The Forum Law Rule in International Litigation

Article excerpt

I. INTRODUCTION

The Transnational Rules of Civil Procedure drafted by Professors Geoffrey C. Hazard, Jr. and Michele Taruffo cover matters of personal jurisdiction (Article 3), injunctions (Article 8), service abroad (Article 9(b)), enforcement of foreign judgments (Article 32), and gathering of evidence (several articles).1 The most innovative aspect of this project is that it regulates the entire proceeding, from commencement of suit, through all phases of the judicial process (Articles 9-24), and concluding with final judgment and enforcement (Articles 25-31).2 No convention has included all of these matters; the Transnational Rules reflect an entirely different approach. This "mini-code" of international civil procedure could be adopted by different states, either through an international convention or by simply incorporating the Rules-which can be characterized as a model law-into their domestic legislation.

There already exists a rich set of regional and international conventions on international civil procedure, such as the various Hague Conventions,3 the Inter-American Conventions,4 the Brussels and Lugano Conventions,5 and the Bustamante Code.b These conventions govern five different fields: (1) jurisdiction; (2) service of process and other kinds of notices to be given; (3) recognition and enforcement of foreign judgments; (4) evidence to be obtained abroad; and (5) injunctions to be executed in a foreign jurisdiction. Some conventions deal with only one of these subjects, but most of them cover two or three. Two conventions even cover four of the above mentioned subjects.7

In this article we address a problem that has received very scant, or perhaps no, attention from legal theorists in the field of international litigation8-- namely, that imposing one's own procedural rules on proceedings to be conducted in a foreign jurisdiction may be neither correct nor practical. We suggest that the drafters of the Transnational Rules examine some of their rules in light of this problem.

In Part II we review the traditional and universal principle of procedural law that commands the application of lex fori (the law of forum) to all of the proceedings associated with any legal action in court. We explain the exceptions that apply when actions such as service of process or gathering of evidence are to be performed in other fora. These actions should be controlled by the law of that other forum, which we call lex diligentiae.9 This part also deals with lex causae (the law that is applied to the merits of the case) which will control certain aspects of the procedure.

In Part III we consider the special problem of obtaining evidence abroad. Depending on the circumstances, either lex fori, lex diligentiae, or lex causae will govern. Parts IV, V, and VI illustrate the functioning of lex diligentiae in treaty law, in comparative law, and in case law, respectively. The analysis of lex diligentiae in these different fields serves as the background for our main discussion of the Transnational Rules of Civil Procedure in Part VII. Part VIII concludes by expressing two criticisms of the definition of transnational legal disputes contained in the Transnational Rules.

II. THE LEX FORI RULE

The Law Governing Procedure

Traditionally, the law of the forum where the suit was commenced regulates all aspects related to the exercise of jurisdiction.10 The reason for this is that jurisdiction represents the exercise of one of the functions of sovereignty-ie., the power to apply existing law to concrete situations.11 Thus, it would make no sense if the exercise of jurisdiction by the authorities of one state were regulated by the law of a foreign state.

The exercise of jurisdiction is regulated by procedural law. Procedure is the judicial process for enforcing rights and duties recognized by substantive law and for justly administering redress for infractions.12 Procedure determines the method of filing a suit in court, of answering a suit, of collecting evidence, of deciding a case in court, and of enforcing a judgment. …