Preliminary Draft of the ALI Transnational Rules of Civil Procedure

Article excerpt

I. INTRODUCTION

It is gratifying that the Texas International Law Journal has published Preliminary Draft No. 1 of the American Law Institute project on Transnational Rules of Civil Procedure, together with commentaries by civil procedure experts from various parts of the world. This symposium continues a discussion of a legal problem that must be confronted in the years ahead, namely that of international "harmonization" of the rules governing judicial resolution of civil disputes, particularly those arising from international trade and finance.

This essay describes the genesis of the Transnational Rules project, the present stage of the drafting and deliberation process, and some of the basic problems that must be addressed in such a set of rules. In addressing these matters, I refer to "we." That term includes my colleague and co-reporter, Professor Michele Taruffo of the University of Pavia, Italy. More generally, the term "we" includes the American Law Institute, which has approved the project and is sponsoring its pursuit. Still more generally, the term includes the national and international advisers to that project and all those concerned with the international legal order-lawyers, judges, and legal academicians-who recognize the importance of the law of procedure in the agenda of harmonization of legal systems.

II. GENESIS OF THE PROJECT

The immediate initiative for the ALI project in Transnational Rules of Civil Procedure was a professional collaboration between Professor Taruffo and me that has now continued for more than a decade. At the inception of our collaboration Professor Taruffo had already become recognized as a leading thinker and author in the field of comparative civil procedure.1 Professor Taruffo was a student and professional protege of Professor Vittorio Dente, his predecessor in the Chair of Comparative Civil Procedure at the University of Pavia and a pioneer in the field of comparative procedural law. He has also done important scholarship in comparative jurisprudence.2 I had broad experience in U.S. civil procedure and related subjects,3 but limited acquaintance with foreign law. However, at Yale and other domestic law schools I had worked with several foreign students engaged in LL.M. and other graduate legal studies, and I have taught Comparative Civil Procedure at the University of Pennsylvania Law School.

The collaboration with Professor Taruffo began with my giving lectures in Pavia (in English) concerning certain fundamental legal concepts in U.S. civil procedure that we thought would be of interest in comparative analysis. A number of these lectures have been translated and published in Italian journals.4 The collaboration has continued with Professor Taruffo's visits to this country at Yale, Cornell, and Pennsylvania. It culminated in a book we wrote together on American civil procedure, which was published in Italian for a European audience, in English in this country (slightly revised), and in Japanese.5 These endeavors have been deeply interesting in themselves and have led us to think that perhaps there was more in common among procedural systems than had been generally supposed.

In this connection it is relevant to observe that both Professor Taruffo and I are strongly appreciative of law practice as well as legal theory. Both he and I, for example, practice law on the side as well as carrying forward our academic pursuits. We also noticed, what is an obvious fact, that law practitioners all over the world are handling international civil legal disputes. To be sure, these disputes are now adjudicated in national courts according to local national procedures with all their local differences. Moreover, disputes arising from international transactions are increasingly adjudicated in arbitration according to procedures having general similarity.6 However, representing clients in international legal disputes requires that practitioners conducting the litigation be able to explain procedural problems in terms intelligible at least to the lawyers representing those clients back home. …

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