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Full-Text Articles in Law

Servotronics, Inc. V. Rolls-Royce Plc And The Boeing Company: Brief Of Professor Yanbai Andrea Wang As Amicus Curiae In Support Of Neither Party, Yanbai Andrea Wang, Michael H. Mcginley May 2021

Servotronics, Inc. V. Rolls-Royce Plc And The Boeing Company: Brief Of Professor Yanbai Andrea Wang As Amicus Curiae In Support Of Neither Party, Yanbai Andrea Wang, Michael H. Mcginley

Faculty Scholarship at Penn Law

Rather than expressing a view on the issues raised and ably briefed by the parties, amicus submits this brief to inform the Court of the scholarly research she has conducted regarding Section 1782 proceedings since this Court’s seminal decision in Intel. As Section 1782 applications have proliferated, the lower courts have struggled to apply the Intel factors as this Court had envisioned. Especially in the context of Section 1782 applications submitted by parties to an international proceeding (as opposed to those made by the international tribunal itself), lower courts have frequently found themselves unable to analyze and apply the ...


Federal Rule 44.1: Foreign Law In U.S. Courts Today, Vivian Grosswald Curran Nov 2020

Federal Rule 44.1: Foreign Law In U.S. Courts Today, Vivian Grosswald Curran

Articles

This article presents an in-depth analysis of the latent methodological issues that are as much a cause of U.S. federal court avoidance of foreign law as are judicial difficulties in obtaining foreign legal materials and difficulties in understanding foreign legal orders and languages. It explores Rule 44.1’s inadvertent introduction of a civil-law method into a common-law framework, and the results that have ensued, including an incomplete transition of foreign law from being an issue of fact to becoming an issue of law. It addresses the ways in which courts obtain information about foreign law today, suggesting among ...


The Circulation Of Judgments Under The Draft Hague Judgments Convention, Ronald A. Brand Jan 2019

The Circulation Of Judgments Under The Draft Hague Judgments Convention, Ronald A. Brand

Articles

The 2018 draft of a Hague Judgments Convention adopts a framework based largely on what some have referred to as “jurisdictional filters.” Article 5(1) provides a list of thirteen authorized bases of indirect jurisdiction by which a foreign judgment is first tested. If one of these jurisdictional filters is satisfied, the resulting judgment is presumptively entitled to circulate under the convention, subject to a set of grounds for non-recognition that generally are consistent with existing practice in most legal systems. This basic architecture of the Convention has been assumed to be set from the start of the Special Commission ...


Whose Law Of Personal Jurisdiction? The Choice Of Law Problem In The Recognition Of Foreign Judgements, Tanya Monestier Oct 2016

Whose Law Of Personal Jurisdiction? The Choice Of Law Problem In The Recognition Of Foreign Judgements, Tanya Monestier

Law Faculty Scholarship

It is black-letter law that in order to recognize and enforce a foreign judgment, the rendering court must have had personal jurisdiction over the defendant. While the principle is clear, it is an open question as to whose law governs the question of personal jurisdiction: that of the rendering court or that of the recognizing court. In other words, is the foreign court's jurisdiction over the defendant governed by foreign law (the law of F1), domestic law (the law of F2), or some combination thereof? While courts have taken a number of different approaches, it seems that many courts ...


Rjr Nabisco And The Runaway Canon, Maggie Gardner Oct 2016

Rjr Nabisco And The Runaway Canon, Maggie Gardner

Cornell Law Faculty Publications

In last Term’s RJR Nabisco, Inc. v. European Community, the Court finished transforming the presumption against extraterritoriality from a tool meant to effectuate congressional intent into a tool for keeping Congress in check. In the hands of the RJR Nabisco majority, the presumption has become less a method for interpreting statutes than a pronouncement on the proper scope of access to U.S. courts, a pronouncement that Congress must labor to displace. Besides the worrisome implications for separation of powers, the majority’s opinion was also disappointing on practical grounds. By applying the presumption too aggressively, the Court missed ...


A Sour Battle In Lago Agrio And Beyond: The Metamorphosis Of Transnational Litigation And The Protection Of Collective Rights In Ecuador, Manuel A. Gomez Jan 2015

A Sour Battle In Lago Agrio And Beyond: The Metamorphosis Of Transnational Litigation And The Protection Of Collective Rights In Ecuador, Manuel A. Gomez

Faculty Publications

This article intends to explore the interplay between different dispute processing mechanisms and fora in the realm of transnational litigation, through the lens of the Chevron-Ecuador legal saga. My goal is to discuss the transformation of a transnational complex case and the challenges faced by the parties, their procedural strategies, and the perceived advantages of the different mechanisms. In this regard, I will also address the development of mechanisms for the protection of diffuse rights involving the environment; the role of the courts in supervising compliance with judicial remedies, their engagement in activities that go beyond their traditional role as ...


Litigation Isolationism, Pamela K. Bookman Jan 2015

Litigation Isolationism, Pamela K. Bookman

Faculty Scholarship

Over the past two decades, U.S. courts have pursued a studied avoidance of transnational litigation. The resulting litigation isolationism appears to be driven by courts’ desire to promote separation of powers, international comity, and the interests of defendants. This Article demonstrates, however, that this new kind of “avoidance” in fact frequently undermines not only these values but also other significant U.S. interests by continuing to interfere with foreign relations and driving plaintiffs to sue in foreign courts.

This Article offers four contributions: First, it focuses the conversation about transnational litigation on those doctrines designed to avoid it—that ...


Recognition And Enforcement Of Foreign Judgments In U.S. Courts: Problems And Possibilities, S. I. Strong Jan 2014

Recognition And Enforcement Of Foreign Judgments In U.S. Courts: Problems And Possibilities, S. I. Strong

Faculty Publications

The United States is currently facing a period of intense interest in transnational litigation. Not only has the U.S. Supreme Court become increasingly active in this field, but the American Law Institute (ALI) is also in the process of revising and drafting a number of Restatements concerning international law. The United States also recently signed The Hague Convention on Choice of Court Agreements (COCA), although the instrument has not yet been ratified.

The United States can and should reconsider U.S. law concerning the recognition and enforcement of foreign judgments immediately and unilaterally. Although this may appear to be ...


Understanding The Obstacles To The Recognition And Enforcement Of U.S. Judgments Abroad, Samuel P. Baumgartner Jan 2013

Understanding The Obstacles To The Recognition And Enforcement Of U.S. Judgments Abroad, Samuel P. Baumgartner

Akron Law Publications

Questions of recognition and enforcement of foreign judgments have entered center stage. Recent empirical work suggests that there has been a marked increase in the frequency with which U.S. courts are asked to recognize and enforce foreign judgments. The U.S. litigation surrounding a multibillion-dollar Ecuadoran judgment against Chevron indicates that the stakes in some of these cases can be high indeed. This rising importance of questions of judgments recognition has not been lost on lawmakers. In November of 2011, the Subcommittee on Courts, Commercial and Administrative Law of the U.S. House of Representatives’ Judiciary Committee held hearings ...


When Bad Guys Are Wearing White Hats, Catherine A. Rogers Jan 2013

When Bad Guys Are Wearing White Hats, Catherine A. Rogers

Journal Articles

Allegations of ethical misconduct by lawyers have all but completely overshadowed the substantive claims in the Chevron case. While both sides have been accused of flagrant wrongdoing, the charges against plaintiffs’ counsel appear to have captured more headlines and garnered more attention. The primary reason why the focus seems lopsided is that plaintiffs’ counsel were presumed to be the ones wearing white hats in this epic drama. This essay postulates that this seeming irony is not simply an example of personal ethical lapse, but in part tied to larger reasons why ethical violations are an occupational hazard for plaintiffs’ counsel ...


Changes In The European Union's Regime Of Recognizing And Enforcing Judgments And Transnational Litigation In The United States, Samuel P. Baumgartner Jan 2012

Changes In The European Union's Regime Of Recognizing And Enforcing Judgments And Transnational Litigation In The United States, Samuel P. Baumgartner

Akron Law Publications

The European Commission has proposed to amend (recast) the Brussels I Regulation, which governs jurisdiction to adjudicate, parallel proceedings, and judgments recognition within the European Union. Although much of the Brussels I Regulation is simply the 1968 Brussels Convention cast into European Union legislation, the proposed amendments are part of a deeper set of structural and conceptual changes in the law of transnational litigation within the Union over the past couple of decades. Understanding these changes is essential to understanding what drives the proposed amendments and what is likely to follow.

In this paper – presented at the symposium Our Courts ...


Forum Non Conveniens On Appeal: The Case For Interlocutory Review, Cassandra Burke Robertson Jan 2012

Forum Non Conveniens On Appeal: The Case For Interlocutory Review, Cassandra Burke Robertson

Faculty Publications

Court-access doctrine in transnational litigation is plagued by uncertainty. Without a national court-access policy, federal courts often reach inconsistent forum non conveniens decisions even on very similar facts. This inconsistency is compounded by the district court’s largely unreviewable discretion in making those forum-access decisions, which precludes effective resolution of these conflicts through the appellate process. As a result, the law underlying the forum non conveniens doctrine remains unsettled, creating systemic inefficiency both in litigation procedure and in regulatory policy.

This article, prepared for the symposium “Our Courts and the World: Transnational Litigation and Civil Procedure,” argues that expanding appellate ...


Toward A Law Of "Lovely Parting Gifts": Conditioning Forum Non Conveniens Dismissals, Thomas O. Main Jan 2012

Toward A Law Of "Lovely Parting Gifts": Conditioning Forum Non Conveniens Dismissals, Thomas O. Main

Scholarly Works

No abstract provided.


Access-To-Justice Analysis On A Due Process Platform, Ronald A. Brand Jan 2012

Access-To-Justice Analysis On A Due Process Platform, Ronald A. Brand

Articles

In their article, Forum Non Conveniens and The Enforcement of Foreign Judgments, Christopher Whytock and Cassandra Burke Robertson provide a wonderful ride through the landscape of the law of both forum non convenience and judgments recognition and enforcement. They explain doctrinal development and current case law clearly and efficiently, in a manner that educates, but does not overburden, the reader. Based upon that explanation, they then provide an analysis of both areas of the law and offer suggestions for change. Those suggestions, they tell us, are necessary to close the “transnational access-to-justice gap” that results from apparent differences between rules ...


The Impact Of Third-Party Financing On Transnational Litigation, Cassandra Burke Robertson Jan 2011

The Impact Of Third-Party Financing On Transnational Litigation, Cassandra Burke Robertson

Faculty Publications

Third-party litigation finance is a growing industry. The practice, also termed “litigation lending,” allows funders with no other connection to the lawsuit to invest in a plaintiff’s claim in exchange for a share of the ultimate recovery. Most funding agreements have focused on domestic litigation in Australia, the United Kingdom, and the United States. However, the industry is poised for growth worldwide, and the recent environmental lawsuit brought by Ecuadorian plaintiffs against Chevron demonstrates that litigation funding is also beginning to play a role in transnational litigation.

This article, prepared for a symposium on “International Law in Crisis,” speculates ...


Comparative Forum Non Conveniens And The Hague Judgments Convention, Ronald A. Brand Jan 2002

Comparative Forum Non Conveniens And The Hague Judgments Convention, Ronald A. Brand

Articles

This article begins with a discussion of the application of the forum non conveniens doctrine in four common law legal systems. It then briefly notes related concepts applied in the courts of two civil law systems. This discussion is followed in Part IV by a brief history of the negotiations at the Hague Conference on Private International Law for a Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters and a review of Articles 21 and 22 of the Interim Text of that Convention created at the June 2001 portion of the Diplomatic Conference. This review allows conclusions ...