International Litigation and the Quest for Reasonableness: Essays in Private International Law

By Andreas F. Lowenfeld | Go to book overview

10
The Search for a Unifying Principle

It is evident that this group of essays makes no pretence to constituting a treatise, covering all the various aspects of private international law. But the effort has been to do more than merely present a collection of short stories, linked only by the annoying fact that the United States is a participant in nearly all of them. If this volume has been long (perhaps too long) on narrative and illustration, and short (perhaps too short) on doctrine, it has not been for want of a central theme. I do think that a common principle emerges from the various cases, episodes, and short stories here set out--the principle of reasonableness.


A. THE PRINCIPLE OF REASONABLENESS

Please note that this is not, as has sometimes been supposed, the same as the 'rule of reason' as it has been developed in American antitrust law as an alternative to per se liability.1 Reasonableness as the governing principle of private international law has a far wider scope. If we lived in the eighteenth century, we might call it Enlightenment. It invites questioning of mottos, maxims, axioms, and it rejects attitudes such as those of the House of Lords in Government of India v. Taylor,2 that we do not know how a rule came about or why, but it is a rule and we are surprised that anyone would want to change it. It encourages thinking, as in Asahi,3 about whether it makes sense to litigate a dispute between a Taiwanese tube maker and a Japanese valve maker in a California court, and it permits an answer to this question that would not exclude all judicial jurisdiction in an American court over the valve maker if it were the only solvent defendant available to compensate the injured plaintiff. In the debate about whether 'doing business' should be a basis for judicial jurisdiction, the principle of reasonableness prompts the question whether it is just to remit the Japanese widow to suit in Malaysia for the death of her husband, because he was killed on a domestic flight in that country and not on an international flight originating in Japan.

____________________
1
See, e.g., P. Areeda and D. Turner, Antitrust Law ( 1986), vii, ch. 15.
2
Ch. 6, sect. C(2).
3
Ch. 4, sect. E(2).

-228-

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