Civil Procedure & Federal Courts Blog

Steinman on Delaney on Strategic Avoidance

Now running on the Courts Law section of JOTWELL is my essay, Comparative Avoidance. I review Erin Delaney’s recent article, Analyzing Avoidance: Judicial Strategy in Comparative Perspective, 66 Duke L.J. 1 (2016).

 

 

 

Dodge on International Comity

Bill Dodge has posted on SSRN a draft of his article, International Comity in American Law, which will be published in the Columbia Law Review. Here’s the abstract:

International comity is one of the principal foundations of U.S. foreign relations law. The doctrines of American law that mediate the relationship between the U.S. legal system and those of other nations are nearly all manifestations of international comity — from the conflict of laws to the presumption against extraterritoriality; from the recognition of foreign judgments to doctrines limiting adjudicative jurisdiction in international cases; and from a foreign government’s privilege of bringing suit in the U.S. courts to the doctrines of foreign sovereign immunity. Yet international comity remains poorly understood. This article provides the first comprehensive account of international comity in American law. It has three goals: (1) to offer a better definition of international comity and an analytic framework for thinking about its manifestations in American law; (2) to explain the relationship between international comity and international law; and (3) to challenge two widespread myths — that international comity doctrines must take the form of standards rather than rules and that international comity determinations should be left to the executive branch. I show that international comity doctrines are frequently expressed as rules rather than standards, and that courts are usually in a better position to apply them than the executive branch.

 

 

 

Wiessner on Mass Claims in the Context of Argentina's Debt Defaults

My colleague Siegfried Wiessner, Professor of Law and the Director of St. Thomas' Graduate Program in Intercultural Human Rights, has posted on SSRN his article Democratizing International Arbitration? Mass Claims Proceedings in Abaclat v. Argentina.  This is a fascinating account of the decision of the International Center for the Settlement of Investment Disputes to allow some 60,000 individual Italian bondholders to proceed against Argentina for its default on those bonds – the first mass claim presented before an ICSID tribunal.  In support of the ICSID's decision, Professor Wiessner surveys US class action practice, the European Union's collective redress mechanisms (including representative collective actions, group actions, and test cases), and International Mass Claims Commissions.

Abstract:     

Mass claims have been accepted, in principle, in the landmark 2011 ICSID Decision on Jurisdiction and Admissibility of Abaclat v. Argentina. Welcoming this development as providing novel access for the common man and woman to international investment arbitration, the author explores related streamlined procedures in domestic and international law -- such as class actions and international mass claims commissions as well as vanguard use of technology and statistical methods -- that allow the processing of a high number of claims arising from common factual and/or legal issues with a view toward elaborating rules and mechanisms tailor-made for the context of international arbitration.

International Court of Justice Conference: The ICJ in the Service of Peace and Justice

On Monday, September 23, 2013, the International Court of Justice (ICJ) will celebrate the Centenary of the Peace Palace with a conference that will consider the following four topics:

1.  A Century of International Justice and Prospects for the Future;

2. The International Court of Justice and the International Legal System;

3. The Role of the International Court of Justice for Enhancing the Rule of Law; and 

4. The International Court of Justice and the United Nations: Relationship of the ICJ with other UN Organs.  

A detailed conference agenda can be found here: http://www.icj-cij.org/presscom/files/4/17524.pdf.

And, information about how to view the conference either by live streaming or on-demand can be found  here: http://www.icj-cij.org/presscom/files/4/17534.pdf. 

 

Eisenberg, Fisher, and Rosen-Zvi on Loser-Pays Norm in Israeli Courts

Theodore Eisenberg, Talia Fisher, and Issachar Rosen-Zvi have posted on SSRN their paper, When Courts Determine Fees in a System with a Loser Pays Norm: Fee Award Denials to Winning Plaintiffs and Defendants.

Abstract:

Unlike the English rule governing court fees and costs, under which the loser pays litigation costs, and the American rule, under which each party pays its own costs, Israel vests in judges full discretion to assess fees and costs. Given concerns about both the English and American rules, and the absence of empirical information about how either functions, an empirical study of judicial fee award practices should be of general interest. We report evidence that Israeli judges apply multiple de facto fee systems: a nearly one way fee-shifting system that dominates in tort cases, a loser pays system that operates when publicly owned corporations litigate, and a loser pays system with discretion to deny fees in other cases. Although a loser pays norm dominates in Israel, with fees awarded in 80% of cases, Israeli judges often exercised their discretion to protect losing litigants, especially individuals, by denying fees. For individual plaintiffs and defendants, the denial rate exceeded 30% for defendants who prevailed against individuals and was about one-quarter for plaintiffs who prevailed against individuals. Judges protected individual plaintiffs against fee awards more than corporations. In cases lost by individual plaintiffs, fees were denied to successful defendants 29.9% of the time compared to denials in 18.0% of cases lost by corporate plaintiffs and 16.7% of cases lost by governmental plaintiffs. In cases lost by individual defendants, fees were denied to successful plaintiffs 22.7% of the time compared to 9.8% denials in cases lost by corporate defendants and 28.6% denials in cases lost by government defendants. In addition to varying by whether plaintiffs or defendants prevailed and by party status, the fee denial pattern varied by case category and judicial district. Theorizing about optimal fee rules should account for the variety of fee outcomes observed in practice.

PM

Conference: Human Rights Litigation in State Courts and Under State Law

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

RJE

Amann on Women at Nuremberg

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:

This essay reflects ongoing research that investigates women who played roles in war crimes trials at Nuremberg, Germany, and situates those women within the context of social developments during the post-World War II era. Based on an autumn 2009 presentation at the Third International Humanitarian Law Dialogs, the essay builds upon the “Women at Nuremberg” series posted at IntLawGrrls blog. The essay mentions women who were defendants, journalists, or witnesses; however, it focuses on some of the women, mostly Americans, who served as prosecutors at Nuremberg.

~clf

Rau on Primary Jurisdiction

Alan Scott Rau has posted Understanding (and Misunderstanding) "Primary Jurisdiction" to SSRN.

Abstract:     
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.

RJE

Grimmel on the Legacy of Rationalism in the European Court of Justice

Andreas Grimmel (Minda de Gunzburg Center for European Studies (CES); Harvard University; University of Hamburg) has posted "Judicial Interpretation or Judicial Activism?: The Legacy of Rationalism in the Studies of the European Court of Justice" on SSRN.

The abstract states:

During the last two decades, law as a factor in European integration has attracted great scientific interest. Numerous studies and theoretical analyses have been published which have undertaken the task of examining and explaining the role of law in the progress of integration. The European Court of Justice (ECJ) in particular, as Europe’s judiciary body, draws much attention in this context. However, the inflexible, mechanistic and universalistic notion of rationality that these works employ leads to serious misinterpretations and unjustified criticism regarding the role the ECJ takes in the course of integration. Within the frameworks of contemporary approaches the Court is perceived as just one more political player among other actors and institutions able to shape the EU in the pursuit of its own rational interests. By outlining the theoretical concept of context rationality, this article shows that the logics of law and judicial law making are based on a non-trivial and non-political rationality and cannot be understood appropriately without paying attention to the context of European law.

~clf

Varghese on Comparative Evaluation of Judicial Appointment Processes

Professor John Varghese (Government Law College, Kozhikode) has posted "Judicial Appointments--The Domain Game" on SSRN.  

The abstract states:

The judicial appointments and the say of higher judiciary in finding the suitable candidates for filling up vacancies in higher judiciary has till recently been considered as a normal administrative process. But with the judiciary in India starting to demand a say in the judicial appointments on the premise of upholding independence of judiciary, a fierce debate on who should control the process has erupted. This paper examines the comparative position in various countries on judicial appointments and tries to find out the principles evolved through experience of various countries in the process of judicial appointments.

~clf

Michael Bohlander on Recruitment of ICC Judges

Professor Michael Bohlander (Durham Law School) has posted "Pride & Prejudice or Sense and Sensibility? A Pragmatic Proposal for the Recruitment of Judges at the ICC and Other International Criminal Courts" on SSRN.  It is published in the New Criminal Law Review.

The abstract states:

Investigates the law and practice of recruitment of judges to international criminal courts and recommends the adoption of more stringent selection criteria and the establishment of proper training courses and a pool of adequate candidates.

~clf

Gelinas on Judicial Independence in Canada

Professor Fabien Gelinas (McGill University) has posted "Judicial Independence in Canada: A Critical Overview" on SSRN. It will be published in "Judicial Independence in Transition -- Strengthening the Rule of Law in the OSCE Region," Anja Seibert-Fohr, ed. (Max Planck Institute Series, "Beitraege zum Auslaendischen Oeffentlichen Recht und Voelkerrecht, Heidelberg: Springer, 2010).

The abstract states:

In Canada, judicial independence is broadly understood as a fundamental principle underlying the constitution. The specific norms that give life to this general principle form a highly complex patchwork of rules and practices which range from unwritten political understandings to constitutionally entrenched legal provisions. The complexity of this patchwork is partly a function of a federal structure having been superimposed onto pre-existing constitutional arrangements, the fundamentals of which are largely unwritten.

The source of judicial independence in Canada goes back to the understanding of that principle which took shape in the British constitutional tradition with the Act of Settlement of 1701. Its importance in the Canadian context has been a function of the special role played by the judiciary as an impartial arbiter of the federal system. Since the adoption of the Canadian Charter of Rights and Freedoms in 1982, the importance of judicial independence has been enhanced by a renewed role of the judiciary in the protection of individual rights and freedoms against intrusion by any organ of the state. 

The aim of this paper is to provide a critical overview of judicial independence in Canada in terms of both institutional structures and informal practices. The paper broadly follows a template suggested by the editor, but emphasizes the features which may appear useful as best practices or which may require attention as problem areas.

~clf

Legal Fees in Spain

Anna Gines i Fabrellas and Ignacio Marin Garcia have posted Who Pays the Legal Fees in the Spanish Justice System? A Comparative Analysis of Civil and Labour Jurisdictions to SSRN.

Abstract:     
This paper compares the legal fees rules in the first instance civil and labour courts in Spain. Governed by substantially different legal fees rules, the paper analyses their effects on the litigation level and the probability of settlement in order to depict an institutional design which favours settlement and avoids excessive litigation.

RJE

Vote of Egyptian Constitutional Court opens door for the appointment of women judges in Egypt

On Sunday, Egypt's Constitutional Court issued an opinion opening the door for the appointment of women judges in Egypt by reversing a previous decision by the General Assembly of State Council to exclude women from the judiciary.  The General Assembly had voted by an overwhelming majority in February to prohibit women from being given judicial appointments.  The Constitutional Court's decision came as a result of a "request for clarification" by Egyptian Prime Minister Ahmed Nazif.  The Constitutional Court voted that the general assembly did not have the power to decide the issue and that the decision about whether to appoint women judges is within the administrative committee's jurisdiction.

The administrative committee will take up the question next week.  If the administrative committee decides to approve women judicial candidates, then women would be eligible for judicial appointment by presidential decree following approval of the candidate by the administrative committee.

The Jordan Times reports about the Egyptian Constitutional Court's decision here.

~clf

Sheyn on Jury Trials in Ukraine

Elizabeth R. Sheyn has posted "A Foothold for Real Democracy in Eastern Europe: How Instituting Jury Trials in Ukraine Can Bring About Meaningful Governmental and Juridical Reforms and Can Help Spread These Reforms Across Eastern Europe" on SSRN.  The article is forthcoming in the Vanderbilt Journal of Transnational Law. 

The abstract states:

A dysfunctional judicial system in which bribes are welcome, rather than banned or frowned upon, is difficult to imagine, particularly in light of the prohibitions placed on such conduct in the United States. And yet just such a system is currently in place in Ukraine.

One of the factors likely contributing to the corrupt nature of Ukraine’s judiciary is the lack of a jury trial system; Ukraine has never had a single criminal or civil jury trial despite the fact that the right to a jury trial, at least in criminal cases, is guaranteed by its Constitution. This Article argues that Ukraine can and should make room for juries in its judicial system and provides a framework for both criminal and civil jury trial implementation. Although the use of juries will not remedy all the problems plaguing Ukraine, it can bring this country closer to achieving a truly democratic form of government. Additionally, other former Soviet Republics, especially those that closely resemble Ukraine in terms of their economic, political, and cultural characteristics, could learn and benefit from Ukraine’s example in this respect.

The implementation of jury trials in Ukraine is particularly important because this country, “once considered a worldwide symbol of an emerging, free-market democracy that had cast off authoritarianism, is teetering. And its predicament poses a real threat for other European economies and former Soviet republics.” Ukraine - widely considered “a linchpin for stability in Europe” - has a population of “46 million people and a highly strategic location a collapse in Ukraine could wreck what little investor confidence is left in Eastern Europe, whose formerly robust economies are being badly strained.” Further, governmental problems in Ukraine could “cause neighboring Russia, which has close ethnic and linguistic ties to eastern and southern Ukraine, to try to inject itself into the country’s affairs. What is more, the Kremlin would be able to hold up Ukraine as an example of what happens when former Soviet republics follow a Western model of free-market democracy.” Introducing a jury trial framework in Ukraine - particularly one that is more effective than that currently being used in Russia - will aid in the legitimization of the Ukrainian government and court system, thereby helping to stabilize the presently tumultuous relationship between Ukrainian citizens and their government.

~clf

Parau on Judicial Independence in Post-Communist Eastern Europe

Christina E. Parau (University of Oxford Centre for Socio-Legal Studies) has posted "Beyond Judicial Independence?  What Kind of Judiciary is Emerging in Post-Communist Eastern Europe?" on SSRN.

The abstract states:

The judiciary is a high-impact institution which affects social well-being as well as economic development. Following the fall of Communism, most of the countries in Central and Eastern Europe (CEE) undertook judicial reforms, spurred in part by the conditionality of accession to the EU. What have been the actual outcome(s) of these reform efforts? Have judiciaries in CEE remained subservient to the State, or have they come to exercise uncontrollable power, i.e. ‘supremacy’, over the democratically elected political powers? Has a third possibility, the co-equality of the judicial with the political branches, been seriously considered?

The argument is divided into a theoretical/normative and an empirical part. The theoretical part develops the typology about the relationships that can exist between the judiciary and the elected branches of government and their consequences. The empirical part examines in more detail the type of judiciary that has emerged in post-Communist Romania, assessing and explaining the major judicial reform of 2003-2004 which empowered the Constitutional Court; eliminated recurs in anulare, a mechanism which the Executive could have used to check and balance the judiciary; and greatly empowered and made autonomous the Judicial Council, the putative constitutional guardian of judicial independence. The evidence presented strongly suggest that a particular type of relationship between the judiciary and the other powers of government, which I have labelled 'vicious supremacism' is in process of taking root in the CEE. This outcome has been the result of both external pressures, especially exercised by the EU, and domestic motives.

~clf

New rules of Civil Procedure for Ontario courts

While those of us in the U.S. have been wringing our hands over the procedural reforms that both the Rules drafters and the Supreme Court have handed us over the past few years, our neighbors to the north have been busy crafting some new rules of their own.  These rules came into effect on January 1, 2010.

Three of these reforms are particularly interesting because they address perceived problems that have motivated reform here as well: lengthy and expensive discovery and role of the summary judgment procedure.

At summary judgment, a judge may now “weigh evidence, evaluate credibility, and draw inferences from the evidence  (Rule 20.04(2.1)) and can order oral evidence [mini-trial] with or without time limits (Rule 20.04(2.2).

On the discovery end, the rule addressing the general scope of discovery has changed from “relating to any matter in issue” to “relevant to any matter in issue,” (Rule 30.02(1)) thus narrowing the world of discoverable material.

The most interesting discovery reform is that Ontario has introduced a "proportionality" requirement in discovery, which I am reproducing in full:

Rule 29.2.03(1): In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,

(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;

(b) the expense associated with answering the question or producing the document would be unjustified;

(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;

(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

(e) the information or the document is readily available to the party requesting it from another source.

The full set of rules, annotated to show the 2010 reforms are available here and the Ministry of the Attorney General gives a nice online summary here.

RJE

Dyevre on European Integration and National Courts

Arthur Dyevre (CEPC) has posted "European Integration and National Courts--A Strategic Analysis of Judicial Behaviour" on SSRN in the Working Paper Series. 

The abstract states:

The present paper looks at the jurisprudence of national courts on the European law doctrines of supremacy and direct effect. Its central hypothesis is that national courts, supreme and constitutional courts in particular, try under the constraints of their institutional system to reconcile two conflicting goals: (1) the necessity to ensure the application and, hence, the supremacy of EU law on a daily basis as a direct and inevitable consequence of EU membership, and (2) the will to keep integration under control by preserving an at least hypothetical last word for the Member States and, thereby, the notion of national sovereignty. This hypothesis provides an explanation both for the overall equilibrium governing the relationship between the ECJ and national courts and for the variations in the way national judges have accommodated direct effect and EU law supremacy.

~clf

The UK's New Supreme Court

This past October, Britain's new Supreme Court kicked off its first term.  In the past, the UK's highest court was a group of "law lords" who were actually part of Parliament.  However, beginning on October 1, 2009, under the Constitutional Reform Act of 2005, the court was removed from Parliament and a new, independent Supreme Court was created.

The British Supreme Court does not have the same power of judicial review that the United States Supreme Court has--it may not strike down statutes as being unconstitutional--but separating the new Supreme Court from Parliament will provide additional independence and the new court has the power to declare that laws are incompatible with human rights norms, thus sending laws back to Parliament for refinement.

For some additional commentary on the new British Supreme Court, see this National Law Journal OpEd.

~clf

Civil Case regarding China Milk Scandal reaches China Court

A Chinese court is hearing the first civil case seeking damages for injuries suffered in connection with the China milk scandal.  The case, brought by a parent whose child became ill after consuming baby formula which contained the industrial chemical melamine, is seeking $8000 from a dairy group and a supermarket. The government has already ordered the payment of $161 million to the hundreds of thousands of families whose children became ill or died as a result of consuming the tainted milk. However, some of the families argue that this compensation is inadequate.  The Chinese court rejected an effort by the families to sue together as a group, and so far, six cases have been accepted by the courts.  

In addition to the civil litigation surrounding the tainted milk scandal, two people were executed in China last week for their alleged participation, and nineteen other people are in police custody in connection with the case. 

~clf