First Impressions of the Transnational Rules of Civil Procedure

Article excerpt

I. INTRODUCTION

As one deeply involved in international litigation, as both a practitioner and an academic, I welcome the courageous attempt to tackle that pillar of State ethnocentricism-- procedural rules-through the creation of the Transnational Rules of Civil Procedure ("the Rules"). Some commentators will undoubtedly consider this more a Utopian venture or worse, that it is an impossible and useless enterprise. On the contrary, although a sound and useful outcome will require cooperation and continual revisions, efforts toward uniformity in international litigation will reduce the cost and burden to all involved parties. The Rules reflect a recognition of the value in creating a uniform system of procedural rules to guide international litigation.

First, we must consider why so little has been achieved in the area of unification of procedural law. Limited effort has been devoted to, and therefore limited progress has been achieved in, the area of unification of procedural law.1 The Reporters to the Rules suggest that procedural laws traditionally are considered to be "deeply imbedded in local political history and cultural tradition."2 However, additional factors help explain the current state of affairs. Indeed, one reason for the rare attempt toward unification is the dismissive attitude of most civil lawyers toward procedural law-until fairly recently.

In university curricula substantive law received the lion's share of attention. Procedural law was taught only in the early years of legal education and was not taught again, apart from specialized professional courses. This was true under domestic law and international studies as well. Private international law classes spend three-quarters of the time on general theory and conflict of laws, leaving the remaining quarter for conflict of jurisdictions, immigration, and nationality.3

Within the past ten to fifteen years procedural law has come to be viewed as a strategy to achieve substantive goals. Therefore, international litigation has only recently achieved the complexity we witness now, thus justifying specific attention from authors, professors, and legislators at both domestic and international levels. Also, we must not overlook the fact that alternative private means of dispute resolution were not widely accepted by states as a proper substitute for national justice until the end of the 1980s. Now states are not only beginning to favor methods of alternative dispute resolution, but also to encourage them. This is yet another reason states have not attempted to unify all aspects of procedural law transnationally and may still be reluctant to embark upon further work in this area in the future. This attitude is changing.

Some procedural matters have been unified. Two major aspects of transnational procedure are successfully governed by Hague Conventions. The first is the Hague Convention of 15 November 1965 on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters.4 The second is the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters.5 With regard to issues not dealt with in the 1965 and 1970 Conventions, one must turn to the Convention of 1 March 1954 on Civil Procedure6 or the Convention of 25 October 1980 on International Access to Justice.7

Another major field currently undergoing unification is international jurisdiction and recognition and enforcement of foreign judgments.8 The Hague Conference on Private International Law has thus far conducted preparatory meetings toward unification in this area. The sessions will continue throughout 1998 and 1999, and a diplomatic session is scheduled for the fall of the year 2000. While it is obviously too early to make a prognosis on the outcome of this work, the negotiations are going well, and experts representing the participating countries show a fairly strong political will.

Several successful conventions in Europe must also be mentioned. …

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