (UCLA School of Law) has posted "The Diplomacy of Universal Jurisdiction: The Regulating Role of the Political Branches in the Transnational Prosecution of International Crimes" on SSRN. It will be published in the American Journal of International Law.
The abstract states:
Tuesday, September 14, 2010
Professor Diane Marie Amann has posted "Portraits of Women at Nuremberg" on SSRN. It will be published in the American Society of International Law Journal.
The abstract states:
Thursday, September 9, 2010
Last week the D.C. Circuit refused to grant en banc rehearing of its decision in Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010). The denial of rehearing (available here) was accompanied by several statements by individual D.C. Circuit judges, including one from Judge Kavanaugh that opines on the relationship between Erie and international law. From Judge Kavanaugh’s statement (some citations omitted):
[I]n light of the Supreme Court’s 1938 decision in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), which established that there is no federal general common law, international-law norms are not enforceable in federal courts unless the political branches have incorporated the norms into domestic U.S. law. None of the international-law norms cited by Al-Bihani has been so incorporated into domestic U.S. law.
To be sure, there was a time when U.S. courts stated that customary international law was “part of our law” so that “where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators.” The Paquete Habana, 175 U.S. 677, 700 (1900). But that oft-quoted statement reflected the notion, common in the early years of the Nation but now discredited, that international law was part of the general common law that federal courts could apply.
But as decided by the Supreme Court in its landmark Erie decision in 1938, the view that federal courts may ascertain and enforce international-law norms as part of the general common law is fundamentally inconsistent with a proper understanding of the role of the Federal Judiciary in our constitutional system. In Erie, the Supreme Court famously held that there is no general common law enforceable by federal courts. Erie, 304 U.S. at 78. The Court said that “law in the sense in which courts speak of it today does not exist without some definite authority behind it.” Id. at 79 (quotation omitted). Erie means that, in our constitutional system of separated powers, federal courts may not enforce law that lacks a domestic sovereign source.
Judge Kavanaugh also writes that Erie overturned the so-called Charming Betsy canon, under which federal courts should construe ambiguous U.S. statutes to be consistent with international law: “[I]n the post-Erie era, the canon does not permit courts to alter their interpretation of federal statutes based on international-law norms that have not been incorporated into domestic U.S. law. Indeed, since Erie was decided, the Supreme Court has applied that canon only to support the presumption that a federal statute does not apply extraterritorially.”
(Hat Tip: Jonathan Hafetz)
Wednesday, September 1, 2010
Jakub Handrlica (Charles University in Prague - School of Law) has posted Exclusive Jurisdiction vs. Forum Shopping in European Nuclear Liability Law to SSRN.
Obviously, two rather contradictory principles regarding the jurisdiction are currently in force in the European Union. On one hand, the international nuclear liability conventions clearly follow the provisions of liability channelling and concentrate all proceedings to one court. On other hand, the Brussels I. Regulation obviously prefers to make the plaintiff possible to choose between submitting its claims by the court in the country where incident occurred and by the court in his home country. This paper aims to identify interfaces between these two contradictory principles with special attention to the possibility to enforce the judgments issued by courts of non-convention states (i.e. Austria, Ireland, Luxembourg) in those member countries, which are contracting parties either to the Paris or to the Vienna Convention.
Wednesday, August 25, 2010
Professor Gwynne Skinner (Willamette University College of Law) has posted "When Customary International Law Violations 'Arise Under the Laws of the United States'" on SSRN. It will be published in the Brooklyn Journal of International Law.
The abstract states:
Wednesday, August 18, 2010
Professor Jie Huang (Duke University School of Law; Shanghai Institute of Foreign Trade School of Law) has posted "Interregional Recognition and Enforcement of Civil and Commercial Judgments: Lessons for China from US and EU Laws" on SSRN. It will be published in the Journal of Private International Law.
The abstract states:
Tuesday, August 17, 2010
Alan Scott Rau has posted Understanding (and Misunderstanding) "Primary Jurisdiction" to SSRN.
In our “Westphalian” regime of international arbitration, conflict and competition between national jurisdictions, with overlapping and yet plausible claims to supervise the process, become inevitable. The conventional starting point for any discussion - the fulcrum around which the entire arbitral enterprise pivots - has been the supposed dichotomy between the state of the “seat” - where the arbitration finds its juridical “home,” and whose jurisdiction over the process is therefore “primary” - and all other states whose jurisdiction must therefore be deemed only “secondary.” Both legislation and Convention envisage an exclusive role for the former in setting the process in motion - for example, by appointing the arbitrators - and above all in monitoring compliance with the agreement - for example, by annulling or vacating the resulting award.
That the “seat” is the privileged starting point with respect to any allocation of judicial authority has traditionally been a simple reflection of the power of any sovereign over acts taking place within its “territory”; an alternative and perhaps more robust explanation would be somewhat more “contractualist,” giving priority to the parties’ exercise of autonomy in the very act of selecting the place of arbitration - and to the intuition that, by extension, they have presumptively chosen to subject themselves both to a certain body of “arbitration law,” and to the supervisory jurisdiction of the courts charged with applying that law.
I begin by canvassing the various fact patterns in which the traditional allocation of international competence on the basis of “primary” and “secondary” jurisdiction might possibly be thought useful: It has become, for example, the heuristic of choice to test the extraterritorial effect of an award, in circumstances where the agreement of the parties has subjected the arbitral process to a particular legal system whose own courts have found it lacking in legitimacy. All this is much controverted, but generally well understood.
The inevitable problem, though, is that none of this is a universal solvent - the world can after all be understood and patterned and divided up in all sorts of ways. What may have begun as a rough attempt to allocate responsibility over the unfolding of the process, has often been unthinkingly applied to all sorts of new and unexpected and inappropriate contexts.
Where, for example, a party has asked a court to enjoin an arbitration against him that has been threatened or initiated - perhaps on the fundamental ground that he has never even given his assent - American courts will increasingly hold that, whatever power they might have to enjoin a “local” arbitration, it would be “inconsistent with the purpose of the New York Convention” to enjoin arbitral proceedings in a state of “secondary jurisdiction” - and thus they “lack jurisdiction” to do so. Where a party has claimed that a foreign award has been obtained by bribery and corruption, and wishes to institute a “collateral attack” in this country through a RICO action, it may equally be held that the court lacks “subject matter jurisdiction” to reassess an award rendered in a state of “primary jurisdiction”; “under the framework of the New York Convention, the proper method of obtaining this relief is by moving to set aside or modify the award in a court of primary jurisdiction.”
American courts thus seem curiously mesmerized, when asked to deploy familiar procedural devices in aid of their nationals, by a rhetoric invented for quite different purposes. What purports in cases like these to be a commendable solicitude for the needs of international arbitration, takes the form of an abdication of any decision making power whatever, in favor of the courts of the seat. To invoke a putative lack of “power” based upon absolute prohibitions that supposedly emanate from the Convention seems a crude and clumsy and overbroad and irresponsible way of responding; even a legal system quite committed, for example, to the proposition that attempts to evade the arbitral process are likely to be quite without merit - or for that matter to the proposition that international neutrals cannot possibly be corrupt - need not shrink, on the prophylactic grounds of lack of jurisdiction, from testing any challenges.