Critique of the Hazard-Taruffo Transnational Rules of Civil Procedure^
Professors Hazard and Taruffo have drafted "Transnational Rules of Civil Procedure."1 The Rules define "transnational legal disputes" as disputes between parties of different nationalities or concerning property in one state claimed by a resident in another state.2 The concept of substituting these rules for the diverse rules of different nations in order to promote fairness and efficiency in litigating transnational disputes is intriguing and merits the attention accorded to it in this symposium.3
Part II of this article questions the need for such rules and the fairness to local litigants of displacing normal court procedures. Part III examines characteristics that make a forum conducive to fair international litigation and the extent to which procedural rules can assist in establishing these characteristics. The rest of the article suggests changes in the HazardTaruffo Rules. Part IV focuses on the Rules' treatment of personal jurisdiction. Part V discusses the Rules' choice-of-law provisions for evidentiary privileges and burden of proof. Part VI focuses on the Rules' sanctions for failure to comply with discovery orders. Part VII examines how the Rules limit pretrial discovery. The conclusion is that rather than displacing local procedure root and branch, fairness in international litigation is better served by improving, where needed, the quality of domestic adjudication.
II. ARE TRANSNATIONAL RULES A GOOD IDEA?
I question the need for transnational rules of civil procedure and doubt whether displacing the domestic regime is fair to litigants, particularly consumers. If the dispute is between contracting parties, they can achieve the aims of the Rules with a carefully drafted arbitration agreement. The parties can select the arbitrator or arbitrators in order to insure impartial, informed, and timely disposition of their disputes. In addition to the identity of the arbitrators, the parties can control what issues will be submitted to arbitration, the location, the language or languages for the proceedings, the choice of law, and, in as much detail as they wish, the draft procedures for the tribunal to follow.4 Moreover, arbitration awards are more easily enforced internationally than judgments. Except for regional conventions, in the European Union5 and the Organization of American States (OAS),6 there are no widely-ratified treaties facilitating the recognition and enforcement of judgments. By contrast, as of January 1, 1997, the United States was among 106 countries that had ratified the New York Arbitration Convention and among sixteen countries that had ratified the Panama Arbitration Convention.8
The Commentary on the Rules states that "[t]he Rules. . . particularly Rules 7 through 25, may be adopted or referenced in proceedings not otherwise governed by these Rules, particularly arbitration."9 There are already detailed procedures specifically designed for arbitration that the parties can incorporate by reference in their arbitration agreement.10 In addition, the Model Law on International Commercial Arbitration, adopted by the United Nations Commission on International Trade Law (UNCITRAL), serves as a checklist for the parties to use when drafting their own procedure.11
If the litigation is not between contracting parties but is, for example, a product liability suit by an injured user against a foreign manufacturer, requiring the user's attorney to master these new rules will add expense and inconvenience. Legal rules should no more deprive a user of the advantage of home-court procedures than deprive her of the ability to sue at home or to have a court apply the law of her domicile to determine her rights. The Brussels Convention protects a consumer against a forum-selection clause that purports to shift litigation from the consumer's domicile.12 The Rome Convention on the Law Applicable to Contractual Obligations protects a consumer from a choice-of-law clause that would deprive her of the protection afforded by the law of her habitual residence. …