Comparative Method and International Litigation

Journal of Dispute Resolution, Forthcoming

U. of Pittsburgh Legal Studies Research Paper No. 2020-03

31 Pages Posted: 6 Feb 2020

Ronald A. Brand

University of Pittsburgh - School of Law

Date Written: February 4, 2020

Abstract

In this article, resulting from a presentation at the 2019 Annual Meeting of the American Society of Comparative Law, I apply comparative method to international litigation. I do so from the perspective of a U.S.-trained lawyer who has been involved for over 25 years in the negotiations that produced both the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. The law of jurisdiction and judgments recognition is probably most often taught in a litigation context. Nonetheless, that law has as much or more importance to the transaction planning lawyer as to the litigator, and affects my focus here for comparative study of developments both in the Hague Conference process and in national (and regional) legal systems during the negotiation of the two treaties with which I have been involved. I look not only at domestic law, but also at treaties and other international legal instruments–the comparative evolution of the law. Moreover, I look at both legal rules and legal systems, addressing the comparative evolution of the institutions that make the law. This includes a comparison of the most influential legal systems at the start of the Hague negotiations. The differences resulting from that comparison ultimately affected the focus of the negotiations and the text of the resulting legal instruments. I end with a set of four conclusions based on these observations and comparisons.

REFERÊNCIA
Brand, Ronald A. Comparative Method and International Litigation (February 4, 2020). Journal of Dispute Resolution, Forthcoming; U. of Pittsburgh Legal Studies Research Paper No. 2020-03. Disponível em: <https://ssrn.com/abstract=3532035>. Acesso em: 17 mail 2020.

The Circulation of Judgments Under the Draft Hague Judgments Convention

U. of Pittsburgh Legal Studies Research Paper No. 2019-02

36 Pages - Posted: 15 Feb 2019

Ronald A. Brand

University of Pittsburgh - School of Law

Date Written: February 14, 2019

Abstract

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 process, and will be key to the Convention’s acceptability to countries which might ratify or accede to any final Convention. An alternative approach to convention architecture, which would allow the test for judgment circulation to be built on as few as four rules, was considered and passed over in the earlier Working Group which preceded the Special Commission process. This article discusses the advantages and disadvantages of each of the 2018 draft Convention text as well as the alternative approach. It then suggests that, no matter which approach one considers to be better, the 2019 Diplomatic Conference should begin with an awareness of both options, and an understanding of the advantages and disadvantages of each, and move forward with a clear decision that the option chosen is the best alternative. Such consideration may (1) lead to the conclusion that the choices already made are the best for a multilateral treaty; (2) result in a determination that an alternative approach is a better option; or (3) demonstrate that one approach works best for some legal systems while another approach works best for other legal systems–leading to dual texts that could form the bases for differing bilateral and multilateral treaty relationships across the globe, while still improving the global framework for the recognition and enforcement of foreign judgments.

Referência:
Brand, Ronald A. The Circulation of Judgments Under the Draft Hague Judgments Convention (February 14, 2019). Un. of Pittsburgh Legal Studies Research Paper No. 2019-02. Disponível em: . Acesso em: 05 mar. 2019.